Loading...
HomeMy WebLinkAbout11-8925L r- ,1 F'''•l.?, i.. F ? Pr t Pill I ???; [i'-r DEC All E: BOYLE, AUTRY & MURPHY Dennis E. Boyle, Esquire Supreme Court I.D. No. 49618 Joshua M. Autry, Esquire Supreme Court I.D. No. 208459 4660 Trindle Road, Suite 200 Camp Hill, PA 17011 Phone: (717) 737-2430 Facsimile: (717) 737-2452 Email: deboyle@dennisboylelaw.com jmautry@dennisboylelaw.com CUMBERLAND L'-+;?? - REN NsYLr''r. `IA Counsel For: Joan F. Zerance, by and through Her Power of Attorney, Dorie Durand JOAN F. ZERANCE, BY AND : IN THE COURT OF COMMON PLEAS THROUGH HER POWER OF : CUMBERLAND COUNTY, ATTORNEY, DORIE DURAND, : PENNSYLVANIA V. Plaintiff :NO. MANORCARE HEALTH SERVICES- CAMP HILL, Defendant : CIVIL ACTION - MEDICAL : PROFESSIONAL LIABILITY ACTION : JURY TRIAL DEMANDED NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. 0 9).oa?????y Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 Telephone: 717-249-3166 AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar acci6n dentro de los pr6ximos veinte (20) dias despues de la notificaci6n de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar acci6n como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamaci6n o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE CUALIFICAN. 2 Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 Telephone: 717-249-3166 BOYLE, AUTRY & MURPHY Dennis E. Boyle, Esquire Supreme Court I.D. No. 49618 Joshua M. Autry, Esquire Supreme Court I.D. No. 208459 4660 Trindle Road, Suite 200 Camp Hill, PA 17011 Phone: (717) 737-2430 Fax: (717) 737-2452 Email: deboyle@dennisboylelaw.com jmautry@dennisboylelaw.com Dated: November 30, 2011 3 BOYLE, AUTRY & MURPHY Dennis E. Boyle, Esquire Supreme Court I.D. No. 49618 Joshua M. Autry, Esquire Supreme Court I.D. No. 208459 4660 Trindle Road, Suite 200 Camp Hill, PA 17011 Phone: (717) 737-2430 Facsimile: (717) 737-2452 Email: deboyle@dennisboylelaw.com jmautry@dennisboylelaw.com Counsel For: Joan F. Zerance, by and through her Power of Attorney, Dorie Durand JOAN F. ZERANCE, BY AND : IN THE COURT OF COMMON PLEAS THROUGH HER POWER OF : CUMBERLAND COUNTY, ATTORNEY, DORIE DURAND, : PENNSYLVANIA Plaintiff NO. V. . : CIVIL ACTION - MEDICAL MANORCARE HEALTH SERVICES - : PROFESSIONAL LIABILITY ACTION CAMP HILL, : JURY TRIAL DEMANDED Defendant COMPLAINT Parties 1. Plaintiff, Joan F. Zerance, by and through her Power of Attorney, Dorie Durand, is a citizen of the Commonwealth of Pennsylvania. Dorie Durand became Power of Attorney for her sister, Joan F. Zerance, on December 5, 2009. 2. Defendant, ManorCare Health Services - Camp Hill ("ManorCare"), is a for-profit health care facility operated and maintained for the purpose of serving, on a fee basis, the health care needs of the general public, including Plaintiff, and it has its principal place of business at 1700 Market Street, Camp Hill, PA 17011. 3. At all times pertinent hereto, Defendant ManorCare acted through its physicians, nurses, interns, residents, servants, employees, agents and workmen, who were acting within the scope of their employment. Factual Background 4. At all times relevant hereto, Joan F. Zerance was a 72 year old woman, with a medical history that included, among other things, proctocolitis and recent spinal surgery. 5. In late November 2009, Ms. Zerance saw her physician for significant back pain. 6. On December 1, 2009, Ms. Zerance underwent surgery at Holy Spirit Hospital, Camp Hill, to decompress her L 1 through L4 vertebrae and to fuse her T-11 through L-5 vertebrae. 7. On December 3, 2009, Ms. Zerance was transferred to ManorCare for post-surgery rehabilitation services. 8. After Ms. Zerance's post-surgery rehabilitation goals were met, she planned to return to her home at Bethany Towers, Mechanicsburg. 9. In addition to post-surgery rehabilitation, ManorCare's staff was charged with ensuring that Ms. Zerance wore a lumbar brace when she was sitting upright, changing the surgical dressings on her spine, and monitoring her bowel and bladder functions. 2 10. The Holy Spirit Hospital medical records that were prepared prior to Ms. Zerance's admittance for spinal surgery indicated that she had a history of proctocolitis, that is, inflammation of the rectum and colon. 11. The ManorCare Admissions Physicians Orders indicate that Ms. Zerance was to have a Dulcolax suppository daily and a Fleet enema daily during the term of her stay at ManorCare. 12. On December 3, 2009, a check-up performed on Ms. Zerance when she was admitted to ManorCare indicated that her bowel was normal and that there had been no history of any urinary tract infection in the last 30 days. 13. ManorCare medical records dated December 10, 2009 indicate that she had no bowel or bladder problems and that, in fact, her abdomen was soft, nontender, with positive bowel sounds. 14. On December 10, 2009, Ms. Zerance was prescribed Florastor, a probiotic for the small intestine, as a prophylactic measure. 15. On December 18, 2009, Ms. Zerance was prescribed Amoxil, for a urinary tract infection, and Imodium. 16. On December 21, 2009, ManorCare medical records indicate that Ms. Zerance had loose stools. 17. ManorCare medical records indicate that Ms. Zerance was to be tested for Clostridium difficile, also known as C. diff, and that Ms. Zerance was to be given Imodium. 3 18. On December 24, 2009, ManorCare medical records indicate that Ms. Zerance had loose stools and that she was to be given Imodium, not more than five (5) doses in a 24-hour period. 19. ManorCare medical records dated December 24, 2009 also indicate that the lab was to be called to test for C.diff when a specimen was available. 20. On December 26, 2009, ManorCare medical records indicate that Ms. Zerance underwent a C.difficile Tox DNA probe and that she was prescribed Flagyl, Florastor, and Imodium. 21. On December 27, 2009, Ms. Zerance again was given Imodium, as well as Flagyl and Florastor. 22. Florastor is a probiotic that keeps the intestines functioning well. 23. Flagyl is an antibiotic that eliminates the bacteria which causes infections in the gastrointestinal tract. 24. Imodium is contraindicatated in cases of C.diff because it increases the amount of time that fecal material remains in the intestines, thereby increasing the opportunity for toxin damage to the intestines. 25. ManorCare medical records indicate that on December 18, 21, 24, 26, and 27, Ms. Zerance was given Imodium. 26. Even when medical records indicate that Ms. Zerance was being tested for C.diff, specifically on December 21, 2009, December 24, 2009, and December 26, 2009, Ms. Zerance still was being given Imodium, which, as stated above, is contraindicated in cases of C.diff. 4 27, When C.diff is suspected, even prior to diagnosis, Flagyl and Vancocin are to be prescribed. These specific drugs prevent the C.diff from growing. 28. Ms. Zerance was not prescribed Vancocin. The Imodium that Ms. Zerance was given not only counteracted the Flagyl and Florastor, but also worsened her condition. 29. On December 27, 2009, at approximately 1:25 p.m., Ms. Zerance became ill. 30. ManorCare Social Services staff was made aware of Ms. Zerance's illness, as well as Ms. Zerance's sister and Power of Attorney, Dorie Durand. 31. By 2:30 p.m. on that same date, Ms. Zerance was taken by ambulance to the Holy Spirit Hospital emergency room. 32. Upon arriving at the Holy Spirit Hospital emergency room, staffers had difficulty obtaining a pulse and, therefore, initiated very brief chest compressions. 33. Upon immediate admittance to the intensive care unit, Ms. Zerance was diagnosed with sepsis syndrome, marked leukocytosis, acute kidney failure, liver damage, marked hypoalbuminemia, malnutrition, and a blood clotting disorder. 34. On December 27, 2009, Ms. Zerance underwent a CT scan of her abdomen. The scan showed toxic megacolon. 35. On December 28, 2009, because of the toxic megacolon, Ms. Zerance underwent a surgical procedure called a total abdominal colectomy with end ileostomy. 36. On January 4, 2010, Ms. Zerance underwent a CT scan on her abdomen and pelvis; she had a bilateral pleural effusions, ascites, anascara, and a colostomy bag in the right lower quadrant of her abdomen. 5 37. By January 4, 2010, Ms. Zerance was able to talk and ask for Holy Communion, but she was not able to swallow. She was on a liquid diet and was being fed by a tube. 38. On January 7, 2010, a speech therapist at Holy Spirit Hospital noted that Ms. Zerance was only able to tolerate certain foods due to the ileostomy. 39. On January 12, 2010, Holy Spirit Hospital staff was considering discharging Ms. Zerance to a long term care facility when she developed a wide, complex, irregular cardiac rhythm; in addition, she had lost weight and was having difficulty eating. 40. On January 13, 2010, Ms. Zerance was transported to Golden Living Center, Camp Hill, where she remains confined, likely for the rest of her life. Count I Zerance v. ManorCare Medical Malpractice 41. The allegations of the preceding paragraphs are incorporated herein by reference as fully as though the same were set forth at length. 42. Defendant ManorCare, acting through its physicians, nurses, interns, residents, servants, employees, agents, and unknowns held itself out as providing professional medical services to Joan Zerance during the time of her stay at ManorCare. 43. Defendant ManorCare, acting through its physicians, nurses, interns, residents, servants, employees, agents and unknowns, deviated from the standard of care and from accepted standards of medical practice in the following specific action or failure to take action: 6 a. Failing to develop and maintain an adequate care plan to meet Ms. Zerance's nutritional and hydration needs; b. Failing to develop and maintain an adequate care plan to meet Ms. Zerance's needs in the areas of bowel management and diarrhea management; C. Failing to monitor and document the changes in Ms. Zerance's condition; d. Failing to consistently address Ms. Zerance's nutritional and hydration requirements; C. Failing to provide necessary, adequate nutrition to Ms. Zerance that would provide the necessary calories, protein, and fluids to promote her recovery; f. Failing to provide the necessary care and services to achieve and maintain the highest possible physical, mental, and psychological well-being of Ms. Zerance; g. Failing to notify the treating physician and Ms. Zerance's family of changes in her condition in a timely fashion; h. Failing to adequately document the results of Ms. Zerance's treatment including evidence of assessments of her changing needs, establishment of appropriate care and treatment plans, and documentation of her care and services with the outcomes provided; i. Failing to monitor Ms. Zerance's bowel and bladder functions; 7 j. Failure to indicate in medical records if Ms. Zerance, indeed, ever received the Dulcolax suppository daily and the Fleet enema daily as prescribed in the Admissions Physicians Orders; k. Failing to recognize the significance of the known medical facts at the time of Ms. Zerance's admission specifically, prior history of proctocolitis; 1. Failing to obtain and record adequate history of presenting illness, that being C.diff; m. Failing to obtain and record an adequate review of symptoms; n. Failing to perform and record an adequate physical examination; o. Failing to begin treatment for C.diff when it was suspected; P. Failing to diagnose the C.diff in time for appropriate treatment; q. Failing to monitor Ms. Zerance's condition and follow up with correct treatment; r. Failing to recognize significant deterioration in the patient's condition over the course of her hospitalization; S. Failing to use proper protocols to ensure Ms. Zerance was not subject to a hospital-acquired infection; t. Failing to order additional probiotics and the proper medications for C.diff; and U. Failing to document actions taken with such frequency and detail so as to demonstrate that the standard of care was met. 8 44. The following person is entitled to recover damages: Joan F. Zerance, by her Power of Attorney Dorie Durand 1069-D Allendale Road Mechanicsburg, PA 17055 45. Plaintiff's Power of Attorney, Dorie Durand, brings this action on behalf of her sister, Joan F. Zerance, and claims damages for pecuniary loss suffered by Ms. Zerance by reasons of medical malpractice and negligence, as well as for reimbursement for medical bills, administrative expenses, and other expenses incident to the Ms. Zerance's incapacitation. WHEREFORE, Plaintiff Joan F. Zerance, by and through her Power of Attorney, Dorie Durand, demands judgment against ManorCare in an amount in excess of $50,000.00, which amount exceeds the jurisdictional limits for arbitration in Cumberland County. Count II Zerance v. ManorCare Negligence 46. The allegations of the preceding paragraphs are incorporated herein by reference as fully as though the same were set forth at length. 47. ManorCare, through its agents and employees, held itself out as providing professional medical services and that it would provide treatment and care to Joan Zerance. 48. Instead of developing an appropriate treatment plan for Ms. Zerance, ManorCare allowed Ms. Zerance's condition to deteriorate to the point that she needed emergency surgery in order to survive and ultimately to have her colon removed. 9 49. In doing so, ManorCare breached the duty of care it owned to Ms. Zerance to determine what treatment she needed and to ensure that she received that treatment. 49. Defendant ManorCare owed Ms. Zerance a non-delegable duty to ensure her health, safety, and well-being while at ManorCare. 50. Defendant ManorCare had a duty and obligation to: a. Take reasonable action to ensure Ms. Zerance's safety and well-being while she was at its facility by taking reasonable care to maintain clean, safe, and adequate facilities; b. Select and retain only competent physicians, nurses, interns, residents, therapists, and staff; C. Oversee all persons who practice medicine within its walls as to patient care; and d. Formulate, adopt and enforce adequate rules and policies to ensure quality care for the patients. 51. ManorCare acted in deviation from the standard of care of a reasonable medical facility and breached the duties it owed to Ms. Zerance. 52. ManorCare breached its obligations when its employees and agents failed to attend to Ms. Zerance's needs and when its employees and agents failed to properly dispense medications that Ms. Zerance needed to deal with her C.diff. 53. ManorCare's nurses, aides, and staff were acting within the scope of their employment and agency at all pertinent times. 10 54. This breach in duty was a substantial factor in bringing about the harm to Ms. Zerance and significantly increased the risks that such harms would occur. 