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Home My WebLink About12-1393SAUL EWING LLP Joel C. Hopkins, Esquire Laura A. Gargiulo, Esquire 10: 12 Pa. Attorney ID Nos. 85096 and 86128 CUMBERLAND COUNTY 2 North Second Street, 7th Floor PENNSYLVANIA Harrisburg, PA 17101 (717) 257-7525 (717) 257-7590 (facsimile) PMSLIC INSURANCE COMPANY, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, Plaintiff, PENNSYLVANIA V. NO. W3 e4emJ BERTRAM L. JOHNSON, JR., M.D., Defendant, and KELLY HODGEN, HAYDEE PAGLIAI, and TONI QUINN, : ACTION FOR DECLARATORY : JUDGMENT Nominal Defendants 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. l/103.7 ,,, 44 177947. 1 0' 27, 2012 IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 1-800-990-9108 717-249-3166 -2- 77947 1 0,._7 20 2 SAUL EWING LLP Joel C. Hopkins, Esquire Laura A. Gargiulo, Esquire Pa. Attorney ID Nos. 85096 and 86128 2 North Second Street, 7th Floor Harrisburg, PA 17101 (717) 257-7525 (717) 257-7590 (facsimile) Attorneys For Plaintiff PMSLIC INSURANCE COMPANY, Plaintiff, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, : PENNSYLVANIA V. BERTRAM L. JOHNSON, JR., M.D., NO. Defendant, and KELLY HODGEN, HAYDEE PAGLIAI, and TONI QUINN, ACTION FOR DECLARATORY JUDGMENT Nominal Defendants COMPLAINT PMSLIC Insurance Company, by and through its undersigned counsel, files this Complaint seeking declaratory relief against the defendants named herein pursuant to 42 Pa.C.S.A. § 7531. et seq., and in support thereof avers as follows: The Parties: 1. PMSLIC Insurance Company ("PMSLIC") is a Pennsylvania domiciled medical professional liability insurance company with its principal place of business located at 1700 Bent Creek Boulevard, Mechanicsburg, Cumberland County, Pennsylvania. -3- I?7947 1 0,.'7201? 2. Defendant Bertram L. Johnson, Jr., M.D., ("Johnson") is an adult individual with a professional office at 1821 Oregon Pike, Suite 2, Lancaster, Lancaster County, Pennsylvania 17601. 3. Nominal defendant Kelly Hodgen ("Hodgen") is believed and therefore averred to be an adult individual residing in Landisville, Lancaster County, Pennsylvania. 4. Nominal defendant Haydee Pagliai ("Pagliai") is believed and therefore averred to be an adult individual residing in Lancaster, Lancaster County, Pennsylvania. 5. Nominal defendant Toni Quinn ("Quinn") is believed and therefore averred to be an adult individual residing in Lancaster, Lancaster County, Pennsylvania. 6. The aforementioned nominal defendants are hereinafter collectively referred to as the "Nominal Defendants." Jurisdiction and Venue: 7. This Court has subject matter jurisdiction over this action pursuant to the provisions of the Pennsylvania Declaratory Judgment Act, 42 Pa.C.S.A. § 7531, et seq. 8. Venue is proper before this Court pursuant to Pa. R. Civ. P. 1006(a)(1), as a transaction or occurrence out of which the cause of action asserted herein arose in Cumberland County; namely, the policy of insurance at issue in this matter was made in Cumberland County, Pennsylvania. The PMSLIC Policy: 9. From January 1, 2011 through January 1, 2012, Johnson was the named insured under PMSLIC Medical Professional Liability Insurance Policy number 007416 (the "Policy") A true and correct copy of the Policy is attached hereto as Exhibit "A," and incorporated herein by reference. -4- I77Va7 102.27,2012 10. The Policy's Physician's and Surgeon Professional Liability (PL) Insuring Agreement provides coverage for certain medical professional liability claims that arise and are reported to PMSLIC during the aforementioned policy period. See Exhibit "A," Policy, pg. 1. 1 I . The Policy's PL Insuring Agreement provides that PMSLIC will "pay on behalf of an insured physician... all sums such insured physician shall become legally obligated to pay as damages because of: A. bodily injury... caused by a medical incident to which this insurance applies...." Id., pg. 1 (emphasis in original). 12. The term "medical incident" is defined by the Policy as "a single act or omission or a series of related acts or omissions... directly resulting from the rendering of or failure to render professional-health care services to a single person." Id., pg. 9 (emphasis in original). 13. The Policy defines "professional health-care services" as "any professional health-care service immediately incident to the care oI'patients...." Id., pg. 10. 14. In addition to the aforementioned payment obligations, the Policy also provides that PMSLIC will "defend any claim or suit seeking damages to which this insurance applies." Id., pg. 2 (emphasis in original). 15. By its terms the Policy does not apply: C. to any claim for punitive or exemplary damages, treble damages, any sum awarded in excess of compensatory damages, or any multiple of compensatory damages; D. to bodily injury, including damages for care and loss of services: 1. to any employee of an insured arising from and in the course of his or her employment by the insured for which the insured may be held liable as an employer or in any other capacity; or K. to any claim arising from the performance of any dishonest, fraudulent, deceitful, criminal or malicious act, or omission, by or with the knowledge or consent of, or at the direction of, the insured; -5- I?79J7 (i 7 ?01' L. to any claim for bodily injury or property damage arising from the performance by the insured of any intentional or willful acts, except those taken by the insured in good faith in the furnishing of professional health-care services; Q. to any claim brought by an employee, former employee, leased worker, temporary worker or volunteer alleging wrongful termination, wrongful refusal to employ a qualified applicant for employment, wrongful demotion, negligent evaluation, negligent reassignment, wrongful discipline or wrongful failure to promote a qualified employee; S. to any liability that results from or is aggravated by alleged or actual sexual misconduct. However: 1. we will defend any claim directly resulting from sexual misconduct, except that no defense will be provided to any insured who admits or is adjudged or is otherwise proven to be the perpetrator; T. to any claim alleging: 1. violation by any insured of any statute, law, ordinance or regulation prohibiting discrimination, harassment or humiliation, including but not limited to such claims based on race, creed, color, age, sex, sexual preference, physical appearance, marital status, pregnancy, physical or mental disability, or national origin. Z. to any claim for bodily injury or property damage expected or intended from the standpoint of the insured, except when the claim is brought for lack of consent. Id., pgs. 2-6 (emphasis in original). The Underlying Complaints: 16. On or about September 30, 2011, Nominal Defendants Kelly Hodgen, Haydee Pagliai and Toni Quinn filed an action in the Lancaster County Court of Common Pleas captioned Kelly Hod eg n, Haydee Pa l? and Toni Quinn v. Lancaster Cardiology Group, LLC and Dr. Bertram Johnson, No. CI-09-14652 (the "Underlying Action"). A copy of the Underlying Action is attached hereto as Exhibit "B" and incorporated herein by reference. 17. The Underlying Action alleges that at all times material thereto, Hodgen and Pagliai were employed by Defendant Johnson as an office manager and medical assistant, respectively. -6- 177941 1 0' '7,2012 18. The Underlying Action further alleges that, on or about February 4, 2008, Johnson performed a physical examination on Pagliai and that (luring that examination Johnson acted without Pagliai's consent and engaged in conduct that was "beyond the scope of the examination willfully pursued for [Dr. Johnson's] sole pleasure and self-serving purpose to view the Plaintiffs cleavage and breasts." Exhibit A, Complaint, ¶ 10. 19. The Underlying Action further states that after Pagliai reported Dr. Johnson's conduct to Hodgen, Johnson retaliated against Pagliai by, among other things, berating her, grabbing her arm tightly as he reprimanded her, and causing gross intimidation by lifting his hands as if he would strike her and pounding on things while yelling her, causing Pagliai fear of physical harm. See id. ¶ 11. 20. The Underlying Action further alleges that Johnson subjected Pagliai to derogatory sexual comments and solicitation, creating intolerable work conditions and an intolerable work environment that caused Pagliai to resign from her employment with Johnson on February 27, 2008. Id., ¶¶ 12, 14. 21. The Underlying Action alleges that Quinn saw Johnson for medical treatment and care on or about October 5, 2007, at which time Johnson caused intentional, unwanted, offensive physical contact with Quinn, and that such conduct was "beyond the scope of the examination willfully acted [sic] to grope her for [Dr. Johnson's] sole pleasure and self-serving purpose." Id., ¶ 19. 22. According to the Underlying Action, both Pagliai and Quinn filed sexual harassment complaints against Dr. Johnson with the Lancaster County Human Relations Commission, and dual-filed with the Pennsylvania Human Relations Commission. which investigations resulted in a probable cause finding of discrimination against Johnson. -7- 177947 1 0?.27:2012 23. The Underlying Action further alleges that Hodgen appeared to testify under subpoena. on July 1, 2008, before the Lancaster County Human Relations Commission (the "Commission") in connection with the Commission's investigations into the complaints filed by Pagliai and Quinn. 24. The Underlying Action alleges that as a result of Hodgen's cooperation with the Commission's investigation, Johnson retaliated against Hodgen, subjecting her to "extreme cruelty, aggression, hostility and intolerable work conditions," including but not limited to, spitting in her face, following her through the office screaming at her, and shoving her with his chest. Id. TT 28, 29. 25. The Underlying Action alleges Johnson wrongfully discharged Hodgen in retaliation for her testimony before the Commission. Id. T¶ 30, 37. 26. The Underlying Action alleges Hodgen filed a discrimination and retaliation complaint against Dr. Johnson with the Commission, dual-filed with the Pennsylvania Human Relations Commission, which investigation resulted in a finding of probable cause of discrimination against Johnson. 27. The Underlying Action states that the Nominal Defendants suffered harm. damages and losses as a result of Johnson's conduct. 28. The Underlying Action seeks to recover both compensatory and punitive damages. 29. The Underlying Action alleges Dr. Johnson: • Subjected the staff and patients to a sexually charged work environment; • Sexually harassed the Nominal Defendants; • Sexually discriminated against Quinn; -8- 177+4? 10_'17,2011 • Retaliated against Pagliai and Hodgen for complaining and reporting sexual harassment and discrimination; and • Retaliated and wrongfully discharged Hodgen for complying with a subpoena issued by the Commission. Id. ¶¶ 34-37. 30. The Underlying Action generally alleges that Johnson willfully and intentionally assaulted and battered Pagliai and subjected her to severe and/or pervasive sexual harassment, retaliation, and emotional distress. 31. The Underlying Action further states that Johnson willfully and intentionally sexually harassed and assaulted Quinn and caused her to suffer emotional distress. 32. The Underlying Action attempts to set forth claims against Johnson on behalf of all Nominal Defendants for: violations of the Lancaster County Human Relations Act (Count I); violations of the Pennsylvania Human Relations Act (Count II): Assault and Battery (Count III); Intentional Infliction of Emotional Distress (Count IV); and for Wrongful Discharge (as to Hodgen only) (Count V). The Coverage Dispute: 33. Johnson has submitted the Underlying Action to PMSLIC as a claim to be covered by the Policy. 34. By letter dated November 23, 2011, PMSLIC notified Johnson that it was in receipt of the Underlying Action naming Pagliai as one of three plaintiffs in that case, and that PMSLIC was assigning counsel to defend Johnson in that action under a full reservation of PMSLIC's rights. 35. By letter dated November 23, 2011, PMSLIC notified Johnson that it was in receipt of the Underlying Action naming Quinn as one of three plaintiffs in that case, and that -9- 177997 1 0'_ 7".2_01 PMSLIC was assigning counsel to defend Johnson in that action under a full reservation of PMSLIC's rights. 36. By letter dated January 17, 2012, PMSLIC. notified Johnson that it was in receipt of the Underlying Action naming Hodgen as one of three plaintiffs in that case, and that PMSLIC was declining coverage under that action for the claims brought by Hodgen. 