HomeMy WebLinkAbout11-5324FILED-OFFICE
OF THE PROTtiotIO ARV
R. J. MARZELLA & ASSOCIATES, P.C. 211 JUN 28 PM 3'
BY: Robin J. Marzella, Esquire
Pennsylvania Supreme Court I.D. No. 66856 CUMBERLAND COUNT y
3513 North Front Street PENNSYLVANIA
Harrisburg, PA 17110
Telephone: (717) 234-7828 Attorney for
Facsimile: (717) 234-6883 Alfred Girondi, Jr., Individually
and as Administrator, for the
Estate of Eva Girondi
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
ALFRED GIRONDI, JR., DOCKET NUMBER: I I - S 3 l ??
INDIVIDUALLY AND AS
ADMINISTRATOR, FOR THE ESTATE
OF EVA GIRONDI
PLAINTIFFS
vs.
"JAMES HARTY, M.D.;
?vIANOR CARE OF CARLISLE PA LLC,
VMANOR HEALTHCARE CQU.,
dvIANRCARE HEALTH SERVICES
CARLISL?EALTH CARE AND
.,RETIREMENT CO"oRATION OF
AMEV" CA;`MANORRCARE OF
/AMEN ICA.INC., MANOR CASE INC.,
HCR MANOR CARE.INC., HCR
MANOR CARE;
DEFENDANTS
PROFESSIONAL MEDICAL
NEGLIGENCE
JURY TRIAL DEMANDED
PRAECIPE FOR WRIT OF SUMMONS
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TO THE PROTHONOTARY OF SAID COURT:
Please issue Writ of Summons for each of the Defendants listed below:
,Manor Care of Carlisle PA LLC., 940 Walnut Bottom Road, Carlisle, PA 17015
-Manor healthcare Corp, 940 Walnut Bottom Road, Carlisle, PA 17015
Manor Care Health Services Carlisle, 940 Walnut Bottom Road, Carlisle, PA 17015
Health Care and Retirement Corporation of America, 940 Walnut Bottom Road,
Carlisle, PA 17015
Manor Care of America Inc., 940 Walnut Bottom Road, Carlisle, PA 17015
Manor Care Inc., 940 Walnut Bottom Road, Carlisle, PA 17015
HCR Manor Care Inc., 940 Walnut Bottom Road, Carlisle, PA 17015
HCR Manor Care, 940 Walnut Bottom Road, Carlisle, PA 17015
James Harty, M.D.,1609 Buckingham Road, Harrisburg, PA 17111
9 Writ of Summons shall be issued and
Robin J. Marzella, Esquire
3513 North Front Street
Harrisburg, PA 17110
(717) 234-7828
Names/Address/Telephone No.
( ) Att"ney ( X ) Sheriff
preme Court 1"o. 66856
Date: Z$ "
WRIT OF SUMMONS
TO THE ABOVE NAMED DEFENDANTS:
YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF HAS COMMENCED
AN ACTION AGAINST YOU.
Date: ji
) Check here if reverse is used for additional information.
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Prothonotary
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Deputy
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BURNS WHITE LLC
By: William J. Mundy, Esquire
Identification No. 57679
By: John M. Skrocki, Esquire
Identification No. 49071
100 Four Falls, Suite 515
1001 Conshohocken State Road
West Conshohocken, PA 19428
(484) 567-5700
Attorneys for Defendants, Manor Care of Carlisle PA
LLC, Manor Healthcare Corp., Manorcare Health
Services Carlisle, Healthcare and Retirement
Corporation of America, Manor Care of America,
Inc., Manorcare, Inc., HCR Manor Care, Inc., and
HCR Manor Care
ALFRED GIRONDI, JR., INDIVIDUALLY
AND AS ADMINISTRATOR FOR THE
ESTATE OF EVA GIRONDI
Plaintiffs,
V.
JAMES HARTY, M.D.
MANOR CARE OF CARLISLE PA LLC
MANOR HEALTHCARE CORP.,
MANORCARE HEALTH SERVICES CARLISLE,
HEALTH CARE AND RETIREMENT
CORPORATION OF AMERICA, MANOR CARE OF
AMERICA, INC., MANORCARE INC., HCR
MANOR CARE, INC., HCR MANOR CARE
Defendants.
CUMBERLAND COUNTY
COURT OF COMMON PLEAS
: NO. 11-5324
Jury Trial Demanded
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ENTRY OF APPEARANCE
TO THE PROTHONOTARY:
Kindly enter our appearance as attorneys for the following defendants,
Manor Care of Carlisle PA LLC,
Manor Healthcare Corp.,
Manorcare Health Services Carlisle,
Healthcare and Retirement Corporation of America,
Manor Care of America, Inc.,
Manorcare, Inc.,
HCR Manor Care, Inc., and
HCR Manor Care
in the above matter.
BU S WHI LLC
t/ \
BY:
Jo M. Skrocki, Esquire
Date: July 20, 2011 A ornevs for Defendants
CERTIFICATE OF SERVICE
John M. Skrocki, Esquire, hereby certifies that a true and correct copy of the foregoing
Entry of Appearance has been served on counsel named below via Electronic Filing or U.S. First
Class Mail:
Robin J. Marzella, Esquire
R.J. Marzella & Associates, P.C.
3513 North Front Street
Harrisburg, PA 17110
a- a?
John Skrocki, Esquire
Date: July 20, 2011
SHERIFF'S OFFICE OF CUMBERLAND COUNTY
Ronny R Anderson
Sheriff FILED-OFFICE
o6,o%v u? `?r+nt?r f??f??? THE PRC 1 I. ONOT:'
Jody S Smith '?
Chief Deputy 2011 JUL 28 AM 8= 0
?'
Richard W Stewart
Solicitor CUMBERLAND CGUN'
PENNSYLVANIA
Alfred Girondi, Jr. Case Number
vs.
James Harty, MD (et al.) 2011-5324
SHERIFF'S RETURN OF SERVICE
06/29/2011 Ronny R. Anderson, Sheriff who being duly sworn according to law states that he made a diligent search
and inquiry for the within named defendant, to wit: James Harty, MD, but was unable to locate him in his
bailiwick. He therefore deputized the Sheriff of Dauphin County, Pennsylvania to serve the within Writ of
Summons according to law.
/07/08/2011 03:20 PM - Stephen Bender, Deputy Sheriff, who being duly sworn according to law, states that on July 8,
2011 at 1520 hours, he served a true copy of the within Writ of Summons, upon the within named
defendant, to wit: HCR Manor Care, Inc., by making known unto Joe Barrick, Director of HCR Manor
Care, Inc. at 1700 Market Street, Camp Hill, Cumberland County, Pennsylvania 17011 its contents and at
the same time handing to him personally the said true and correct copy of the same.
STEPHEN BENDER, DEPUTY
07/08/2011 03:20 PM - Stephen Bender, Deputy Sheriff, who being duly sworn according to law, states that on July 8,
2011 at 1520 hours, he served a true copy of the within Writ of Summons, upon the within named
defendant, to wit: HCR Manor Care, by making known unto Joe Barrick, Director of HCR Manor Care at
1700 Market Street, Camp Hill, Cumberland County, Pennsylvania 17011 its contents and at the same
time handing to him personally the said true and correct copy of the same.
2?&Z 9Z
STEPHEN BENDER, DEPUTY
07/0812011 03:20 PM - Stephen Bender, Deputy Sheriff, who being duly sworn according to law, states that on July 8,
2011 at 1520 hours, he served a true copy of the within Writ of Summons, upon the within named
defendant, to wit: Manor Healthcare Corp., by making known unto Joe Barrick, Director of Manor
Healthcare Corp. at 1700 Market Street, Camp Hill, Cumberland County, Pennsylvania 17011 its contents
and at the same time handing to him personally the said true and correct copy of the same.
S EPHEN BENDER, DEPUTY
07/08/2011 03:20 PM - Stephen Bender, Deputy Sheriff, who being duly sworn according to law, states that on July 8,
2011 at 1520 hours, he served a true copy of the within Writ of Summons, upon the within named
defendant, to wit: Health Care and Retirement Corporation of America, by making known unto Joe Barrick;
Director of Health Care and Retirement Corporation of America at 1700 Market Street, Camp Hill,
Cumberland County, Pennsylvania 17011 its contents and at the same time handing to him personally the
said true and correct copy of the same. 1
STEPHEN BENDER, DEPUTY
(Cj COurltySuite Shentf. TeIOGSOtl_ Inc
07/08/2011 03:20 PM - Stephen Bender, Deputy Sheriff, who being duly sworn according to law, states that on July 8,
2011 at 1520 hours, he served a true copy of the within Writ of Summons, upon the within named
defendant, to wit: Manor Care of Carlisle PA LLC, by making known unto Joe Barrick, Director of Manor
Care of Carlisle PA LLC at 1700 Market Street, Camp Hill, Cumberland County, Pennsylvania 17011 its
contents and at the same time handing to him personally the said true and correct copy of the same.
ST PHEN BENDER, DEPUTY
07/08/2011 03:20 PM - Stephen Bender, Deputy Sheriff, who being duly sworn according to law, states that on July 8,
2011 at 1520 hours, he served a true copy of the within Writ of Summons, upon the within named
defendant, to wit: Manor Care of America, Inc., by making known unto Joe Barrick, Director of Manor Care
of America, Inc. at 1700 Market Street, Camp Hill, Cumberland County, Pennsylvania 17011 its contents
and at the same time handing to him personally the said true and correct copy of the same.
STEPHEN BENDE , DEPUTY
07/08/2011 03:20 PM - Stephen Bender, Deputy Sheriff, who being duly sworn according to law, states that on July 8,
2011 at 1520 hours, he served a true copy of the within Writ of Summons, upon the within named
defendant, to wit: Manor Care, Inc., by making known unto Joe Barrick, Director of Manor Care, Inc. at
1700 Market Street, Camp Hill, Cumberland County, Pennsylvania 17011 its contents and at the same
time handing to him personally the said true and correct copy of the same.
zd7z &
STEPHEN ENDER, DEPUTY
07/08/2011 09:02 AM - Dauphin County Return: And now July 8, 2011 at 0902 hours I, Jack Lotwick, Sheriff of
Dauphin County, Pennsylvania, do hereby certify and return that I served a true copy of the within Writ of
Summons, upon the within named defendant, to wit: James Harty, MD by making known unto Cynthia
Harty, Wife of Defendant at 1609 Buckingham Road, Harrisburg, Pennsylvania 17111 its contents and at
the same time handing to her personally the said true and correct copy of the same.
07/08/2011 03:20 PM - Stephen Bender, Deputy Sheriff, who being duly sworn according to law, states that on July 8,
2011 at 1520 hours, he served a true copy of the within Writ of Summons, upon the within named
defendant, to wit: Manor Care Health Services Carlisle, by making known unto Joe Barrick, Director of
Manor Care Health Services Carlisle at 1700 Market Street, Camp Hill, Cumberland County, Pennsylvania
17011 its contents and at the same time handing to him personally the said true and correct copy of the
same.
SHERIFF COST: $186.00
July 21, 2011
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S PHEN ENDER, DEPUTY
SO ANSWERS,
RON R ANDERSON, SHERIFF
(Ci Ccu;-IiySuite Sheriff Telensoff hic.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
ALFRED GIRONDI, JR., Individually and as
Administrator for the Estate of EVA GIRONDI,
Deceased,
: Docket No. 11-5324
CIVIL ACTION - MEDICAL
PROFESSIONAL LIABILITY ACTION
Plaintiff
V.
: JURY TRIAL DEMANDED
JAMES HARTY, M.D., MANOR CARE OF -,
CARLISLE PA LLC, MANOR HEALTHCARE _. --i
CORP., MANORCARE HEALTH SERVICES r e.
- $
-
CARLISLE, HEALTH CARE AND RETIREMENT : r Vp
CORPORATION OF AMERICA, MANOR CARE co
--4 CJ
OF AMERICA INC., MANOR CARE INC., HCR
MANOR CARE INC., HCR MANOR CARE
r'7 7l
Defendants.
ENTRY OF APPEARANCE
To the Prothonotary:
Kindly enter the appearance of Stevens & Lee, P.C., Michael D. Pipa, Esquire and
Brandon R. Conrad, Esquire on behalf of Defendant James Harty, M.D., and serve all papers at
17 North Second Street, 16th Floor, Harrisburg, Pennsylvania, 17101.
STEVENS & LEE
Date: July 27, 2011 By:
Michael D. Pipa, Esqu e
Attorney I.D. No. 53624
Brandon R. Conrad, Esquire
Attorney I.D. No.
17 North Second Street, 16th Floor
Harrisburg, PA 17101
(717) 255-7376
(610) 371-7743 (facsimile)
mdp@stevenslee.com
brc@stevenslee.com
Counsel for Defendant James Harty, M.D.
S L 1 1088156v 1 /041199.00551
CERTIFICATE OF SERVICE
I, Michael D. Pipa, Esquire, certify that on this date, I served a certified true and correct
copy of the foregoing document upon the following counsel of record, by depositing the same in
the United States mail, postage prepaid, addressed as follows:
Robin J. Marzella, Esquire
R.J. Marzella & Associates, P.C.
3513 North Front Street
Harrisburg, PA 17110
Counsel for Plaintiff
William J. Mundy, Esquire
John M. Skrocki, Esquire
Burns White, LLC
100 Four Falls, Suite 515
1001 Conshohocken State Road
West Conshohocken, PA 19428
Counsel for Manoreare Defendants, et at.
Date: July 27, 2011
S LI 1088156v 1 /041199.0055] 2
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
ALFRED GIRONDI, JR., Individually and as
Administrator for the Estate of EVA GIRONDI,
Deceased,
Plaintift'
V.
JAMES HARTY, M.D., MANOR CARE OF
CARLISLE PA LLC, MANOR HEALTHCARE
CORP.. MANORCARE HEALTH SERVICES
CARLISLE, HEALTH CARE AND RETIREMENT :
CORPORATION OF AMERICA, MANOR CARE
OF AMERICA INC., MANOR CARE INC., HCR
MANOR CARE INC., HCR MANOR CARE
Defendants.
Docket No. 11-5 324
k¢ ry 12 P111 9: 30
1SEI~tL t U COUNT)
?'ENNSYI.VANIA
CIVIL ACTION - MEDICAL
PROFESSIONAL LIABILITY ACTION
JURY TRIAL DEMANDED
PRAECIPE FOR RULE TO FILE COMPLAINT
TO THE PROTHONOTARY:
Please enter a Rule upon Plaintiff in the above-captioned matter to file a
Complaint within twenty (20) days of the Rule or suffer a Judgment of non pros.
STEVENS & LEE
Date: March, 2012 By:
Michael D. Pipa, Esquire
Attorney I.D. No. 53624
Brandon R. Conrad, Esquire
Attorney I.D. No. 308249
17 North Second Street, 16th Floor
Harrisburg, PA 17101
(717) 255-7376
(610) 371-7743 (facsimile)
mdp@stevenslee.com
brc@stevenslee.com
Counsel for Defendant James Harty, M. D.
2
S1 1 1132 159x 1 041199.00551
CERTIFICATE OF SERVICE
I, Brandon R. Conrad, Esquire, certify that on this date, I served a certified true
and correct copy of the foregoing Praecipe upon the following counsel of record, by depositing
the same in the United States mail, postage prepaid, addressed as follows:
Robin J. Marzella, Esquire
R.J. Marzella & Associates, P.C.