55. The following person is entitled to recover damages: Joan F. Zerance, by her Power of Attorney Dorie Durand 1069-D Allendale Road Mechanicsburg, PA 17055 56. Plaintiff's Power of Attorney, Dorie Durand, brings this action on behalf of her sister, Joan F. Zerance, and claims damages for pecuniary loss suffered by Ms. Zerance by reasons of medical malpractice and negligence, as well as for reimbursement for medical bills, administrative expenses, and other expenses incident to the Ms. Zerance's incapacitation. WHEREFORE, Plaintiff Joan F. Zerance, by and through her Power of Attorney, Dorie Durand, demands judgment against ManorCare in an amount in excess of $50,000.00, which amount exceeds the jurisdictional limits for arbitration in Cumberland County. Count III Zerance v. ManorCare Nealiaence Per Se 57. The allegations of the preceding paragraphs are incorporated herein by reference as fully as though the same were set forth at length. 58. ManorCare, through its physicians, nurses, interns, residents, servants, employees, agents and unknowns, held itself out as providing professional medical services and that it would provide treatment and care for Ms. Zerance. 11 59. Had ManorCare followed procedures, Ms. Zerance would not have suffered such substandard care, which caused her extreme physical, mental, and emotional harm and caused her family members harm. 60. In fact, were it not for ManorCare's negligence, Ms. Zerance would never have been mistreated as negligently as she was and she would not have been harmed as she was. 61. The following person is entitled to recover damages: Joan F. Zerance, by her Power of Attorney Dorie Durand 1069-D Allendale Road Mechanicsburg, PA 17055 62. Plaintiff's Power of Attorney, Dorie Durand, brings this action on behalf of her sister, Joan F. Zerance, and claims damages for pecuniary loss suffered by Ms. Zerance by reasons of medical malpractice and negligence, as well as for reimbursement for medical bills, administrative expenses, and other expenses incident to the Ms. Zerance's incapacitation. WHEREFORE, Plaintiff Joan F. Zerance, by and through her Power of Attorney, Dorie Durand, demands judgment against ManorCare in an amount in excess of $50,000.00, which amount exceeds the jurisdictional limits for arbitration in Cumberland County. BOYLE, AUTRY & MURPHY 4/ De nis oyle, Esquire Supreme ourt I.D. No. 49618 Joshua M. Autry, Esquire Supreme Court I.D. No. 208459 12 4660 Trindle Road, Suite 200 Camp Hill, PA 17011 Phone: (717) 737-2430 Facsimile: (717) 737-2452 deboyle@dennisboylelaw.com jmautry@dennisboylelaw.com Counsel For: Joan F. Zerance, By and Through Her Power of Attorney, Dorie Durand Dated: November 30, 2011 13 VERIFICATION I, Dorie Durand, Power of Attorney for Joan F. Zerance, make the following statements subject to the penalties of 18 Pa.C.S. § 4904, relating to unsworn falsifications to authority, and do hereby state that the facts set forth in the foregoing Complaint are true and correct to the best of my knowledge, information and belief. r.. Dorie Durand, Power of Attorney for Joan F. Zerance Dated: November 30, 2011 0 BOYLE, AUTRY & MURPHY Dennis E. Boyle, Esquire Supreme Court I.D. No. 49618 Joshua M. Autry, Esquire Supreme Court I.D. No. 208459 4660 Trindle Road, Suite 200 Camp Hill, PA 17011 Phone: (717) 737-2430 Facsimile: (717) 737-2452 Email: deboyle@dennisboylelaw.com jmautry@dennisboylelaw.com H PP ?TfEi0 cal I DEC - I AM 8: 52 CUMBERLAND COUNT`S' PENNSYLVANIA Counsel For: Joan F. Zerance, by and through her Power of Attorney, Dorie Durand JOAN F. ZERANCE, BY AND : IN THE COURT OF COMMON PLEAS THROUGH HER POWER OF : CUMBERLAND COUNTY, ATTORNEY, DORIE DURAND, : PENNSYLVANIA Plaintiff NO. l ? U L ?? V. : CIVIL ACTION -MEDICAL MANORCARE HEALTH SERVICES - : PROFESSIONAL LIABILITY ACTION CAMP HILL, : JURY TRIAL DEMANDED Defendant CERTIFICATE OF MERIT AS TO MANORCARE HEALTH SERVICES - CAMP HILL I, Joshua M. Autry, Esquire, hereby certify that claims are raised under both subdivisions (a)(1) and (a)(2) of Pa.R.Civ.P. 1042.3. As to subdivision (a)(1), an appropriate licensed professional has supplied a written statement that there exists a reasonable probability that the care, skill or knowledge exercised by ManorCare Health Services - Camp Hill in the treatment, practice or work that is the subject of the Complaint fell outside acceptable professional standards for a rehabilitation facility and that conduct was a cause in bringing about the harm. As to subdivision (a)(2), an appropriate licensed professional has supplied a written statement that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited by other licensed professionals for whom ManorCare Health Services - Camp Hill is responsible, 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. BOYLE, AUTRY & MURPHY E. No. 49618 Joshua M. Autry, Esquire Supreme Court I.D. No. 208459 4660 Trindle Road, Suite 200 Camp Hill, PA 17011 Phone: (717) 737-2430 Facsimile: (717) 737-2452 Email: deboyle@dennisboylelaw.com Email: jmautry@dennisboylelaw.com Counsel For: Plaintiff Dated: November 30, 2011 it 5 tt" r5..,3 2 ! 1 DEC - I AM 8: 52 BOYLE, AUTRY & MURPHY Dennis E. Boyle, Esquire Supreme Court I.D. No. 49618 Joshua M. Autry, Esquire Supreme Court I.D. No. 208459 4660 Trindle Road, Suite, 200 Camp Hill, PA 17011 Phone: (717) 737-2430 Facsimile: (717) 737-2452 Email: deboyle@dennisboylelaw.com jmautry*dennisboylelaw.com r1jMBERLAND G0UN 1jj, PENNSYLVANIA Counsel For: Plaintiff JOAN F. ZERANCE, BY AND THROUGH : IN THE COURT OF COMMON PLEAS HER POWER OF ATTORNEY, : CUMBERLAND COUNTY, DORIE DURAND, Plaintiff V. MANORCARE HEALTH SERVICES -- CAMP HILL, Defendant : PENNSYLVANIA NO. : CIVIL ACTION -- MEDICAL : PROFESSIONAL LIABILITY ACTION : JURY TRIAL DEMANDED PRAECIPE FOR ENTRY OF APPEARANCE Please enter the appearance of Dennis E. Boyle, Esquire, and Joshua M. Autry, Esquire, as Attorney for Joan F. Zerance, by and through her Power of Attorney, Dorie Durand, the Plaintiff in the above-captioned case. De is. Boyle, Esquire Supreme Court I.D. No. 49618 Joshua M. Autry, Esquire Supreme Court I.D. No. 208459 4660 Trindle Road, Suite 200 Camp Hill, PA 17011 Phone: (717) 737-2430 Facsimile: (717) 737-2452 Email: deboyle@dennisboylelaw.com jmautry@dennisboylelaw.com Counsel For: Plaintiff Dated: November 30, 2011 SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson iLED-0F,- IC C._ Sheriff ?Ir of ut??rr r:° iH ?r?631 Jody S Smith's Chief Deputy 1 DEC 16 AM 10' p1 Richard W Stewart Solicitor C7FFItE F* $ ERIFF CUMBERLAND "Ut' i PENNSYLVANIA Joan F. Zerance vs. Case Number ManorCare Health Services-Camp Hill 2011-8925 SHERIFF'S RETURN OF SERVICE 12/06/2011 04:13 PM - Shawn Gutshall, Deputy Sheriff, who being duly sworn according to law, states that on December 16, 2011 at 1613 hours, he served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: ManorCare Health Services-Camp Hill, by making known unto Steve Vignati, Business Office Manager for ManorCare Health Services-Camp Hill at 1700 Market Street, Camp Hill adult sister at 1190 Lowther Road 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 G LL, UTY SHERIFF COST: $43.44 December 07, 2011 SO ANSWERS, RON R ANDERSON, SHERIFF (c) GountySuite Sheriff, Telecsoft, Inc. 2017 FEB ' 2 A? ? ? ? 48 BOYLE, AUTRY & MURPHY Devon M. Jacob, Esquire Supreme Court I.D. 89182 Travis S. Weber, Esquire Supreme Court I.D. 309319 4660 Trindle Road, Suite 200 Camp Hill, PA 17011 Phone: (717) 737-2430 Facsimile: (717) 737-2452 Email: dmjacob@dennisboylelaw.com tweber@dennisboylelaw.com Counsel For: Plaintiff JOAN F. ZERANCE, BY AND THROUGH : IN THE COURT OF COMMON PLEAS HER POWER OF ATTORNEY, : CUMBERLAND COUNTY, DORIE DURAND, : PENNSYLVANIA Plaintiff :NO. 11-8925 Civil Term v. . : CIVIL ACTION -- MEDICAL MANORCARE HEALTH SERVICES -- : PROFESSIONAL LIABILITY ACTION CAMP HILL, . Defendant : JURY TRIAL DEMANDED PRAECIPE FOR ENTRY OF APPEARANCE Please enter the appearance of Devon M. Jacob, Esquire, and Travis S. Weber, Esquire, as Attorney for Joan F. Zerance, by and through her Power of Attorney, ' laintiff in the above-captioned case. Devon M. Jacob, q uire Supreme Court 1.16. No. 89182 Travis S. Weber, Esquire Supreme Court I.D. No. 309319 4660 Trindle Road, Suite 200 Camp Hill, PA 17011 Phone: (717) 737-2430 0 • Facsimile: (717) 737-2452 Email: dmj acob@denni sboylelaw. com tweber@dennisboylelaw.com Counsel For: Plaintiff Dated: January 31, 2012 FILED-OFFiCL BURNS WHITE LLC OF THE PROTHONOTAR" By: William J. Mundy, Esquire 7 Identification No. 57679 ???? ?3 »• L By: John M. Skrocki, Esquire CUMBERLAND NTey Identification No. 49071 pEp?}?SYI.V es for Defendant, 100 Four Falls, Suite 515 anorCare Health Services -Camp Hill 1001 Conshohocken State Road West Conshohocken, PA 19428 (484) 567-5700 JOAN F. ZERANCE, BY AND THROUGH HER POWER OF ATTORNEY, DORIE DURAND V. TO THE PROTHONOTARY: COURT OF COMMON PLEAS OF CUMBERLAND COUNTY Plaintiff, No. 2011-8925 - Civil Action Defendants. Jury Trial Demanded ENTRY OF APPEARANCE Kindly enter our appearance as counsel on behalf of defendant, ManorCare Health Services - Camp Hill in the above-captioned matter. BURNS WHITE LLCM illiam J. Mun Y, Esquire By: John M. Skrocki, Esquire MANORCA.RE HEALTH SERVICES - CAMP HILL Date: )_ jI . I I-L Counsel for Defendant, ManorCare Health Services - Camp Hill CERTIFICATE OF SERVICE I, John M. Skrocki, Esquire, hereby certify that on this date, a true and correct copy of the foregoing Entry of Appearance was delivered by United States First-Class Mail, postage prepaid, as follows: Dennis E. Boyle, Esquire Boyle, Autry & Murphy 4660 Trindle Road, Suite 200 Camp Hill, PA 17011 John M. Skrocki Dated: II I- It -2- 2 e= BURNS WHITE LLC By: William J. Mundy, Esquire Identification No. 57679 By: John M. Skrocki, Esquire Identification No. 49071 Attorneys for Defendant, 100 Four Falls, Suite 515 ManorCare Health Services -Camp Hill 1001 Conshohocken State Road West Conshohocken, PA 19428 (484) 567-5700 JOAN F. ZERANCE, BY AND COURT OF COMMON PLEAS THROUGH HER POWER OF OF CUMBERLAND COUNTY ATTORNEY, DORIE DURAND ' Plaintiff, No. 2011-8925 - Civil Action V. MANORCARE HEALTH Jury Trial Demanded SERVICES - CAMP HILL Defendant. NOTICE TO PLEAD To: Dennis E. Boyle, Esquire Boyle, Autry & Murphy 4660 Trindle Road, Suite 200 Camp Hill, PA 17011 (Attorneys for Plaintiffi 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. dL Joe-( LcL^--%v, )rl- L John M. Skrocki, Esquire ,, t 100 Four Falls, Suite 515 1001 Conshohocken State Road West Conshohocken, PA 19428 (484) 567-5700 elit Cat 011 U. By: John M. Skrocki, Esquire cut,1 F,LA?" , coUNTY Identification No. 49071 PENNSY A44 for Defendant, ManorCare Health Services - Camp Hill r1t F1)-OFn G ? r,tr BURNS WHITE LLC i ! i `' T 1j0,;d01` i By: William J. Mundy, Esquire 2 12 FEB -3 tm Id 1* 47 N 57679 JOAN F. ZERANCE, BY AND THROUGH HER POWER OF ATTORNEY, DORIE DURAND Plaintiff, V. MANORCARE HEALTH SERVICES - CAMP HILL Defendants. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY No. 2011-8925 - Civil Action Jury Trial Demanded PRELIMINARY OBJECTIONS OF DEFENDANT, MANORCARE HEALTH SERVICES - CAMP HILL TO PLAINTIFF'S COMPLAINT Defendant, Manorcare Health Services - Camp Hill (hereinafter "Manor Care"), by and through its attorneys, Burns White LLC, hereby file the following Preliminary Objections to Plaintiff s Complaint and in support thereof aver as follows: 1. Motion to Move Plaintiffs Suit to Arbitration 1. This nursing home malpractice action was commenced by the filing of a Complaint in the Court of Common Pleas of Cumberland County on December 1, 2012. (Exhibit "A") 2. The basic claim is that the plaintiff, Joan F. Zerance, a 72 year-old who suffered from, among other things proctocolitis, received improper care of her digestive disorders while at Manor Care. 3. Defendants now file the instant preliminary objection based on the execution of an Arbitration Agreement. (Exhibit "B") 4. In this instance, Dorie Durand, the plaintiff and the sister of the Joan F. Zerance, signed the enclosed Arbitration Agreement (Exhibit "B") on or about December 4, 2009 shortly after the admission of the plaintiff, Joan F. Zerance to the facility at issue. 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. 6. 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. 7. The Manor Care arbitration agreement has been upheld by various common pleas courts in the Commonwealth. Exhibit "C" includes the Mannion Opinion by Judge Black in Lehigh County, as well as an Order issued in 2011 by Judge Margaret Miller in Lancaster County. Judge Wettick in Allegheny County and Judge Moss in Philadelphia have also upheld the agreement. 8. 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 Answering Defendants respectfully request that this Court dismiss Plaintiff's underlying suit and direct the parties to proceed to arbitration. BURNS WHI LLC John M. Skrocki, Esquire Counsel for Defendant, Manorcare Health Services- Camp Hill Date: 2 ?- i2 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 JOAN F. ZERANCE, BY AND THROUGH HER POWER OF ATTORNEY, DORIE DURAND Attorneys for Defendant, ManorCare Health Services - Camp Hill COURT OF COMMON PLEAS OF CUMBERLAND COUNTY Plaintiff, No. 2011-8925 - Civil Action V. MANORCARE HEALTH Jury Trial Demanded SERVICES - CAMP HILL Defendants. MEMORANDUM OF LAW IN SUPPORT OF PRELIMINARY OBJECTIONS OF DEFENDANT, MANORCARE HEALTH SERVICES - CAMP HILL The Answering Defendant seeks 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. Ms. Kepner and her husband could simply have decided 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 Corm., 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 "B". 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 "B." The predecessor of the subject agreement, which contained damages caps, (this agreement: does not), was upheld in the well-reasoned opinion of Judge Black. See Mannion v Manor Care, 4 Pa. D&C 5th 321 (attached as Exhibit "C"), 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 dlb(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. 1st 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 remain consistent, and 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 defendant. URNS WHI`?'?