37. Based on the facts asserted in the Underlying Action, Johnson is not entitled to either a defense or indemnification under the Policy for the claims asserted by the Nominal Defendants in the Underlying Action. 38. The Nominal Defendants' claims in the Underlying Action do not fall within the scope of the Policy's PL Insuring Agreement, as the Nominal Defendants' claims do not allege bodily injury or property damage that has been caused by a "medical incident," as that term is defined by the Policy. 39. Specifically, the Nominal Defendants' claims in the Underlying Action do not constitute an act or omission directly resulting from the rendering or failure to render "professional health-care service immediately incident to the care of patients." See Physician's Ins. Co. v. Pistone, 726 A.2d 339 (Pa. 1999). 40. Pagliai claims that during the February 4, 2008 examination, Dr. Johnson acted 'without Plaintiff Pagliai's consent and [] beyond the scope of the examination ... for his sole pleasure and self-serving purpose to view the Plaintiff's cleavage and breasts," Complaint, ¶ 10, and that Pagliai was assaulted when Johnson grabbed her arm "as he reprimanded her." 41. Quinn claims that Dr. Johnson engaged in improper touching without her consent and that went "beyond the scope of the examination... for his sole pleasure and self-serving purpose." Id. ¶ 19. _10- 177,947 1 U'_ '_7.301 42. The allegations relating to Hodgen do not even remotely arise in a medical context. 43. In addition to the fact that the claims in the Underlying Action do not fall within the scope of the Policy's PL Insuring Agreement, those claims, either in whole or in part, are excluded from coverage under the Policy by virtue of certain Policy exclusions, including but not limited to, C, D, K, L, Q, S, T, and Z. 44. The Nominal Defendants' claims for punitive damages in the Underlying Action are excluded by Policy exclusion C, which provides that the Policy does not apply to "any claim for punitive or exemplary damages ...." Exh. A, Policy, pg. 3 (emphasis in original). 45. Pagliai and Hodgen's claims in the Underlying Action are excluded by virtue of Policy exclusion D, which precludes coverage for any claim of bodily injury "to any employee of an insured arising from and in the course of his or her employment by the insured for which the insured may be held liable as an employer or in any other capacity." Id., pg. 3. 46. The Nominal Defendants' claims in the Underlying Action are excluded in their entirety by virtue of Policy exclusion K, which precludes coverage for any claim "arising from the performance of any... malicious act, or omission, by or with the knowledge or consent of, or at the direction of, the insured." Id., pg. 4. A malicious act is one that is done with "wicked or mischievous intentions or motives; wrongful and done intentionally without just cause or excuse." Mitchell v. City of Phila., 6 Pa. D. & C. 4", 462, 471 (Phila. Co. Ct. Com. Pl. 1990) (citing Black's Law Dictionary 863 (5t' ed. 1979)). 47. The Nominal Defendants' claims in the Underlying Action are excluded in their entirety by Policy exclusion L, which precludes coverage for any claim "arising from the 177947 1 0=.'_73012 performance by the insured of any intentional or willful acts, except those taken by the insured in good faith in the furnishing of professional health-care services." Exh. A, Policy, pg. 4. 48. All of Johnson's acts or omissions as set forth in the Underlying Actions are alleged to have been malicious, intentional and willful, and none are alleged to have been part of Johnson's providing good faith professional health-care services. 49. Pagliai's and Hodgen's claims in the Underlying Action are also excluded by Policy exclusion Q. which precludes coverage for any claim "brought by an employee, former employee ... alleging wrongful termination...." Id., Policy, pg. 4 50. Policy exclusion S precludes coverage for Pagliai's and Quinn's claims in the Underlying Action, as Johnson's alleged liability to the Nominal Defendants arises from "sexual misconduct," defined by the Policy as "any physical or mental assault, harassment or contact of a sexual nature, and includes, but is not limited to, sexually offensive or suggestive statements, conduct or contact; sexual relations; sexual exploitation; sexual harassment; sexual battery; soliciting sexual relations; and sexual abuse." Exh. A, Policy, pgs. 4 and 10. 51. The actions by Johnson complained of in the Underlying Action by Pagliai and Quinn constitute a physical assault of a sexual nature. 52. The claims in the Underlying Action of violations of the Lancaster Human Relations Act and the Pennsylvania Human Relations Act are excluded in their entirety by Policy exclusion 1'. which precludes coverage for any claim that alleges "violation by any insured of any statute, law, ordinance or regulation prohibiting discrimination, harassment or humiliation " Id., pg. 5. 53. Policy exclusion 1, which precludes coverage for any "claim for bodily injury or property damage expected or intended from the standpoint of the insured, except when the -12- 1719.41 11_ 37'201_ claim is brought for lack of consent," id., pg. 6, also applies to the Nominal Defendants' claims of sexual misconduct, as the harm that stems from unwanted sexual contact is so inherently likely to result in injury that it is deemed intentional as a matter of law. See Foremost Ins. Co. v. Weetman, 726 F. Supp. 618 (W.D. Pa. 1989). CLAIM FOR DECLARATORY RELIEF 54. The above paragraphs are incorporated herein by reference. 55. This claim for declaratory judgment is brought pursuant to 42 Pa.C.S. § 7531 et seq.. for the purpose of determining a question of actual controversy between PMSLIC and Johnson. 56. In this action PMSLIC seeks a determination that it does not have a duty under the Policy to defend or indemnify Johnson in connection with any of the claims set forth in the Underlying Action. 57. An actual and immediate controversy exists between the parties hereto concerning the coverage afforded under the Policy, as Johnson has submitted the Underlying Action to PMSLIC for coverage under the Policy. 58. In light of Johnson's assertion that he is entitled to coverage under the Policy in connection with the Underlying Action, and PMSLIC's belief that no such coverage exists, litigation appears imminent and inevitable. As such, the dispute between the parties is an actual, existing and bona fide controversy that is ripe for judicial determination. 59. Because the declaration sought by PMSLIC - that it has no legal or equitable obligation under the Policy to defend or indemnify Johnson in connection with the claims raised in the Underlying Action - will resolve or assist the parties in resolving this controversy, a declaratory judgment is an appropriate remedy under the circumstances. -13- 1771)47 103'27.2012 60. PMSLIC's interest in this controversy is direct, substantial and present. WHEREFORE, PMSLIC Insurance Company respectfully requests this Court render a judgment in its favor and against the defendants named herein, declaring the following: a. That PMSLIC Insurance Company has no legal or equitable obligation under the Policy to defend Bertram L. Johnson, Jr., M.D., in connection with the Underlying Action; b. That PMSLIC Insurance Company has no legal or equitable obligation under the Policy to indemnify Bertram L. Johnson, Jr., M.D., in connection with the Underlying Action; c. Alternatively, that PMSLIC Insurance Company has no legal or equitable obligation under the Policy to indemnify Bertram L. Johnson, Jr., M.D., for any punitive damages or claims arising from intentional, malicious or willful acts, or sexual misconduct; and d. Such other relief as may be proper. Dated: d 2`9' 1 2o12-- Respectfully submitted, Joel C. Hopkins, ,sq " e Attorney I.D. # 85096 Laura A. Gargiulo, Esquire Attorney I.D. # 86128 Saul Ewing LLP 2 North Second Street, 7`h Floor Harrisburg. PA 17101 (717) 257-7525 Attorneys for Plaintiff PMSLIC Insurance Company -14- 17794? 1 02 27 201' VERIFICATION I, Richard Zangle, being subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities, hereby state that I am a Team Leader for Plaintiff PMSLIC Insurance Company, and that the facts set forth in the foregoing Complaint are true and correct to the best of my knowledge, information and belief. By:' Dated: -15- 1 77947 I 0-7 201? SAUL EWING LLP Joel C. Hopkins, Esquire n 1Z nP, - q Laura A. Gargiulo, Esquire COUNTY Pa. Attorney ID Nos. 85096 and 861MM3 L Aso IN P'N 2 North Second Street, 7 Floor Harrisburg, PA 17101 (717) 257-7525 (717) 257-7590 (facsimile) Attorneys For Plaintiff PMSLIC INSURANCE COMPANY, Plaintiff, V. BERTRAM L. JOHNSON, JR., M.D., Defendant, and KELLY HODGEN, HAYDEE PAGLIAI, and TONI QUINN, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 12-1393 ACTION FOR DECLARATORY JUDGMENT Nominal Defendants PRAECIPE TO ATTACH EXHIBITS TO THE PROTHONOTARY: Kindly attach Exhibits "A" and "B" enclosed herewith to PMSLIC's Complaint seeking declaratory relief, which was filed with the Court March 1, 2012. 179380.1 03/08/2012 Respectfully submitted, Dated: 31 ?I X) Y 7q Joel C. Hopkins, Esquire Attorney I.D. # 85096 Laura A. Gargiulo, Esquire Attorney I.D. # 86128 Saul Ewing LLP 2 North Second Street, 7th Floor Harrisburg, PA 17101 (717) 257-7525 Attorneys for Plaintiff PMSLIC Insurance Company CERTIFICATE OF SERVICE I hereby certify that on this 8 h day of March, 2012, I served a true and correct copy of the foregoing Praecipe to Attach Exhibits by first class mail, postage prepaid, upon the following persons: Bertram L. Johnson, Jr. M.D. 1821 Oregon Pike, Suite Z Lancaster, PA 17601 Toni Quinn 2413 Mayfair Drive Lancaster, PA 17603 Kelly Hodgen and Haydee Pagliai c/o Nina B. Shapiro, Esquire 53 North Duke Street, Suite 201 Lancaster, PA 17602 1 Laura A. Gargiul -3- 1793W 1 03/08/2012 ???P ?? h? i J PMSL1C MEVIMLIAS.Lin wbuit a P.O. BOX 2080, MECHANICSBURG PA 17055.0787 800 445-1212 T 717 796-8080 F PMSUC.wm POLICY ISSUE 11/06/2010 POLICY NUMBER POLICY EFFECTIVE 01/01/201112:01 AM ST CLIENT ID NUMBER POLICY EXPIRATION 01/01/201212:01 AM ST LICENSENUMBER POLICY RETROACTIVE 01/01/2003 TERRITORY COUNTY NAMED INSURED: BERTRAM L JOHNSON JR, MD LANCASTER CARDIOLOGY GROUP LLC SUITE 2 1821 OREGON PIKE LANCASTER, PA 17601 CLAIMS-MADE DECLARATIONS & SCHEDULE j MEDICAL PROFESSIONAL LIABILITY INSURANCE r COVERAGE(S) LIMITS OF LIABILITY PHYSICIANS AND SURGEONS PROFESSIONAL $500,000 EACH INCIDENT LIABILITY (PL) $1,500,000 i ANNUAL AGGREGATE j CARDIOLOGY - INCLUDING CATEETERIZATIONS 030 15% INDIVIDUAL EXPERIENCE RATING CREDIT 007416 JOHN0271 MD012613E PAOS-36 LANCASTER PREMIUM TOTAL PREMIUM (PL) TOTAL PREMIUM Nom MCARE LIMITS CONDITIONED ON COMPLIANCE WITH THE PROVISIONS OF THE HEALTH CARE SERVICES MALPRACTICE ACT OF 1975, P.L.390, NO.111, AS AMENDED AND THE MEDICAL CARE AVAILABILITY AND REDUCTION OF ERROR (MCARE) ACT, NO 13 OF 2002, AND APPLICABLE REGULATIONS, $500,000 / $1,500,000. FORMS ATTACHED: MPL - 0101 (1/1/2010), PA IIIPAA 002a (10/07), PA MPCPMEDFF 002 (01/08), INS - 0111 (1/112011) THE PREMIUM SHOWN DOES NOT INCLUDE ANY APPLICABLE MCARE ASSESSMENT. PA IMPCDEC (10/07) RENEWAL L t fOl PMSLIC MEDICAL LIAB.LITY INSURAKCL' P.O. BOX 2080, MECHANICSBURG PA 17055-0787 800 445-1212 T 717 796-8080 F PMSUC.com CLAIMS-MADE FORM MEDICAL PROFESSIONAL LIABILITY INSURANCE COVERAGE PART All coverages of this policy are claims-made coverages. Upon cancellation or nonrenewal of this policy, extended reporting (tail) coverage may be purchased in accordance with Condition K of Section VIII-Conditions. Throughout this policy and any attached endorsements the words "you," "your" and "yours" refer to the named insureds shown in the Declarations. The words "The Company," "our," "us" and "we" refer to the PMSLIC Insurance Company (PMSLIC). Various provisions in this policy restrict coverage. Read the entire policy carefully to determine your rights and duties and what is covered and is not covered. We will not pay sums or perform acts or services unless explicitly provided for in this policy. Other words or phrases that appear in bold type except for titles or captions have special meaning. Refer to Section VII-Definitions for their meaning. PMSLIC INSURANCE COMPANY (A stock insurance company) In consideration of the payment of premium, and subject to the statements in the Declarations and any schedules made a part hereof, and subject to all of the terms and conditions of this policy, we agree with the named insured to provide insurance as follows: SECTION I INSURING AGREEMENTS