3513 North Front Street
Harrisburg, PA 17110
William J. Mundy, Esquire
John M. Skrocki, Esquire
Burns White, LLC
100 hour Falls, Suite 515
1001 Conshohocken State Road
West Conshohocken, PA 19428
l
Date: March '2012 tv-,
Brandon R. Conrad, Esquire
SL 1 1 132159v 1 0-11199.00551
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
ALFRED GIRONDI, JR., Individually and as
Administrator for the Estate of EVA GIRONDI,
Deceased,
Plaintiff
Docket No. 11-5324
CIVIL ACTION - MEDICAL
PROFESSIONAL LIABILITY ACTION
: JURY TRIAL DEMANDED
JAMES HARTY, M.D., MANOR CARE OF
CARLISLE PA LLC, MANOR HEALTHCARE
CORP., MANORCARE HEALTH SERVICES
CARLISLE, HEALTH CARE AND RETIREMENT :
CORPORATION OF AMERICA, MANOR CARE
OF AMERICA INC., MANOR CARE INC., HCR
MANOR CARE INC., HCR MANOR CARE
Defendants.
RULE TO FILE COMPLAINT
AND NOW, on this c0 day of N,/C-A, 2012, a Rule has been entered
upon Plaintiff to file a Complaint within twenty (20) days of the Rule or suff°r a Judgment of
non pros.
Prothonotary
1
SL 1 1 1321590 041199.00551
F1LED-Ci FN04'
OF THE PROT'HCN;j iA
R. J. MARZELLA & ASSOCIATES, P.C.
BY: Robin J. Marzella, Esquire
Pennsylvania Supreme Court I.D. No. 66856
3513 North Front Street
Harrisburg, PA 17110
Telephone: (717) 234-7828
Facsimile: (717) 234-6883
2012 APR 18 PPS 3: 20
C? P NNSYLVAi A T
Attorney for
Alfred Girondi, Jr., Individually
and as Administrator, for the
Estate of Eva Girondi
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
ALFRED GIRONDI, JR.,
INDIVIDUALLY AND AS
ADMINISTRATOR, FOR THE ESTATE
OF EVA GIRONDI
DOCKET NUMBER: ? I' f)•3) . f
PLAINTIFFS
VS.
JAMES HARTY, M.D.;
MANOR CARE OF CARLISLE PA LLC,
MANOR HEALTHCARE CORP.,
MANORCARE HEALTH SERVICES
CARLISLE, HEALTH CARE AND
RETIREMENT CORPORATION OF
AMERICA, MANOR CARE OF
AMERICA INC., MANOR CARE INC.,
HCR MANOR CARE INC., HCR
MANOR CARE;
DEFENDANTS
PROFESSIONAL MEDICAL
NEGLIGENCE
JURY TRIAL DEMANDED
NOTICE TO DEFEND
YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims
set forth in the following pages, you must take action within twenty (20) days after this
Complaint and Notice are served, by entering a written appearance personally or by
attorney and filing in writing with the Court your defense 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 claim or relief requested by the Plaintiff.
You may lose money or property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU
DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE
THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL
HELP.
One Courthouse Square
Carlisle, PA 17013
(717) 240-6200
NOTICIA
LE HAN DEMANDADO A USTED EN LA CORTE. Si usted quiere defenderse
de estas demandas expuestas en las paginas siguientes, usted tiene veinte (20) dias de
plaza al partir de la fecha de la demanda y la notificaci6n. Usted debe presentar una
apariencia escrita o en persona o por abogado y archivar en la corte en forma escrita sus
defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si
usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin
previo aviso o notificaci6n y por cualquier queja o alivio que es pedido en la petici6n de
demanda. Usted pueda perder dinero o sus propiedades o otros derechos importantes
para usted.
LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTA. SI NO
TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL
SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA LFICINA CUYA
DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE
PEUDE CONSEGUIR ASISTENCIA LEGAL.
One Courthouse Square
Carlisle, PA 17013
(717) 240-6200
R. J. MARZELLA & ASSOCIATES, P.C.
BY: Robin J. Marzella, Esquire
Pennsylvania Supreme Court I.D. No. 66856
3513 North Front Street
Harrisburg, PA 17110
Telephone: (717) 234-7828
Facsimile: (717) 234-6883
Attorney for
Alfred Girondi, Jr., Individually
and as Administrator, for the
Estate of Eva Girondi
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA 2
ALFRED GIRONDI, JR., DOCKET NUMBER:
INDIVIDUALLY AND AS
ADMINISTRATOR, FOR THE ESTATE
OF EVA GIRONDI
PLAINTIFFS
vs.
JAMES HARTY, M.D.;
MANOR CARE OF CARLISLE PA LLC,
MANOR HEALTHCARE CORP.,
MANORCARE HEALTH SERVICES
CARLISLE, HEALTH CARE AND
RETIREMENT CORPORATION OF
AMERICA, MANOR CARE OF
AMERICA INC., MANOR CARE INC.,
HCR MANOR CARE INC., HCR
MANOR CARE;
DEFENDANTS
PROFESSIONAL MEDICAL
NEGLIGENCE
JURY TRIAL DEMANDED
COMPLAINT
1. Alfred J. Girondi, Jr., is the son of the late Eva R. Girondi, deceased, and
at all relevant times herein resided at 1440 Amherst Court, Mechanicsburg,
Pennsylvania.
2. Alfred J. Girondi, Jr. was appointed the Executor of Eva R. Girondi's
Estate by the Register of Wills of Cumberland County on or about February 19, 2010 (a
copy of the Short Certificate is attached hereto).
3. In addition to being named in Mrs. Girondi's Will as the Executor of her
Estate, Mrs. Girondi executed a healthcare Power of Attorney giving Alfred Girondi the
authority and power to make medical decisions on her behalf.
4. Alfred Girondi provided a copy of the aforementioned Power of Attorney
upon admission to each and every hospital, including the Defendant facility.
5. James Harty, M.D. (hereinafter Defendant Harty), an adult individual, is a
medical doctor who is licensed to practice medicine in the Commonwealth of
Pennsylvania and who at all relevant times herein did engage in the practice of internal
medicine in Mechanicsburg, Cumberland County, Pennsylvania.
6. Manorcare of Carlisle, PA, LLC (hereinafter Defendant Facility) was at all
relevant times, a corporate medical institution with its principal place of business at
941 Walnut Bottom Road, Carlisle, Cumberland County, Pennsylvania, 17015.
7. Manor Healthcare Corporation (hereinafter Defendant Facility) was at all
relevant times, a corporate medical institution with its principal place of business at
941 Walnut Bottom Road, Carlisle, Cumberland County, Pennsylvania, 17015.
8. Manorcare Health Services Carlisle (hereinafter Defendant Facility) was
at all relevant times, a corporate medical institution with its principal place of business
at 941 Walnut Bottom Road, Carlisle, Cumberland County, Pennsylvania, 17015.
9. Healthcare and Retirement Corporation of America (hereinafter
Defendant Facility) was at all relevant times, a corporate medical institution with its
principal place of business at 941 Walnut Bottom Road, Carlisle, Cumberland County,
Pennsylvania, 17015.
10. Manorcare of America, Inc. (hereinafter Defendant Facility) was at all
relevant times, a corporate medical institution with its principal place of business at
941 Walnut Bottom Road, Carlisle, Cumberland County, Pennsylvania, 17015.
11. Manorcare, Inc. (hereinafter Defendant Facility) was at all relevant times,
a corporate medical institution with its principal place of business at 941 Walnut
Bottom Road, Carlisle, Cumberland County, Pennsylvania, 17015.
12. HCR Manorcare, Inc. (hereinafter Defendant Facility) was at all relevant
times, a corporate medical institution with its principal place of business at 941 Walnut
Bottom Road, Carlisle, Cumberland County, Pennsylvania, 17015.
13. HCR Manorcare (hereinafter Defendant Facility) was at all relevant times,
a corporate medical institution with its principal place of business at 941 Walnut
Bottom Road, Carlisle, Cumberland County, Pennsylvania, 17015.
14. At all relevant times herein, Defendant Harty, all other physicians,
residents, and medical support staff who cared or provided treatment to Eva Girondi
during her admission to Defendant facility in or about July 2009 were the agents,
apparent agents, servants, and/or employees of Defendant Facility and were acting
within the course and scope of their employment when providing professional medical
services to the Plaintiff.
15. In or about February of 2009, Eva Girondi was approximately 88 years of
age when she was admitted to Harrisburg Hospital for treatment of normal pressure
hydrocephalus.
16. Following placement of a ventricular peritoneal shunt system, Mrs.
Girondi was discharged from Harrisburg Hospital to Healthsouth for approximately
three (3) weeks. Ultimately, she was transferred to Golden Living in March of 2009.
17. Mrs. Girondi required readmission to Harrisburg Hospital on or about
June 8, 2009.
18. This list did not include Reglan.
19. Following discharge from Harrisburg Hospital, Mrs. Girondi was
transferred to Defendant facility on or about July 13, 2009.
20. Upon discharge from Harrisburg Hospital, a complete list of the
medications that Eva Girondi was taking on a daily basis was provided to Defendant
facility.
21. In February of 2009, the Food and Drug Administration (FDA) required
the manufacturer to include a "black box" warning due to the severity of the side
effects of the medication.
22. In explicably, immediately after being admitted to Defendant facility,
Defendant Harty and/or an agent, apparent agent, servant, and/or employee of
Defendant facility prescribed Reglan for Mrs. Girondi.
23. The aforementioned dangerous medication was prescribed for Mrs.
Girondi without notification, and/or approval of Fred Girondi, Power of Attorney.
24. The aforementioned medication was administered to Mrs. Girondi on a
daily basis, four times a day.
25. Shortly after being prescribed the medication, Mrs. Girondi began
developing severe side effects from the Reglan, including Tardive dyskinesia and other
side effecrts.
26. Eva Girondi did not have the capacity to agree or disagree with
Defendant Harty and/or an agent, apparent agent, servant, and/or employee when the
Reglan was prescribed.
27. Moreover, neither Alfred Girondi or other family member was consulted
at or before his mother was prescribed the aforementioned medication.
28. Eva Girondi was administered Reglan from approximately July 13, 2009
up through and including August 17, 2009.
29. The Defendants knew or should have known that the prescribing of
Reglan to an elderly female patient is contraindicated, especially in light of the fact that
she was not suffering from gastrointestinal symptoms.
30. As a result of the aforementioned unnecessary medication, Mrs.
Girondi's condition deteriorated.
31. She developed involuntary movements, especially of her arms and legs,
tremors, difficulty eating, difficulty swallowing, difficulty speaking, mask like facial
expressions, anxiety, agitation, hypertension, fluid retention, incontinence, dystonic
reaction, pseudo-parkinsonian symptoms, muscle rigidity, shuffling walk, autonomic
dysfunction, drowsiness and impairment of her coordination.
32. During the time period that Eva Girondi was being prescribed Reglan her
overall health declined.
33. She became less mobile, less communicative, and had less control of her
bodily functions.
34. On or about August 13, 2009, Alfred Girondi and his sister, Rita Girondi,
learned from a staff member that Mrs. Girondi had been prescribed Reglan without
their knowledge or consent.
35. When Alfred Girondi and his sister, Rita Girondi, learned that their
mother had been prescribed Reglan, they immediately demanded that the medication
be stopped.
36. A fax containing this request was sent to Defendant Harty. In the fax, it
was requested that Defendant Harty contact Alfred Girondi to discuss the matter
further.
37. Following this fax on or about August 13, 2009, Alfred Girondi received
no response from Defendant Harty.
38. They immediately contacted the medical director of Manorcare, Mr. Joe
Barrick and expressed their concerns about the prescription and administration of
Reglan to their mother.
39. On or about August 17, 2009, Alfred Girondi and his sister, Rita Girondi,
met with the director of Manorcare, Joe Barrick.
40. At Mr. Girondi's insistence, Mr. Barrick contacted Defendant Harty and
the Reglan was discontinued on or about August 18, 2009.
41. Mr. Barrick contacted Defendant Harty and he ultimately ordered the
discontinuation of the medication.
42. In addition, Alfred Girondi requested to speak to defendant Harty about
why the Reglan had been prescribed in the first place.
43. Although the medication was discontinued, Mrs. Girondi continued to
experience severe side effects as a result of the medication.
44. Although multiple requests were relayed to Defendant Harty to contact
Mr. Girondi to discuss the above issue regarding his mother's care, Defendant Harty
never contacted Mr. Girondi.
45. Ultimately, on or about August 19, 2009, Mr. Girondi was visiting his
mother at Manorcare and had the opportunity to speak to Defendant Harty.
46. When questioned about why the Reglan had been ordered, Defendant
Harty became very defensive and advised Mr. Girondi that he should find a new
physician to oversee his mother's care.
47. Thereafter, Dr. Binder was assigned to oversee Eva Girondi's care.
48. After his initial evaluation, various diagnostic studies were undertaken
to evaluate the current status of her health.
49. One of the aforementioned studies including a swallowing study due to
the difficulty that Mrs. Girondi had been experiencing swallowing while on the Reglan.
50. After the Reglan was stopped, Mrs. Girondi's swallowing difficulties
improved and in fact, the swallowing study performed at Holy Spirit Hospital on or
about August 28, 2009 revealed that she was no longer having difficulty swallowing
solid or liquid foods.
51. The difficulty swallowing was thought to be a direct result of the
administration of Reglan.
52. Although, the swallowing difficulty improved, many other side effects of
the Reglan remained, including the tardive dyskinesia, especially of her arms and legs.
53. Physical therapy was initiated in hopes to improve Mrs. Girondi's overall
well-being.
54. Over the course of the next several weeks, Mrs. Girondi received
physical therapy five (5) times a week.
55. Gradually, her physical and mental states seemed to improve.
56. However, she still had difficulty controlling the movements in her
extremities.
57. On or about October 29, 2009, Alfred Girondi and his sister, Rita
Girondi, had another meeting with the administrator at Defendant facility, Joe Barrick.
They again raised their concerns as to why the Reglan had been administered to begin
with by Defendant Harty.
58. They reported to Mr. Barrick that Defendant Harty had never provided
them with an explanation as to why the drug was ordered to begin with.
59. The following morning, Mr. Girondi received a telephone call from
Defendant Harty.
60. Defendant Harty advised Mr. Girondi that he was calling him at Mr.
Barrick's insistence.
61. During the conversation, Mr. Girondi specifically asked Defendant Harty
why the Reglan had been prescribed.
62. Defendant Harty refused to answer the question and hung up the phone.
63. Because their concerns were not being promptly or appropriately
addressed, Rita Girondi wrote a letter to Mr. Joseph Barrick on or about November 12,
2009.
64. Rita Girondi's letter outlined the concerns with their mother's care and
treatment that had been previously raised to Mr. Barrick that had not been
satisfactorily corrected.
65. Moreover, Rita Girondi's letter again requested that she and her brother
be provided with the underlying reason for the original prescription of Reglan.
66. Mr. Barrick responded in writing on or about November 25, 2009.
However, the rationale behind prescribing Eva Girondi the Reglan was still not
forthcoming.
67. That evening, Alfred and Rita visited their mother at the Defendant
facility and she appeared to be in reasonably good health and spirits.
68. She did not complain of any pain or discomfort.
69. The following day, November 26, 2009, Alfred and Rita went to
Manorcare for Thanksgiving lunch with their mother.
70. When they arrived, Alfred and Rita watched as several aides assisted in
moving Eva Girondi from her wheelchair to the toilet.
71. Mrs. Girondi appeared to be crying out but her children did not know
why.
72. After assisting her in going to the bathroom, the aides, using mechanical
assistance, returned Mrs. Girondi to her wheelchair.
73. After being returned to her wheelchair, Mrs. Girondi seemed to calm
down.
74. Thereafter, Alfred pushed his mother to meet his sister in another room
for Thanksgiving dinner.
75. During this entire time, Eva was crying out in pain.
76. While at lunch with her son and daughter, Eva appeared to be
experiencing pain in her right leg.