-? C L t??v'i h E 5 . ?r- By: John M. Skrocki, Esquire Date: 2. l 2 I i Z Counsel of Defendant, ManorCare Health Services-Camp Hill CERTIFICATE OF SERVICE 1, 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: Dennis E. Boyle, Esquire Boyle, Autry & Murphy 4660 Trindle Road, Suite 200 Camp Hill, PA 1701.1 Dated: Z 2 i 2 M. Skrocki, Esquire ?L ??? ?? ICED ^ AH £ BOYLE, AUTRY & MURPHY Dennis E. Boyle, Esquire Supreme Court I.D. No. 49618 Joshua M. Autry, Esquire Supreme Court I.D. No. 208459 4660 Trindle Road, Suite 200 Camp Hill, PA 17011 Phone: (717) 737-2430 Facsimile: (717) 737-2452 Email: deboyle@dennisboylelaw.com jmautry@dennisboylelaw.com CUMBERLAND COUNTY PENNSYLVANIA Counsel For: Joan F. Zerance, by and through Her Power of Attorney, Dorie Durand JOAN F. ZERANCE, BY AND : IN THE COURT OF COMMON PLEAS THROUGH HER POWER OF : CUMBERLAND COUNTY, ATTORNEY, DORIE DURAND, : PENNSYLVANIA 00 11 4? V. Plaintiff :NO. 40 61? -7e of MANORCARE HEALTH SERVICES- CAMP HILL, Defendant : CIVIL ACTION - MEDICAL : PROFESSIONAL LIABILITY ACTION : JURY TRIAL DEMANDED NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. O y 9?.00R-b'ert P?38?o Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 Telephone: 717-249-3 l 66 AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan m6s adelante en las siguientes paginas, debe tomar accibn dentro de los pr6ximos veinte (20) dias despu6s de la notificaci6n de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqua en contra suya. Se le advierte de que si usted falla de tomar accibn como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamaci6n o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME 0 VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOME AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO 0 BAJO COSTO A PERSONAS QUE CUALIFICAN. 2 Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 Telephone: 717-249-3166 BOYLE, AUTRY & MURPHY Dennis E. Boyle, Esquire Supreme Court I.D. No. 49618 Joshua M. Autry, Esquire Supreme Court I.D. No. 208459 4660 Trindle Road, Suite 200 Camp Hill, PA 17011 Phone: (717) 737-2430 Fax: (717) 737-2452 Email: deboyle@dennisboylelaw.com jmautry@dennisboylelaw.com Dated: November 30, 2011 BOYLE, AUTRY & MURPHY Dennis E. Boyle, Esquire Supreme Court I.D. No. 49618 Joshua M. Autry, Esquire Supreme Court I.D. No. 208459 4660 Trindle Road, Suite 200 Camp Hill, PA 17011 Phone: (717) 737-2430 Facsimile: (717) 737-2452 Email: deboyle@dennisboylelaw.com j mautry@dennisboylelaw.com JOAN F. ZERANCE, BY AND THROUGH HER POWER OF ATTORNEY, DORIE DURAND, Plaintiff V. MANORCARE HEALTH SERVICES - CAMP HILL, Defendant Counsel For: Joan F. Zerance, by and through her Power of Attorney, Dorie Durand IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. CIVIL ACTION - MEDICAL PROFESSIONAL LIABILITY ACTION JURY TRIAL DEMANDED COMPLAINT Parties I , Plaintiff, Joan F. Zerance, by and through her Power of Attorney, Dorie Durand, is a citizen of the Commonwealth of Pennsylvania. Dorie Durand became Power of Attorney for her sister, Joan F. Zerance, on December 5, 2009. 2. Defendant, ManorCare Health Services - Camp Hill ("ManorCare"), is a for-profit health care facility operated and maintained for the purpose of serving, on a fee basis, the health care needs of the general public, including Plaintiff, and it has its principal place of business at 1700 Market Street, Camp Hill, PA 1701 L 3. At all times pertinent hereto, Defendant ManorCare acted through its physicians, nurses, interns, residents, servants, employees, agents and workmen, who were acting within the scope of their employment. Factual Background 4. At all times relevant hereto, Joan F. Zerance was a 72 year old woman, with a medical history that included, among other things, proctocolitis and recent spinal surgery. 5. In late November 2009, Ms. Zerance saw her physician for significant back pain. 6. On December 1, 2009, Ms. Zerance underwent surgery at Holy Spirit Hospital, Camp Hill, to decompress her L 1 through L4 vertebrae and to fuse her T- I 1 through L-5 vertebrae. 7. On December 3, 2009, Ms. Zerance was transferred to ManorCare for post-surgery rehabilitation services. 8. After Ms. Zerance's post-surgery rehabilitation goals were met, she planned to return to her home at Bethany Towers, Mechanicsburg. 9. In addition to post-surgery rehabilitation, ManorCare's staff was charged with ensuring that Ms. Zerance wore a lumbar brace when she was sitting upright, changing the surgical dressings on her spine, and monitoring her bowel and bladder functions. 2 10. The Holy Spirit Hospital medical records that were prepared prior to Ms. Zerance's admittance for spinal surgery indicated that she had a history of proctocolitis, that is, inflammation of the rectum and colon. it. The ManorCare Admissions Physicians Orders indicate that Ms. Zerance was to have a Dulcolax suppository daily and a Fleet enema daily during the term of her stay at ManorCare. 12. On December 3, 2009, a check-up performed on Ms. Zerance when she was admitted to ManorCare indicated that her bowel was normal and that there had been no history of any urinary tract infection in the last 30 days. 13. ManorCare medical records dated December 10, 2009 indicate that she had no bowel or bladder problems and that, in fact, her abdomen was soft, nontender, with positive bowel sounds. 14. On December 10, 2009, Ms. Zerance was prescribed Florastor, a probiotic for the small intestine, as a prophylactic measure. 15. On December 18, 2009, Ms. Zerance was prescribed Amoxil, for a urinary tract infection, and Imodium. 16. On December 21, 2009, ManorCare medical records indicate that Ms. Zerance had loose stools. 17. ManorCare medical records indicate that Ms. Zerance was to be tested for Clostridium difficile, also known as C. dill, and that Ms. Zerance was to be given lmodium. 3 18. On December 24, 2009, ManorCare medical records indicate that Ms. Zerance had loose stools and that she was to be given Imodium, not more than five (5) doses in a 24-how period. 19. ManorCare medical records dated December 24, 2009 also indicate that the lab was to be called to test for C.diff when a specimen was available. 20. On December 26, 2009, ManorCare medical records indicate that Ms. Zerance underwent a C.difficile Tox DNA probe and that she was prescribed Flagyl, Florastor, and Imodium. 21. On December 27, 2009, Ms. Zerance again was given Imodium, as well as Flagyl and Florastor. 22. Florastor is a probiotic that keeps the intestines functioning well. 23. Flagyl is an antibiotic that eliminates the bacteria which causes infections in the gastrointestinal tract. 24. Imodium is contraindicatated in cases of C.diff because it increases the amount of time that fecal material remains in the intestines, thereby increasing the opportunity for toxin damage to the intestines. 25. ManorCare medical records indicate that on December 18, 21, 24, 26, and 27, Ms. Zerance was given Imodium. 26. Even when medical records indicate that Ms. Zerance was being tested for C.diff, specifically on December 21, 2009, December 24, 2009, and December 26, 2009, Ms. Zerance still was being given Imodium, which, as stated above, is contraindicated in cases of C.diff. 4 27, When C.diff is suspected, even prior to diagnosis, Flagyl and Vancocin are to be prescribed. These specific drugs prevent the C.diff from growing. 28. Ms. Zerance was not prescribed Vancocin. The Imodium that Ms. Zerance was given not only counteracted the Flagyl and Florastor, but also worsened her condition. 29. On December 27, 2009, at approximately 1:25 p.m., Ms. Zerance became ill. 30. ManorCare Social Services staff was made aware of Ms. Zerance's illness, as well as Ms. Zerance's sister and Power of Attorney, Dorie Durand. 31. By 2:30 p.m. on that same date, Ms. Zerance was taken by ambulance to the Holy Spirit Hospital emergency room. 32. Upon arriving at the Holy Spirit Hospital emergency room, staffers had difficulty obtaining a pulse and, therefore, initiated very brief chest compressions. 33. Upon immediate admittance to the intensive care unit, Ms. Zerance was diagnosed with sepsis syndrome, marked leukocytosis, acute kidney failure, liver damage, marked hypoalbuminemia, malnutrition, and a blood clotting disorder. 34. On December 27, 2009, Ms. Zerance underwent a CT scan of her abdomen. The scan showed toxic megacolon. 35. On December 28, 2009, because of the toxic megacolon, Ms. Zerance underwent a surgical procedure called a total abdominal colectomy with end ileostomy. 36. On January 4, 2010, Ms. Zerance underwent a CT scan on her abdomen and pelvis; she had a bilateral pleural effusions, ascites, anascara, and a colostomy bag in the right lower quadrant of her abdomen. 5 37. By January 4, 2010, Ms. Zerance was able to talk and ask for Holy Communion, but she was not able to swallow. She was on a liquid diet and was being fed by a tube. 38. On January 7, 2010, a speech therapist at Holy Spirit Hospital noted that Ms. Zerance was only able to tolerate certain foods due to the ileostomy. 39. On January 12, 2010, Holy Spirit Hospital staff was considering discharging Ms. Zerance to a long term care facility when she developed a wide, complex, irregular cardiac rhythm; in addition, she had lost weight and was having difficulty eating. 40. On January 13, 2010, Ms. Zerance was transported to Golden Living Center, Camp Hill, where she remains confined, likely for the rest of her life. Count I Zerance v. ManorCare Medical Malpractice 41. The allegations of the preceding paragraphs are incorporated herein by reference as fully as though the same were set forth at length. 42. Defendant ManorCare, acting through its physicians, nurses, interns, residents, servants, employees, agents, and unknowns held itself out as providing professional medical services to Joan Zerance during the time of her stay at ManorCare. 43. Defendant ManorCare, acting through its physicians, nurses, interns, residents, servants, employees, agents and unknowns, deviated from the standard of care and from accepted standards of medical practice in the following specific action or failure to take action: 6 a. Failing to develop and maintain an adequate care plan to meet Ms. Zerance's nutritional and hydration needs; b. Failing to develop and maintain an adequate care plan to meet Ms. Zerance's needs in the areas of bowel management and diarrhea management; C. Failing to monitor and document the changes in Ms. Zerance's condition; d. Failing to consistently address Ms. Zerance's nutritional and hydration requirements; e. Failing to provide necessary, adequate nutrition to Ms. Zerance that would provide the necessary calories, protein, and fluids to promote her recovery; f. Failing to provide the necessary care and services to achieve and maintain the highest possible physical, mental, and psychological well-being of Ms. Zerance; g. Failing to notify the treating physician and Ms. Zerance's family of changes in her condition in a timely fashion; h. Failing to adequately document the results of Ms. Zerance's treatment including evidence of assessments of her changing needs, establishment of appropriate care and treatment plans, and documentation of her care and services with the outcomes provided; i. Failing to monitor Ms. Zerance's bowel and bladder functions; 7 j. Failure to indicate in medical records if Ms. Zerance, indeed, ever received the Dulcolax suppository daily and the Fleet enema daily as prescribed in the Admissions Physicians Orders; k. Failing to recognize the significance of the known medical facts at the time of Ms. Zerance's admission specifically, prior history of proctocolitis; 1. Failing to obtain and record adequate history of presenting illness, that being C.diff; m. Failing to obtain and record an adequate review of symptoms; n. Failing to perform and record an adequate physical examination; o. Failing to begin treatment for C.diff when it was suspected; P. Failing to diagnose the C.diff in time for appropriate treatment; q. Failing to monitor Ms. Zerance's condition and follow up with correct treatment; r. Failing to recognize significant deterioration in the patient's condition over the course of her hospitalization; S. Failing to use proper protocols to ensure Ms. Zerance was not subject to a hospital-acquired infection; t. Failing to order additional probiotics and the proper medications for C.diff; and U. Failing to document actions taken with such frequency and detail so as to demonstrate that the standard of care was met. 8 44. The following person is entitled to recover damages: Joan F. Zerance, by her Power of Attorney Dorie Durand 1069-D Allendale Road Mechanicsburg, PA 17055 45. Plaintiff's Power of Attorney, Dorie Durand, brings this action on behalf of her sister, Joan F. Zerance, and claims damages for pecuniary loss suffered by Ms. Zerance by reasons of medical malpractice and negligence, as well as for reimbursement for medical bills, administrative expenses, and other expenses incident to the Ms. Zerance's incapacitation. WHEREFORE, Plaintiff Joan F. Zerance, by and through her Power of Attorney, Dorie Durand, demands judgment against ManorCare in an amount in excess of $50,000.00, which amount exceeds the jurisdictional limits for arbitration in Cumberland County. Count II Zerance v. ManorCare Negligence 46. The allegations of the preceding paragraphs are incorporated herein by reference as fully as though the same were set forth at length. 47. ManorCare, through its agents and employees, held itself out as providing professional medical services and that it would provide treatment and care to Joan Zerance. 48. Instead of developing an appropriate treatment plan for Ms. Zerance, ManorCare allowed Ms. Zerance's condition to deteriorate to the point that she needed emergency surgery in order to survive and ultimately to have her colon removed. 9 49. In doing so, ManorCare breached the duty of care it owned to Ms. Zerance to i determine what treatment she needed and to ensure that she received that treatment. 49. Defendant ManorCare owed Ms. Zerance a non-delegable duty to ensure her health, safety, and well-being while at ManorCare. 50. Defendant ManorCare had a duty and obligation to: a. Take reasonable action to ensure Ms. Zerance's safety and well-being while she was at its facility by taking reasonable care to maintain clean, safe, and adequate facilities; b. Select and retain only competent physicians, nurses, interns, residents, therapists, and staff; C. Oversee all persons who practice medicine within its walls as to patient care; and d. Formulate, adopt and enforce adequate rules and policies to ensure quality care for the patients. 51. ManorCare acted in deviation from the standard of care of a reasonable medical facility and breached the duties it owed to Ms. Zerance. 52. ManorCare breached its obligations when its employees and agents failed to attend to Ms. Zerance's needs and when its employees and agents failed to properly dispense medications that Ms. Zerance needed to deal with her C.diff. 53. ManorCare's nurses, aides, and staff were acting within the scope of their employment and agency at all pertinent times. 10 54. This breach in duty was a substantial factor in bringing about the harm to Ms. Zerance and significantly increased the risks that such harms would occur. 