Physician's and Surgeon's Professional Liability (PL) We will pay on behalf of an insured physician scheduled on this policy all sums such insured physician shall become legally obligated to pay as damages because of: A. bodily injury or property damage caused by a medical incident to which this insurance applies; or B. credentialing injury arising out of a medical review incident. Coverage for a medical review incident shall be excess over any other insurance, and shall be offered only to the extent permitted by law. This insurance applies only to medical incidents and medical review incidents occurring on or after the retroactive date and on or before the termination date applicable to such insured, as shown in the Declarations or any schedule or endorsement, and only for a claim first arising during the policy period and reported to us during the policy period or any extended reporting period. Entity Liability (EL) We will pay on behalf of an insured entity all sums such insured entity shall become legally obligated to pay as damages because of: A. bodily injury or property damage caused by a medical incident to which this insurance applies; or B. credentialing injury arising out of a medical review incident. Coverage for a medical review incident shall be excess over any other insurance, and shall be offered only to the extent permitted by law. This insurance applies only to medical incidents and medical review incidents occurring on or after the retroactive date and on or before the termination date applicable to such insured, as shown in the Declarations or any schedule or endorsement, and only for a claim first arising during the policy period and reported to us during the policy period or any extended reporting period. MPL - 0101 1/1/2010 'w A 1 Designated Employee Liability (DE) We will pay on behalf of a designated employee all sums such designated employee shall become legally obligated to pay as damages because of bodily injury or property damage caused by a medical incident to which this insurance applies. This insurance applies only to medical incidents occurring on or after the retroactive date and on or before the termination date applicable to such designated employee as shown in the Declarations or any schedule or endorsement, and only for a claim first arising during the policy period and reported to us during the policy period or any extended reporting period. SECTION II DEFENSE AND SUPPLEMENTAL PAYMENT OBLIGATIONS We shall have the right and duty to defend any claim or suit seeking damages to which this insurance applies. We shall have the exclusive right to investigate, negotiate and defend any claim or suit as we deem appropriate, using counsel of our choice. We shall not be liable for the cost of legal services or any other costs of defense incurred by any insured without our prior written consent. We shall not be liable for the cost of any legal services or any other costs of defense incurred before our written receipt of notice of claim or suit. With respect to any claim or suit covered by this policy, we will pay: A. all expenses we incur; B. all reasonable expenses incurred by an insured at our request to assist us in the investigation or defense of such claim or suit. We will also pay an insured's actual loss of earnings up to $500 per day because of time off work while attending a trial in connection with such claim or suit at our request; C. all costs taxed against the insured in the suit; D. the cost of bonds to release attachments, but only for bond amounts equal to or lesser than the applicable Limits of Insurance. We have no duty to apply for or furnish these bonds; E. premiums on appeal bonds if we decide to appeal a judgment against an insured, but only for that portion of the bond premium attributable to amounts not exceeding the applicable Limits of Insurance. The decision to appeal at our expense is solely our decision. In the event we decide not to appeal, the insured may do so at their own expense. We have no duty to apply for or furnish these bonds; F. pre-judgment and post judgment interest only on that part of any judgment we pay. We will not pay any pre judgment interest that accrues after we offer to pay the Limits of Insurance that apply. We will not pay any post judgment interest that accrues after we pay, offer to pay or deposit in court our share of the judgment. These defense and supplemental payments are in addition to the applicable limits of liability as stated in the Declarations. We shall have no further defense or supplemental payment obligations under this policy after the applicable limit of liability as stated in the Declarations has been exhausted by the payment of judgments or settlements. At our option we may pay expenses relating to demands for damages or lawsuits made against the insured prior to a final determination of whether this coverage applies to such demand or lawsuit. If it is finally established that this insurance provides no such coverage, such insured shall repay us all such expenses, upon demand. SECTION III TERRITORY The insurance afforded by this policy applies to medical incidents or medical review incidents anywhere in the world provided the original claim for such damages is made within the United States of America, its territories or possessions, Puerto Rico or Canada. SECTION IV EXCLUSIONS This policy does not apply: A. to any claim arising from the ownership, maintenance, entrustment, operation, use, loading or unloading of: 1. any auto, aircraft or watercraft owned or operated by, or rented or loaned to any insured, or 2. any other auto, aircraft or watercraft operated by any person in the course of his or her employment by any insured, NDL - 0101 1/1/2010 lE I % to any claim due to war, whether or not declared, civil war, insurrection, rebellion or revolution, terrorism, or to any act or condition incident to any of the foregoing; B. to any: 1. claim arising from the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of pollutants in, onto or upon water; in, into or upon real property; or in or into air: a. at or from any premises, site or location that is or was at any time owned or occupied by, or rented or loaned to, any insured; b. at or from any premises, site or location which is or was at any time used by or for any insured or others for handling, storage, disposal, processing or treatment of waste, c. which are or were at any time transported, handled, stored, treated, disposed of, or processed as waste by or for an insured or any person or organization for whom the insured may be legally responsible; or d. at or from any premises, site or location on which any insured or any contractors or subcontractors working directly or indirectly on any insured's behalf are performing operations: (1) if the pollutants are brought on or to the premises, site or location in connection with such operations by such insured, contractor or subcontractor; or (2) if the operations are to test for, monitor, cleanup, remove, contain, treat, detoxify or neutralize, or in anyway respond to or assess the effects of pollutants. Subparagraphs a. and d.(1) do not apply to bodily injury or property damage arising from heat, smoke or fumes from a hostile fire. As used in this exclusion, a hostile fire means one that becomes uncontrollable or breaks out from where it was intended to be 2. loss, cost or expense arising from any: a. request, demand or order that any insured or others test for, monitor, clean up, remove, contain, treat, detoxify or neutralize, or in any way respond to or assess, the effects of pollutants; or b. claim or suit by or on behalf of a governmental authority for damages because of testing for, monitoring, cleaning up, removing, containing, treating, detoxifying or neutralizing or in any way responding to or assessing the effects of pollutants. As used in this exclusion: Pollutants means any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals, biological and other etiologic agents or materials, genetically engineered materials, teratogenic, carcinogenic and mutagenic materials and waste. Waste means any substance that is left over, no longer used or discarded; is to be reclaimed, reconditioned or recycled; or has been removed, treated, stored or disposed of as part of any environmental remediation effort. C. to any claim for punitive or exemplary damages, treble damages, any sum awarded in excess of compensatory damages, or any multiple of compensatory damages; D. to bodily injury, including damages for care and loss of services: 1. to any employee of an insured arising from and in the course of his or her employment by the insured for which the insured may be held liable as an employer or in any other capacity; or 2. sustained by the spouse, child, parent, brother or sister of an employee of any insured as a consequence of bodily injury to such employee arising from and in the course of employment by any insured, and to any obligation of any insured to indemnify or contribute with another because of dahnages arising from such bodily injury; F. to any obligation for which the insured or their insurer, or self-insurance plan or fund, maybe held liable under any workers compensation or occupational disease law, any unemployment compensation or disability benefits law, or under any similar law; G. to property damage: NDL - 0101 1/1/2010 1 t 1. to property owned or occupied by or rented or loaned to the insured; 2. to property used by the insured; or 3. to property in the care, custody or control of an insured or as to which an insured is for any purpose exercising physical control; H. to damages because of mysterious disappearance or theft of personal property; I. to any claim arising from the process of formation, performance or breach of an actual or alleged contract or agreement, whether written or oral; J. to any claim arising from liability for the acts of another assumed by the insured under any contract or agreement, whether written or oral, other than a written contract provision under which an insured agrees to hold a third party harmless for claims arising from the conduct of an insured under this policy for an event for which coverage is otherwise provided under this policy; K. to any claim arising from the performance of any dishonest, fraudulent, deceitful, criminal or malicious act, or omission, by or with the knowledge or consent of, or at the direction of, the insured; L. to any claim for bodily injury or property damage arising from the performance by the insured of any intentional or willful acts, except those taken by the insured in good faith in the furnishing of professional health-care services; M. to any claim arising from your product or your work; This exclusion does not apply to any liability arising as a direct result of a medical incident or a medical review incident. N. to any claim based upon the Employee Retirement Income Security Act of 1974 (also known as the Pension Reform Act of 1974) as amended in part by Title X of the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) and amendments to either or similar provisions of any federal, state or local statutory law or common law; 0. to any claim which alleges antitrust violations, or violation of any law that prohibits the monopolization of, or the unlawful restraint of, trade, business or profession or conspiracy to damage another in trade or business, except that under EL and PL, we will provide coverage for a medical review incident. Such insurance as is afforded for claims arising from a medical review incident shall be excess over any other insurance, and provided that such coverage is offered only to the extent permitted by law; P. to any claim made against an insured: 1. for which the insured is entitled to a defense, indemnity or payment by reason of having given notice of any circumstance which might give rise to a claim under any other insurance, or self-insurance plan or fund; 2. arising from any claim or litigation pending as of the effective date of this policy, as well as all future claims or litigation based upon such litigation or derived from the same or essentially the same facts (actual or alleged) that gave rise to such litigation; or 3. based on or attributable to an insured's failure or omission to effect and maintain insurance, including policies, or self insurance, or participation in any State fund; 4. for which there is no coverage by any State fund due to the insured's failure to pay an assessment as required by law; Q. to any claim brought by an employee, former employee, leased worker, temporary worker or volunteer alleging wrongful termination, wrongful refusal to employ a qualified applicant for employment, wrongful demotion, negligent evaluation, negligent reassignment, wrongful discipline or wrongful failure to promote a qualified employee; R. to liability arising out of the utterance of or publication of defamatory statements or allegedly defamatory statements by the insured except that when such statements were made by the insured as part of the insured's participation in a formal process of credentialing, quality assurance, peer review or utilization review, coverage shall be available to the extent permitted under this contract and by law, S. to any liability that results from or is aggravated by alleged or actual sexual misconduct. However: 1. we will defend any claim directly resulting from sexual misconduct, except that no defense will be provided to any insured who admits or is adjudged or is otherwise proven to be the perpetrator. MPL - 0101 1/1/2010 .