77. When Alfred returned his mother to her room, he brought this to the
attention of the staff members.
78. Dr. Binder was notified and Eva was transferred to Harrisburg Hospital
for further evaluation and treatment.
79. Upon arrival at Harrisburg Hospital, it was discovered that Eva Girondi
was suffering from a spiral fracture of both the tibia and fibula.
80. She required surgery to correct the same.
81. Eva Girondi remained hospitalized at Harrisburg Hospital through
December 1, 2009.
82. She was thereafter transferred to the Golden Living facility in Camp Hill,
Pennsylvania.
83. Unfortunately, approximately six (6) weeks later, Eva died on January 15,
2010.
84. Eva Girondi's death was the direct and proximate result of the
negligence, gross negligence and reckless indifference of the Defendant and a claim is
made therefore.
85. The negligence of the Defendants increased the risk and was a
substantial factor in causing the Plaintiff, Eva Girondi's death.
86. Plaintiff, Alfred Girondi, as the Executor of the estate of Eva Girondi,
deceased, brings this action on behalf of the estate of Eva Girondi under and be virtue
of the Act of 1976, July 9, P.L.586 no. 142, §2, 42 Pa.C.S.A. §8302.
87. Plaintiff, Alfred Girondi, as the executor of the Estate of Eva Girondi,
deceased, brings this action for the wrongful death of Eva Girondi, deceased, on behalf
of all persons entitled to recover damages under and by virtue of the Act of 1976, July 9
P.L. 586 no. 142, §2, 42 Pa.C.S.A. §8301.
88. Plaintiff, Alfred Girondi, as the Executor of the Estate of Eva Girondi,
deceased, claims on behalf of said Estate, the damages suffered by said Estate by
reason of the death of the decedent, for the pain and suffering of the decedent prior to
her death, for the loss of life's pleasures and enjoyment of life and for all other
damages sustained by reason of the death of the decedent.
89. Decedent, Eva Girondi, did not bring an action for her injuries during her
lifetime. The following are all persons entitled by law to recover for the wrongful
death and the relationship to the decedent:
Alfred Girondi - son;
Rita Girondi - daughter.
90. As a result of Eva Girondi's death, Plaintiff has incurred medical, funeral,
burial, and related expenses and a claim is made therefore.
COUNT - I
Alfred Girondi
V.
James Harty, M.D.
91. Paragraphs 1 through 90 are incorporated herein by reference as if set
forth at length.
92. Defendant, James Harty, M.D. is liable to the Plaintiff, Alfred Girondi as
the Executor of the Estate of Eva Girondi for the injuries and damages alleged herein
which were directly and proximately caused by his negligence, gross negligence with
respect to Eva Girondi, deceased, by:
a. Improperly prescribing Reglan when it was not medically
necessary for the patient;
b. Improperly prescribing an excess dose of Reglan to the patient;
C. Improperly prescribing Reglan for an extended period of time;
d. Failing to recognize the developing side effects that the patient
was experiencing from the Reglan and discontinuing the same immediately.
e. Failing to order closer monitoring of the patient's condition for
potential side effects while taking the Reglan;
f. Failing to obtain permission from the patient's Power of Attorney
prior to prescribing Reglan;
g. Failing to notify the patient's Power of Attorney of the
recommendation/order for Reglan and discussing the same prior to
administration;
h. Negligently administering a medication with known significant
side effects without permission to do so.
Negligently administering a medication with known significant
side effects in a patient whose medical condition contraindicated the same.
93. As a direct and proximate result of Dr. Harty's negligence, the Plaintiff
has sustained injuries and damages as set forth in paragraphs 1 through 90 above,
which are incorporated by referenced as if set forth at length.
WHEREFORE, Alfred Girondi, executor of the Estate of Eva Girondi, deceased,
demands judgment against Dr. James Harty for damages in an amount in an excess of
$50,000.00 exclusive of interests and costs and any jurisdictional amount requiring
compulsive arbitration.
COUNT - II
Alfred Girondi
V.
Manorcare of Carlisle, PA, LLC,
Manor Healthcare Corp,
Manorcare Health Services
Carlisle Healthcare and Retirement
Corporation of America,
Manorcare of America, Inc.,
Manorcare, Inc.,
HCR Manorcare, Inc., HCR Manorcare
94. Paragraphs 1 through 93 and Count I are incorporated herein by
reference as is set forth at length.
87. Defendants, Manorcare of Carlisle, PA, LLC, Manor Healthcare Corp,
Manorcare Health Services, Carlisle Healthcare and Retirement, Corporation of
America,
Manorcare of America, Inc., Manorcare, Inc., HCR Manorcare, Inc., HCR Manorcare are
liable to the Plaintiffs, Alfred Girondi, Executor of the Estate of Eva Girondi for the
injuries and damages alleged herein which were directly and proximately caused by the
negligence, gross negligence and reckless disregard of the agents, apparent agents,
servants, and/or employees of the facility with respect to Eva Girondi by:
a. Improperly prescribing Reglan when it was not medically
necessary for the patient;
b. Improperly prescribing an excess dose of Reglan to the patient;
Improperly prescribing Reglan for an extended period of time;
d. Failing to recognize the developing side effects that the patient
was experiencing from the Reglan and discontinuing the same immediately.
e. Failing to order closer monitoring of the patient's condition for
potential side effects while taking the Reglan;
f. Failing to obtain permission from the patient's Power of Attorney
prior to prescribing Reglan;
g. Failing to notify the patient's Power of Attorney of the
recommendation/order for Reglan and discussing the same prior to
administration;
h. Negligently administering a medication with known significant
side effects without permission to do so.
Negligently administering a medication with known significant
side effects in a patient whose medical condition contraindicated the same.
j. Failing to properly and appropriately assist the patient with
movements and transfers;
k. Failing to have sufficient manpower to appropriately assist the
patient in moving and in transfers;
1. Inappropriately twisting Mrs. Girondi's leg causing a spiral
fracture of her tibia and fibula;
M. Exerting excess force on Mrs. Girondi's leg when attempting to
move or transfer the patient;
n. Dropping or mishandling the patient in such a fashion as to cause
a spiral fracture to her leg;
o. Failing to timely and appropriately employ mechanical lifting
equipment to safely assist Mrs. Girondi in moving and in transfers;
P. Failing to take the patient for immediate evaluation and
treatment following the fracture that occurred on or about November 25, 2009;
q. Failing to timely recognize and obtain proper treatment for the
spiral fracture of Mrs. Girondi's leg;
r. Improperly causing a spiral fracture of Mrs. Girondi's leg.
95. As a direct and proximate result of Dr. Harty's negligence, the Plaintiff
has sustained injuries and damages as set forth in paragraphs I through 90 above,
which are incorporated by referenced as if set forth at length.
WHEREFORE, Alfred Girondi, executor of the Estate of Eva Girondi,
deceased, demands judgment against Manorcare of Carlisle, PA, LLC, Manor Healthcare
Corp, Manorcare Health Services, Carlisle Healthcare and Retirement, Corporation of
America, Manorcare of America, Inc., Manorcare, Inc., HCR Manorcare, Inc., HCR
Manorcare for damages in an amount in an excess of $50,000.00 exclusive of interests
and costs and any jurisdictional amount requiring compulsive arbitration.
Respectfully submitted,
P.C.
11-V U111 J. 1V1 , liJlIUll lJ
Date: L?`/e Attorney entGification No. 66856
VERIFICATION
I, Robin Marzella, do hereby swear and affirm that the facts and matters set forth
in the foregoing document are true and correct to the best of our knowledge, information
and belief.
I understand that the statements made therein are made subject to the penalties of
18 Pa. C.S. § 4904 relating to unsworn falsification to authorities.
Dated: ?- r /17J
CERTIFICATE OF SERVICE
I, Jacqulyn R. Harris, hereby certify that a true and correct copy of the foregoing
Complaint was served upon counsel of record this 18`h day of April, 2012, by depositing
said copy in the United States Mail at Harrisburg, Pennsylvania, postage prepaid, first
class delivery, and addressed as follows:
Mike Pipa, Esq.
Stevens & Lee
17 North 2°d Street, 16`h Floor
Harrisburg, PA 17101
John M. Skrocki, Esq.
Burns White, LLC
100 Four Falls, Suite 515
1001 Conshohocken State Road
West Conshohocken, PA 19428
R. J. MARZELLA & ASSOCIATES, P.C.
i
BY: / I A? (?Oi CA?G1 t? /1 ?(
JAC?ULYN ?. H) ROC LAW CLERK
R
R. J. MARZELLA & ASSOCIATES, P.C.
BY: Robin J. Marzella, Esquire
Pennsylvania Supreme Court I.D. No. 66856
3513 North Front Street
Harrisburg, PA 17110
Telephone: (717) 234-7828
Facsimile: (717) 234-6883
Attorney for
Alfred Girondi, Jr., individually
and as Administrator, for the
Estate of Eva Girondi
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
ALFRED GIRONDI, JR.,
INDIVIDUALLY AND AS
ADMINISTRATOR, FOR THE ESTATE
OF EVA GIRONDI
DOCKET NUMBER: I - s 3a y
PLAINTIFFS
vs.
JAMES HARTY, M.D.;
MANOR CARE OF CARLISLE PA LLC,
MANOR HEALTHCARE CORP.,
MANORCARE HEALTH SERVICES
CARLISLE, HEALTH CARE AND
RETIREMENT CORPORATION OF
AMERICA, MANOR CARE OF
AMERICA INC., MANOR CARE INC.,
HCR MANOR CARE INC., HCR
MANOR CARE;
DEFENDANTS
PROFESSIONAL MEDICAL
NEGLIGENCE
JURY TRIAL DEMANDED
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PRAECIPE TO SUBSTITUTE VERIFICATION
TO THE PROTHONOTARY OF SAID COURT:
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Please substitute the attached client verification for the attorney verification
4.
previously submitted with the Complaint in this above-referenced case.
B
R. I Marzella & Associates, P.C.
RbbfrrT M?, Esquire
Attorney Id ification No. 66856
Dated: May 9, 2012
VERIFICATION
I, Alfred Girondi, do hereby swear and affirm that the facts and matters set
forth in the foregoing document are true and correct to the best of my knowledge,
information and belief.
I understand that the statements made therein are made subject to the
penalties of 18 Pa. C.S. § 4904 relating to unsworn falsification to authorities.
Dated: 30 ..Zo l y
Alfred irondi
CERTIFICATE OF SERVICE
I, Jacqulyn R. Harris, hereby certify that a true and correct copy of the foregoing
Praecipe to Substitute Verification was served upon counsel of record this 9th day of May,
2012, by depositing said copy in the United States Mail at Harrisburg, Pennsylvania,
postage prepaid, first class delivery, and addressed as follows:
Mike Pipa, Esq.
Stevens & Lee
17 North 2"d Street, 16`h Floor
Harrisburg, PA 17101
John M. Skrocki, Esq.
Burns White, LLC
100 Four Falls, Suite 515
1001 Conshohocken State Road
West Conshohocken, PA 19428
R. J. MARZELLA & ASSOCIATES, P.C.
BY:
JAC ULYN . HA t w CLERK
BURNS WHITE LLC
By: William J. Mundy, Esquire
Identification No. 57679
By: John M. Skrocki, Esquire
Identification No. 49071
100 Four Falls, Suite 515
1001 Conshohocken State Road
West Conshohocken, PA 19428
(484) 567-5700
ALFRED GIRONDI, JR., INDIVIDUALLY
AND AS ADMINISTRATOR FOR THE
ESTATE OF EVA GIRONDI
Plaintiffs,
V.
JAMES HARTY, M.D.
MANOR CARE OF CARLISLE PA LLC
MANOR HEALTHCARE CORP.,
MANORCARE HEALTH SERVICES CARLISLE,
HEALTH CARE AND RETIREMENT
CORPORATION OF AMERICA, MANOR CARE OF
AMERICA, INC., MANORCARE INC., HCR
MANOR CARE, INC., HCR MANOR CARE
Defendants.
Attorneys for Defendants, Manor Care of Carlisle PA
LLC, Manor Healthcare Corp., Manorcare Health
Services Carlisle, Healthcare and Retirement
Corporation of America, Manor Care of America,
Inc., Manorcare, Inc., HCR Manor Care, Inc., and
HCR Manor Care
CUMBERLAND COUNTY
COURT OF COMMON PLEAS
: NO. 11-5324
NOTICE TO PLEAD
To: Robin J. Marzella, Esquire
R.J. Marzella & Associates, P.C.
3513 North Front Street
Harrisburg, PA 17110
(Attorneys for Plaintifji
Jury Trial Demanded
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You are hereby notified to plead to the enclosed Preliminary Objections pursuant
to Pa.R.C.P. 1028 within 20 days from service hereof or a default judgment may be
entered against you.
John Y. Skrocki, Esquire
BURNS WHITE LLC
By: William J. Mundy, Esquire
Identification No. 57679
By: John M. Skrocki, Esquire
Identification No. 49071
100 Four Falls, Suite 515
1001 Conshohocken State Road
West Conshohocken, PA 19428
(484) 567-5700
ALFRED GIRONDI, JR., INDIVIDUALLY
AND AS ADMINISTRATOR FOR THE
ESTATE OF EVA GIRONDI
Plaintiffs,
V.
Attorneys for Defendants, Manor Care of Carlisle PA
LLC, Manor Healthcare Corp., Manorcare Health
Services Carlisle, Healthcare and Retirement
Corporation of America, Manor Care of America,
Inc., Manorcare, Inc., HCR Manor Care, Inc., and
HCR Manor Care
: CUMBERLAND COUNTY
: COURT OF COMMON PLEAS
: NO. 11-5324
JAMES HARTY, M.D.
MANOR CARE OF CARLISLE PA LLC Jury Trial Demanded
MANOR HEALTHCARE CORP.,
MANORCARE HEALTH SERVICES CARLISLE, '
HEALTH CARE AND RETIREMENT
CORPORATION OF AMERICA, MANOR CARE OF
AMERICA, INC., MANORCARE INC., HCR
MANOR CARE, INC., HCR MANOR CARE
Defendants. ,
PRELIMINARY OBJECTION OF DEFENDANTS,
MANOR CARE OF CARLISLE PA LLC, MANOR
HEALTHCARE CORP., MANORCARE HEALTH SERVICES
CARLISLE, HEALTH CARE AND RETIREMENT
CORPORATION OF AMERICA, MANOR CARE OF
AMERICA, INC., MANORCARE INC., HCR MANOR CARE, INC.,
HCR MANOR CARE TO PLAINTIFF'S COMPLAINT
The Manor Care Defendants, (hereinafter "Manor Care"), by and through their
attorneys, Burns White LLC, hereby file the following Preliminary Objection to
Plaintiffs' Complaint and in support thereof aver as follows:
Motion to Move Plaintiffs Suit to Arbitration
1. This professional medical negligence action was commenced by the filing
of a Writ of Summons in the Court of Common Pleas of Cumberland County on June 28,
2011.
2. On or about August 22, 2011, the undersigned forwarded a copy of the
Arbitration Agreement signed by Alfred Girondi, the Plaintiff, and made a demand for
Arbitration under the Agreement. (Exhibit "A" contains the Arbitration Agreement and
the demand letter.) Plaintiff has never responded to that demand.
3. Plaintiff ultimately filed a Complaint, which is date-stamped April 18,
2012. (Exhibit `B"). The service of the complaint was occasioned by several
irregularities. The postmark on the envelope in which the Complaint was sent to the
undersigned is dated April 23, 2012 (as opposed to the certificate of service date of April
18, 2009. The undersigned did not receive the Complaint in the mail until April 25,
2012. The copy of the complaint sent to the undersigned, Exhibit "B", contains an
incorrect court term and number.