55. The following person is entitled to recover damages: Joan F. Zerance, by her Power of Attorney Dorie Durand 1069-D Allendale Road Mechanicsburg, PA 17055 56. Plaintiff's Power of Attorney, Dorie Durand, brings this action on behalf of her sister, Joan F. Zerance, and claims damages for pecuniary loss suffered by Ms. Zerance by reasons of medical malpractice and negligence, as well as for reimbursement for medical bills, administrative expenses, and other expenses incident to the Ms. Zerance's incapacitation. WHEREFORE, Plaintiff Joan F. Zerance, by and through her Power of Attorney, Dorie Durand, demands judgment against ManorCare in an amount in excess of $50,000.00, which amount exceeds the jurisdictional limits for arbitration in Cumberland County. Count III Zerance v. ManorCare Negligence Per Se 57. The allegations of the preceding paragraphs are incorporated herein by reference as fully as though the same were set forth at length. 58. ManorCare, through its physicians, nurses, interns, residents, servants, employees, agents and unknowns, held itself out as providing professional medical services and that it would provide treatment and care for Ms. Zerance. 11 59, Had ManorCare followed procedures, Ms. Zerance would not have suffered such substandard care, which caused her extreme physical, mental, and emotional harm and caused her family members harm. 60. In fact, were it not for ManorCare's negligence, Ms. Zerance would never have been mistreated as negligently as she was and she would not have been harmed as she was. 61. The following person is entitled to recover damages: Joan F. Zerance, by her Power of Attorney Dorie Durand 1069-D Allendale Road Mechanicsburg, PA 17055 62. Plaintiff's Power of Attorney, Dorie Durand, brings this action on behalf of her sister, Joan F. Zerance, and claims damages for pecuniary loss suffered by Ms. Zerance by reasons of medical malpractice and negligence, as well as for reimbursement for medical bills, administrative expenses, and other expenses incident to the Ms.Zerance's incapacitation. WHEREFORE, Plaintiff Joan F. Zerance, by and through her Power of Attorney, Dorie Durand, demands judgment against ManorCare in an amount in excess of $50,000.00, which amount exceeds the jurisdictional limits for arbitration in Cumberland County. BOYLE, AUTRY & MURPHY Denis oyle, Esquire Supreme 'Court I.D. No. 49618 Joshua M. Autry, Esquire Supreme Court I.D. No. 208459 12 4660 Trindle Road, Suite 200 Camp Hill, PA 17011 Phone: (717) 737-2430 Facsimile: (717) 737-2452 deboyle@dennisboylelaw.com jmautry@dennisboylelaw.com Counsel For: Joan F. Zerance, By and Through Her Power of Attorney, Dorie Durand Dated: November 30, 2011 13 VERIFICATION I, Dorie Durand, Power of Attorney for Joan F. Zerance, make the following statements subject to the penalties of 18 Pa.C.S. § 4904, relating to unsworn falsifications to authority, and do hereby state that the facts set forth in the foregoing Complaint are true and correct to the best of my knowledge, information and belief. Done Durand, Power of Attorney for Joan F. Zerance Dated: November 30, 2011 0 BOYLE, AUTRY & MURPHY Dennis E. Boyle, Esquire Supreme Court I.D. No. 49618 Joshua M. Autry, Esquire Supreme Court I.D. No. 208459 4660 Trindle Road, Suite 200 Camp Hill, PA 17011 Phone: (717) 737-2430 Facsimile: (717) 737-2452 Email: deboyle@dennisboylelaw.com jmautry@dennisboylelaw.com JOAN F. ZERANCE, BY AND THROUGH HER POWER OF ATTORNEY, DORIE DURAND, Plaintiff V. MANORCARE HEALTH SERVICES - CAMP HILL, Defendant FILED-0 F1r, OT(Jo '_ S.11 THE PR NOTAR 2011 DEC - I AM 8: 52 CUMBERL AND COUNTY PENNSYLVANIA Counsel For: Joan F. Zerance, by and through her Power of Attorney, Dorie Durand : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, : PENNSYLVANIA . NO. - q,*.L L 7F--/mh CIVIL ACTION -MEDICAL PROFESSIONAL LIABILITY ACTION JURY TRIAL DEMANDED CERTIFICATE OF MERIT AS TO MANORCARE HEALTH SERVICES - CAMP HILL I, Joshua M. Autry, Esquire, hereby certify that claims are raised under both subdivisions (a)(1) and (a)(2) of Pa.R.Civ.P. 1042.3. As to subdivision (a)(]), an appropriate licensed professional has supplied a written statement that there exists a reasonable probability that the care, skill or knowledge exercised by ManorCare Health Services - Camp Hill in the treatment, practice or work that is the subject of the Complaint fell outside acceptable professional standards for a rehabilitation facility and that conduct was a cause in bringing about the harm. As to subdivision (a)(2), an appropriate licensed professional has supplied a written statement that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited by other licensed professionals for whom ManorCare Health Services - Camp Hill is responsible, 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. UTRY & MURPHY .4e E. No. 49618 Joshua M. Autry, Esquire Supreme Court I.D. No. 208459 4660 Trindle Road, Suite 200 Camp Hill, PA 17011 Phone: (717) 737-2430 Facsimile: (717) 737-2452 Email: deboyle@dennisboylelaw.com Email: jmautry@dennisboylelaw.com Counsel For: Plaintiff Dated: November 30, 2011 (J FILEO-O i ICE C'` THE PROTHONOTAF, ;, BOYLE, AUTRY & MURPHY Dennis E. Boyle, Esquire Supreme Court I.D. No. 49618 Joshua M. Autry, Esquire Supreme Court I.D. No. 208459 4660 Trindle Road, Suitt 200 Camp Hill, PA 17011 Phone: (717) 737-2430 Facsimile: (717) 737-2452 Email: deboyle@dennisboylelaw.com jmautry@dennisboylelaw.com 2011 DEC - I AM 8: 52 CUMBERLAND COUNTY PENNSYLVANIA Counsel For: Plaintiff JOAN F. ZERANCE, BY AND THROUGH : IN THE COURT OF COMMON PLEAS HER POWER OF ATTORNEY, : CUMBERLAND COUNTY, DORIE DURAND, : PENNSYLVANIA Plaintiff NO. 9 V. CIVIL ACTION -- MEDICAL MANORCARE HEALTH SERVICES - : PROFESSIONAL LIABILITY ACTION CAMP HILL, Defendant : JURY TRIAL DEMANDED PRAECIPE FOR ENTRY OF APPEARANCE Please enter the appearance of Dennis E. Boyle, Esquire, and Joshua M. Autry, Esquire, as Attorney for Joan F. Zerance, by and through her Power of Attorney, Dorie Durand, the Plaintiff in the above-captioned case. De is V. Boyle, Esquire Supreme Court I.D. No. 49618 Joshua M. Autry, Esquire Supreme Court I.D. No. 208459 4660 Trindle Road, Suite 200 Camp Hill, PA 17011 Phone: (717) 737-2430 Facsimile: (717) 737-2452 Email: deboyle@dennisboylelaw.com jmautry@dennisboylelaw.com Counsel For: Plaintiff Dated: November 30, 2011 SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny RAnderson Sheriff FiLED-l''FFICE THE PPD"OHOT \\ % ? f c ?eSO? o umbe.rl?'e i F oDepru Chief ty 2011 DEC 16 AM 10: 08 Richard W Stewart - CUMBERLAND COU11TY Solicitor OFFICE 0°THES ERlco pENNSYLVANIA Joan F. Zerance Case Number vs. ManorCare Health Services-Camp Hill 2011-8925 SHERIFF'S RETURN OF SERVICE 12/06/2011 04:13 PM - Shawn Gutshall, Deputy Sheriff, who being duty swom according to law, states that on December 16, 2011 at 1613 hours, he served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: ManorCare Health Services-Camp Hill, by making known unto Steve Vignati, Business Office Manager for ManorCare Health Services-Camp Hill at 1700 Market Street, Camp Hill adult sister at 1190 Lowther Road 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 G LL, UTY SHERIFF COST: $43.44 December 07, 2011 SO ANSWERS, 1?z WON R ANDERSON, SHERIFF (c C t tySwe Shank Teieosoll, Inc, V? 08/26/2011 14:48 7177309084 AIM+IINISTRATOR PAGE 01/05 VOLUNTARY AGl 11IElVT: If you do put swept this Agreement, the Patient will still be allowed to live in, and receive services in, this Center. ARNEOLMN AGREEMENT EAGREEMENT" BY ACC MI NG THIS AGREEMENT, THE PARTIES ARE WAIVING TMM RIGHT TO A TRIM,. BEFORE A JUDGE ANDIOR A JURY OF ANY DISPUTE BETWEW T)UM, PLIASE READ THIS AGRFI+It+il?NT CAREFULLY AND IN ITS ENTIRETY BEFORE ACCRPTING ITS TERMS. 'this Agreement made on j&2 Al/0 7 (date) by ap?¦ d beEw eery the Parties, Patient Z-Ar nLP__ and/or 'entt's 1P ,_ (collectively refand to Le 19 as "Patient"s and the Centro jC _, is au Agteeauent Wimiled to require *9 Disputes be resolved by arbitration, The to 11 "Re tadve agrees that be is signing this Agreement as a Party, both in h1s representative and individual capacity. A. WHAT I5 ARBITRATION?: Arbitration is a cost effective and time saving method of resolving disputes without involving tlu ooVM, In using arbitration, the disputes site hoard and decided by n private individual called an arbitrator. The dispute will not be beard or decided by a judge or jury. B, AG EMLNT TO ARBMRATE "DISPUTES": Any cad all claims or controversies arising out of or in any way reletiuag to this AVt ut, ibte Admission Agreement or any of the Patient's stays at this Center, or any Center operated by any subsidiary of HCR Manor Can, lee., whether or not related to medical malpractice, including but not limited to disputes regarding the making, execution, validity, enforceability, voidability, unconscionability, severebility, scope, interpretation, preemption, waiver, or any other defense to onforceabllity of this Agreement or the Admission Agreement, whether arising out of State or Federal law, whether existing now or arising in the flume, whether for statutory, compensatory or punitive damages and whether soundlog in breach of contract, tort or breach of statutory duties (including, without linaitaft except as indicated, anp+ ala>Ut based out Patlentu' ltlgl#,s or a claim for unpaid Center ebages), regardless of the balls for the duty or of the legal'theaties i4m which the claim is act ed, shall be submitted to binding azbitration. Notwitba axiding the above, nothing in this Agreement prevents the paticmt from filing a grievance or complaitat with the Cater or approp ft govenunental agency; from tregmwg an inspoot ion of the Center from such agency; or from seeft review under any applicable federal, state or local law of any decision to involuntarily discharge or uansfl r the Patient ffnm the Center. 1. Administrator: The arbitration shall be administered by National Arbitration Forum C NAFI, 6465 Wayzata Blvd., Suite 500, Minneapolis, MN 55426; www,arbitrat10&fWW,gom (hereinaikr "A,dminie rator"), If the Parties mutually agree in writing not to select NAI: or if the NAF as unwilling or unable to serve as the Administrator, the Panties shall agree upon another independent catity to serve as the Administrator, unless the Parties mutually agree to not have an Administrator. 2. Demand for Arbitration shall be trade in writing, sew to the other Party via certified mail, rettim receipt requested, and fried with NAP (unim NAF its mutually waived). 3. Arbitration Panel% no arbitration shall bo conducted by three (3) Arbitrators (hie "Panel"). Each Party will select one Arbitrator. The two selected Arbitrates 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 on attorney. NAP approved ArbitWors do not have to be used. if one Party rel3rses to select its arbitrator within 30 days of a written request for same, then the Admaiistrator shall sekct that Party's Arbitrator. 4. Sole Deddon Maker, The Arbitration Patel is empowered with the sole jurisdiction to, and sball, resolve all disputes, including without limitation, any disputes about the making, validity, enforceability, scope, Interpretation, 08/26/2011 14:48 7177309084 ADMINISTRATOR PAGE 02/05 voidablbty, unconsclonability, pr=0pUo% sevarabdhy and/or warror of this Agreement or the Admission Agreement, as well as resolve the Parties' underlying disputes, w it is the Pangs' iiatoat to completely avoid involving the court system. The Panel shall la have ja> wIctitm to certify my person as a representative of a class of persons and, by doing so, adjudicate claims of persons not directly takiag part in Arbitration. S. Procedural Rules and Substantive Law: The Patrol Abell apply the Federal Rules of Evidence and Federal Rules of Civil Pmcedume except where otherwise stated in this Agrea . Also, fife panel shall apply, ad the arbitration sward shall be consistent with, the State substantive law (including any and all straowy damage caps) for the State iaa which the Center is located, except as otherwise stated in this Agreement or where preempeed by the FAA. The Panel shall apply NAF's Code of Procedwe (in effect as of May 1, 2006) unless otherwise stated in this Agreement. NAF's Code of Procedure may be obtained mm NAF, (877) 655-7755, www.arbitraaon-fem. The Parties hereby opt- out of NAF Rules (45 regarding indigents; 43 regarding appeals and judicial review). 6. Retaaal to Arbitrate: Any Patty who refuses to to forward with arbitration adMcwlw*$ 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 bearing. 7. Waiver of Claim: Any claim shall be forever waived if it arose prior to the atbh[atlon hearing and is not prasvntsd in such hearing. A claim that is not served within the statute of Hinktatlow period applicable to the same claim In a court of law in the state in which this Center is located shell be forever waived. 8. Award: "The Panel's award must be unan oaous and shall be served no later than five (5) working days alter the arbitration hearims, The award must state in detail the Parcels' findiaga of fact and conclusions of law, shall be marked "confidential", and must be signed by all d ee Arbitrators. If any damages are awarded, the award must delineate specific amounts for economic and/or non-waxaie damages. 9. Mani with Limited Rights to Review (APPe* The Panel's award binds the Parties. The Parties have a limited right of review for only the express reasons allowed by the FAA. 0. D]SCOVERYs Discovery shall 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(&)(1) and dweafter must comply with Rule 26(e) regarding supplementation of disclosures and responses. (2) A Party may save a maxi um of 30 written questkw (Interrogmerles), 30 raquesu to produce documents and 30 requests for admissions; inclusive of subparts. (3) The following disclosures shall be served no later than one hundred fifty (150) days before the arbitration hearng by the Claiplant, and one htmdred twenty (120) days before the arbitridod hemrlcg by the Respondent: (a) list of witnesses to be called at the Herring (full name, title, address and phone number if keuown) and an ourtl#tte of each witaosscs' intended teistimoW, (b) list of documents to be relied upon at Hearing; except documents to be used solely for impembsew purposes; (c) any sworn recorded statements to be relied upon at Hearing including the fill name, title, address and phone number of the person who gave the statement. The Parties shall %Vploment these disclosures per Fed. R. Civ. Pr.,. Rule 26 (e). (4) Each Petry may have tap to three (3) experts and no more than ten (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 circumastanccs will a Party be allowed to take more tban 13 depositions. A written report summarizing each export'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 export's deposition; (S) Discovery stall be completed 45 days before the Heating and the Heating shall begin no later than 365 days a8er 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 tbese discovery terms or deadlines. 