%, 2. we will pay damages on behalf of any insured other than: a. the alleged perpetrator or perpetrators; b. any insured who knew about the misconduct, but failed to stop it; T. to any claim alleging: 1. violation by any insured of any statute, law, ordinance or regulation prohibiting discrimination, harassment or humiliation, including but not limited to such claims based on race, creed, color, age, sex, sexual preference, physical appearance, marital status, pregnancy, physical or mental disability, or national origin. 2. violation of laws prohibiting deceptive or unfair trade or business practices or unfair competition. 3. violation of any other federal, state or local law, regulation or ordinance including, but not limited to, the practice of medicine without a license; U. to any claim alleging a denial of access to medical records for the purpose of review of the propriety of payment for medical services; V. to any claim: 1. with respect to which an insured under the policy is also an insured under a nuclear energy liability policy issued by the Nuclear Liability Insurance Association, Mutual Atomic Energy Liability Underwriters, or Nuclear Insurance Association of Canada, or would be an insured under any such policy but for its termination upon exhaustion of its Limit of Insurance; or 2. resulting from the hazardous properties of nuclear material with respect to which any person or organization is required to maintain financial protection pursuant to the Atomic Energy Act of 1954, or any law amendatory thereof, or the insured is, or had this policy not been issued would be, entitled to indemnity from the United States of America, or any agency thereof, under any agreement entered into by the United States of America, or any agency thereof, with any person or organization; or 3. resulting from the hazardous properties of nuclear material if a. the nuclear material: (1) is at any nuclear facility owned by or on behalf of an insured; or (2) has been discharged or dispersed therefrom; b. the nuclear material is contained in spent fuel or waste at any time possessed, handled, used, processed, stored, transported or disposed of by or on behalf of an insured; or c. the injury, sickness, disease, death or destruction arises out of the furnishing by an insured of services, materials, parts or equipment in connection with the planning, construction, maintenance, operation or use of any nuclear facility, but if such facility is located within the United States of America, its territories or possessions, Puerto Rico or Canada, paragraph c. applies only to injury or destruction at such nuclear facility. As used in this exclusion: 1. hazardous properties include radioactive, toxic or explosive properties; 2. nuclear material means source material, special nuclear material, or byproduct material; 3. source material, special nuclear material, and byproduct material have the meaning given them in the Atomic Energy Act of 1954 or in any law amendatory thereof; 4. spent fuel means any fuel element or fuel component, solid or liquid, which has been used or exposed to radiation or a nuclear reactor; 5. waste means the waste material which contains byproduct material and which results from the operation by any person or organization of any nuclear facility; 6. nuclear facility means: a. any nuclear reactor, b. any equipment or device designed or used for: (1) separating the isotopes of uranium or plutonium, (2) processing or utilizing spent fuel; or MPL - 0101 1/1/2010 .40 (3) handling, processing or packaging waste; c. any equipment or device used for the processing, fabricating or alloying of special nuclear material if at any time the total amount of such material in the custody of the insured at the premises where such equipment or device is located consists of or contains more than 25 grams of plutonium or uranium 233 or any combination thereof or more than 250 grams of uranium 235; d. any structure, basin, excavation, premises or place prepared or used for the storage or disposal of waste, including the site on which any of the foregoing is located, all operations conducted on such site and all premises used for such operations; 7. nuclear reactor means any apparatus designed or used to obtain nuclear fission in a self-supporting chain reaction or to contain a critical mass of fissionable material; 8. with respect to injury or destruction of property, the word injury or destruction includes all forms of radioactive contamination of property. This exclusion does not apply to any liability arising as a direct result of a medical incident. W. to any claim arising out of: 1. the insured's activities as a proprietor, superintendent, hospital administrator, nursing home administrator or executive officer of any hospital, nursing home, rehabilitation, facility, sanitarium or clinic with bed and board facilities or laboratory or business enterprise not listed on the declarations page as an insured (but this exclusion does not apply with respect to an X-ray or pathological laboratory utilized to provide professional health-care services within a physician/patient relationship within the insured's practice); or 2. any activity or enterprise not mentioned in paragraph 1. of this exclusion, whether or not related to patient care and/or treatment, if such activity or enterprise is not involved in the delivery of professional health-care services to patients on an individual basis and within a direct professional provider-patient relationship. This exclusion does not apply if the insured's specialty listed on the Declarations page is administrative medicine. X. to any claim arising out of publication of books or other written materials for general public consumption and participation in media broadcasts (including Internet web pages providing information or advice) to the general public, Y. to any liability, costs or expenses assumed, incurred, or promised to be incurred, in association with any claim potentially or actually covered by this policy, prior to such claim being reported to us in accordance with the terms of this policy and without our prior written consent; Z. to any claim for bodily injury or property damage expected or intended from the standpoint of the insured, except when the claim is brought for lack of consent SECTION V PERSONS INSURED Each of the following is an insured under this policy: A. the named insured; B. under PL, any physician for whom such coverage is afforded under this policy as indicated in the Declarations and Schedule of Insureds; C. under EL, the insured entity, and any officer, partner, member or stockholder thereof with respect to the acts or omissions of others, provided no officer, partner, member or stockholder of an insured entity shall be an insured under this subparagraph with respect to liability for his or her personal acts; D. under DE, any employee, leased worker, temporary worker or volunteer for whom such coverage is afforded under this policy as indicated in the Declarations and Schedule of besignated Employees while working within the scope of his or her duties at the direction of the named insured or insured entity, or any scheduled physician. NTL - 0101 1/1/2010 SECTION VI LIMTTS OF LIABILITY A. Physician's and Surgeon's Professional Liability (PL). Regardless of the number of insureds under this policy or the number of claims made: 1. our total liability for all damages because of all bodily injury or property damage shall not exceed the PL aggregate limit of liability stated in the Declarations. 2. our total liability for all damages because of all bodily injury or property damage arising from anyone medical incident or medical review incident shall not exceed the PL limit of liability stated in the Declarations for "each medical incident." 3 Such limits of liability shall apply separately to each insured. B. Entity Liability (EL). Regardless of the number of insured entities under this policy or the number of claims made: 1. our total liability for all damages because of all bodily injury or property damage shall not exceed the EL aggregate limit of liability stated in the Declarations. 2. our total liability for all damages because of all bodily injury or property damage arising from anyone medical incident or medical review incident shall not exceed the EL limit of liability stated in the Declarations for "each medical incident." C. Designated Employee Liability (DE). Regardless of the number of insureds under this policy or the number of claims made: 1. our total liability for all damages because of all bodily injury or property damage shall not exceed the DE aggregate limit of liability stated in the Declarations. 2. our total liability for all damages because of all bodily injury or property damage arising from anyone medical incident shall not exceed the DE limit of liability stated in the Declarations for "each medical incident." 3. such limits of liability shall apply separately to each insured. D. All coverages. No more than the limits of liability of one coverage, as shown in the Declarations, shall apply to any insured as to any claim. SECTION VII DEFINITIONS When used in this policy (including endorsements forming a part hereof): A. "Aircraft" means any heavier-than-air or lighter-than-air aircraft designed to transport persons or property. B. "Auto" means a land motor vehicle, trailer or semitrailer designed for travel on public roads, including any permanently attached machinery or equipment, but auto does not include mobile equipment. C. "Bodily injury" means physical injury, sickness or disease sustained by a person. This includes mental anguish, mental injury, shock, fright or death if any of these results from physical injury. D. "Claim" means: 1. written notification received by an insured of a suit or of any other request for compensation to which this insurance applies made by or on behalf of an injured party; or 2. any actor omission a named insured reasonably believes may result in a suitor other request for compensation made by or on behalf of an injured party to which this insurance applies. MPL - 0101 1/1/2010 A report of a claim to us must comply with the requirements of Condition J, Section VIII-Conditions. E. "Credentialing injury" means loss or restriction of staff privileges, credentialing or other right to practice medicine including any medical procedure at any hospital, medical school or other medical institution. It does not mean bodily injury or property damage, loss of employment unrelated to a loss or restriction of staff privileges, credentialing or other right to practice medicine, or the loss or restriction of any government issued license, permit or privilege. F. "Damages" means all sums an insured becomes legally obligated to pay to a third party by reason of the liability imposed upon an insured by law because of injury or damage to 'which this policy applies, except those sums resulting from: 1. any multiple of compensatory damages imposed by statute or regulation; 2. the assessment of fines or penalties, sanctions or fees; 3 restitution, return or disgorgement of fees, profits, charges for products or services rendered, capitation payments, premium or any other funds allegedly wrongfully held or obtained; 4 non-monetary relief or redress in any form other than monetary compensation or monetary damages, including without limitation, the cost of complying with any injunctive, declaratory or administrative relief; 5. matters that are uninsurable under law; 6. defense and supplemental payments payable under SECTION lI; or 7. punitive or exemplary damages. G. "Designated Employee" means an individual scheduled on this policy as a designated