4. The Plaintiff has not filed a Certificate of Merit as required by Pa.RCP
1042.3. As such, the time for the filing of a responsive pleading has not, as yet, started
running. Pa.RCP 1042.4.
5. The complaint is not verified by the Plaintiff as required by Pa.RCP 1024.
6. The basic claims are that the decedent, Eva Girondi, an 88 year-old who
suffered from multiple end-stage health conditions, was prescribed the drug, Reglan, by
Dr. Harty, and also sustained a tibia fibula fracture of her right leg.
7. Defendants now file the instant preliminary objection based on the
existence of the signed Arbitration Agreement. (Exhibit "A")
8. In this instance, Alfred Girondi, the plaintiff, and the son of Eva Girondi,
signed the enclosed Arbitration Agreement (Exhibit "A") on or about July 13, 2009, at or
around the time of admission of Eva Girondi to the facility.
9. The Arbitration Agreement provides a full and fair alternative form of
dispute resolution. The Agreement is entirely voluntary. It is NOT a condition of
admission to the nursing home, and this is stated clearly at the top of the first page of the
document. The Agreement also gives the resident the right to change their mind, and a
30-day window to do so. The Agreement allows the parties to each select their own
arbitrator, who may then select a third `neutral' arbitrator, akin to UM and UIM claims.
The agreement allows the parties flexibility in terms of procedure, choice of arbitrator
and discovery.
10. Plaintiff s initiation of the underlying suit in the Court of Common Pleas
violates this agreement since the parties contractually agreed that all such claims were to
be resolved by arbitration. As such, the Court is without jurisdiction over the Plaintiff's
claim against Manor Care.
11. Pursuant to Pa. RCP 1028 (a)(6), the Defendants move to dismiss this
action based on the attached agreement for alternative dispute resolution.
WHEREFORE, the Manor Care Defendants respectfully request that this Court
dismiss Plaintiff's underlying suit and direct the parties to proceed to arbitration.
BURNS WHITE LLC
Date:
John . Skrocki, Esquire
Attorneys for Defendants, Manor Care
of Carlisle PA LLC, Manor Healthcare
Corp., Manorcare Health Services
Carlisle, Healthcare and Retirement
Corporation of America, Manor Care of
America, Inc., Manorcare, Inc., HCR
Manor Care, Inc., and HCR Manor Care
BURNS WHITE LLC
By: William J. Mundy, Esquire
Identification No. 57679
By: John M. Skrocki, Esquire
Identification No. 49071
100 Four Falls, Suite 515
1001 Conshohocken State Road
West Conshohocken, PA 19428
(484) 567-5700
ALFRED GIRONDI, JR., INDIVIDUALLY
AND AS ADMINISTRATOR FOR THE
ESTATE OF EVA GIRONDI
Attorneys for Defendants, Manor Care of Carlisle PA
LLC, Manor Healthcare Corp., Manorcare Health
Services Carlisle, Healthcare and Retirement
Corporation of America, Manor Care of America,
Inc., Manorcare, Inc., HCR Manor Care, Inc., and
HCR Manor Care
CUMBERLAND COUNTY
COURT OF COMMON PLEAS
Plaintiffs,
V.
JAMES HARTY, M.D.
MANOR CARE OF CARLISLE PA LLC
MANOR HEALTHCARE CORP.,
MANORCARE HEALTH SERVICES CARLISLE,
HEALTH CARE AND RETIREMENT
CORPORATION OF AMERICA, MANOR CARE OF
AMERICA, INC., MANORCARE INC., HCR
MANOR CARE, INC., HCR MANOR CARE
Defendants.
: NO. 11-5324
Jury Trial Demanded
MEMORANDUM OF LAW IN SUPPORT OF PRELIMINARY
OBJECTION OF DEFENDANTS, MANOR CARE OF
CARLISLE PA LLC, MANOR HEALTHCARE CORP.,
MANORCARE HEALTH SERVICES CARLISLE, HEALTH
CARE AND RETIREMENT CORPORATION OF
AMERICA, MANOR CARE OF AMERICA, INC.,
MANORCARE INC., HCR MANOR CARE, INC.,
HCR MANOR CARE TO PLAINTIFF'S COMPLAINT
The Manor Care Defendants seek to move this case to arbitration pursuant to Pa.
RCP 1028(a)(6) based on the voluntary Arbitration Agreement signed by the Plaintiff.
1. The Arbitration Clause is Valid and Enforceable
The Pennsylvania Supreme Court has repeatedly stated that arbitration is the
preferred process for dispute resolution in the Commonwealth of Pennsylvania. In
Commonwealth Office of Administration v. Commonwealth, Pennsylvania Labor
Relations Board, 598 A. 2d 1274 (Pa. 1991), the Court articulated its position:
"It is unquestioned that arbitration is a process favored
today in this Commonwealth to resolve dispute. By now it
has become well established that settlement of disputes by
arbitration are no longer deemed contrary to public policy.
In fact, our statutes encourage arbitration and with our
dockets crowded, and in some jurisdictions congested,
arbitration is favored by the Courts."
Id. at 1277-78. See also Children's Hospital of Philadelphia V. American Arbitration
Ass'n, 331 A.2d 848 (Pa. Super. 1974) (stating that Pennsylvania's public policy favors
resolution of disputes by arbitration). Accordingly, the party seeking to void an
arbitration provision has the burden of proving that the contract is unconscionable.
Borden, Inc. v. Advent Ink Co., 701 A.2d 255 (Pa. Super. 1997) (holding that the burden
of proof lies with party alleging unconscionability).
II. The Arbitration Agreement Is Not A Contract Of Adhesion
An adhesion contract is defined as a standard form contract prepared by one party,
to be signed by a party in a weaker position, who has little choice about the terms.
Robson v. E.M.C. Insurance Company, 785 A. 2d 507,510 (Pa. Super 2001). In the
present case, the agreement was voluntary and not a precondition to admission. Mr.
Girondi could simply have elected not to sign, with absolutely no effect on the admission.
Additionally, the benefits of arbitration serve the interests of the parties to the
agreement. That is, promptness and cost-savings are available to both sides in the context
of an arbitration.
The Arbitration Agreement is Not Unconscionable
The issue of whether a contract is "unconscionable" is a question of law. In order
to be considered unconscionable, the court must find that the contract is either
procedurally unconscionable - circumstances under which the contract was entered into
create unfair surprise; or substantively unconscionable - the terms are unreasonably
favorable to the drafter and there is no meaningful choice on the part of the other party.
See Harris v. Green Tree Financial Corp., 183 F.3d 173, 181 (3rd Cir. 1999).
In the present case, it cannot be said that the Arbitration Agreement creates unfair
surprise. The Arbitration Agreement at issue is attached and marked as Exhibit "A". The
provision is in full-size print, conspicuous, and with a large bold notification that it
involves the waiver of certain rights. Moreover, the agreement outlines in clear language
what arbitration is and how it affects ones rights to the court system.
Likewise, the Arbitration Agreement is not substantively unconscionable.
Promptness and cost-savings are available to both sides in the context of an arbitration.
Indeed, the agreement is drafted to reduce the costs that can arise in long-term care
litigation by outlining a streamlined approach to discovery and the hearing process. .1.
Moreover, the resident and the family do have a meaningful choice. The
Arbitration Agreement is strictly a voluntary program. The Arbitration Agreement is
not a condition of admission. The Plaintiff was not required to execute the document as
a condition of admission to the facility. Indeed, even after it was signed, under Section
"C. WITHDRAWAL PERIOD", each party has a 30-day grace period to cancel the
Agreement. See Exhibit "A."
The predecessor of the subject agreement, which contained damages caps, (this
agreement does not), was upheld in a well-reasoned opinion of Judge Black of Lehigh
County. See Mannion v Manor Care, 4 Pa. D&C 5th 321, and Fetterman v. Manor Care.,
Doc. No. GD07-027943, a Judge Wettick decision, upholding the same arbitration
agreement.
Nursing home arbitration clauses have been upheld in other jurisdictions. See
Five Points Health Care LTD d/b/a Park Ridge Nursing Center, Case No. 1 D02-4713
(2004 Fla. App. LEXIS 2276)(Feb. 26, 2004); Gainesville Healthcare Center v. Weston,
857 So. 2d 278 (Fla. 1 st DCA 2003) (denying a claim of unconscionability and upholding
the arbitration provision in a negligence action brought under Fl. Stat. Ch. 400.22);
Consolidated Resources Healthcare Fund I, LTD d/b/a Lakeside Health Center v.
Fenelus, 853 So.2d 500 (Fla. App. 2003) (holding that the plaintiff's claim of
unconscionability was not sufficient to invalidate the arbitration clause); McGuffey
Health and Rehabilitation Center v. Gibson, by and through her next friend, Dorothy
Jackson, 864 So.2d 1061 (Ala., May 9, 2003) (upholding an arbitration clause); Briarcliff
Nursing Home, Inc. d/b/a Integrated Health Services at Barcliff v. Turcotte, 2004 Ala.
LEXIS 20 (February 6, 2004); Owens v. Coosa Valley Health Care, Inc., 2004 Ala.
LEXIS 28 (February 13, 2003) (denying the plaintiff's claim of unconscionability and
upholding an arbitration clause).
III. Conclusion
Pennsylvania common law favors alternative dispute resolution. This particular
agreement has been upheld many times by Pennsylvania Common Pleas Courts. The
Manor Care parties request that this Court enforce this agreement.
Accordingly, for all the reasons aforesaid, Manor Care respectfully request that
this Honorable Court sustain the subject Preliminary Objection, and enter the order
proposed by the Manor Care defendants.
BURNS WHITE LLC
By: Jo M. Skrocki, Esquire
Attorneys for Defendants, Manor Care of
Carlisle PA LLC, Manor Healthcare Corp.,
Manorcare Health Services Carlisle, Healthcare
and Retirement Corporation of America, Manor
Care of America, Inc., Manorcare, Inc., HCR
Date: Manor Care, Inc., and HCR Manor Care
? ? C l
CERTIFICATE OF SERVICE
I, John M. Skrocki, Esquire, hereby certify that on this date, a true and correct copy
of the foregoing Preliminary Objections was delivered by United States First-Class Mail,
postage prepaid, as follows:
Robin J. Marzella, Esquire Michael D. Pipa, Esquire
R.J. Marzella & Associates, P.C. Stevens & Lee
3513 North Front Street 17 North Second Street
Harrisburg, PA 17110 16th Floor
Harrisburg, PA 17101
Dated: 0 j ?-? John krocki, Esquire
?X???T
VOLUNTARY AGREEMENT: If you do not accept this Agreement, the Patient will still be allowed to live in,
and receive services in, this Center.
ARBITRATION AG EMENT CAGREEMENT")
BY ACCEPTING THIS AGREEMENT, THE PARTIES ARE WAIVING THEIR RIGHT TO A TRIAL
BEFORE A JUDGE AND/OR A JURY OF ANY DISPUTE BETWEEN THEM. PLEASE READ THIS
AGREEMENT CAREFULLY AND IN ITS ENTIRETY BEFORE ACCEPTING ITS TERMS.
This A Bement made on ?? f (date) by and betty en the Parties, Patient
" and/or Patient' Legal epresentattveA i (collectively referred to
as "Paden and the Centex fika pill an Agreement intended to require that Disputes be
resolved by arbitration. The Patient's Legal Represents ve es that he is signing this Agreement as a Party, both in
his representative and individual capacity.
A. WHAT IS ARBITRATION?: Arbitration is a cost effective and time saving method of resolving disputes
without involving the courts. In using arbitration, the disputes are heard and decided by a private individual called an
arbitrator. The dispute will not be heard or decided by a judge or jury.
B. AGREEMENT TO ARBITRATE "DISPUTTS": Any and all claims or controversies arising out of or in any
way relating to this Agreement, the Admission Agreement or any of the Patient's stays at this Center, or any Center
operated by any subsidiary of 1ICR-Manor Care, Inc., whether or not related to medical malpractice, including but not
limited to disputes regarding the making, execution, validity, enforceability, voidability, unconscionability,
severabiliry, scope, interpretation, preemption, waiver, or any other defense to enforceability of this Agreement or the
Admission Agreement, wbether arising out of State or Federal law, whether existing now or arising in the future,
whether for statutory, compensatory or punitive damages and whether sounding in breach of contract, tort or breach of
statutory duties (including, without limitation except as indicated, any claim based on Patients' Rights or a claim for
unpaid Center charges), regardless of the basis for the duty or of the legal theories upon which the claim is asserted,
shall be submitted to binding arbitration. Notwithstanding the above, nothing in this Agreement prevents the Patient
from filing a grievance or complaint with the Center or appropriate governmental agency; from requesting an
inspection of the Center from such agency; or from seeking review under any applicable federal, state or local law of
any decision to involuntarily discharge or transfer the patient from the Center.
1. Administrator: The arbitration shall be administered by National Arbitration Forum ("NAF"), 6465 Wayzata
Blvd., Suite 500, Minneapolis, ivfN 55426; www.arbitration-fQrum.com (hereinafter "Administrator"). If the Parties
mutually agree in writing not to select NAF or if the NAF is unwilling or unable to serve as the Administrator, the
Parties shall agree upon another independent entity to serve as the Administrator, unless the Parties mutually agree to
not have an Administrator.
2. Demand for Arbitration shall be made in writing, sent to the other Party via certified mail, return receipt
requested, and filed with NAF (unless NAF is mutually waived).
3. Arbitration Panel: The arbitration shall be conducted by three (3) Arbitrators (the "Panel"). Each Party will
select one Arbitrator. The two selected Arbitrators will select a third Arbitrator. Each Arbitrator must be a retired
State or Federal Court Judge or a Member of the State Bar where the Center is located with at least 10 years of
experience as an attorney. NAF approved Arbitrators do not have to be used- If one Party refuses to select its
arbitrator within 30 days of a written request for same, then the Administrator shall select that Party's Arbitrator.
4. Sole Decision Maker: The Arbitration Panel is empowered with the sole jurisdiction to, and shall, resolve all
disputes, including without limitation, any disputes about the making, validity, enforceability, scope, interpretation,
voidability, unconscionability, preemption, severability and/or waiver of this Agreement or the Admission Agreement,
as well as resolve the Parties' underlying disputes, as it is the Parties' intent to completely avoid involving the court
system. The Panel shall not have jurisdiction to certify any person as a representative of a class of persons and, by
doing so, adjudicate claims of persons not directly taking pan in Arbitration.
5. Procedural Rules and Substantive Law: The Panel shall apply the Federal Rules of Evidence and Federal Rules
of Civil Procedure except where otherwise stated in this Agreement. Also, the Panel shall apply, and the arbitration
award shall be consistent with, the State substantive law (including any and all statutory damage caps) for the State in
which the Center is located, except as otherwise stated in this Agreement or where preempted by the FAA. The Panel
shall apply NAF's Code of Procedure (in effect as of May 1, 2006) unless otherwise stated in this Agreement. NAF's
Code of Procedure may be obtained from NAF, (877) 655-7755, www.arbitration-forum.com. The Parties hereby opt-
out of NAF Rules (45 regarding indigents; 43 regarding appeals and judicial review).
6. Refusal to Arbitrate: Any Party who refuses to go forward with arbitration acknowledges that the Panel will go
forward with the arbitration hearing and render a binding award without the participation of such Party or despite his
absence at the hearing.
7. Waiver of Claim: Any claim shall be forever waived if it arose prior to the arbitration hearing and is not
presented in such hearing. A claim that is not served within the statute of limitations period applicable to the same
claim in a court of law in the state in which this Center is located shall be forever waived.
8. Award: The Panel's award must be unanimous and shall be served no later than five (5) working days after the
arbitration hearing. The award must state in detail the Panels' findings of fact and conclusions of law, shall be marked
"confidential", and must be signed by all three Arbitrators, if any damages are awarded, the award must delineate
specific amounts for economic and/or non-economic damages.