1:. RIGHT TO IMAM ]LQ-U KM: This Agreement may be cancelled by written notice seat by certified mall to the Center's Administrator within thirty (30) calendar days of the Patient's date of admission. If alleged acts 08/2612011 14:48 7177309084 ADMINISTRATOR PAGE 03/05 underlying the dispute occur before the cancellation data, this Agreement shall be binding with respect to those aneged actg. if not cancelled, this Agreement shall be binding on the Patient for this and all of the Fademt's other admissions to the Center without any need for further renewal. ?? tt '.: r eti r.ti 1. No Cap &imits on Damages: There are no caps/limits on the amount of damages the Panel can award other than those already knposed by law in the state in which this Centa is located. All state laws, statutes and regulations that limit awardable damages and define the scope of admissible and inadmissible evidence (Le, regulatory surveys, incident reports, et.) exprossly apply to any arbitration hearing held pi to t to this Agreement. 2.Opportanosity to Review do Right to Consult with Attorney: The Padttt (if COWMnd) end the patient's X.egal Representative acknowledge that the Patient and Legal Representative have each received a copy of this Agreement, and have bad an op m w * to read it (of have it read to him/her) and ask questions about it before acoep4tng it Please read this Agreement very carefully and ask any questions that you have before signing it keel free to consult with an attorney of your' choice before signing this Agreement 3. Benefits of Arbitration: The Patties' decision to select Arbitration is supported by the potential cost- effeotiveness and timasavings offered by selecting arbitration, which seeks to avoid the expense and delay in the court system. Thu Patties tree ognim that u11en the Patient is elderly and may bave a limited lif"xpechmery, and &=few 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 substandak involve interstate oouxmc cce and stipulate that the Federal Arbitration Act C 1:'AA") in effort as of November 1, 2008 and federal case law interpreting such version of the FAA shall apply to this Agreement, shall pxuW my inconsistent State law and shall not be reverse preempted by the McCarran-Fuguson Act; United States Code Title 15, Chapter 20, or other law. Any amendment to saeb version of the FAA is hereby expressly walve & 5. 1Bhaditag on )Parties & Others;: The Parties intend that this Agreement shell inure to the direct benefit of and bind the Center, its parent, affiliates, and subsidiary companies, management companies, execndve directors, owners, officers, partners, shareholders, directors, medical directors, employees, successors, assigns, amts, hunters and any entity or person (including health can providers) that provided any w vioes, supplies or equkmu of related to the Patient's stay at the Center, and shall inure to the direct benefit of and bind the patient (as defbed herein), his/her successors, spouses, children, next of loon, guardians, admkistrator% legal representatives, responsible parties, assigns, agents, attorneys, health care proxies, bealth care surrogates, WA Party beuefieiades, into s, hours, trustees, survivors and representatives, including the peraceal representatives or executors of his/her estate, say persosm 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 responsfbility for providing Patient with necessary services such as food, shelter, clothing, or medicine, and any parson who a wcuted this Agreement or the Admission Agreemem. C Fees and Costs: The panels' fees and costs will be paid by the Center except in disputes over non"nmaat of Center charges wherein Such sees and costs will be divided equally between the Parties. NAF's admhdsa ive fees shall be divided equally among the parties. To the extent permitted by law, any Party who tmsuocassfitl(j, challenges the enforcement of this Agreement shall be roqui red to pay the succmffi Pardee reasonable attorney fees and costs incurred to enforce such contract (i.e., Motion to Compel Arbitration). The Parties shall bar dt* own attorney fees and costs in raledcaa to all preparation and attendance at the arbitration hearing, unless the Panel concludes that the law provides otherwise. Except as stated above, tote Parties waive any rigid to recover attorneys' fees and costs. 7. Confrdeadallty: The arbitration proceedings shall remain confidertntal in all respects, including all filings, deposition transcripts, discovery documents, or other materials exchanged between the Parties and the Panels' award. 08/26/2011 14:48 7177309084 ADMINISTRATOR PAGE 04/05 In addition, following receipt of the Panels' award, each Patty agrees to return to the producing Party within 30 days the oyigioal and all copies of documents exchanged in discovery and at the albittation Hearing. & Waiver of this Agreement: )either Party may file its dispute in a court of law if the other Patty approves, which approval shall only be established by such Party filing a response to the Complatat withoul moving in a timely mamaer, as presedled by the applicable rules of court, to enlbrce this Agreement. However, should one of the Patties to this Binding AA*ndan Agreetnew breach its terms by mmating a lawsuit In the judicial ft a, the Patties expressly ague to participation In cooperative general &scovety while a motion to c=pel arbitration is peoad ng 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 Part' of the contractual oblloon to arblarate other Disputes, including both permissive and mandatory counterclaims, unless also subsegm* waived. 9. Severability, Itaftntion and Survival: Any term, pbrase or provision contained in this Agreement is severable, and in the event a* of tbddm, is found to be void, invalid or tmenbveable for any reason, this Agreement shall be interl reted as if such terra, phrase of provision were not comeined herein, aW the remiaiabi g ptoviAoas of this Agreement shall not be affm-ted by such detacmiaiation and shelf amain in thil force and effect. This Agreement represents the Patties' entire agreement regarding Disputes, supersedes any other agteepaent relating to disputes, and it may o* be chagAd in wilting 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 Agreement is fomrd to be unenforceable and arbitration is not compelled, them as a defnuh, the Parties agree that the disputes shall be resolved solely by a judge via a bench trial. Under no circumstances win a jury decide any dispute. 11. health Cara Dectslon: The Patties herby stipulate that the decision to have the Patient trove into this Center and the deoWan to agtae to this Agreement are each a health care decielon. The Parties stipulwa first there are other health care facilities in this eotnity currently available to meet the Patient's needs. 11 Legal Repre mtatave: The Patient's Legal Representative, by his or her signature below, hereby represents and stipulates that helshe has been auf hottred by the Patient to sign this Agreement on behalf of the Patient. BY SIGNING BELOW, THE PARTIES CONFIRM THAT EACH OF THEM HAS READ ALL FOUR (4) E&M OF THIS AGTtEEMf&IYT AND UNDERSTANDS TRAT EACH HAS WAIVB.D THE RIGHT TO A TRIAL BEFORE A JUDGE OR JURY ANA THAT EACH OF THEM CONSENTS TO ALL OF THE 'T'ERMS OF THIS VOLUNTARY AGREEMENT. PA 'TENT: PA 'S LF.O RESENT TTi: TW4NT Printed Warne ( Printed ame 001 169 pate) CENTER *?t?oa Signature of Patient , $igoat= of Patient's Legal Representative in hMer ijtative capacity C7t a,E/ c?., ? i?Q? ' Patient's Legal Repress tative should sign on UM above containing the phrase "Patient's Legal Representative." 08/26/2011 7.4:48 7177309084 ADMINISTRATOR PAGE 05/05 er eatadve Sigawn of Patient's Legal RepreseutW ive W hLvber Individual capacity `\ ?? ?,?? - Mstlaw. Page 1 2006 WL 6012873, 4 Pa. D. & C. 5th 321 (Cite as: 2006 WL 6012873 (Pa.Com.Pl.), 4 Pa. D. &_C. 5th 321) C Court of Common Pleas of Pennsylvania., Lehigh County. Manion V. Manor Care Inc. No. 2005-C-3580. September 26, 2006 Arbitration - Admission agreement - Nursing home patient An arbitration agreement signed by decedents daugh- ter upon admission of decedent to a nursing home was enforced, and the estate's wrongful death action was ordered to arbitration. Preliminary objections sustained. The estate of decedent, a nursing home patient, brought a wrongful death and survival action against the nursing home, alleging negligence causing dece- dent's death: The nursing home filed preliminary ob- jections, arguing that the case should be dismissed because of an arbitration agreement signed by dece- dent's daughter when decedent was admitted to the facility. The six-page agreement provided that all disputes, including personal injury claims, should be submitted to arbitration. The contract allowed a party to revoke the arbitration agreement within three days after it was executed. Daughter claimed that she was under great pressure at the time of decedent's admission to the nursing home. She maintained that the arbitration agreement was invalid as a contract of adhesion and violated :Medicaid regulations prohibiting additional consid- eration from being imposed as a condition of admis- sion to a nursing home. In addition, daughter argued that certain provisions in the agreement, which limited the amount of damages recoverable for claims, and other provisions, which restricted discovery in the event of arbitration, made the agreement invalid. The court determined that the contract was one of adhesion, since it was a standard form contract, pre- pared by one party. It concluded, however, that it was not unconscionable. It observed that the arbitration agreement treated both sides of the transaction equally and that arbitration is favored and rarely deemed to be unconscionable. The court said, however, that the damage limitations and discovery restrictions were one-sided and uncon- scionable. Accordingly, they were not enforceable. The court observed that the contract provided that invalid provisions were severable. It, therefore, con- cluded that the severability clause made it unneces- sary to invalidate the entire agreement. The court also rejected the argument that the arbitra- tion clause was improper under Medicaid law. There was no evidence that the arbitration clause was a pre- requisite to admission, and the family had the option to reject it. Accordingly, the court sustained the nursing home's preliminary objections and ordered that the parties proceed with arbitration. *322 Andrew K. Mitnick, for plaintiff. John M. Skrocki. for defendants. BLACK J. This case arises from the death of Marian L. FIueso while a resident at a nursing home facility owned and operated by one or more of the corporate defendants (Manor Care). The individual defendant, E. Tho- mas Scarborough Ill, was the administrator of the facility. The decedent's daughter, Edith Mannion, as administratrix of her estate, has commenced*323 this action to recover money damages on behalf of the estate and on her own behalf and under the Wrongful Death and Survival Acts, 42 Pa.C.S. 568301. 02. The complaint alleges the decedent suffered personal injuries and death as a result of negligence on the part of the defendants. FNI. The complaint also named Ancillary 0 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 2 2006 WL 6012873, 4 Pa. D. & C. 5th 321 (Cite as: 2006 WL 6012873 (Pa.Com.Pl.), 4 Pa. D. & C. 5th 321) Services Management Inc., as a co- defendant However, the complaint has been dismissed as to this defendant for lack of prosecution. Ms. Flueso, various training materials pro- vided by Manor Care to Ms. DeFranco re- garding arbitration agreements, and an at- testation form completed by Ms. DeFranco in connection with Ms. Flueso's admission. Before the court are the defendants' preliminary ob- jections to the complaint. The first objection is that the parties' dispute must be submitted to arbitration in accordance with the rules of the American Arbitra- tion Association (AAA), pursuant to the arbitration and limitation of liability agreement signed by Ms. Mannion at the time of her mother's admission into Manor Care. This court granted the parties additional time to conduct discovery and to submit depositions and supplemental briefs on this issue. After review- ing the depositions and briefs, we have. concluded, for the reasons stated below, that this preliminary objection must be sustained and the parties' dispute submitted to arbitration. The defendants have also moved to strike scandalous and impertinent matter as well as the request for pu- nitive damages. Because of our decision on the arbi- tration issue, these objections are moot FACTS The pertinent facts, based on the depositions and documents submitted, M are as follows: The Manor Care *324 entities are engaged in the ownership and operation of nursing homes and assisted living facW- ties. On or about January 13, 2004, Ms. Flueso was admitted to the nursing home facility operated by Manor Care at 1265 Cedar Crest Boulevard, Allen- town, Lehigh County, Pennsylvania. Ms. Flueso was transferred to the facility from Sacred Heart Hospital, where she had been a patient At the time of the transfer Ms. Flueso was in a confused state. Her daughter, Edith Manion, held a power of attomey authorizing her to act on Ms. Flueso's behalf FN2. The evidence submitted consisted of the depositions of Ms. Manion and of Louise DeFranco, the admission director for Manor Care, along with the arbitration and limitation of liability agreement executed by Ms. Mannion, a fax cover sheet from Ms. DeFranco to Ms. Mannion, several pages of medical records of Sacred Heart Hospital pertaining to Ms. Flueso; a social service progress note of Manor Care pertaining to Ms. Mannion made the decision to transfer her mother to Manor Care. She was under great pressure to move her mother from the hospital to a skilled nursing facility very promptly. It was a very upsetting experience for her. Only two nursing facilities in the area were within driving distance for her mothers boyfriend. One of these facilities, however, had a two-year waiting list for new residents. As a result, Ms. Manion considered Manor Care to be the only suitable option. She spoke by telephone with Louise DeFranco, the admission director at Manor Care, about the paper- work required for admission. Ms. DeFranco briefly reviewed the documents that would be required and agreed to fax them to Ms. Manion for her signature. When Ms. Manion received the faxed paperwork, consisting of 21 *325 pages, she did not have time to read all the documents carefully before signing them and sending them back. Her state of mind at that time was a "blur." Ea FN3. Deposition of Edith Mannion, 5/412006,42. The documents were all preprinted- They were stan- dard form documents prepared by Manor Care for signature by new residents. Ms. Mannion was aware that the paperwork included an agreement to arbi- trate, but she did not