employee. H. "Directors, officers and trustees" means all persons who were, now are or shall be members of the governing body of the named insured, except as excluded by schedule attached to this policy and includes the Chief Executive Officer of the named insured. I. "Employee" means a person: 1. employed by the named insured or insured entity for wages or salary, or 2. who is a current or former member of the named insured's or insured entity's Board of Directors. Employee does not include any independent contractor, leased worker or temporary worker. J. "Insured" means any person or organization qualifying as an insured under Section V-Persons Insured. K. "Insured entity" means any corporation, partnership, association, limited liability company or joint venture designated on the Declarations as an insured on this policy. L. "Leased worker" means a person leased to the named insured or insured entity by a labor leasing firm under an agreement between the named insured or insured entity and the labor leasing firm to perform duties related to the conduct of the named insured's or insured entity's business. Leasediworker does not include a temporary worker. M. "Loading or unloading" means the handling of properly: 1. after it is moved from the place where it is accepted for movement into or onto an aircraft, watercraft or auto; 2. while it is in or on an aircraft, watercraft or auto; or 3. while it is being moved from an aircraft, watercraft or auto to the place where it is finally delivered, but loading or unloading does not include the movement of property by means of mechanical device, other than a hand truck, that is not attached to the aircraft, watercraft or auto. MPL - 0101 1/1/2010 ` f N. "Medical incident" means a single act or omission or a series of related acts or omissions (including, but not limited to, multiple misdiagnoses) directly resulting from the rendering of or failure to render professional health-care services to a single person. For the purposes of this definition, any single act or omission or series of related acts or omissions directly resulting from the rendering of or failure to render professional health-care services to a mother and child or fetus (or children or fetuses) from conception through postpartum care shall constitute a single medical incident. 0. "Medical review incident" means a voluntary or mandatory participation by an insured in a formal process of credentialing, quality assurance, peer review or utilization review, or testifying under oath in any trial, deposition or other proceeding as an expert witness in a medical malpractice action. P. "Mobile equipment" means any of the following types, of land vehicles, including any attached machinery, apparatus or equipment: 1. bulldozers, farm machinery, forklifts and other vehicles designed for use principally off public roads; 2. vehicles maintained for use solely on or next to premises you own or rent; 3. vehicles that travel on crawler treads; 4. vehicles, whether self-propelled or not, maintained ',primarily to provide mobility to permanently mounted: a. power cranes, shovels, loaders, diggers or drills-, or b, road construction or resurfacing equipment such as graders, scrapers or rollers. 5. vehicles not described in paragraphs 1., 2., 3. or 4. above that are not self-propelled and are maintained primarily to provide mobility to permanently attached equipment of the following types: a. air compressors, pumps and generators, including spraying, welding, building cleaning, geophysical exploration, lighting, and well servicing equipment; or b. cherry pickers and similar devices used to raise or lower workers; 6. vehicles not described in paragraphs 1., 2., 3. or 4. above maintained primarily for purposes other than the transportation of persons or cargo. However, self-propelled vehicles with the following types of permanently attached equipment are not mobile equipment but will be considered autos: 1. equipment designed primarily for: a. snow removal; b. road maintenance, but not construction or resurfacing; c. street cleaning; 2. cherry pickers and similar devices mounted on an auto or truck chassis and used to raise or lower workers; and 3. air compressors, pumps and generators, including spraying, welding, building cleaning, geophysical exploration, lighting and well servicing equipment. Q. "Named insured" means the person(s) or organization(s) designated as the named insured in the Declarations of this policy. R. "Other insurance" means valid and collectible coverage or benefits including, but not limited to, those provided by self- insurance arrangements, pools, self-insurance trusts,' captive insurance companies, mutual insurance companies, stock insurance companies, risk retention groups, reciprocal exchanges, mutual benefit or assistance programs or any other plan or agreement of risk assumption or any other source of indemnification. S. "Physician" means any individual who is licensed or approved by a state, the District of Columbia, Puerto Rico or other competent legal authority within the United States to provide health care or professional medical services as a physician or surgeon, osteopathic physician or surgeon or podiatrist; MPL - 0101 1 / 1 /2010 T. "Policy period" means the time period in which this Policy is in force as shown in the Declarations. U. "Premium" means any advance, deposit, auditor retrospective premium, and includes any deductibles under the terms of this Policy. V. "Professional health-care services" means any professional health-care service immediately incident to the care of patients including, but not limited to, the fumishing of food, beverages, medications or appliances in connection with such services and the postmortem handling of human bodies. W. "Property damage" means: 1. physical injury to real and tangible property including all resulting use of that property. All such loss of use shall be deemed to occur at the time of the physical injury that caused it; or 2. loss of use of real and tangible property that is not physically injured. All such loss of use shall be deemed to occur at the time of the event that caused it X. "Retirement" means permanently ceasing all practice of medicine for which the insured receives monetary or other financial compensation. Y. "Sexual misconduct" means any physical or mental assault, harassment or contact of asexual nature, and includes, but is not limited to, sexually offensive or suggestive statements, conduct or contact; sexual relations; sexual exploitation; sexual harassment; sexual battery; soliciting sexual relations; and sexual abuse. Z. "Suit" means a civil proceeding alleging damages to which this insurance applies, including: 1. an arbitration proceeding seeking damages and to which the insured must submit or submits with our consent; or 2. any other alternative dispute resolution proceeding alleging damages to which the insured submits with our consent. AA. "Temporary worker" means a person furnished to the named insured or insured entity to substitute for a permanent employee on leave, or to meet seasonal or short-term workload conditions. BB. "Volunteer" means any person other than a physician whose services or labor are not compensated from any source and whose activities are directed or supervised by and for the benefit of the named insured or insured entity. CC. "Your product" means: 1. any goods or products, other than real property, manufactured, sold, handled, distributed or disposed of by: a. you or any other insured; b others trading under your name; or c. a person or organization whose business or assets you have acquired, and 2. containers, materials, parts or equipment furnished in connection with such goods or products. Containers does not mean vehicles. Your product includes warranties or representations made at any time with respect to the fitness, quality, durability, or performance of paragraph 1. and 2. above and the providing or failure to provide warnings or instructions. Your product does not include vending machines or other property rented to or located for the use of others but not sold. DD. "Your work" means: 1. Work or operations performed by you or an insured or on your behalf. 2. Materials, parts or equipment furnished in connection with such work or operations. MPL - 0101 I /l/2010 10 %t . 3. Your work includes: a. Warranties or representations made at any time with respect to the fitness, quality, durability, performance or use of your work, and b. The providing of or failure to provide warnings or instructions. SECTION VIII CONDITIONS A. Action Against Us. No action shall lie against us unless, as a condition precedent thereto, there shall have been full compliance with all of the terms of this policy and until the amount of the insured's obligation to pay shall have been finally determined, either by judgment against the insured after actual trial or by written agreement of the insured, the claimant or the claimants representative and us. Any person or organization or the legal representative thereof who has secured such judgment or written agreement shall thereafter be entitled to recover under this policy to the extent of the insurance afforded by this policy. No person or organization shall have any right under this policy to join us as a party to any action against an insured to determine an insured's liability, nor shall we be impleaded by an insured or an insured's legal representative. B. Appeal of Underwriting Actions. The named insured may request a review of an underwriting action taken by the Company by requesting, in writing within ten (10) days of the date of notice of the decision of the Company, an appeal to a person or committee designated by the PMSLIC Board of Directors. The decision of the designated person or committee shall be final and binding on the Company and the insured. A request for review under this paragraph shall not in any way extend or modify the time periods set forth in Condition F, below. C. Assignment. Without our prior consent, which may be withheld in our sole discretion, an insured shall have no right to assign any contractual or legal right under or out of this policy including, without limitation, the right to prosecute and/or settle a claim by the insured against us for breach of good faith or reasonable care in defending a malpractice action against the insured. Notwithstanding the foregoing, an insured's rights and duties under this policy will be transferred to such insured's legal representative if such insured dies or is adjudged incompetent or missing, but only while the legal representative is acting within the scope of his or her duties as such. D. Assumption of Liability by the Insured. The insured shall not assume any liability nor incur, or promise to incur, any costs or expenses in association with any claim potentially or actually covered by this policy, prior to reporting such claim to us in accordance with the terms of this policy and without our prior written consent. E. Bankruptcy or Insolvency. The bankruptcy or insolvency of an insured or the insolvency of an insured's estate shall not of itself relieve us of any of our obligations under this policy. F. Cancellation, Nonrenewal and Increase in Premium. This policy (or coverage afforded any insured by this policy) may be canceled at any time by the first person or organization designated as a named insured in the Declarations by written notice to PMSLIC, stating when such cancellation shall be effective. If this policy has been in effect less than 60 days, we may cancel it by mailing to the first person or organization designated as a named insured in the Declarations at the address shown in the policy or last known address, written notice of cancellation stating the effective date and time thereof. The mailing of notice by first-class mail shall be sufficient proof of notice. If this policy has been in effect for 60 days or more, or if this policy is a renewal of a policy we issued, it (or coverage afforded any insured by this policy) may be canceled by us only for one or more of the following reasons: 1. Payment of any premium has not been made when due, whether the premium is payable directly to us or our agents or indirectly under a premium finance plan or extension of credit. If we cancel for this reason, we will mail to the first named insured written notice of cancellation at least 15 days before the effective date of cancellation. 