9. Final with Limited Rights to Review (Appear: The Panel's award binds the Parties. The Parties have a limited
right of review for only the express reasons allowed by the FAA.
D. DL_ CS OVERY: Discovery tiball be governed by NAF's Code of Procedure, However, discovery shall be limited
as follows, (1) Within 30 days after service of the Demand, each Party must comply with Fed. R. Civ. P., Rule
26(axl) and thereafter must comply with Rule 26(e) regarding supplementation of disclosures and responses. (2) A
Party may serve a maximum of 30 written questions (interrogatories), 30 requests to produce documents and 30
requests for admissions; inclusive of subparts. (3) The following disclosures sball be served no later than one hundred
fifty (150) days before the arbitration hearing by the Claimant, and one hundred twenty (120) days before the
arbitration hearing by the Respondent: (a) list of witnesses to be called at the Hearing (full name, title, address and
phone number if known) and an outline of each witnesses' intended testimony; (b) list of documents to be relied upon
at 14earing; except documents to be used solely for impeachment purposes; (c) any sworn recorded statements to be
relied upon at Hearing including the full name, title, address and phone number of the person who gave the statement.
The Parties shall supplement these disclosures per Fed. K Civ. Pr., Rule 26 (e), (4) Each Party may have up to three
(3) experts and no more than tcn (10) lay witnesses for its witness list, as well as for the Hearing. Depositions of
witnesses shall be limited to those people listed on the Parties' witness lists or in the Parties' Rule 26 disclosures or
discovery responses but under no circumstances will a Party be allowed to take more than 13 depositions. A written
report summarizing each expert's opinions and the basis for each opinion, and a list of all records contained in the
expert's file, must be served at least thirty (30) days before the expert's deposltion; (' Discovery shall be completed
45 days before the Hearing and the Hearing shall begin no later than 365 days after Demand for Arbitration is served,
shall last in duration no longer than five (5) working days, and the hearing time allowed shall be split on a pro rata
basis subject to the Panel's discretion. (6) The Parties may agree to modify these discovery terms or deadlines.
E. RIGHT TO CHANGE YOUR MIND: This Agreement may be cancelled by written notice sent by certified
mail w the Center's Administrator within thirty, (30) calendar days of the Patient's date of admission. If alleged acts
underlying the dispute occur before the cancellation date, this Agreement shall be binding with respect to those
alleged acts. If not cancelled, this Agreement shall be binding on the Patient for this and all of the Patient's other
admissions to the Center without any need for further renewal.
F. OT TER PROWSX S:
1. No Caps/Limits on Damages: There are no caps/limits on the amount of damages the Panel can award other than
those already imposed by law in the state in which this Center is located. All state laws, statutes and regulations that
limit awardable damages and define the scope of admissible and inadmissible evidence (i.e. regulatory surveys,
incident reports, etc.) expressly apply to any arbitration bearing held pursuant to this Agreement.
2. Opportunity to Review & Right to Consult with Attorney: The Patient (if competent) and the Patient's Legal
Representative acknowledge that the Patient and Legal Representative have each received a copy of this Agrccrrtcnt,
and have had an opportunity to read it (or have it read to him/her) and ask questions about it before accepting it.
Please read this Agreement very carefully and ask any questions that you have before signing it. Feel free to consult
with an attorney of your choice before signing this Agreement.
3. Benefits of Arbitration: The Parties' decision to select Arbitration is supported by the potential cost-
effectiveness and time-savings offered by selecting arbitration, which seeks to avoid the expense and delay in the court
system. The Parties recognize that often the Patient is elderly and may have a limited life-expectancy, and therefore
selecting a quick method of resolution is potentially to a Patient's advantage. The Parties agree that the reasons stated
above are proper consideration for the acceptance of the Agreement.
4. FAA: The Parties hereby agree and intend that this Agreement, the Admission Agreement and the Patient's stays
at the Center substantially involve interstate commerce, and stipulate that the Federal Arbitration Act ("FAA") in
effect as of November 1, 2008 and federal case law interpreting such version of the FAA shall apply to this
Agreement, shall preempt any inconsistent State law and shall not be reverse preempted by the McCatran-Ferguson
Act; United States Code Title 15, Chapter 20, or other law. Any amendment to such version of the FAA is hereby
expressly waived.
5. Binding on Parties & Others: The Parties intend that this Agreement shall inure to the direct benefit of and bind
the Center, its parent, affiliates, and subsidiary companies, management companies, executive directors, owners,
officers, partners, shareholders, directors, medical directors, employees, successors, assigns, agents, insurers and any
entity or person (including health care providers) that provided any services, supplies or equipment related to the
Patient's stay at the Center, and shall inure to the direct benefit of and bind the Patient (as defined herein), his/her
successors, spouses, children, next of kin, guardians, administrators, legal representatives, responsible parties, assigns,
agents, attorneys, health care proxies, health care surrogates, third Party beneficiaries, insurers, heirs, trustees,
survivors and representatives, including the personal representatives or executors of his/her estate, any person whose
claim is derived through or on behalf of the Patient or relates in any way to the Patient's stay(s) at this Center, or any
person who previously assumed responsibility for providing Patient with necessary services such as food, shelter,
clothing, or medicine, and any person who executed this Agreement or the Admission Agreement.
6. Fees and Costs: The Panels' fees and costs will be paid by the Center except in disputes over noo-payment of
Center charges wherein such fees and costs will be divided equally between the Parties. NAF's administrative fees
shall be divided equally among the Parties. To the extent permitted by law, any Parry who unsuccessfully challenges
the enforcement of this Agreement shall be required to pay the successful Parties' reasonable attorney fees and costs
incurred to enforce such contract (i.e., Motion to Compel Arbitration). The Parties shall bear their own attorney fees
and costs in relation to all preparation and attendance at the arbitration hearing, unless the Panel concludes that the
law provides otherwise. Except as stated above, the Parties waive any right to recover attorneys' fees and costs.
7. Confidentiality: The arbitration proceedings shall remain confidential in all respects, including all flings,
deposition transcripts, discovery documents, or other materials exchanged between the Parties and the Panels' award.
in addition, following receipt of the Panels' award, each Party agrees to return to the producing Party within 30 days
the original and all copies of documents exchanged in discovery and at the arbitration Hearing.
8. Waiver of this Agreement: Either Party may file its dispute in a court of law if the other Party approves, which
approval shall only be established by such Patty filing a response to the Complaint without moving in a timely
manner, as prescribed by the applicable rules of court, to enforce this Agreement. However, should one of the Parties
to this Binding Arbitration Agreement breach its terms by initiating a lawsuit in the judicial forurn, the Parties
expressly agree that participation in cooperative general discovery while a motion to compel arbitration is pending
shall not constitute evidence of a waiver of the right to arbitrate. A waiver of the right to arbitrate a specific Dispute or
series of Disputes, as described above, relieves neither Party of the contractual obligation to arbitrate other Disputes,
including both permissive and mandatory counterclaims, unless also subsequently waived.
9. Severability, Integration and Survival: Any term, phrase or provision contained in this Agreement is severable,
and in the event any of them is found to be void, invalid or unenforceable for any reason, this Agreement shall be
interpreted as if such term, phrase or provision were not contained herein, and the remaining provisions of this
Agreement shall not be affected by such determination and shall remain in full force and effect. This Agreement
represents the Parties' entire agreement regarding Disputes, supersedes any other agreement relating to disputes, and it
may only be changed in writing signed by all Parties. This Agreement shall remain in full force and effect
notwithstanding the termination, cancellation or natural expiration of the Admission Agreement.
10. No Jury Trial: If this Agrcemcnt is found to be unenforceable and arbitration is not compelled, then as a default,
the Parties agree that the disputes shall be resolved solely by a judge via a bench trial. Under no circumstances will a
jury decide any dispute.
11. Health Care Decision: The Parties hereby stipulate that the decision to have the Patient move into this Center
and the decision to agree to this Agreement are each a health care decision. The Parties stipulate that there are other
health care facilities in this community currently available to meet the Patient's needs.
12. Legal Representative: The Patient's Legal Representative, by his or her signature below, hereby represents and
stipulates that he/she has been authorized by the Patient to sign this Agreement on behalf of the Patient.
BY SIGNING BELOW, THE PARTIES CONFIRM. THAT EACH OF THElt'1( HAS READ ALL FOUR (4)
PAGES-OF TA.11S AGREEMENT AND UNDERSTANDS THAT EACH HAS WAWED THE RIGHT TO A
TRIAL BEFORE A JUDGE OR JURY AND THAT EACH OF THEM CONSENTS TO ALL OF THE
TERMS OF THIS VOLUNTARY AGREEMENT.
PATIENT:
f-y'a k".0-A t- 1J3109
Printed Name (Date)
PATIE, NT _SLEGAL REPRESENTATIVE:
1a7' , ro,. _, J d 14 /-?r Zd 0
Printed Name Mate)
Signature of Patient
CENTER SE 'T
' Patient's Legal Representati ould sign on both lines above containing the phrase "Patient's Legal
Representative."
ATTORNEYS AT LAW
John M. Skrocki
Attorney-at-Law
August 22, 2011
Via U.S. First Class Mail and Certified Mail
Return Receipt Requested No. 70100290000323077427
Robin J. Marzella, Esquire
R.J. Marzella & Associates, P.C.
3513 North Front Street
Harrisburg, PA 17110
Re: Estate of Girondi v. James Harty, M.D., et al.
Cumberland County CCP No. 2011-5324
Our File No. 10996-199150
Dear R.J. Marzella:
too Four Falls, Suite 515
1oo1 Conshohocken State Road
West Conshohocken, PA 19428
t: 484.567.5700
f: 484.567.5701
w: www.burnswhite.com
(484) 567-5715
jmskrocki@bumswhite.com
Enclosed please find a copy of the Arbitration Agreement signed by Ms. Fred
Girondi, Eva Girondi's son and legal representative relative to Mrs. Girondi's Manor Care
admission.
In the event your firm decides to pursue a claim on behalf Mrs. Girondi, please allow
this to serve as a demand for arbitration.
Thank you.
Very truly yo rs,
JMS:maa M. Skrocki
Enclosure
Burns White
A Limited Liability Company
??th??t
OF THE PROTHONOTARY
R. J. MARZELLA & ASSOCIATES, P.C.
BY: Robin J. Marzella, Esquire CUM?,E ALAND COUNTY
Pennsylvania Supreme Court I.D. No. 66856 PENNSYLVANIA
3513 North Front Street
Harrisburg, PA 17110
Telephone: (717) 234-7828 Attorney for
Facsimile: (717) 234-6883 Alfred Girondi, Jr., Individually
and as Administrator, for the
Estate of Eva Girondi
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
ALFRED GIRONDI, JR., DOCKET NUMBER:
INDIVIDUALLY AND AS
ADMINISTRATOR, FOR THE ESTATE
OF EVA GIRONDI
PLAINTIFFS
VS. PROFESSIONAL MEDICAL
NEGLIGENCE
JAMES HARTY, M.D.;
MANOR CARE OF CARLISLE PA LLC,
MANOR HEALTHCARE CORP.,
MANORCARE HEALTH SERVICES
CARLISLE, HEALTH CARE AND
RETIREMENT CORPORATION OF
AMERICA, MANOR CARE OF
AMERICA INC., MANOR CARE INC.,
HCR MANOR CARE INC., HCR
MANOR CARE; JURY TRIAL DEMANDED
DEFENDANTS
NOTICE TO DEFEND
YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims
set forth in the following pages, you must take action within twenty (20) days after this
Complaint and Notice are served, by entering a written appearance personally or by
attorney and filing in writing with the Court your defense 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 claim or relief requested by the Plaintiff.
You may lose money or property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU
DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE
THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL
HELP.
One Courthouse Square
Carlisle, PA 17013
(717) 240-6200
NOTICIA
LE HAN DEMANDADO A USTED EN LA CORTE. Si usted quiere defenderse
de estas demandas expuestas en las paginas siguientes, usted tiene veinte (20) dias de
plaza al partir de la fecha de la demanda y la notificacibn. Usted debe presentar una
apariencia escrita o en persona o por abogado y archivar en la corte en forma escrita sus
defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si
usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin
previo aviso o notificacibn y por cualquier queja o alivio que es pedido en la petici6n de
demanda. Usted pueda perder dinero o sus propiedades o otros derechos importantes
para usted.
LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTA. SI NO
TIENE ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL
SERVICIO, VAYA EN PERSONA 0 LLAME POR TELEFONO A LA LFICINA CUYA
DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE
PEUDE CONSEGUIR ASISTENCIA LEGAL.
One Courthouse Square
Carlisle, PA 17013
(717) 240-6200
R. J. MARZELLA & ASSOCIATES, P.C.
BY: Robin J. Marzella, Esquire
Pennsylvania Supreme Court I.D. No. 66856
3513 North Front Street
Harrisburg, PA 17110
Telephone: (717) 234-7828 Attorney for
Facsimile: (717) 234-6883 Alfred Girondi, Jr., Individually
and as Administrator, for the
Estate of Eva Girondi
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
ALFRED GIRONDI, JR., DOCKET NUMBER: _J
INDIVIDUALLY AND AS
ADMINISTRATOR, FOR THE ESTATE
OF EVA GIRONDI
PLAINTIFFS
VS. PROFESSIONAL MEDICAL
NEGLIGENCE
JAMES HARTY, M.D.;
MANOR CARE OF CARLISLE PA LLC,
MANOR HEALTHCARE CORP.,
MANORCARE HEALTH SERVICES
CARLISLE, HEALTH CARE AND
RETIREMENT CORPORATION OF
AMERICA, MANOR CARE OF
AMERICA INC., MANOR CARE INC.,
HCR MANOR CARE INC., HCR
MANOR CARE; JURY TRIAL DEMANDED
DEFENDANTS
COMPLAINT
1. Alfred J. Girondi, Jr., is the son of the late Eva R. Girondi, deceased, and
at all relevant times herein resided at 1440 Amherst Court, Mechanicsburg,
Pennsylvania.
2. Alfred J. Girondi, Jr. was appointed the Executor of Eva R. Girondi's
Estate by the Register of Wills of Cumberland County on or about February 19, 2010 (a
copy of the Short Certificate is attached hereto).
3. In addition to being named in Mrs. Girondi's Will as the Executor of her
Estate, Mrs. Girondi executed a healthcare Power of Attorney giving Alfred Girondi the
authority and power to make medical decisions on her behalf.
4. Alfred Girondi provided a copy of the aforementioned Power of Attorney
upon admission to each and every hospital, including the Defendant facility.
5. James Harty, M.D. (hereinafter Defendant Harty), an adult individual, is a
medical doctor who is licensed to practice medicine in the Commonwealth of
Pennsylvania and who at all relevant times herein did engage in the practice of internal
medicine in Mechanicsburg, Cumberland County, Pennsylvania.
6. Manorcare of Carlisle, PA, LLC (hereinafter Defendant Facility) was at all
relevant times, a corporate medical institution with its principal place of business at
941 Walnut Bottom Road, Carlisle, Cumberland County, Pennsylvania, 17015.
7. Manor Healthcare Corporation (hereinafter Defendant Facility) was at all
relevant times, a corporate medical institution with its principal place of business at
941 Walnut Bottom Road, Carlisle, Cumberland County, Pennsylvania, 17015.
8. Manorcare Health Services Carlisle (hereinafter Defendant Facility) was
at all relevant times, a corporate medical institution with its principal place of business
at 941 Walnut Bottom Road, Carlisle, Cumberland County, Pennsylvania, 17015.