understand that this would pre- clude her from pursuing a claim in court. Ms. DeFranco never explained the arbitration agreement to her. Nor did Ms. DeFranco inform Ms. Mannioa that she could make changes in any of the documents. On January 13, 2004, Ms. Manion executed and returned the documents that had been faxed over by Ms. DeFranco for her mother's admission into Manor Care. E?11 One of these documents was a six-page agreement entitled "Arbitration and limitation of l- ability agreement." The agreement provides in sec- lion A for alternative dispute resolution in the event of controversies or claims arising out of or relating to Ms. Flueso's stay and care at the Manor Care facility. Thus, in section A.1.1 the agreement states the fol- 0 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 3 2006 WL 6012873, 4 Pa. D. & C. 5th 321 (Cite as: 2006 WL 6012873 (Pa.Com.Pl.), 4 Pa. D. & C. 5th 321) lowing: FN4. Ms. Flueso also signed a copy of the admission documents, including the agree- ment. However, she suffered from confusion when the paperwork was completed. For this reason, her daughter also executed the documents on her behalf. "(1.1) Any and all claims or controversies between the facility and the resident arising out of or in any way related or connected to the resident's stay and care at the facility, including, but not limited to, dis- putes regarding *326 alleged personal injury to the resident caused by improper or inadequate care, alle- gations of medical malpractice, and interpretation of this agreement, whether arising out of state or federal law, and whether based upon statutory duties, breach of contract, tort theories or other legal theories under Pennsylvania law, including provisions relating to the resident's rights under Pennsylvania law, or a claim for unpaid nursing home or related charges, shall be submitted to final and binding arbitration. Except as expressly set forth herein, the provisions of the Penn- sylvania Uniform Arbitration Act, 42 Pa.C.S. 67301 et se g. shall govern the arbitration. Each party hereby waives its right to file a court action for any matter covered by this agreement." of the parties. This provision, provides in pertinent part, the following: *327 "Liability for any claim brought by a party to this agreement against the other party, including but not limited to a claim by the facility for unpaid nurs- ing home charges, or a claim by a resident, arising out of the care or treatment received by the resident at the facility, including, without limitation, claims for medical negligence or violation(s) of Pa. Code et seq., arising from simple or gross negligence, shall be limited as follows: "(1) Net economic damages shall be awardable, in- cluding, but not limited to, past and future medical expenses, off-set by any collateral source payments; any outstanding liens shall be satisfied from the dam- ages awarded. "(2) Noneconomic damages shall be limited to a maximum of $250,000. "(3) Interest on unpaid nursing home charges shall not be awarded. "(4) Punitive damages shall not be awarded."MI FN8. Id. at §B.1.2. Under the agreement discovery is governed by the Pennsylvania Rules of Civil Procedure, but is limited to the sharing of certain enumerated materials. am The resident is required to provide the facility with 10 categories of documents. The facility is required to produce to the resident five categories of docu- ments, but these categories do not include statements of staff members unless the statements are sworn statements that the facility will be offering at the arbi- tration hearing.f' Additionally, the agreement ex- pressly precludes the deposition of individuals in- volved in the resident's care other than treating physi- cians and experts.mz FNS. Agreement §A.1.6. FN6. Id. at §A.1.6(2). FN7. Id. at §A.1.6(8). Section B of the agreement limits the liability of each The final paragraph of the agreement, section D.1.4, contains a standard severability clause. It provides that in the event any portion of the agreement is de- termined to be unenforceable or invalid, "the remain- der of this arbitration agreement will be deemed to continue to be binding upon the parties hereto in the same manner as if the invalid or unenforceable provi- sion were not a part of the arbitration agreement."E?2 FN9. Id. at §D.1.4. Following her admission to Manor Care on January 13, 2004, Ms. Flueso remained a resident of the facil- ity *328 until her death on June 28, 2005. Ms. Man- nion has been appointed as administratrix of her mother's estate. In her complaint she alleges that Manor Care failed to provide adequate nursing care, fraudulently documented the care provided, and grossly understaffed the facility. DISCUSSION 0 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 4 2006 WL 6012873, 4 Pa. D. & C. 5th 321 (Cite as: 2006 WL 6012873 (Pa.Com.P1.), 4 Pa. D. & C. 5th 321) Under the terms of the agreement all disputes be- tween the parties,u including any personal injury claims arising from care provided at the Manor Care facility, are to be resolved by arbitration pursuant to the Pennsylvania Uniform Arbitration Act, 42 Pa.C.S. 67301 et seg. This Act provides: 6483.12(d)(3). because it constituted additional con- sideration that may not be imposed on a Medicaid patient such as Ms. Flueso as a condition for admis- sion to a nursing home. For the reasons stated below, we find no merit in either of these contentions. FN13. 42 Pa.C.S. 67303. FN 10. The named parties to the agreement are Manor Care and Ms. Flueso. However, the agreement also covers officers and em- ployees of Manor Care, such as Mr. Scar- borough, and related corporations, with re- spect to claims arising from care provided at the Manor Care facility. "Compelling arbitration: On application to a court to compel arbitration made by a party showing an agreement described in section 7303 (relating to va- lidity of agreement to arbitrate) and a showing that an opposing party refused to arbitrate, the court shall order the parties to proceed with arbitration. If the opposing party denies the existence of an agreement to arbitrate, the court shall proceed summarily to de- termine the issue so raised and shall order the parties to proceed with arbitration if it finds for the moving party. Otherwise, the application shall be denied." FN 11.42 Pa. C.S. 47304(a). *329 The existence of an agreement to arbitrate a dispute may be raised by preliminary objection.f= FN12. Pa.R.C.P. §1028(a)(6). Agreements to arbitrate disputes are valid and en- forceable under Pennsylvania law, "save upon such grounds as exist in law or in equity relating to the validity, enforceability or revocation of any con- tract." In this case the plaintiff opposes the defen- dants' request to arbitrate their dispute on two grounds. The plaintiff first contends that the agree- ment is an unconscionable contract of adhesion be- cause it limits the amount of damages that may be awarded as well as pre-hearing discovery. Secondly, the plaintiff contends that the agreement violates the Medicaid program under title = of the Social Se- curity Act, also known as the Medicaid Act, 42 U.S.C. 61396r. and the Code of Federal Regulations on Medicare and Medicaid services at 42 C.F.R. I. The Agreement To Arbitrate Is Not Unconscionable A. Contract of Adhesion The plaintiff argues that the agreement was a contract of adhesion. A contract of adhesion is defined as standard form contract prepared by one party, to be signed by the *330 party in a weaker position, usu- ally a consumer, who has little choice about the terms. Huezel v. Mifflin Construction Company Inc.. 796 A.2d 350.357 (Pa. Super. 2002). The agreement at issue falls within this definition. It was a standard form document prepared by Manor Care for signature by new residents. It was to be signed by Ms. Mannion on behalf of her mother, a consumer of nursing home services to be provided by Manor Care. Given the circumstances, Ms. Manion was in a weaker position without any meaningful choice when she signed the agreement. She was un- der great pressure to arrange very quickly for her mother to be moved from the hospital to a skilled nursing facility. Because of considerations of geogra- phy and availability Manor Care appeared to be the only suitable option. Ms. Manion spoke by tele- phone with Louise DeFraaco, the admission director at Manor Care, about the paperwork required for her mothers admission to the facility. Ms. DeFranco agreed to fax this paperwork to Ms. Manion for her signature. When Ms. Manion received the faxed paperwork, consisting of 21 pages, she did not have time to read the material carefully before signing and returning the documents. She was very upset at the time, and recalls the experience only as a blur. She acknowledges that she was aware that the paperwork included an agreement to arbitrate, but she did not understand that this would preclude her from pursu- ing a claim in court. Ms. DeFranco never explained the arbitration agreement to her. Nor was Ms. Man- ton informed that she could make changes in the preprinted documents. *331 Section three of the agreement gives the signa- 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 5 2006 WL 6012873, 4 Pa. D. & C. 5th 321 (Cite as: 2006 WL 6012873 (Pa.Com.Pl.), 4 Pa. D. & C. 5tb 321) tory three business days to withdraw his/her consent to arbitrate disputes. However, this provision was at the bottom of page five of the six-page preprinted agreement, and it was not called to Ms. Mannion's attention. Considering the pressure she was under during this period of time, it is understandable that she felt she had little choice but to sign the docu- ments as presented in order to assure her mother's placement in the facility. Thus, we find that the agreement was a contract of adhesion. B. Unconscionability A contract of adhesion is not ipso facto unenforce- able. It is unenforceable only to the extent that it is found to be unconscionable. Lytle v. Citiftnaneial Services Inc.. 810 A .2d 643 (Pa. Super. 2002). "Once a contract is deemed to be one of adhesion, its terms must be analyzed to determine whether the contract as a whole, or specific provisions of it, are unconscionable." Denlinger Ina v. Dendler. 415 Pa. Super. 164. 176.608 A.2d 1061, 1067 (1992). tends, are inextricably intertwined with the provision for arbitration and taint the entire agreement We disagree. The agreement contains an explicit sever- ability clause in section D.1.4. Under this section if any provision of the agreement is held to be unen- forceable, the other provisions of the agreement are not to be affected. The agreement is to be construed as if it had never contained the unenforceable provi- sion. This is consistent with the general principle of Pennsylvania law that if less than an entire agreement is invalid, and the invalid provision is not an essential part or the primary purpose of the agreement, then the remaining portions of the agreement are fully enforceable. Huber v. Huber. 323 Pa. SgRer. 530. 537-38. 470 A.2d 1385. 1389 (1984): Forbes v. Forbes. 159 Pa. Super. 243. 249. 48 A.2d 153. 156 1946 • Restatement (Second) of Contracts 6184(1) (1981) . In the instant case both the damage and dis- covery limitations are severable X333 from the re- mainder of the agreement and do not invalidate the provision for arbitration. 1. The damages limitation A contract tern is unconscionable if (1) the party challenging it had no reasonable choice in accepting it, as in the case of a contract of adhesion, and (2) the provision unreasonably favors the other party. HueQel. 796 A.2d at 357 (holding that an arbitration clause was not unconscionable because it did not unreasonably favor the defendants). Although we have found the agreement to be a contract of adhe- sion, we do not believe that the provision for arbitra- tion unreasonably favors either party. There is a strong public policy favoring*332 arbitration of dis- putes. Commonwealth. Office of Administration v Commonwealth Pennsylvania Labor Relations Board 528 Pa. 472. 480, 598 A .2d 1274, 1277-78 (1991) FliQhtwavs Coro Y. Keystone Helicopter Coro.. 459 Pa. 660. 662-63 331 A .2d 184, 185 1975. Therefore, it is only the in the rarest of cases that an agreement to arbitrate will be unconscionable. There is a presumption that such an agreement is fair and does not unreasonably favor either party. Any doubt as to arbitrability should be resolved in favor of arbitration. The plaintiff argues that the entire agreement is un- conscionable because it contains limitations both on the damages that may be awarded and on the avail- able discovery. These provisions, the plaintiff con- The damages sought by the plaintiff on her claims include economic and noneconomic damages and punitive damages. Section B of the agreement re- quires the plaintiff to credit the amount of collateral source. payments against any economic damage claim, limits the recovery of noneconomic damages to $250,000, and prohibits completely the recovery of punitive damages. However, although these limita- tions unreasonably favor the defendants '3 and hence are unenforceable in a contract of adhesion, they do not invalidate the arbitration provision. FN14. Defendants' argument that the limita- tions are a fair trade-off for the defendants' waiver of interest on unpaid nursing home charges is disingenuous. The Sixth Circuit Court of Appeals dealt with a simi- lar issue in Morrison v. Circuit City Stores Inc 317 F.3d 646 (6th Cir. 2003). a consolidated appeal, in- volving federal discrimination claims by individuals against their former employers. Each of the employ- ment contracts contained a provision for arbitration as well as significant limitations on damages. The court recognized that a limitation on liability could undermine the Congressional intent behind a statute to compensate victims of discrimination and to deter Q 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 6 2006 WL 6012873, 4 Pa. D. & C. 5th 321 (Cite as: 2006 WL 6012873 (Pa.Com.Pl.), 4 Pa. D. & C. 5th 321) wrongful behavior. In both of the cases under review the court held invalid a provision that limited recov- ery to one year of backpay, reimbursement of lost fringe benefits, two years of front pay, *334 compen- satory damages, and punitive damages up to $5,000 or the sum of the backpay and frontpay, whichever is greater. However, the court also held that the damage limitation was severable and the provision for arbitra- tion valid. We reached a similar conclusion in Hughes v Allied Inspection Services, 50 Leh.L.J. 925 (2003), involv- ing a home inspection contract. We held there that an unlawful limitation on damages was severable from the rest of the contract and did not invalidate the pro- vision for arbitration of disputes. In Hughes we distinguished the case of Carll v. The Terminix International Company L.P.. 793 A.2d 921 (Pa. Super. 