2. For reason of suspension or revocation of the named insured's (or an insured's) license or approval to provide professional health-care service. If we cancel for this reason, no written notice of cancellation to the insured is required and coverage shall terminate on the effective date of such suspension or revocation. MPL - 0101 1/1/2010 11 s t 3. The first person or organization designated as a named insured in the Declarations has requested cancellation. If we cancel for this reason, no written notice of cancellation is required and coverage shall terminate on the effective date requested. The mailing of notice by first-class mail shall be sufficient proof of notice. Such notice shall state the specific reason(s) for cancellation and the effective date and time thereof. The coverage afforded by this policy to any insured shall conclude upon the termination of the policy or upon the termination of a non named insured's employment, contract or association with the named insured which formed the basis for such coverage, if that occurs prior to the termination date of the policy. If the first person or organization designated as a named insured in the Declarations cancels this policy, earned premium will be computed pro rata, but will not be less than the minimum premium; the unearned premium will be returned to the first named insured within 30 days after the effective date of cancellation. If PMSLIC cancels, earned premium will be computed pro rata; the uneamed premium will be returned to the first person or organization designated as a named insured in the Declarations within 10 business days after the effective date of cancellation. However, in either event, payment or tender of unearned premium is not a condition of cancellation. Provisions of the immediately preceding paragraph shall not apply if the premium for this policy is subject to a retrospective rating plan. For purposes of this condition, cancellation shall not, unless otherwise provided for by the statutes of the jurisdiction in which the first person or organization designated as a named insured in the Declarations is located, include nonrenewal. If we elect not to renew this policy, we shall mail to the first person or organization designated as a named insured in the Declarations at the address shown in the policy or last known address, written notice of its intention not to renew stating the specific reason(s) for such nonrenewal at least 60 days prior to the effective date of termination. This provision shall not apply: I . if we have manifested our willingness to renew to the first person or organization designated as a named insured in the Declarations or his representative; or 2. if the first person or organization designated as a named insured in the Declarations has failed to pay a premium when due, whether the premium is payable directly to us or our agents or indirectly under a premium finance plan or extension of credit, or 3. if the first person or organization designated as a named insured in the Declarations fails to pay any advance premium required by us for renewal; or 4. if the first person or organization designated as a named insured in the Declarations has notified us in writing that renewal is not desired. The mailing of notice by first-class mail shall be sufficient proof of notice. The above cancellation and nonrenewal provisions shall not apply to coverage obtained under policy provisions for an election of an extended reporting option. If we intend to increase the premium for this policy upon renewal, we will mail or deliver to the first person or organization designated as a named insured in the Declarations written notice of such intent at least 30 days prior to the effective date of the premium increase. The mailing of notice by first-class mail shall be sufficient proof of notice. G. Changes. This policy contains all the agreements between you and us. Only the first person or organization designated as a named insured in the Declarations may request changes in the terms of the policy. Any such request must be received by us in writing. This policy's terms may only be amended or waived by a schedule or endorsement issued by us and made a part of this policy. Any policy term or coverage provided or amended by any schedule or endorsement made a part of this policy is subject to all of the terms, conditions and exclusions of the policy, except as specifically provided or amended by the schedule or endorsement. If within 45 days prior to, or during, the policy period we adopt any revision that would broaden the coverage under this policy without additional premium, the broadened coverage will immediately apply to this policy. H. Conformity with Statute. Any and all provisions of this policy that conflict with statutes of any state or jurisdiction to which we are subject are amended to conform to such statutes. MPL - 0101 1/1/2010 12 I. Declarations and Applications. By acceptance of this policy, the named insured agrees that the statements in the Declarations and applications and in any subsequent notice relating to this insurance are its agreements and representations, that this policy is issued and continued in reliance upon the truth of such representations and that this policy embodies all agreements existing between the named insured and us or any of our agents relating to this insurance. 7. Duties in the Event of a Claim or Suit. 1. A claim shall be considered made when we receive written notice of such claim from an insured. A claim as defined in subparagraph 1. of its definition shall be reported immediately to us. The insured shall immediately forward to us every suit, demand, notice, summons or other process the insured or the insured's representative receives. A claim as defined in subparagraph 2. of its definition shall be reported as soon as practicable to us. The report shall identify the insured and contain reasonably obtainable information with respect to the time, place, circumstances and extent of the injury, including the names and addresses of the injured and of available witnesses. All claims arising from the same medical incident or occurrence shall be considered as having been made at the time the first claim is made. An event reported by an insured to us as part of risk management or loss control services shall not be considered a report of a claim. 2. The insured and each of its employees, leased workers, temporary workers and volunteers shall cooperate with us and, upon our request, assist in investigating, defending or settling any claim and in enforcing any right of contribution or indemnity against any person or organization who may be liable to the insured because of injury or damages with respect to which insurance is afforded under this policy; and the insured and any of the its members, partners, directors, officers and trustees, stockholders and employees will, at our request, attend hearings and trials and assist in securing and giving evidence and obtaining the attendance of witnesses. The insured shall do nothing to prejudice our ability to defend a claim under this policy. The insured shall not, except at the insured's own cost, voluntarily make any payment, assume any obligation or incur any expense. 3. You agree to maintain patients' medical records in accordance with applicable law without any misrepresentation or concealment of material facts. K. Extended Reporting Options. Under PL, if coverage provided by this policy for any physician is canceled or nonrenewed, the insured may purchase, subject to the conditions stated below, an extended reporting period of unlimited duration, commencing with the effective date of cancellation or nonrenewal, for reporting claims arising from medical incidents otherwise covered by this policy. Under EL, if this policy is canceled or nonrenewed, the first person or organization designated as a named insured in the Declarations may purchase, subject to the conditions stated below, an extended reporting period of unlimited duration, commencing with the effective date of cancellation or nonrenewal, for reporting claims arising from medical incidents otherwise covered by this policy. Under DE, if coverage provided by this policy for any employee, leased worker, temporary worker or volunteer, is canceled or nonrenewed, the first person or organization designated as a named insured in the Declarations may purchase, subject to the conditions stated below, an extended reporting period of unlimited duration, commencing with the effective date of cancellation or nonrenewal, for reporting claims arising from medical incidents otherwise covered by this policy. The extended reporting period(s) may be purchased by giving written notice to us and by paying to us such premiums as may be required by our rules, rates and rating plans then in effect within sixty (60) days of the effective date of cancellation or nonrenewal. Upon payment of the premium, you will receive an endorsement that describes your extended reporting period. If we do not receive full payment of all billed premium within sixty (60) days of the effective date of cancellation or nonrenewal, we will not issue an extended reporting period endorsement. An extended reporting period does not extend the policy period or the scope of coverage provided. The extended reporting period covers claims reported to us during such period and that arise from medical incidents occurring on or after the retroactive date as stated in the Declarations and prior to the end of the policy period, subject to all other terms and conditions of the policy. MPL - 0101 1/1/2010 13 L. Fraud, Concealment or Misrepresentation. This policy is void with respect to any insured who attempts to defraud us or who intentionally conceals or misrepresents a material fact concerning: 1. information submitted in any application for insurance or renewal of insurance which will be considered a part of the policy; 2. undeclared exposures or changes in the professional practice, employment, business operations, acquisition or use of locations of any insured; or 3. any of an insured's rights to coverage under this policy. M. Inspection and Audit. 1. We have the right, but are not obligated to: a. make inspections and surveys at any time; b. give you reports on the conditions we find; and c. recommend changes. 2. Any inspections, surveys, reports or recommendations relate only to insurability and the premiums to be charged. We do not make safety inspections. We do not undertake to perform the duty of any person or organization to provide for the health or safety of workers or the public. We do not warrant or represent that conditions are safe and healthful, or comply with laws, regulations, codes or standards. 3. We may examine and audit your books and records as they relate to this policy at anytime during the policy period and extensions thereof and within three years after the final termination of this policy. 4. This condition applies not only to us, but also to any rating, advisory, rate service or any similar organization and to any organization to which we subcontract any of our duties under the policy. N. Loss Prevention. We have adopted a Loss Prevention Program, the purpose of which is to reduce the incidence of malpractice and improve the practice, attitude, conduct and loss experience of policyholders. We reserve the right to impose and implement loss prevention measures during the policy period. The Loss Prevention Program may change within the policy period. Under said program, the Company reserves the right to impose restrictions on a health-care facility's and health-care professional's coverage and to eliminate coverage for certain procedures and practices to the extent those procedures and practices, in our opinion, present an unreasonable risk of loss or risk to patients of such insured. 