9. Healthcare and Retirement Corporation of America (hereinafter
Defendant Facility) was at all relevant times, a corporate medical institution with its
principal place of business at 941 Walnut Bottom Road, Carlisle, Cumberland County,
Pennsylvania, 17015.
10. Manorcare of America, Inc. (hereinafter Defendant Facility) was at all
relevant times, a corporate medical institution with its principal place of business at
941 Walnut Bottom Road, Carlisle, Cumberland County, Pennsylvania, 17015.
11. Manorcare, Inc. (hereinafter Defendant Facility) was at all relevant times,
a corporate medical institution with its principal place of business at 941 Walnut
Bottom Road, Carlisle, Cumberland County, Pennsylvania, 17015.
12. HCR Manorcare, Inc. (hereinafter Defendant Facility) was at all relevant
times, a corporate medical institution with its principal place of business at 941 Walnut
Bottom Road, Carlisle, Cumberland County, Pennsylvania, 17015.
13. HCR Manorcare (hereinafter Defendant Facility) was at all relevant times,
a corporate medical institution with its principal place of business at 941 Walnut
Bottom Road, Carlisle, Cumberland County, Pennsylvania, 17015.
14. At all relevant times herein, Defendant Harty, all other physicians,
residents, and medical support staff' who cared or provided treatment to Eva Girondi
during her admission to Defendant facility in or about July 2009 were the agents,
apparent agents, servants, and/or employees of Defendant Facility and were acting
within the course and scope of their employment when providing professional medical
services to the Plaintiff.
15. In or about February of 2009, Eva Girondi was approximately 88 years of
age when she was admitted to Harrisburg Hospital for treatment of normal pressure
hydrocephalus.
16. Following placement of a ventricular peritoneal shunt system, Mrs.
Girondi was discharged from Harrisburg Hospital to Healthsouth for approximately
three (3) weeks. Ultimately, she was transferred to Golden Living in March of 2009.
17. Mrs. Girondi required readmission to Harrisburg Hospital on or about
June 8, 2009.
18. This list did not include Reglan.
19. Following discharge from Harrisburg Hospital, Mrs. Girondi was
transferred to Defendant facility on or about July 13, 2009.
20. Upon discharge from Harrisburg Hospital, a complete list of the
medications that Eva Girondi was taking on a daily basis was provided to Defendant
facility.
21. In February of 2009, the Food and Drug Administration (FDA) required
the manufacturer to include a "black box" warning due to the severity of the side
effects of the medication.
22. In explicably, immediately after being admitted to Defendant facility,
Defendant Harty and/or an agent, apparent agent, servant, and/or employee of
Defendant facility prescribed Reglan for Mrs. Girondi.
23. The aforementioned dangerous medication was prescribed for Mrs.
Girondi without notification, and/or approval of Fred Girondi, Power of Attorney.
24. The aforementioned medication was administered to Mrs. Girondi on a
daily basis, four times a day.
25. Shortly after being prescribed the medication, Mrs. Girondi began
developing severe side effects from the Reglan, including Tardive dyskinesia and other
side effecrts.
26. Eva Girondi did not have the capacity to agree or disagree with
Defendant Harty and/or an agent, apparent agent, servant, and/or employee when the
Reglan was prescribed.
27. Moreover, neither Alfred Girondi or other family member was consulted
at or before his mother was prescribed the aforementioned medication.
28. Eva Girondi was administered Reglan from approximately July 13, 2009
up through and including August 17, 2009.
29. The Defendants knew or should have known that the prescribing of
Reglan to an elderly female patient is contraindicated, especially in light of the fact that
she was not suffering from gastrointestinal symptoms.
30. As a result of the aforementioned unnecessary medication, Mrs.
Girondi's condition deteriorated.
31. She developed involuntary movements, especially of her arms and legs,
tremors, difficulty eating, difficulty swallowing, difficulty speaking, mask like facial
expressions, anxiety, agitation, hypertension, fluid retention, incontinence, dystonic
reaction, pseudo-parkinsonian symptoms, muscle rigidity, shuffling walk, autonomic
dysfunction, drowsiness and impairment of her coordination.
32. During the time period that Eva Girondi was being prescribed Reglan her
overall health declined.
33. She became less mobile, less communicative, and had less control of her
bodily functions.
34. On or about August 13, 2009, Alfred Girondi and his sister, Rita Girondi,
learned from a staff member that Mrs. Girondi had been prescribed Reglan without
their knowledge or consent.
35. When Alfred Girondi and his sister, Rita Girondi, learned that their
mother had been prescribed Reglan, they immediately demanded that the medication
be stopped.
36. A fax containing this request was sent to Defendant Harty. In the fax, it
was requested that Defendant Harty contact Alfred Girondi to discuss the matter
further.
37. Following this fax on or about August 13, 2009, Alfred Girondi received
no response from Defendant Harty.
38. They immediately contacted the medical director of Manorcare, Mr. Joe
Barrick and expressed their concerns about the prescription and administration of
Reglan to their mother.
39. On or about August 17, 2009, Alfred Girondi and his sister, Rita Girondi,
met with the director of Manorcare, Joe Barrick.
40. At Mr. Girondi's insistence, Mr. Barrick contacted Defendant Harty and
the Reglan was discontinued on or about August 18, 2009.
41. Mr. Barrick contacted Defendant Harty and he ultimately ordered the
discontinuation of the medication.
42. In addition, Alfred Girondi requested to speak to defendant Harty about
why the Reglan had been prescribed in the first place.
43. Although the medication was discontinued, Mrs. Girondi continued to
experience severe side effects as a result of the medication.
44. Although multiple requests were relayed to Defendant Harty to contact
Mr. Girondi to discuss the above issue regarding his mother's care, Defendant Harty
never contacted Mr. Girondi.
45. Ultimately, on or about August 19, 2009, Mr. Girondi was visiting his
mother at Manorcare and had the opportunity to speak to Defendant Harty.
46. When questioned about why the Reglan had been ordered, Defendant
Harty became very defensive and advised Mr. Girondi that he should find a new
physician to oversee his mother's care.
47. Thereafter, Dr. Binder was assigned to oversee Eva Girondi's care.
48. After his initial evaluation, various diagnostic studies were undertaken
to evaluate the current status of her health.
49. One of the aforementioned studies including a swallowing study due to
the difficulty that Mrs. Girondi had been experiencing swallowing while on the Reglan.
50. After the Reglan was stopped, Mrs. Girondi's swallowing difficulties
improved and in fact, the swallowing study performed at Holy Spirit Hospital on or
about August 28, 2009 revealed that she was no longer having difficulty swallowing
solid or liquid foods.
51. The difficulty swallowing was thought to be a direct result of the
administration of Reglan.
52. Although, the swallowing difficulty improved, many other side effects of
the Reglan remained, including the tardive dyskinesia, especially of her arms and legs.
53. Physical therapy was initiated in hopes to improve Mrs. Girondi's overall
well-being.
54. Over the course of the next several weeks, Mrs. Girondi received
physical therapy five (5) times a week.
55. Gradually, her physical and mental states seemed to improve.
56. However, she still had difficulty controlling the movements in her
extremities.
57. On or about October 29, 2009, Alfred Girondi and his sister, Rita
Girondi, had another meeting with the administrator at Defendant facility, Joe Barrick.
They again raised their concerns as to why the Reglan had been administered to begin
with by Defendant Harty.
58. They reported to Mr. Barrick that Defendant Harty had never provided
them with an explanation as to why the drug was ordered to begin with.
59. The following morning, Mr. Girondi received a telephone call from
Defendant Harty.
60. Defendant Harty advised Mr. Girondi that he was calling him at Mr.
Barrick's insistence.
61. During the conversation, Mr. Girondi specifically asked Defendant Harty
why the Reglan had been prescribed.
62. Defendant Harty refused to answer the question and hung up the phone.
63. Because their concerns were not being promptly or appropriately
addressed, Rita Girondi wrote a letter to Mr. Joseph Barrick on or about November 12,
2009.
64. Rita Girondi's letter outlined the concerns with their mother's care and
treatment that had been previously raised to Mr. Barrick that had not been
satisfactorily corrected.
65. Moreover, Rita Girondi's letter again requested that she and her brother
be provided with the underlying reason for the original prescription of Reglan.
66. Mr. Barrick responded in writing on or about November 25, 2009.
However, the rationale behind prescribing Eva Girondi the Reglan was still not
forthcoming.
67. That evening, Alfred and Rita visited their mother at the Defendant
facility and she appeared to be in reasonably good health and spirits.
68. She did not complain of any pain or discomfort.
69. The following day, November 26, 2009, Alfred and Rita went to
Manorcare for Thanksgiving lunch with their mother.
70. When they arrived, Alfred and Rita watched as several aides assisted in
moving Eva Girondi from her wheelchair to the toilet.
71. Mrs. Girondi appeared to be crying out but her children did not know
why.
72. After assisting her in going to the bathroom, the aides, using mechanical
assistance, returned Mrs. Girondi to her wheelchair.
73. After being returned to her wheelchair, Mrs. Girondi seemed to calm
down.
74. Thereafter, Alfred pushed his mother to meet his sister in another room
for Thanksgiving dinner.
75. During this entire time, Eva was crying out in pain.
76. While at lunch with her son and daughter, Eva appeared to be
experiencing pain in her right leg.
77. When Alfred returned his mother to her room, he brought this to the
attention of the staff members.
78. Dr. Binder was notified and Eva was transferred to Harrisburg Hospital
for further evaluation and treatment.
79. Upon arrival at Harrisburg Hospital, it was discovered that Eva Girondi
was suffering from a spiral fracture of both the tibia and fibula.
80. She required surgery to correct the same.
81. Eva Girondi remained hospitalized at Harrisburg Hospital through
December 1, 2009.
82. She was thereafter transferred to the Golden Living facility in Camp Hill,
Pennsylvania.
83. Unfortunately, approximately six (6) weeks later, Eva died on January 15,
2010.
84. Eva Girondi's death was the direct and proximate result of the
negligence, gross negligence and reckless indifference of the Defendant and a claim is
made therefore.
85. The negligence of the Defendants increased the risk and was a
substantial factor in causing the Plaintiff, Eva Girondi's death.
86. Plaintiff, Alfred Girondi, as the Executor of the estate of Eva Girondi,
deceased, brings this action on behalf of the estate of Eva Girondi under and be virtue
of the Act of 1976, July 9, P.L.586 no. 142, §2, 42 Pa.C.S.A. §8302.
87. Plaintiff, Alfred Girondi, as the executor of the Estate of Eva Girondi,
deceased, brings this action for the wrongful death of Eva Girondi, deceased, on behalf
of all persons entitled to recover damages under and by virtue of the Act of 1976, July 9
P.L. 586 no. 142, §2, 42 Pa.C.S.A. §8301.
88. Plaintiff, Alfred Girondi, as the Executor of the Estate of Eva Girondi,
deceased, claims on behalf of said Estate, the damages suffered by said Estate by
reason of the death of the decedent, for the pain and suffering of the decedent prior to
her death, for the loss of life's pleasures and enjoyment of life and for all other
damages sustained by reason of the death of the decedent.
89. Decedent, Eva Girondi, did not bring an action for her injuries during her
lifetime. The following are all persons entitled by law to recover for the wrongful
death and the relationship to the decedent:
Alfred Girondi - son;
Rita Girondi - daughter.
90. As a result of Eva Girondi's death, Plaintiff has incurred medical, funeral,
burial, and related expenses and a claim is made therefore.
h. Negligently administering a medication with known significant
side effects without permission to do so.
i. Negligently administering a medication with known significant
side effects in a patient whose medical condition contraindicated the same.
93. As a direct and proximate result of Dr. Harry's negligence, the Plaintiff
has sustained injuries and damages as set forth in paragraphs 1 through 90 above,
which are incorporated by referenced as if set forth at length.
WHEREFORE, Alfred Girondi, executor of the Estate of Eva Girondi, deceased,
demands judgment against Dr. James Harty for damages in an amount in an excess of
$50,000.00 exclusive of interests and costs and any jurisdictional amount requiring
compulsive arbitration.
COUNT - II
Alfred Girondi
V.
Manorcare of Carlisle, PA, LLC,
Manor Healthcare Corp,
Manorcare Health Services
Carlisle Healthcare and Retirement
Corporation of America,
Manorcare of America, Inc.,
Manorcare, Inc.,
HCR Manorcare, Inc., HCR Manorcare
94. Paragraphs 1 through 93 and Count 1 are incorporated herein by
reference as is set forth at length.
87. Defendants, Manorcare of Carlisle, PA, LLC, Manor Healthcare Corp,
Manorcare Health Services, Carlisle Healthcare and Retirement, Corporation of
America,
Manorcare of America, Inc., Manorcare, Inc., HCR Manorcare, Inc., HCR Manorcare are
liable to the Plaintiffs, Alfred Girondi, Executor of the Estate of Eva Girondi for the
injuries and damages alleged herein which were directly and proximately caused by the
negligence, gross negligence and reckless disregard of the agents, apparent agents,
servants, and/or employees of the facility with respect to Eva Girondi by:
a. Improperly prescribing Reglan when it was not medically
necessary for the patient;
b. Improperly prescribing an excess dose of Reglan to the patient;
C. Improperly prescribing Reglan for an extended period of time;
d. Failing to recognize the developing side effects that the patient
was experiencing from the Reglan and discontinuing the same immediately.
e. Failing to order closer monitoring of the patient's condition for
potential side effects while taking the Reglan;
f. Failing to obtain permission from the patient's Power of Attorney
prior to prescribing Reglan;
g. Failing to notify the patient's Power of Attorney of the
recommendation/order for Reglan and discussing the same prior to
administration;
h. Negligently administering a medication with known significant
side effects without permission to do so.
L Negligently administering a medication with known significant
side effects in a patient whose medical condition contraindicated the same.
j. Failing to properly and appropriately assist the patient with
movements and transfers;
k. Failing to have sufficient manpower to appropriately assist the
patient in moving and in transfers;
1. Inappropriately twisting Mrs. Girondi's leg causing a spiral
fracture of her tibia and fibula;
M. Exerting excess force on Mrs. Girondi's leg when attempting to
move or transfer the patient;
n. Dropping or mishandling the patient in such a fashion as to cause
a spiral fracture to her leg;
o. Failing to timely and appropriately employ mechanical lifting
equipment to safely assist Mrs. Girondi in moving and in transfers;
P. Failing to take the patient for immediate evaluation and
treatment following the fracture that occurred on or about November 25, 2009;
q. Failing to timely recognize and obtain proper treatment for the
spiral fracture of Mrs. Girondi's leg;
r. Improperly causing a spiral fracture of Mrs. Girondi's leg.
95. As a direct and proximate result of Dr. Harty's negligence, the Plaintiff
has sustained injuries and damages as set forth in paragraphs l through 90 above,
which are incorporated by referenced as if set forth at length.
WHEREFORE, Alfred Girondi, executor of the Estate of Eva Girondi,
deceased, demands judgment against Manorcare of Carlisle, PA, LLC, Manor Healthcare
Corp, Manorcare Health Services, Carlisle Healthcare and Retirement, Corporation of
America, Manorcare of America, Inc., Manorcare, Inc., HCR Manorcare, Inc., HCR
Manorcare for damages in an amount in an excess of $50,000.00 exclusive of interests
and costs and any jurisdictional amount requiring compulsive arbitration.
Respectfully submitted,
P.C.
iXV Vlll J. lYl G li04u11 %.
Date: Attorney entification No. 66856
VERIFICATION
I, Robin Marzella, do hereby swear and affirm that the facts and matters set forth
in the foregoing document are true and correct to the best of our knowledge, information
and belief.