2002). on which the plaintiff here relies. In Carll the Superior Court found that the contract language limiting liability was not independent of the agreement to arbitrate, and therefore struck the entire arbitration clause from the agreement. However, the arbitration clause in Carll was materially different from the provision for arbitration in both Hughes and the instant case. The provision in Carll read as fol- lows: "Arbitration. The purchaser (including anyone claim- ing through purchaser) and Terminix agree that all matters in dispute between them ... shall be settled exclusively by arbitration ... [T]he award shall not, and the arbitrator shall not have the power or author- ity to, hold Terminix responsible for (i) the repair or replacement of any damage to the identified property, (ii) loss of anticipated rents and/or profits, (iii) direct, indirect, special, incidental, consequential, exemplary or punitive damages, or (iv) damages or penalties relating to or arising out of any *335 claim alleging any deceptive trade practice." Carll. 793 A.2d at 923. The court noted that "[t]he arbitration provision not only provides for arbitration but at the same time limits the arbitrator's authority." Id. at 926. The arbi- tration provision specifically denies to the arbitrator the power or authority to make an award for repair or replacement of property; for loss of rents or profits; for "direct, indirect, special, incidental, consequen- tial, exemplary or punitive damages"; or for decep- tive trade practice claims. Id. at 923. Thus, the provi- sion for arbitration was inextricably intertwined with the liability limitation. As a result, the entire arbitra- tion clause was found invalid. Carll is clearly distinguishable from this case because the arbitration provision in section A of the agree- ment is separate and distinct from the damage limita- tions in section B of the agreement, both location- wise and functionally. The damage limitations in section B may be stricken from the agreement with- out affecting the parties' agreement to arbitrate in section A. Moreover, as noted above, in the instant case the agreement contains an explicit severability clause in section D.14. There was no severability clause in Caril. 2. The discovery limitation On the discovery issue, the United States Supreme Court in Gilmer v. InterstatelJohnson Lane Cor,? 500 U.S. 20 (1991). reviewed the validity of discov- ery limitations in arbitration agreements. An em- ployer sought to compel arbitration in a suit filed by a former employee *336 for age discrimination. The employee argued that the discovery allowed for in arbitration was more limited than that which is al- lowed under the federal rules. The court declined to find the discovery limitation unenforceable, and noted that "by agreeing to arbitrate, a parry `trades the procedures and opportunity for review of the courtroom for the simplicity, informality, and expedi- tion of arbitration."' Id. at 31. citing Mitsubishi Mo- tors Corp. v. Soler Chrysler-Plymouth Inc 473 U.S. 614.628 (1985). The court did carve out an exception where the litigant challenging the discovery limita- tion can show that the allowable discovery "will prove insufficient to allow ... claimants ... a fair opportunity to present their claims." Id. at 31. Here, the plaintiff contends that the limitations placed on discovery are unfair and unreasonably favor the defendants because (1) the plaintiff is required to turn over a greater number of categories of material, and (2) the plaintiff is curtailed from acquiring evidence to support her theories of negligence. More specifi- cally, the plaintiff asserts that she is prevented from deposing employees of Manor Care involved in the care of Ms. Flueso, other than treating physicians, and that she is also precluded from obtaining any policy and procedure manuals adopted by the defen- dants for the care of individuals like Ms. Flueso. 0 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 7 - 2006 WL 6012873, 4 Pa. D. & C. 5th 321 (Cite as: 2006 VVL 6012873 (Pa.Com.Pl.), 4 Pa. D. & C. 5th 321) Without the ability to acquire this information the plaintiff claims that she will be handicapped in de- veloping many of her claims, and her expert may be limited in his ability to offer a meaningful opinion. We agree. The discovery limitations set forth in sec- tion A.1.6(1), (2) and (8) have the effect of severely restricting the plaintiffs ability to prepare and present her case. *337 By way of example, paragraph 71 of the complaint avers that "(71) The musing home defendants, acting by and through their agents, breached the duties set forth in the preceding paragraphs by: "(a) failing to hire appropriately trained staff, "(b) failing to appropriately train staff members; ... Rules of Civil Procedure. 11. The Legality of the Agreement The Medicaid program under title XIX of the Social Security Act, also known as the Medicaid Act, 42 U.S.C. 61396x. and the Code of Federal Regulations on Medicare and Medicaid Services at 42 6483.12(d)(3). prohibit a nursing facility that is ad- mitting a patient entitled to medical assistance from Medicare or Medicaid from requiring any considera- tion as a precondition to admission into the facility. The plaintiff interprets the agreement as considera- tion that was required by the defendants as a condi- tion for admitting Ms. Flueso to their facility. As a result, the plaintiff contends that the agreement was in violation of federal law and is unenforceable. "(g) failing to maintain appropriate records, including failing to monitor and document significant changes in Marian Flueso's condition, intentionally failing to document all injuries and illnesses, altering, destroy- ing, and/or rewriting records; as well as documenting care that was never given; ... "(p) grossly understaffing the facility; .. " The plaintiff is unable to depose staff members to develop these theories of liability. A limitation on discovery, such as this, may have a chilling effect on a person's capacity to pursue litigation. Thus, we find that the provisions for discovery in the agreement are one-sided and unreasonably favor Manor Care. Hence we find these limitations to be unconscionable and invalid. However, as with the limitation on damages, the dis- covery limitations are severable. In view of the ex- tensive discovery allowed to Manor Care under the agreement, it cannot be said that discovery limita- tions are an essential part or the primary purpose of the parties' agreement to resolve their disputes by arbitration. From a functional standpoint the agree- ment to arbitrate is self-sustaining even without sec- tions A.1.6(1), (2) and (8); it is fully operable even if the discovery limitations are completely*338 re- moved from the agreement. Therefore, we do not find it necessary to nullify the entire agreement. The arbi- trator will be responsible for establishing fair ground rules for discovery in accordance with the Federal We find no merit in this argument for two reasons. First, there is no evidence that the agreement was in fact a prerequisite for admission to the facility. Al- though we have found that under the circumstances the plaintiff had no meaningful choice but to sip the agreement, this was based in large part on her state of mind in the emergency conditions under which she was functioning. Ms. DeFranco, the admission direc- tor for Manor Care, testified in her deposition that the agreement was voluntary and that it was for the fam- ily to decide whether or not they were going to be signing. Significantly, the agreement*339 in sec- tion C permits a signatory to withdraw her consent to arbitration within three business days after execution. There is no indication in the agreement that a conse- quence of revocation would be a discharge from the facility. Accordingly, we cannot conclude on the evi- dence presented that the agreement was a require- ment for admission into Manor Care. F.. N15. Deposition of Louise DeFranco, 512/06, at 48. Secondly, we do not view an agreement to arbitrate disputes as a prohibited consideration under the Medicare Act. We believe the intention of the Act and regulations in prohibiting additional considera- tion was to prohibit a nursing home from imposing financial or economic requirements on a Medicare patient beyond the payments to be provided by the government In view of the strong federal policy in favor of arbitrating disputes, we decline to read the Medicare Act and regulations regarding consideration 0 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 8 2006 WL 6012873, 4 Pa. D. & C. 5th 321 (Cite as: 2006 WL 6012873 (Pa.Com.Pl.), 4 Pa. D. & C. 5th 321) as applicable to an agreement to arbitrate. CONCLUSION For the reasons stated, the defendants' preliminary objection pursuant to Pa.R.C.P. 1028(a)(6) is sus- tained, and this case is dismissed. The parties are to proceed to arbitration under the arbitration and limi- tation on liability agreement dated January 13, 2004. ORDER Now, September 26, 2006, upon consideration of the defendants' preliminary objections to the complaint and plaintiffs response thereto, after review of the parties' briefs and for the reasons set forth in the ac- companying opinion, including our finding that the limitations on *340 discovery in section A.1.6(1),(2) and (8) and the limitation on damages in section H of the arbitration and limitation of liability agreement are unconscionable and unenforceable, it is ordered that the preliminary objection to compel arbitration is sustained, and the complaint is dismissed without prejudice to the parties' right to proceed with arbitra- tion of their dispute under the arbitration rules of the American Arbitration Association. Pa.Com.Pl. 2006. Mannion v. Manor Care Inc. 2006 WL 6012873,4 Pa. D. & C. 5th 321 END OF DOCL.MENT 0 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. ENTERED AND FILED PROTHONOTARY'S OFFICE LANCASTER, PA ***Electronically Filed***** May 31201f 11:55AM Mary Blankenmeyer IN THE COURT OF CONDIGN PLEAS OF LANCASTER COUNTY, PENNSYLVANIA CIVIL LYNN L. WANZER, as Executrix of the Estate of ANNA M.1OHNSON, deceased, Plaintiff, VS. No. CI-10-12607 MANOR CARE OF LANCASTER PA, LLC d/b/a MANORCARE HEALTH SERVICES - LANCASTER, et al., Defendants ORDER AND NOW, this 31" day of May, 2011, upon consideration of Defendants' Preliminary Objections, Plaintiffs response, and briefs in support thereof, the court decides as follows: 1. Defendant's first preliminary objection in the nature of a Motion to Enforce Arbitration pursuant to.Pa. R.C.P. 1028(a)(6) is GRANTED in part and DENIED in part. The Motion to Enforce Arbitration is GRANTED, and the Complaint is dismissed without prejudice to the parties' right to proceed with arbitration. However, the Motion to Enforce Arbitration is DENIED as to the limitations on discovery in Section A.1.6(1),(2), and (8) and the limitation on damages in Section B of the Arbitration and Limitation of Liability Agreement. These sections are stricken as unconscionable pursuant to Mannion v. Manor Care. 4 Pa. D.&C.5" 321 (Pa. Com. P. 2006). While this court is not controlled by iWannion, the court finds it properly informative and persuasive. The court finds the limitations on discovery and limitations of liability to be unconscionable for the same reasons as Afannion. d f 2. Because this matter is. being resolved in arbitration, the court does not have the jurisdiction to decide Defendants' Motion to Strike Count III, Motion to Strike Count IV, and Motion to Strike Claims for Punitive Damages. This case is dismissed. The parties are to proceed to arbitration under the Arbitration and Limitation on Liability Agreement dated December 20, 2008 with Section A.1.6(1), (2), and (8), and Section B stricken. BY THE COURT: /s/ Margaret C. Miller MARGARET C. NIILLER JUDGE ATTEST: Jam' Copies to: Ian T. Norris, Esquire `- VV 1.4am J. Mundy, Esquire - l DEVON M. JACOB, ESQUIRE Pa. Sup. Ct. I.D. 89182 Email: dmiacob(a,dennisbovlelaw.com TRAVIS S. WEBER, ESQUIRE Pa. Sup. Ct. I.D. 309319 Email: tweber@dennisboylelaw.com Boyle, Autry & Murphy 4660 Trindle Road, Suite 200 Camp Hill, PA 17101 Phone: (717) 737-2430 Fax: (717) 737-2452 JOAN F. ZERANCE, BY AND THROUGH HER POWER OF ATTORNEY, DORIE DURAND, Plaintiff V. MANORCARE HEALTH SERVICES - CAMP HILL, Defendant ? r* unsel for Plaintiff Joan Zerance R l COUNT : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, : PENNSYLVANIA NO. 11-8925 CIVIL TERM CIVIL ACTION - MEDICAL, PROFESSIONAL LIABILITY ACTION JURY TRIAL DEMANDED PRELIMINARY OBJECTIONS OF PLAINTIFF JOAN ZERANCE TO DEFENDANT'S PRELIMINARY OBJECTIONS Plaintiff, Joan Zerance, by and through her undersigned counsel and the law firm of Boyle, Autry & Murphy, hereby objects to the Defendant's preliminary objections as follows: 1. On December 1, 2011, Plaintiff filed a Complaint against Defendant ManorCare Health Services, alleging medical malpractice, negligence, and negligence per se. 2. Defendant failed to respond to the Complaint, and on January 31, 2012, Plaintiff sent a 10-day notice warning Defendant that it was in default. 3. Defendant finally responded to the Complaint on February 6, 2012, by filing preliminary objections in which it asserted that Plaintiff waived her claims in this Court by allegedly entering an agreement with Defendant which provided that any disputes between Plaintiff and ManorCare shall be arbitrated. 4. By agreement, the deadline to respond to the Defendants' Preliminary Objections was extended to on or before March 23, 2012, so that the parties could explore the possibility of settlement. 5. Pennsylvania Rule of Civil Procedure 1028 provides for the filing of preliminary objections to a pleading. 6. Pennsylvania Rule of Civil Procedure 1028(a)(2) authorizes the filing of preliminary objections to a pleading that fails to conform to law or rules of court. 7. Pennsylvania Rule of Civil Procedure 1026(a) provides that "every pleading subsequent to the complaint shall be filed within twenty days after service of the preceding pleading." Pa. R. Civ. P. 1026(a). 8. A preliminary objection to a preliminary objection is the proper means by which to raise the issue that the preliminary objection is untimely. McKeever v. Mercaldo, 3 Pa. D. & C.2d 188, 190 (Pa. Ct. Com. Pl. 1955). 9. The Complaint in this case was filed on November 30, 2011. 10. Defendant had 20 days from November 30, 2011, in which to file preliminary objections, which it failed to do. 11. Instead, Defendant waited until February 6, 2012, well after the 20 day filing deadline, to file the present Preliminary Objections. 12. A party that files an "untimely pleading must demonstrate just cause for the delay." Peters Creek Sanitary Auth. v. Welch, 681 A.2d 167, 170 (Pa. 1996). 