0. Other Insurance. The insurance afforded by this policy is primary insurance, except as provided herein. As primary insurance, our obligations are not affected unless any other insurance is primary, in which case we will share with such other insurance by method 1. or 2. below, as applicable. If this insurance and any other insurance are both excess, we will share with such other insurance by method 1. or 2. below, as applicable. When both this insurance and other insurance apply to the loss on the same basis, whether primary, excess or contingent, we shall not be liable under this policy for a greater proportion of the loss than that stated in the applicable contribution provision below: 1. Contribution by Equal Shares. If all of such other insurance provides for contribution by equal shares, we shall not be liable for a greater proportion of such loss than would be payable if each insurer contributes an equal share until the share of each insurer equals the lowest applicable limit of liability under any one policy or the full amount of the loss is paid; with respect to any amount of loss not so paid, the remaining insurers then continue to contribute equal shares of the remaining amount of the loss until each insurer has paid its limit in full or the full amount of the loss is paid. 2. Contribution by Limits. If any of such other insurance does not provide for contribution by equal shares, we shall not be liable for a greater proportion of such loss than the applicable limit of liability under this policy for such loss bears to the total applicable limit of liability of all valid and collectible insurance against such loss. MPL - 0101 1/1/2010 14 R Participating Provision. The named insured shall be entitled to participate in the distribution of dividends to the extent and upon the conditions fixed and determined by the Board of Directors in accordance with law after expiration of the policy period to which the dividend is applicable. Q. Policy Construction. This policy is a contract between you and us and shall be construed in accordance with the law of the Commonwealth of Pennsylvania. R. Premiums. 1. The premium shown in the Declarations was computed based on our rules, rates, rating plans, premiums and minimum premiums in effect at the time the policy was issued. 2. The first person or organization designated as a named insured in the Declarations shall pay all premiums including advance, deposit, audit and retrospective premiums and deductibles by the due date specified on the premium billings. The first person or organization designated as a named insured in the Declarations will also be the payee for any return premium we pay. 3. The insured shall cooperate with us, shall maintain records of visits and other information as is necessary for premium computation, and shall send copies of such records to us at the end of the policy and at such time during the policy period as we direct. Changes in the practice, business operations, acquisition or use of locations or other exposures of any insured during the policy period may require an additional or return premium. If so, that premium will be determined in accordance with the rules, rates, rating plans, premiums and minimum premiums in effect at the inception of the policy period. S. Separation of Insureds. Except with respect to the Limits of Insurance, and any rights or duties specifically assigned to the first person or organization designated as a named insured in the Declarations, this insurance applies: 1. as if each named insured were the only named insured; and 2. separately to each insured against whom a claim is made or suit is brought. T. Settlement of Claims. We will not settle any claim without the written consent of the insured. If the insured refuses to consent to any settlement we recommend, the insured shall so notify us in writing within thirty (30) days from the date the insured receives the recommendation. Failure to so notify us in writing within the time frame provided shall constitute irrevocable consent to our recommended settlement. U. Sole Agent. The first person or organization designated as a named insured in the Declarations shall act on behalf of all insureds with respect to giving and receiving notice of cancellation or any other notice provided for under this policy, payment of premium due, and receiving return premium, if any, and is charged with responsibility for notifying us and all insureds of any changes which might affect the insurance afforded by this policy. V. State Funds. This policy shall not apply as either "basic insurance coverage insurance" or "excess insurance" to any claim with respect to which the Medical Professional Liability Catastrophe Loss Fund, or the Medical Care Availability and Reduction of Error Fund, or any successor, has assumed or is required to assume primary responsibility, for the defense and also payment pursuant to Section 605 or any other provision of Act 135, Health Care Services Malpractice Act, as presently constituted or hereafter amended, or Act 13 of 2002, Medical Care Availability and Reduction of Error Act, Section 715, extended claims, as presently constituted or hereafter amended. W. Subrogation. If any insured has the right to recover all or part of any payment we have made under this policy, those rights are transferred to us. The insured must do nothing after the loss to impair those rights. At our request, the insured will bring suit in the insured's name or transfer those rights to us and help us enforce them. X. Waiver of Premium for Reporting Endorsement. In the event an insured possessing an in-force PMSLIC Claims-Made policy dies or becomes totally and permanently disabled, any applicable Reporting Endorsement premium shall be waived and coverage issued by the Company in accordance with the Company's rules. 1. Death - Should an insured die while possessing an in-force PMSLIC Claims-Made policy, upon receipt of a death certificate issued by the appropriate authority, the Company will issue a Reporting Endorsement at no additional MPL - 0101 1/1/2010 15 premium to the estate of the insured, which shall cover the professional liability exposure of the insured as defined in the Insuring Agreements. 2. Disability -Disability as used herein is defined as total and permanent disability which results from sickness or bodily injury and which prevents an insured from engaging in any occupation as a professional heath-care provider. Should an insured become totally and permanently disabled while possessing an in-force PMSLIC Claims-Made policy, proof of such disability shall be furnished to the Company as soon as possible. Upon receipt of evidence of total and permanent disability, the Claims-Made policy will be terminated and a Reporting Endorsement will be issued by the Company to an insured at no additional premium. The inception date of the Reporting Endorsement shall be the date of onset of the total and permanent disability. In the event an insured who has received a waiver of premium for a Reporting Endorsement for permanent disability returns to the practice of medicine, we will bill for the Reporting Endorsement in accordance with the rules and rates in effect at the time the Reporting Endorsement was issued. 3. Retirement - In the event an insured under PL retires upon reaching age fifty (50) or thereafter, has been continuously insured under a PMSLIC policy for a minimum of one (1) year immediately preceding retirement and the insured's retroactive date is at least forty-eight (48) months prior to the date of retirement, any applicable Reporting Endorsement premium shall be waived and coverage issued by the Company. IN WITNESS WHEREOF, we have caused this policy to be signed by our President and Secretary, but this policy shall not be valid unless completed by the attachment of the Declarations and signed on the aforesaid Declarations by our duly authorized representative. Katherine H. Crocker Secretary 4aok klil- M9 Jaan Sidorov, MD President WL - 0101 1/1/2010 16 tjo PMSLIC MEDICAL LIAB.LITY INSUQAKCE POLICY NUMBER NAMED INSURED AND MAILING ADDRESS Named Insured Address line 1 Address line 2 Address line 3 Address line 4 Address line 5 PRODUCER: Producer Nam e Address line 1 Address line 2 Address line 3 Address line 4 Address line 5 P.O. BOX 2080, MECHANICSBURG PA 17055-0787 800 445-1212 T 717 796-8080 F PMSUC.com ENDORSEMENT # CLIENT ID NUMBER FIRMILICENSE NUMBER ISSUE DATE EFFECTIVE DATE (12:01 A.M. STANDARD TIME AT THE ADDRESS OF NAMED INSURED) TERRITORY COUNTY BUSINESS ASSOCIATE ENDORSEMENT THIS ENDORSEMENT CHANGES YOUR POLICY. PLEASE READ IT CAREFULLY. It is understood and agreed that the provisions of this BUSINESS ASSOCIATE ENDORSEMENT attach to, and are made a part of your Insurance Policy. PMSLIC Insurance Company, hereinafter referred to as PMSLIC, and the insured have an insurer/insured relationship by virtue of a professional liability insurance policy issued by PMSLIC. PMSLIC and its insureds are committed to complying with the Standards for Privacy of Individually Identifiable Health Information (the "Privacy Regulations") under the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"). Under the Privacy Regulations, the PMSLIC insured may be a "Covered Entity" and, as defined by 45 C.F.R. §164.502(e) and 45 C.F.R. §164.504(e), PMSLIC may be a "Business Associate" of the insured. This Endorsement sets forth the manner in which PMSLIC will handle "Protected Health Information" that is provided by or received from or on behalf of the insured. The Insurance Policy now in effect between PMSLIC and the insured is hereby amended as follows: Section 1 Definitions 1.1 Business Associate: "Business Associate" shall mean a "Business Associate" as defined in 45 C.F.R. §164.501. Unless otherwise specified, the term Business Associate in this Endorsement shall refer to PMSLIC. 1.2 Covered Entity: "Covered Entity" shall mean the insured. 1.3 Designated Record Set: "Designated Record Set" means "Designated Record Set" as defined in 45 C F.R. §164.501. 1.4 Electronic Protected Health Information: "Electronic Protected Health Information" shall mean Protected Health Information that is transmitted or maintained in electronic format or by electronic media. 1.5 Individual: "Individual" shall have the same meaning as the term "Individual" in 45 C.F.R. §164.501 and shall include a person who qualifies as a personal representative in accordance with 45 C.F.R. § I64.502(g). PA HIPAA 002a (10/07) PAGE 1 OF 4 1.6 Insurance Policy: "Insurance Policy" shall mean the policy of professional liability insurance now in effect between PMSLIC and the insured, and any subsequent or replacement policy between PMSLIC and the insured. 1.7 Privacy Rule: "Privacy Rule" shall mean the Standards for Privacy of Individually Identifiable Health Information at 45 C.F.R. parts §160 and §164, subparts A and E, as amended from time to time. 1.8 Protected Health Information (PHI): "Protected Health Information" or "PHI" shall have the same meaning as the term "Protected Health Information" in 45 C.F.R. §164.501, limited to the information received by PMSLIC from, or on behalf of, Covered Entity. 1.9 Secretary: "Secretary" shall mean the Secretary of the Department of Health and Human Services or his/her designee. 1.10 Security Incident: "Security Incident" shall have the same meaning as the term "Security Incident" in 45 C.F.R § 164.304. 1.11 Security Rule: "Security Rule" shall mean the Standards for Security of Electronic Protected Health Information at 45 C.F.R. parts § 160 and § 164, subparts A and C. Section 2 ObBeations and Activities of PMSLIC PMSLIC hereby agrees to assume the following obligations under this Endorsement to the Insurance Policy: 2.1 Not to Use or Disclose PHI Unless Permitted. PMSLIC agrees not to use, or further disclose, Protected Health Information other than as permitted or required by this Endorsement or as required or allowed by law. 2.2 Use Safeguards. PMSLIC agrees to use appropriate safeguards to prevent use or disclosure of the Protected Health Information other than as allowed by this Endorsement or as otherwise required or allowed by law. PMSLIC will implement administrative, physical and technical safeguards that reasonably and appropriately protect the confidentiality, integrity and availability of any Electronic Protected Health Information PMSLIC creates, receives, maintains or transmits on behalf of Covered Entity. 2.3 Mitigation of Harmful Effects. PMSLIC agrees to mitigate, to the extent practicable, any harmful effect that is known to PMSLIC of a use or disclosure of Protected Health Information by PMSLIC in violation of the requirements of this Endorsement. 2.4 Report Inappropriate Disclosures of PHI. PMSLIC agrees to report to Covered Entity any use or disclosure of the Protected Health Information not permitted by this Endorsement or by law of which PMSLIC becomes aware. PMSLIC also agrees to report to Covered Entity any Security Incident related to Electronic Protected Health Information of which PMSLIC becomes aware. 