I understand that the statements made therein are made subject to the penalties of
18 Pa. C.S. § 4904 relating to unworn falsification to authorities.
' - ZI - //1
Dated: ? :?Z/
CERTIFICATE OF SERVICE
I, Jacqulyn R. Harris, hereby certify that a true and correct copy of the foregoing
Complaint was served upon counsel of record this 18`h day of April, 2012, by depositing
said copy in the United States Mail at Harrisburg, Pennsylvania, postage prepaid, first
class delivery, and addressed as follows:
Mike Pipa, Esq.
Stevens & Lee
17 North 2nd Street, 16`h Floor
Harrisburg, PA 17101
John M. Skrocki, Esq.
Burns White, LLC
100 Four Falls, Suite 515
1001 Conshohocken State Road
West Conshohocken, PA 19428
R. J. MARZEL[A & AssociATES, P.C.
BY:
JAC1 ULYN . 1-11 LAw CLERK
V A ZELLA
ASSOCIATES
Attorneys & Counselors At Law
3513 NORTH FRONT STREET, HARRISBURG, PENNSYLVANIA 17110
717.234.7828 866.625.2590 717.234.6883 FAX
APR 2 b 201f
April 18, 2012
John M. Skrocki, Esq.
Burns White, LLC
loo Four Falls, Suite 515
cool Conshohocken State Road
West Conshohocken, PA 19428
Re: GIRANDI v. KAPOOR, ET. AL.
Dear Mr. Skrocki:
Enclosed please find one time-stamped copy of Plaintiff's Complaint. Please
contact our office if you have any questions/concerns regarding this matter.
Thank you for your assistance with this matter.
Very truly yours,
R. J. Marzella & Associates, P.C.
By:
atie L (m, Law Clerk to
Robin J. Marzella, Esquire
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PRAECIPE FOR LISTING CASE FOR ARGUMENT
(Must be typewritten and submitted in triplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.)
DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT
CAPTION OF CASE (entire caption must be stated in full)
ALFRED GIRONDI, JR., INDIVIDUALLY AND AS
ADMINISTRATOR FOR THE ESTATE OF EVA GIRONDI
V.
JAMES HARTY, M.D., MANOR CARE OF CARLISLE PA LLC
MANOR HEALTHCARE CORP., MANORCARE HEALTH
SERVICES CARLISLE, HEALTH CARE AND RETIREMENT
CORPORATION OF AMERICA, MANOR CARE OF AMERICA,
INC., MANORCARE INC., HCR MANOR CARE, INC.,
HCR MANOR CARE
COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
No. 2011-5324
Civil Action
Jury Trial Demanded
State matter to be argued (i.e., plaintiffs motion for new trial, defendant's
demurrer to complaint, etc.):
DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT (Two Sets)
2. Identify counsel who will argue case:
(a) for plaintiff: Robin J. Marzella, Esquire; R.J. Marzella & Associates, P.C.
address: 3513 North Front Street, Harrisburg, PA 17110
(b) for defendant: John M. Skrocki, Esquire; Burns White LLC
address: 100 Four Falls, Suite 515, 1001 Conshohocken State Road
West Conshohocken, PA 19428
3. 1 will notify all parties in writing within two days that this case has been listed for
argument.
4. Argument Court Date: v ?-
'
Dated:
Signature -- John M. Skrocki, Esquire
Identificatio o. 49071 ci ?G
BURNS WHITE LLC 3 Q)
100 Four Falls, Suite 515 3:c: ?c.;:
1001 Conshohocken State Road --4
West Conshohocken, PA 19428 N)
(484-567-5700)
Counsel for Defendants, Manor Care of Carlisle PA LLC,
Manor Healthcare Corp., Manorcare Health Services Carlisle,
Healthcare and Retirement Corporation of America, Manor Care
of America, Inc., Manorcare, Inc., HCR Manor Care, Inc., and
HCR Manor Care
INSTRUCTIONS:
1. Original and two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the
Prothonotary) before argument.
2. The moving party shall file and serve their brief 12 days prior to argument.
3. The responding party shall file their brief 5 days prior to argument.
4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the
Prothonotary) after the case is relisted. -v9. 7S A/ 941
eK-*? 33W....
?2?- -27s'/QQ
CERTIFICATE OF SERVICE
I, John M. Skrocki, Esquire, hereby certify that I am this day serving a copy of the foregoing
Praecipe for Argument of ManorCare Defendants' Preliminary Objections to Plaintiffs' Complaint upon
the person(s) and in the manner indicated below, which service satisfies the requirements of the
Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, First-
Class, postage prepaid, addressed as follows:
Robin J. Marzella, Esquire
R.J. Marzella & Associates, P.C.
3513 North Front Street
Harrisburg, PA 17110
Michael D. Pipa, Esquire
Stevens & Lee
17 North Second Street
160' Floor
Harrisburg, PA 17101
Date: 57- 1
BURNS WHITE LLC
-Qk?5??
John M. krocki
2
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
ALFRED GIRONDI, JR., Individually and as
Administrator for the Estate of EVA GIRONDI,
Deceased,
Plaintiff
V.
JAMES HARTY, M.D., MANOR CARE OF
CARLISLE PA LLC, MANOR HEALTHCARE
CORP., MANORCARE HEALTH SERVICES
CARLISLE, HEALTH CARE AND RETIREMENT :
CORPORATION OF AMERICA, MANOR CARE
OF AMERICA INC., MANOR CARE INC., HCR
MANOR CARE INC., HCR MANOR CARE
Defendants.
: Docket No. 11-5324
,, , .mot
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CIVIL ACTION - MEDICAL
PROFESSIONAL LIABILITY ACTION
JURY TRIAL DEMANDED
NOTICE OF INTENTION TO ENTER JUDGMENT
OF NON-PROS PURSUANT TO PA. R.C.P. 1042.7
TO: Alfred Girondi, Jr.
c/o Robin J. Marzella, Esquire
R.J. Marzella & Associates, P.C.
3513 North Front Street
Harrisburg, PA 17110
Pursuant to Pennsylvania Rule of Civil Procedure 1042.7, we intend to enter a
judgment of non-pros against you after thirty (30) days of the date of the filing of this Notice if
Certificates of Merit are not filed in support of all claims as required by Pa. R.C.P. 1042.3. I am
serving this Notice on behalf of Dr. Naymick. The judgment of non-pros will be entered as to all
claims.
SL I 1 165927v 1041 199.00551
r
STEVENS & LEE
Date: May 18, 2012 By:
Mic ael D. Pipa, Esquire
Attorney I.D. No. 53624
Brandon R. Conrad, Esquire
Attorney I.D. No. 308249
17 North Second Street, 16th Floor
Harrisburg, PA 17101
(717) 255-7376
(610) 371-7743 (facsimile)
mdp@stevenslee.com
brc@stevenslee.com
Counsel for Defendant James Harty, M. D.
SL I 1 165927v 1041 199.00551
CERTIFICATE OF SERVICE
I, Brandon R. Conrad, Esquire, certify that on this date, I served a certified true
and correct copy of the foregoing Praecipe upon the following counsel of record, by depositing
the same in the United States mail, postage prepaid, addressed as follows:
Robin J. Marzella, Esquire
R.J. Marzella & Associates, P.C.
3513 North Front Street
Harrisburg, PA 17110
William J. Mundy, Esquire
John M. Skrocki, Esquire
Burns White, LLC
100 Four Falls, Suite 515
1001 Conshohocken State Road
West Conshohocken, PA 19428
Date: May 18, 2012 -e` t
Brandon R. Conrad, Esquire
SL I 1165927v1 041199.00551
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
ALFRED GIRONDI, JR., Individually and as Docket No. 11-5324
Administrator for the Estate of EVA GIRONDI,
Deceased, CIVIL ACTION - MEDICAL
PROFESSIONAL LIAWLITY ACTION
Plaintiff
v.
JAMES HARTY, M.D., MANOR CARE OF
CARLISLE PA LLC, MANOR HEALTHCARE
CORP., MANORCARE HEALTH SERVICES
CARLISLE, HEALTH CARE AND RETIREMENT :
CORPORATION OF AMERICA, MANOR CARE :
OF AMERICA INC., MANOR CARE INC., HCR :
MANOR CARE INC., HCR MANOR CARE
: JURY TRIAL DEMANDED
Defendants.
AMENDED NOTICE OF INTENTION TO ENTER JUDGMENT
OF NON PROS PURSUANT TO PA. H.C.P.1042.7
TO: Alfred Girondi, Jr.
c/o Robin J. Mamella, Esquire
R.J. Marzella & Associates, P.C.
3513 North Front Street
Harrisburg, PA 17110
c
00
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Pursuant to Pennsylvania Rule of Civil Procedure 1042.7, we intend to enter a
judgment of non-pros against you after thirty (30) days of the date of the filing of this Notice if
Certificates of Merit are not filed in support of all claims as required by Pa. R.C.P. 1042.3. I am
serving this Notice on behalf of Dr. Harty. The judgment of non-pros will be centered as to all
claims.
SL I 1165927v 1041199.00551
STEVENS & LEE
Date: May _k2012 By:
Michael D. Pipa, Esquire
Attorney I.D. No. 53624
Brandon R. Conrad, Esquire
Attorney I.D. No. 308249
17 North Second Street, 16th Floor
Harrisburg, PA 17101
(717) 255-7376
(610) 371-7743 (facsimile)
mdp@stevenslee.com
brc@stevenslee.com
Counsel for Defendant James Harty, M.D.
S L 1 1165927Y 1041199.005 51
-, 1W
CERTIFICATE OF SERECE
I, Brandon R. Conrad, Esquire, certify that on this date, I served a certified true
and correct copy of the foregoing Amended Notice upon the following counsel of record, by
depositing the same in the United States mail, postage prepaid, addressed as follows:
Robin J. Marzella, Esquire
R.J. Marzella & Associates, P.C.
3513 North Front Street
Harrisburg, PA 17110
William J. Mundy, Esquire
John M. Skrocki, Esquire
Burns White, LLC
100 Four Falls, Suite 515
1001 Conshohocken State Road
West Conshohocken, PA 19428
Date: May & 2012
Brandon onrad, Esquire
SL I 1165927v 1041199.005 51
r
BURNS WHITE LLC
By: William J. Mundy, Esquire Attorneys for Defendants, Manor Care of Carlisle PA
Identification No. 57679 LLC, Manor Healthcare Corp., Manorcare Health
By: John M. Skrocki, Esquire Services Carlisle, Healthcare and Retirement
Identification No. 49071 Corporation of America, Manor Care of America,
100 Four Falls, Suite 515 Inc., Manorcare, Inc., HCR Manor Care, Inc., and
1001 Conshohocken State Road HCR Manor Care
West Conshohocken, PA 19428
(484) 567-5700
CUMBERLAND COUNTY
ALFRED GIRONDI, JR., INDIVIDUALLY COURT OF COMMON PLEAS
AND AS ADMINISTRATOR FOR THE
ESTATE OF EVA GIRONDI
Plaintiffs, ,
: NO. I1-5324
v.
JAMES HARTY, M.D. ,
MANOR CARE OF CARLISLE PA LLC Jury Trial Demanded
MANOR HEALTHCARE CORP.,
MANORCARE HEALTH SERVICES CARLISLE, '
14EALTH CARE AND RETIREMENT
CORPORATION OF AMERICA, MANOR CARE OF
--
MANORCARE INC., HCR
AMERICA, INC.,
" r
MANOR CARE INC. HCR MANOR CARE
Defendants. t
C
NOTICE TO PLEAD
".. C n
..
To: Alfred Girondi, Jr., Esquire T _ =
Robin J. Marzella, Esquire
R.J. Marzella & Associates, P.C.
3513 North Front Street
Harrisburg, PA 17110
(Attorneys for Plaintiffi
Purusant to Pennsylvania Rule of Civil Procedure 1042.7, we intend to enter a
judgment of non-pros against you after thirty (30) days of the date of the filing of this
Notice if Certificates of Merit are not filed in support of all claims as required by
Pa.R.C.P. 1042.3. I am serving this Notice on behalf of defendants, Manor Care of
Carlisle PA LLC, Manor Healthcare Corp., Manorcare Health Services Carlisle,
Healthcare and Retirement Corporation of America, Manor Care of America, Inc.,
Manorcare, Inc., HCR Manor Care, Inc., and HCR Manor Care. The judgment of non-
pros will be entered as to all claims.
BURNS WHITE LLC
L`c )
y: John M. Strocki, Esquire
Attorneys for Defendants, Manor Care of
Carlisle PA LLC, Manor Healthcare Corp.,
Manorcare Health Services Carlisle, Healthcare
and Retirement Corporation of America, Manor
Care of America, Inc., Manorcare, Inc., HCR
C . f Manor Care, Inc., and HCR Manor Care
Date: ` i
CERTIFICATE OF SERVICE
I, John M. Skrocki, Esquire, hereby certify that on this date, a true and correct copy
of the foregoing Notice of Intention to Enter Judgment of Non-Pros Pursuant to Pa.R.C.P.
1042.7 was delivered by United States First-Class Mail, postage prepaid and/or Certified
Mail, Return Receipt Requested, as follows:
By Certified Mail, Return Receipt
Requested and U.S. First Class Mail
By U.S. First Class Mail
Robin J. Marzella, Esquire
Alfred Girondi, Jr., Esquire
R.J. Marzella & Associates, P.C.
3513 North Front Street
Harrisburg, PA 17110
Attorneys for Plaintiff
Dated: ?e00'
Michael D. Pipa, Esquire
Stevens & Lee
17 North Second Street
16th Floor
Harrisburg, PA 17101
Attorneys for Defendant,
James Harty, MD.
ohn M. Skr cki, Esquire
BURNS WHITE LLC
By: William J. Mundy, Esquire
Identification No. 57679
By: John M. Skrocki, Esquire
Identification No. 49071
100 Four Falls, Suite 515
1001 Conshohocken State Road
West Conshohocken, PA 19428
(484) 567-5700
.W y t ?dys for Defendants, Manor Care of Carlisle PA
LLC, Manor Healthcare Corp., Manorcare Health
Meivi Carlisle, Healthcare and Retirement
F lion of America, Manor Care of America,
€'itL1Qanorcare, Inc., HCR Manor Care, Inc., and
FE111NSYLV Manor Care
ALFRED GIRONDI, JR., INDIVIDUALLY
AND AS ADMINISTRATOR FOR THE
ESTATE OF EVA GIRONDI
V.
JAMES HARTY, M.D.
MANOR CARE OF CARLISLE PA LLC
MANOR HEALTHCARE CORP.,
MANORCARE HEALTH SERVICES CARLISLE,
HEALTH CARE AND RETIREMENT
CORPORATION OF AMERICA, MANOR CARE OF
AMERICA, INC., MANORCARE INC., HCR
MANOR CARE, INC., HCR MANOR CARE
: CUMBERLAND COUNTY
: COURT OF COMMON PLEAS
: NO. 11-5324
Jury Trial Demanded
PRAECIPE TO WITHDRAW PRELIMINARY OBJECTIONS
TO THE PROTHONOTARY:
Kindly withdraw the Preliminary Objections to Plaintiff's Complaint which had
been filed by Defendants, Manor Care of Carlisle PA LLC, Manor Healthcare Corp.,
Manorcare Health Services Carlisle, Healthcare and Retirement Corporation of America,
Manor Care of America, Inc., Manorcare, Inc., HCR Manor Care, Inc., and HCR Manor
Care.