13. Only if the party filing the untimely pleading shows just cause for its late filing, then the moving party must "demonstrate that it has been prejudiced by the late pleading." Id. 14. The Defendant has offered no reason or excuse, let alone just cause, for filing its 2 preliminary objections late. 15. Therefore, the Court need not examine whether or not the Plaintiff is prejudiced by the Defendant's late filing.' See Welch, 681 A.2d at 170. WHEREFORE, Plaintiff Joan Zerance respectfully requests that the Court dismiss Defendant's Preliminary Objections and enter the accompanying order. RESPECTFULLY SUBMITTED, Date: March 6, 2012 By: '/ " ' D ON M. J OB, ESQUIRE Pa. Sup. Ct. I .89182 Email: dmia obr?dennisbovlela TRAVIS S. WEBER, ESQUIRE Pa. Sup. Ct. I.D. 309319 Email: tweberna,dennisbovlelaw.com Boyle, Autry & Murphy 4660 Trindle Road, Suite 200 Camp Hill, PA 17011 Phone: (717) 737-2430 Counsel for Plaintiff Joan Zerance 1 Moreover, the Defendant's Preliminary Objections are misleading and without merit, which will be asserted if the Plaintiff is required to respond to the Defendant's untimely Preliminary Objections. In this regard, the documents submitted by Defendant in support of its Preliminary Objections establish that the arbitration agreement signed by Dorie Durand is dated 12/4/2009. Ms. Durand, however, was not authorized to sign the Agreement on 12/4/2009, as the Power of Attorney was not executed until 12/5/2009. 3 JOAN F. ZERANCE, BY AND THROUGH HER POWER OF ATTORNEY, DORIE DURAND, Plaintiff V. MANORCARE HEALTH SERVICES - CAMP HILL, Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, : PENNSYLVANIA NO. 11-8925 CIVIL TERM CIVIL ACTION -MEDICAL PROFESSIONAL LIABILITY ACTION JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, Linda Lightner, an employee of the law firm of Boyle, Autry & Murphy, hereby certify that on March 6, 2012, I served a true and correct copy of the foregoing Preliminary Objections and Order, via United States First Class mail, postage prepaid, addressed as follows: John M. Skrocki, Esquire Burns White 100 Four Falls, Suite 515 1001 Conshohocken State Road West Conshohocken, PA 19428 By: LI A LIGH R i Paralegal 4 JOAN F. ZERANCE, BY AND THROUGH HER POWER OF ATTORNEY, DORIE DURAND, Plaintiff V. MANORCARE HEALTH SERVICES - CAMP HILL, Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, : PENNSYLVANIA NO. 11-8925 CIVIL TERM CIVIL ACTION -MEDICAL PROFESSIONAL LIABILITY ACTION JURY TRIAL DEMANDED ORDER AND NOW this day of , 2012, upon consideration of Plaintiff's Preliminary Objections to Defendant's Preliminary Objections, it is HEREBY ORDERED that Plaintiffs Preliminary Objections are SUSTAINED, and Defendant's Preliminary Objections are OVERRULED. The Defendant is HEREBY FURTHER ORDERED to file an Answer to the Complaint within 20 days. BY THE COURT: 5 PRAECIPE FOR LISTI G 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) JOAN F. ZERANCE, BY AND THROUGH HER COURT OF COMMON PLEAS OF CUMBERLAND COUNTY POWER OF ATTORNEY, DORIE DURAND Plaintiff, No. 2011-8925 - Civil Action V. MANORCARE HEALTH SERVICES - CAMP HILL Jury Trial Demanded Defendant 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT 2. Identify counsel who will argue case: (a) for plaintiff: Devon M. Jacob, Esquire; Boyle, Autry & Murphy _ MM a __ address: 660 Trindle Road, Suite 200, Camp Hill, PA 17011 (b) for defendant: John M. Skrocki, Esquire; Burns White LLC CD ZZ address: 100 Four Falls, Suite 515, 1001 Conshohocken Stat ed,= 2 West Conshohocken, PA 19428 D ter,.. 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: l,3 /? Dated: Signatur - y: ohn M. Skrocki, Esquire Identificat on No. 49071 BURNS WHITE LLC 100 Four Falls, Suite 515 1001 Conshohocken State Road West Conshohocken, PA 19428 (484-567-5700) Counsel for Defendant, Manorcare Health Services -Camp Hill 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. 9, -7 s?d Ck-? 3a?S ? a?asss 1 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: Dennis E. Boyle, Esquire Boyle, Autry & Murphy 4660 Trindle Road, Suite 200 Camp Hill, PA 17011 Date: 0? BURNS WHITE LLC John M S ocki 2 BURNS WHITE LLC T HE F R TN L N r, .+.i By: William J. Mundy, Esquire 7012 MAR 23 A IN «- f" Identification No. 57679 By: John M. Skrocki, Esquire 49071 Identification No ? . ces -Camp Hill rvi Manor are I 100 Four Falls, Suite 515 1001 Conshohocken State Road West Conshohocken, PA 19428 (484) 567-5700 BY AND JOAN F. ZERANCE COURT OF COMMON PLEAS , THROUGH HER POWER OF OF CUMBERLAND COUNTY ATTORNEY, DORIE DURAND 2011-8925 -Civil Action No Plaintiff , . ' V. MANORCARE HEALTH Jury Trial Demanded SERVICES - CAMP HILL Defendant. RESPONSE OF DEFENDANT, MANORCARE HEALTH SERVICES - CAMP HILL, TO PLAINTIFF'S PRELIMINARY OBJECTIONS TO THE PRELIMINARY OBJECTIONS OF DEFENDANT, MANORCARE- CAMP HILL Defendant, Manorcare Health Services - Camp Hill (hereinafter "Manor Care"), by and through its attorneys, Burns White LLC, hereby responds to the Plaintiffs Preliminary Objections to the Preliminary Objections of Defendant, Manorcare-Camp Hill, and in support thereof aver as follows: 1. Admitted, based on the time-stamp on the complaint. 2. Denied as stated. The docket reflects that the Plaintiffs Complaint was not served until December 16, 2011. It is admitted that on or about January 31, 2012, newly-entered counsel for Plaintiff, Devon Jacob, sent a Ten (10) Day Notice. 3. It is admitted that defense counsel filed Preliminary Objections raising an Arbitration Agreement signed by Dorie Durand, Power of Attorney for the patient/resident, Joan Zerance, at the time of the admission, which is at issue. 4. It is admitted that defense counsel agreed to an extension of time to allow Plaintiff to file a response to the Preliminary Objections. Parenthetically, a similar courtesy of an extension to file a response to the complaint was not extended, notwithstanding the dialogue between attorneys in Plaintiff's firm, and Manor Care counsel. The settlement discussion has been ongoing since June of 2011, and is continuing. The enforcement of the Arbitration Agreement would likely facilitate early resolution as appropriate. 5. No response is required. 6. No response is required. 7. No response is required. 8. No response is required. 9. Denied. The Complaint was time-stamped December 1, 2012. 10. Denied. By rule, the defendant would have twenty (20) days from the date of service, not the date of filing, to file a responsive pleading. In this case, communications regarding settlement between Manor Care counsel and Attorney Autry in Plaintiffs counsel's firm were continuing. A letter dated December 12, 2011 was faxed and sent regular mail, from Manor Care to Attorney Autry in which further informal negotiation was discussed, and the alternative of formal arbitration was noted. 11. Denied as stated. To the contrary, communications among the parties had occurred, and the plaintiffs `demand' had been responded to, an inquiry into further negotiation was noted in the December 12, 2011 letter, along with the mention of formal arbitration. The signed arbitration agreement is asserted within the Defendant's preliminary objection. 12. In this case, the time that passed between service of the complaint on the Camp Hill facility, on or about December 16, 2012, and the Notice of Intent To Take a Default at the end of January 2012, was occasioned by the good faith belief that Plaintiff would either continue to negotiate, or arbitrate, per the signed arbitration agreement. Instead, what appears to have happened was that new counsel for plaintiff entered his appearance, and declined to extend the time for a pleadings response. In the same course of dealings, Attorney Jacob requested an extension to file a response to the preliminary objection, which was granted by the undersigned. What is good for the goose is good for the gander. It is respectfully submitted that the additional time beyond the initial 20 days from service of the Complaint (over the Christmas holidays), is reasonably explained, and just cause exists for the passage of that additional time. 13. There is no prejudice to the plaintiff by allowing the preliminary objections of the defendant to be heard on the merits. Conversely, the defendant is unfairly prejudiced should the court sustain the plaintiff's preliminary objection by being denied the enforcement of a binding arbitration agreement, which agreement was contemplated by the parties, and mentioned within the December 12, 2011 letter. 14. The just cause for the additional time that passed is explained above. There had been ongoing communications regarding settlement, and the alternative of arbitration. The possibility of settlement continues to be discussed between the parties, most recently between the undersigned and Attorney Jacob. Enforcement of the arbitration agreement would facilitate that resolution. 15. Denied. In this case, there is no prejudice at all to the Plaintiff based upon the passage of an additional twenty or thirty days. WHEREFORE, the responding Defendants respectfully request that this Court overrule the Plaintiff s Preliminary Objections, consider the Preliminary Objection of the Defendant on the merits, and enter an Order enforcing the Arbitration Agreement signed by the Plaintiff. BURNS WHITE LLC Jo Skrocki, Esquire Counsel for Defendant, Manorcare Health Services- Camp Hill Date: 3 a? ?? CERTIFICATE OF SERVICE I, John M. Skrocki, Esquire, hereby certify that on this date, a true and correct copy of the foregoing Response to Plaintiffs Preliminary Objections to the Preliminary Objections of Defendant, Manorcare-Camp Hill, was delivered by United States First- Class Mail, postage prepaid, as follows: Dennis E. Boyle, Esquire Boyle, Autry & Murphy 4660 Trindle Road, Suite 200 Camp Hill, PA 17011 Dated: d? JoWM. Skrocki, Esquire Qqg nsel for Defendant, Manorcare Health Services- Camp Hill en- YA 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.) Plaintiff's Pr eliminary objections to Defendaxitq __ --------- ------- - - - ---- ?-- - - ---------------------------------- 15reT-i-mi--n--ary Obj ecio -n- s ----------- -«Y -: W . CAPTION OF CASE (entire caption must be stated in full) ;?r;:u -770 - a , ` -<> c Joan F. Zerance, by and through her Power of Atvtorney, Dorie Durand =p ManorCare Health Services --Camp Hill ?a 7_ No. 2011 8925 Term 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): V1 ai nti ff I c nrcl JMJ_narx7 Qhjactians to Defendant's Preliminary ?b'ctions 2. Identify all couns two i I argue cases: (a) for plaintiffs: Devon M. Jacob, Esquire; Boyle, Autry & Murphy, 4660 (Name and Address) Trindle Road, Suite 200, Camp Hill, PA 17011; 717- 717-241n (b) for defendants: John M. Skrocki, Esquire; Burns & White LLC, 100 Four (Name and Address) 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: Si. ature Devon M. Jacob Print your name Plaintiff Attorney for Date: March 28, 2012 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 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. $ 1q. 7spd C # Rt*Q-J V7a r~ '? .?..... y2 }. N kti f 3 i'^ F `? 4 if '. MLA Vd `IIIH duaeo OOZ epnS `peob elpuijl 099 •bs3 `gooey -W uonaQ ZLOZ ZZ 8dW8b889£1000 osirooo £ I OMLLI ZdIZO ,L { S3MO8 A3Nlld <` 3OV1SOd S (1 ? i ;.... i.. CM 68 -/1 •zloz y,FI 'IRId? uO LN2lWfl9HV HOA Q:I.LSIrI uTI8 SVH IIIH duiua - saal,UaS g;IuaH 0.193.JouuN E WL t Vd `al 006.91S `ajenbS asnoy:pno; asnoq:pnoo /qunoo puelia IlanB .4 'SA pun.InQ ailoQ 'yfauao;;d 3o ian&od iaq g2lno igl pun Sq laautmaZ -g unop SZ68-I IOZ 2H:IgIVfIN HSVJ .LVH.L fIOA A3IZON OZ SI SIH.L :goanr -.iW O,L ZIOZ `,,,9Z ga.itW :g LVQ IIOLI Vd `IIIH duiuj OOZ aj!nS `puoH alpul.iZ 099 •bs:j lgoaup -W uona(j ,kHVIONOH1OHc{ -n3ne •a a>i"a )uNnoo aNYlu3ewno AEIVJ.ONoH,.L,oN(j 3H.L .1o 30I.dxlo PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) r j TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within mat '! p,I the next " Argument court.)- Ptf Preliminary - Objections to Dft Preliminary Objections ''' IQ --- ---- ----- -- CAPTION OF CASE I:fJ'A1 ERLANJ) COUNT' (entire caption must be stated in full) f'ENNS YL.V COUNTY ANIA Joan F. Zerance, by and through her Power of Attorney, Dorie Durand vs. ManorCare Health Services -- Camp Hill No. 2011 8925 Term 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Plaintifrs Preliminary Objections to Defendant's Preliminary Objections 2. Identify all counsel who will argue cases: (a) for plaintiffs: Devon M. Jacob, Esquire; Boyle, Autry & Murphy; 4660 Trindle (Name and Address) Rd., Ste. 200, Camp Hill, PA 17011 (b) for defendants: John M. Skrocki, Esquire; Burns & White LLC, 100 Four Falls, (Name and Address) Ste. 515, 1001 Conshohocken State Rd., 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: Date: April 23, 2012 Print your name Devon M. Jacob, Esquire Attorney for lilaintiff' 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 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. a,wt' lg.7W all'] (,,t0 UI BY Cof'-f ? Cyr BOYLE, AUTRY is MURPHY Devon M. Jacob, Esquire Supreme Court I.D. 89182 Travis S. Weber, Esquire Supreme Court I.D. 309319 4660 Trindle Road, Suite 200 Camp Hill, PA 17011 Phone: (717) 737-2430 Facsimile: (717) 737-2452 Email: dtw scob*dennisboylelaw.com tweber@denuisboylelaw.com JOAN F. ZERANCE, BY AND THROUGH HER POWER OF ATTORNEY, DORIE DURAND, Plaintiff V. U-0- `I } " , OTHONOTAP,zx ?C12 MAY 23 PM 1: 01 CUMBERLAND COUNTY PENNSYLVANIA Counsel For: Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, : PENNSYLVANIA :NO. 11-8925 Civil Term : CIVIL ACTION -- MEDICAL MANORCARE HEALTH SERVICES -- : PROFESSIONAL LIABILITY ACTION CAMP HILL, Defendant : JURY TRIAL DEMANDED UMCIPE FOR WITHDRAWAL OF LISTING CA FOR ARGUMENT Please be advised that the parties in the above-captioned matter have reached a conditional settlement and we request that all deadlines be stayed and argume_qts continued. lwvon M. J w#,, Esquire Supreme Co .D. No. 89182 Travis S. Weber, Esquire Supreme Court I.D. No. 309319 4660 Trindle Road, Suite 200 Camp Hill, PA 17011 Phone: (717) 737-2430 Facsimile: (717) 737-2452 Email:dmiacob@dennisboylelaw.com tweber@dennisboylelaw.com Counsel For: Plaintiff Dated: May 22, 2012 JOAN F. ZERANCE, BY AND THROUGH HER POWER OF ATTORNEY, DORIE DURAND, PLAINTIFF V. MANORCARE HEALTH SERVICES - CAMP HILL, DEFENDANT ORDER OF COURT AND NOW, this 8c" day of August, 2012, upon consideration of the Petition for Approval of Settlement and Allocation of Settlement, IT IS HEREBY ORDERED AND DIRECTED that the law firm of Boyle, Autry & Murphy shall file with this Court a copy of the fee arrangement it had with Plaintiff with an accounting of attorney's fees and costs attributed to settlement of this case o IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 11-8925 CIVIL or before August 31, 2012. Devon M. Jacob, Esquire V John M. Skrocki, Esquire Division of Third Party Liability Dept. of Public Welfare bas ja4led CD •y ___; By the Court,