Date: 44/Y
BURN LC
John . krocki, Esquire
Attorneys for Defendants, Manor Care
of Carlisle PA LLC, Manor Healthcare
Corp., Manorcare Health Services
Carlisle, Healthcare and Retirement
Corporation of America, Manor Care of
America, Inc., Manorcare, Inc., HCR
Manor Care, Inc., and HCR Manor Care
* -
CERTIFICATE OF SERVICE
I, John M. Skrocki, Esquire, hereby certify that on this date, a true and correct copy
of the foregoing Praecipe to Withdraw Preliminary Objections was delivered by United
States First-Class Mail, postage prepaid, as follows:
Robin J. Marzella, Esquire Michael D. Pipa, Esquire
R.J. Marzella & Associates, P.C. Stevens & Lee
3513 North Front Street 17 North Second Street
Harrisburg, PA 17110 16'' Floor
Harrisburg, PA 17101
Dated: ., John . kroc:squire
,
R. J. MARZELLA & ASSOCIATES, P.C.
BY: Robin J. Marzella, Esquire
Pennsylvania Supreme Court I.D. No. 66856 Attorney for
3513 North Front Street Alfred Girondi, Jr., Individually
Harrisburg, PA 17110 and as Administrator, for the
Telephone: (717) 234-7828 Estate of Eva Girondi
Facsimile: (717) 234-6883
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
ALFRED GIRONDI, JR.,
INDIVIDUALLY AND AS
ADMINISTRATOR, FOR THE ESTATE
OF EVA GIRONDI
PLAINTIFFS
vs.
JAMES HARTY, M.D.;
MANOR CARE OF CARLISLE PA LLC,
MANOR HEALTHCARE CORP.,
MANORCARE HEALTH SERVICES
CARLISLE, HEALTH CARE AND
RETIREMENT CORPORATION OF
AMERICA, MANOR CARE OF
AMERICA INC., MANOR CARE INC.,
HCR MANOR CARE INC., HCR
MANOR CARE;
DEFENDANTS
DOCKET NUMBER: 11-5324
PROFESSIONAL MEDICAL
NEGLIGENCE
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JURY TRIAL DEMANDED
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CERTIFICATE OF MERIT AS TO MANOR CARE OF CARLISLE, PA LLC, MANOR
HEALTHCARE CORP., MANORCARE HEALTH SERVICES CARLISLE, HEAL CARE AND
RETIREMENT CORPORATION OF AMERICA, MANOR CAREOF AMERICA, INC., HCR
MANOR CARE, INC., HCR MANOR CARE
I, Robin J. Marzella, attorney for the Plaintiff, Alfred Girdondi, Jr., Individually and
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CD"
as Administrator of the Estate of Eva Girondi, hereby, certify that:
() an appropriate licensed professional has supplied a written statement to the
undersigned that there is a basis to conclude that the care, skill or knowledge
exercised or exhibited by this defendant in the treatment, practice or work that is
the subject of the complaint, fell outside acceptable professional standards and
that such conduct was a cause in bringing about the harm;
OR
(X) the claim that these defendants deviated from an acceptable professional
standard is based solely on allegations that other licensed professionals for
whom these defendants are 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.
Zarze Associates, P.C.
By: g
Robin J. M ze , Attorney Identification No. 66856
Dated: August 2. 2012
R. J. MARZELLA & ASSOCIATES, P.C.
BY: Robin J. Marzella, Esquire
Pennsylvania Supreme Court I.D. No. 66856 Attorney for
3513 North Front Street Alfred Girondi, Jr., Individually
Harrisburg, PA 17110 and as Administrator, for the
Telephone: (717) 234-7828 Estate of Eva Girondi
Facsimile: (717) 234-6883
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
ALFRED GIRONDI, JR.,
INDIVIDUALLY AND AS
ADMINISTRATOR, FOR THE ESTATE
OF EVA GIRONDI
PLAINTIFFS
vs.
JAMES HARTY, M.D.;
MANOR CARE OF CARLISLE PA LLC,
MANOR HEALTHCARE CORP.,
MANORCARE HEALTH SERVICES
CARLISLE, HEALTH CARE AND
RETIREMENT CORPORATION OF
AMERICA, MANOR CARE OF
AMERICA INC., MANOR CARE INC.,
HCR MANOR CARE INC., HCR
MANOR CARE;
DEFENDANTS
DOCKET NUMBER: 11-5324
C-)
C
PROFESSIONAL MEDICAL
NEGLIGENCE
C-
PV C)
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Co
JURY TRIAL DEMANDED
CERTIFICATE OF MERIT AS TO JAMES HARTY, M.D.
I, Robin J. Marzella, attorney for the Plaintiff, Alfred Girdondi, Jr., Individually and
as Administrator of the Estate of Eva Girondi, hereby, certify that:
(X) an appropriate licensed professional has supplied a written statement to the
undersigned that there is a basis to conclude that the care, skill or knowledge
exercised or exhibited by this defendant in the treatment, practice or work that
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 these defendants deviated from an acceptable professional
standard is based solely on allegations that other licensed professionals for
whom these defendants are 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.
R. J. Marzella & Associates, P.C.
B
ella, re
AttorneyNo. 66856
Dated: August 2. 2012
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA '
ALFRED?GIRONDI, JR., Individually and as
Administrator for the Estate of EVA GIRONDI,
Deceased;
P14intiff
V.
JAMES HARTY, M.D., MANOR CARE OF
CARLISLE PA LLC, MANOR HEALTHCARE
CORP., NfANORCARE HEALTH SERVICES
CARLISLE, HEALTH CARE AND
RETIREMENT CORPORATION OF
AMERICAA, MANOR CARE OF AMERICA
INC., MANOR CARE INC., HCR MANOR
CARE INC., HCR MANOR CARE
Ddfendants.
Docket No. 11-5324,???d`L,gfi{p COUNTY
EMNSYLVANIA
CIVIL ACTION - MEDICAL
PROFESSIONAL LIABILITY ACTION
JURY TRIAL DEMANDED
PRELIMINARY OBJECTIONS OF DEFENDANT, JAMES HARTY, M.D., TO
PLAINTIFF'S COMPLAINT
AND NOW, comes Defendant, James Harty, M.D. (Objecting Defendant), by and
through }his counsel, Stevens & Lee, to preliminarily object to the Complaint of Plaintiff, Alfred
Girondi, Individually and as Administrator for the Estate of Eva Girondi, Deceased, and avers
the follo 'wing in support thereof.
I.: INTRODUCTION
1 Defendant objects to Plaintiff s Complaint because: (1) it requests punitive
damages without facts to support such a request; and (2) it contains over-inclusive, general
negligence allegations such as "negligently administering a medication."
SL 1 1186707v 1 041199.00551
II. PROCEDURAL HISTORY
2, This medical professional liability action was initiated by way of Praecipe for
Writ of Summons filed on June 28, 2011.
3. Following a Rule to File Complaint issued on March 12, 2012, Plaintiff filed a
Complaint on April 18, 2012.
4. On June 8, 2012, Plaintiff sought and Defendant granted an extension to file a
Certificate of Merit against Dr. Harty until August 3, 2012.
5. On August 2, 2012, Plaintiff filed a Certificate of Merit against Dr. Harty, which
was received by Defendant's counsel on August 3, 2012.
6. After attempting to resolve these Preliminary Objections without the Court's
involvement, Defendant has been forced to file the instant Preliminary Objections.
III. FACTUAL BACKGROUND
7. Plaintiff's Decedent was an 88 year old woman when she was admitted to
Harrisburg Hospital in February 2009 for treatment of normal pressure hydrocephalus.
Plaintiff s Complaint at ¶ 15.
8 Harrisburg Hospital providers placed a ventricular peritoneal shunt system and
discharged her to Golden Living in March 2009. Id. at ¶ 16.
9, After a second admission to Harrisburg Hospital lasting over a month, she was
discharged to Manor Care on July 13, 2009. Id. at 119.
10. While she was admitted at Manor Care, Dr. Harty prescribed Reglan for
Plaintiff's Decedent. Id. at ¶ 22.
11. Plaintiff s Decedent allegedly suffered side effects as a result of the Reglan, most
notably tardive dyskinesia.
SL I 11867070 041199.00551
12. Five months after discontinuing Reglan, and six weeks after a complex
tibula-fibula fracture, Plaintiff s Decedent died. Id. at ¶¶ 79, 83
13. Plaintiff s allegations against Dr. Harty revolve around his prescribing Reglan,
failing w monitor the patient, and failing to obtain the patient's Power of Attorney's permission
to prescribe Reglan. Id. at ¶ 92(a)-(g).
IV. PRELIMINARY OBJECTION, PURSUANT TO PA. R.C.P.1028(A)(2) AND
(4), FOR FAILURE OF A PLEADING TO CONFORM TO LAW AND/OR
LEGAL INSUFFICIENCY OF A PLEADING (DEMURRER) WITH
REGARD TO PLAINTIFF'S ALLEGATIONS OF GROSS NEGLIGENCE
14. The foregoing paragraphs are incorporated herein by reference as if set forth fully
at length.
15. While Plaintiff has not explicitly sought punitive damages, Plaintiff has alleged
that Dr. Harty's gross negligence and reckless indifference caused the Plaintiffs death and other
injuries. Plaintiffs Complaint at T¶ 84, 92.
16. Allegations of gross negligence and reckless indifference are inflammatory and
unnecessary in a medical negligence case and are of the type that support the imposition of
punitive damages.
17. Punitive damages in Pennsylvania are reserved for those cases in which a
defendant's conduct was reckless, outrageous or malicious. See McClellan v. Health
Maintenance Organization of Pennsylvania, 604 A.2d. 1053 (Pa. Super. 1992).
18. While Plaintiffs Complaint alleges Dr. Harty was grossly negligent, the facts
pled, even taken in the light most favorable to the Plaintiff, do not support this conclusion.
19. Even if proven true, for instance that it was a breach of the standard of care for
Dr. Harty to prescribe Reglan to Plaintiff s Decedent, Plaintiff s allegations against Dr. Harty do
not rise above mere negligence.
SL I 1186707v l 041199.00551
20. Therefore, the Court should strike "reckless disregard" and "gross negligence"
from all paragraphs in Plaintiffs Complaint.
WHEREFORE, Defendant, James Harty, M.D., respectfully requests that this Honorable
Court sustain this Preliminary Objection in the nature of a demurrer and strike "reckless
disregard" and "gross negligence" from Plaintiff s Complaint.
V. PRELIMINARY OBJECTION, PURSUANT TO PA. R.C.P. 1028(A)(3), FOR
FAILURE TO PLEAD SUFFICIENT SPECIFICITY WITH REGARD TO
PLAINTIFF'S NEGLIGENCE ALLEGATIONS
21. The foregoing paragraphs are incorporated herein by reference as if set forth fully
at length.
22. The following subparagraphs contain catch-all, general allegations that subject
Dr. Harty to the prospect of additional claims, raised after the statute of limitations: Plaintiff s
Complai>t at 192 (h) and (i).
23. Specifically, while all allegations in subparagraphs (a) - (g) of ¶ 92 relate to the
prescription of Reglan and subsequent monitoring of the patient, subparagraphs (h) and (i) are
generic, alleging Dr. Harty's negligence consisted of "negligently administering a medication
with known significant side effects without permission to do so," and "negligently administering
a medication with known significant side effects in a patient whose medical condition
contraindicated the same." Id.
24. By refusing to identify the specific medication, Plaintiff could conceivably amend
the Complaint up until the time of trial to include any of the numerous prescriptions that
Plaintiff s Decedent used during the final six months of her life.
25. The indications and uses of each medication is different, and it would greatly
prejudice' Defendant to construct a defense with expert support for every single medication
prescribed to Plaintiff during this long timeframe.
SL I 1186707v t 041199.00551
26. Plaintiff elsewhere in the Complaint alleges that the prescription of Reglan was
improper and these subparagraphs are therefore superfluous.
27. A defendant who does not object to a lack of specificity at the pleadings stage is
open to later amendments to the pleadings, even after expiration of the statute of limitations.
Connor u. Allegheny General Hospital, 501 Pa. 306, 461 A.2d 600 (1983).
WHEREFORE, Defendant, James Harty, M.D., respectfully requests that this Honorable
Court sustain this Preliminary Objection for insufficient specificity and strike subparagraphs (h)
and (i) of ¶ 92 from Plaintiff's Complaint.
STEVENS & LEE
Date: A4gust 22, 2012 By:
Michael D. Pipa, Esquire
Attorney I.D. No. 53624
Brandon R. Conrad
Attorney I.D. No. 308249
17 North Second Street, 16th Floor
Harrisburg, PA 17101
(717) 255-7376 (phone)
(610) 371-7743 (fax)
mdp@stevenslee.com
Counsel for Defendant James Harty, M.D.
SL I 1186707v] 041199.00551
CERTIFICATE OF SERVICE
I, Erika L. Montgomery, an employee of Stevens & Lee, P.C. certify that on this
date, I served a certified true and correct copy of the foregoing Preliminary Objections upon the
following counsel of record, by depositing the same in the United States mail, postage prepaid,
addressed as follows:
Robin J. Marzella, Esquire
R.J. Marzella & Associates, P.C.
3513 North Front Street
Harrisburg, PA 17110
William J. Mundy, Esquire
John M. Skrocki, Esquire
Burns White LLC
100 Four Falls, Suite 515
1001 Conshohocken State Road
West Conshohocken, PA 19428
Date: August 22, 2012
SL I 1186707v 1 041199.00551
PRAECIPE FOR LISTING CASE FOR ARGUMENT
(Must be typewritten and submitted in triplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within
Argument Court.)
CAPTION OF CASE
(entire caption must be stated in full)
'-~~~~~uc~g
matter for„ ext
------------ -~~~ERLAt~
NNS YI
ALFRED GIRONDI, JR., Individually and as Administrator for the Estate of EVA GIRONDI,
Deceased, Plaintiff
vs.
JAMES HARTY, M.D., MANOR CARE OF CARLISLE PA LLC, MANOR HEALTHCARE
CORP., MANORCARE HEALTH SERVICES CARLISLE, HEALTH CARE AND
RETIREMENT CORPORATION OF AMERICA, MANOR CARE OF AMERICA INC.,
MANOR CARE INC., HCR MANOR CARE INC., HCR MANOR CARE, Defendants
No. 11-5324 Term
1. State matter to be argued (i.e., plaintiff s motion for new trial, defendant's demurrer to
complaint, etc.):
Preliminary Objections of Defendant, James Harty, M.D.
2. Identify all counsel who will argue cases:
a. for plaintiffs: Robin J. Marzella, Esquire R.J. Marzella & Associates, P.C. 3513
North Front Street Harrisburg, PA 17110
b. For defendants: Michael D. Pipa, Esquire, and/or Brandon R. Conrad, Esquire,
Stevens & Lee 17 North Second Street, 16th Floor Harrisburg, PA 17101
3. I will notify all parties in writing within two days that this case has been listed for
argument.
4. Argument Court Date: October 5, 2012 _~~
Signature
Date: Auguste , 2012
INSTRUCTIONS:
Print Your Name: Brandon Conrad
Attorney ID No.: 30824a
Attorney for: James Harty, M.D.
1. Original and two copies of all briefs must be filed with the COURT
ADMINISTRATOR (not the Prothonotary) before argument.
2. The moving party shall file and serve their brief 14 days prior to argument.
3. The responding party shall file their brief 7 days prior to argument.
4. If argument is continued new briefs must be filed with the COURT
ADMINISTRATOR (not the Prothonotary) after the case is relisted.
SL I I l 87944v 1 041 199.00551
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CERTIFICATE OF SERVICE
I, Brandon R. Conrad, Esquire, certify that on this date, I served a certified true
and correct copy of the foregoing Praecipe upon the following counsel of record, by depositing
the same in the United States mail, postage prepaid, addressed as follows:
Robin J. Marzella, Esquire
R.J. Marzella & Associates, P.C.
3513 North Front Street
Harrisburg, PA 17110
William J. Mundy, Esquire
7nhn M Ckrnnki FcnllirP
Burns
100 Four
1001 Consho
West Conshc
Date: August 28, 2012
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S1, I 1 187944v 1 041 199.00551