2.5 Compliance of Agents. PMSLIC agrees to require any agents, including subcontractors, to agree to the same restrictions and conditions that apply to PMSLIC through this Endorsement to the extent that such agents perform a service that PMSLIC agreed to perform for or on behalf of the Covered Entity under the Insurance Policy and to whom PMSLIC provides Protected Health Information. PMSLIC also agrees to ensure that any agent, including a subcontractor, to whom it provides Electronic Protected Health Information agrees to implement reasonable and appropriate safeguards to protect it. 2.6 Access. To the extent that PMSLIC possesses a Designated Record Set, PMSLIC agrees to provide access to the Protected Health Information in that Designated Record Set, during normal business hours, provided the Covered Entity delivers prior written notice to PMSLIC, at least five business days in advance, requesting such access but only to the extent required by 45 C.F.R. §164.524. PA HIPAA 002a (10/07) PAGE 2 OF 4 2.7 Amendments. To the extent that PMSLIC possesses a Designated Record Set, PMSLIC agrees to incorporate any amendment(s) to Protected Health Information in that Designated Record Set that the Covered Entity directs, pursuant to 45 C.F.R. §164.526. 2.8 Disclosure of Practices, Books, and Records. Unless otherwise protected from discovery or disclosure by law or unless otherwise prohibited from discovery or disclosure by law, PMSLIC agrees to make internal practices, books, and records available to the Secretary, for purposes of the Secretary determining Covered Entity's compliance with the Privacy Rule. PMSLIC shall have a reasonable time within which to comply with such requests and, in no case shall access be required in less than five business days after PMSLIC's receipt of such request 2.9 Accounting. PMSLIC agrees to maintain sufficient documentation to allow it to provide to Covered Entity a list of any disclosures of Protected Health Information by PMSLIC or its agents so as to allow the Covered Entity to respond to a request by an Individual for an accounting of disclosures of Protected Health Information in accordance with 45 C.F.R §164.528. Section 3 Permitted Uses and Disclosures by PMSLIC 3.1 Use of PHI for Specified Purposes. Under the Insurance Policy, PMSLIC provides the Covered Entity with insurance products and services (hereinafter "Services") that involve the use and disclosure of Protected Health Information as defined by the Privacy Regulations. These Services may include, among others, the acceptance, declination, or acceptance with revisions of professional liability insurance; receiving and evaluating incidents, claims, and lawsuits; quality assessment; quality improvement; loss prevention tools; outcomes evaluation; protocol and clinical guidelines development; reviewing the competence or qualifications of health care professionals, evaluating practitioner and provider performance; conducting training programs to improve the skills of health care practitioners and providers; credentialing, conducting or arranging for medical review; arranging for legal services; conducting or arranging for audits to improve compliance; resolution of internal grievances; placing insurance or reinsurance, including but not limited to pro rata, stop-loss and excess of loss insurance, and other functions necessary to perform these Services. PMSLIC may make any uses of Protected Health Information necessary to perform its obligations under this Endorsement and under the Insurance Policy. Moreover, PMSLIC may disclose Protected Health Information for the purposes authorized by this Endorsement: (i) to its employees, subcontractors, and agents, in accordance with paragraphs Section 3.2 through 3.4 of this Section below; or (ii) as otherwise permitted by the terms of this Endorsement. All other uses not authorized by this Endorsement are prohibited. 3.2 Use of PHI for PMSLIC Management and Administration. PMSLIC may use Protected Health Information for the proper management and administration of PMSLIC or to carry out the legal responsibilities of PMSLIC. 3.3 Disclosure Required by Law or With Reasonable Assurances. PMSLIC may disclose Protected Health Information for the proper management and administration of PMSLIC and to carry out its legal responsibilities, provided that disclosures are required by law, or provided that PMSLIC obtains the following reasonable assurances from the person or entity to whom the Protected Health Information is disclosed: 1) the PHI will remain confidential; 2) the PHI will be used or further disclosed only as required by law or for the purposes for which it was disclosed; and, 3) the person or entity will notify PMSLIC of any instances of which the person or entity is aware in which the confidentiality of the information has been breached. 3.4 Data Aggregation Services. PMSLIC may use Protected Health Information to provide data aggregation services to Covered Entity as permitted by 45 C.F.R §I64.504(e)(2)(i)(B). 3.5 De-identified Information. PMSLIC may de-identify any and all Protected Health Information in accord with the requirements of applicable law as provided in 42 C.F.R. § 164.514(b), and use or disclose all such de-identified information for its own managerial and administrative activities as it sees fit. PMSLIC agrees to maintain such documentation regarding de-identified information as required by 42 C.F.R. § 164.514(b). Covered Entity understands and acknowledges that de- identified information is not Protected Health Information under the terms of this Endorsement. PA HIPAA 002a (10/07) PAGE 3 OF 4 Section 4 Impermissible Reauests by Covered Entity PMSLIC shall not use or disclose Protected Health Information in any manner that would not be permissible under the Privacy Rule if done by Covered Entity, except that, despite this Section 4, PMSLIC may use or disclose Protected Health Information for data aggregation or management and administrative activities of PMSLIC as provided in sections 3.2, 3.3 and 3.4 above, or as otherwise permitted by this Endorsement. Section 5 Term and Termination 5.1 Term. The terms of this Endorsement shall remain effective during the time that PMSLIC provides the Covered Entity with Services, as defined in section 3.1 above, pursuant to the terms of the Insurance Policy, and shall terminate when all such Services under the Insurance Policy are terminated and all of the Protected Health Information created or received by PMSLIC on behalf of Covered Entity is destroyed or returned to Covered Entity; provided, however, certain provisions and requirements of this Endorsement shall survive such termination in accord with subsection 5.3, below. 5.2 Termination by Covered Entity. Upon Covered Entity's determination that PMSLIC has breached a material term of this Endorsement, Covered Entity shall immediately notify PMSLIC and provide PMSLIC a reasonable opportunity to cure the breach. Covered Entity may terminate all rights of PMSLIC under this Endorsement, and PMSLIC agrees to such immediate termination, if PMSLIC has breached a material term of this Endorsement and cure is not possible. Covered Entity and PMSLIC hereby acknowledge and agree that the termination of this Endorsement by Covered Entity shall have no effect on the terms and conditions of the Insurance Policy between them unless PMSLIC determines, in its sole discretion, that the termination of this Endorsement by Covered Entity constitutes a breach of Covered Entity's duty of cooperation under the Insurance Policy. 5.3 Effect of Termination. Upon termination of PMSLIC's provision of Services under the Insurance Policy, the protections of this Endorsement will remain in force and PMSLIC shall make no further uses and disclosures of Protected Health Information except for the proper management and administration of its business or to carry out its legal responsibilities or as required by law. To the extent that it is feasible to do so, PMSLIC agrees to return or destroy all PHI, pursuant to 45 C.F.R. § 164(e)(2)(ii)(1), and to require any and all of its subcontractors or agents to return or destroy any PHI in their possession. However, PMSLIC and Covered Entity hereby acknowledge and agree that, because of the nature of the Services provided by PMSLIC and its business obligations, it may not be feasible to return or destroy all Protected Health Information immediately on the termination of this Endorsement, or for some time thereafter. Therefore, PMSLIC agrees to extend, and require its subcontractor and agents to extend, any and all protections, limitations and restrictions contained in this Endorsement to such PHI as may be retained after the termination of this Endorsement. This section 5 shall survive the termination of this Endorsement and PMSLIC's provision of Services under the Insurance Policy. Section 6 Miscellaneous Provisions 6.1 Regulatory References. A reference in this Endorsement to a section in the Privacy Rule means the Section in effect or as amended, and for which compliance is required. 6.2 Amendment. PMSLIC agrees to take such action as is necessary to amend this Endorsement from time to time as is necessary, as determined by PMSLIC, for compliance with the requirements of the Privacy Rule and the Health Insurance Portability and Accountability Act, Public Law 104-191 as determined by PMSLIC. PA HIPAA 002a (10/07) PAGE 4 OF 4 fJ PMSLIC MEDICAL LIAS.LITY INSURANCE POLICY NUMBER NAMED INSURED AND MAILING ADDRESS Named Insured Address line 1 Address line 2 Address line 3 Address line 4 Address line 5 PRODUCER: Producer Name Address line 1 Address line 2 Address line 3 Address line 4 Address line 5 P.O. BOX 2080, MECHANICSBURG PA 17055-0787 800 445-1212 T 717 796-8080 F PMSUC.com ENDORSEMENT # CLIENT ID NUMBER FIRM/LICENSE NUMBER ISSUE DATE EFFECTIVE DATE (12:01 A.M. STANDARD TIME AT THE ADDRESS OF NAMED INSURED) TERRITORY COUNTY ENDORSEMENT MEDICAL PROFESSIONAL LIABILITY INSURANCE ADMINISTRATIVE DEFENSE THIS ENDORSEMENT CHANGES YOUR POLICY. PLEASE READ IT CAREFULLY. The policy is hereby amended as follows: The following is added to SECTION II DEFENSE AND SUPPLEMENTAL PAYMENTS OBLIGATIONS: The Company shall indemnify an insured for reasonable costs, fees and expenses incurred in defending a complaint through to final judgment in favor of the insured has been rendered, or until all remedies by appeal or other legal proceedings the Company deems reasonable and appropriate have been exhausted, subject to the limits of liability stated below. For purposes of this endorsement, an insured is any physician who is covered under PL as indicated in SECTION V- PERSONS INSURED. The following definition is added to SECTION VII DEFINITIONS: "Complaint" means an investigation or other proceeding by the Pennsylvania State Board of Medicine or the Pennsylvania State Board of Osteopathic Medicine that is directly related to a medical incident for which this policy provides coverage to the insured. Complaint does not mean an investigation or other proceeding alleging failure to report under section 903 of the Medical Care Availability and Reduction of Error Act. Retroactive date: For purposes of this endorsement, retroactive date means the insured's retroactive date shown on the Declarations page or the schedule of insureds, or as otherwise endorsed onto the policy. PA MPCPN4EDEF 002 (01/08) PAGE 1 OF 2 The following is added to SECTION VI-LIMITS OF LIABILITY: The Company's liability under this Endorsement shall not exceed a total of $25,000 for all complaints reported within the policy period. Subject to the above, payments for the defense of any complaint shall not exceed $25,000 for each complaint. Additional Conditions (in addition to policy SECTION VII-CONDITIONS): You may choose legal counsel to defend any complaint covered by this Endorsement. You shall have the option to choose legal counsel from our list of approved attorneys, in which case we will reimburse you all legal fees, costs and expenses incurred in the defense of such complaint, subject to the applicable limit set forth in this endorsement. If you choose legal counsel other than from our list of approved attorneys, we will reimburse you 75% of all fees, costs and expenses incurred by you in the defense of such complaint, subject to the applicable limit set forth in this endorsement. You shall notify us within 30 days of any complaint that is received by you. All complaints and all proceedings arising out of the same medical incident shall be considered to be part of the original complaint. THIS IS A CLAIMS-MADE COVERAGE. This insurance applies only to complaints related to medical incidents for which this policy provides coverage to the insured, happening on or after the retroactive date, and before the termination of any insured's coverage. Upon termination of this endorsement, the insured shall have a 24 month (two year) reporting period from such termination to report covered complaints occurring between the retroactive date and termination of this coverage. Such reporting period shall not increase the limit coverage of this endorsement. ALL OTHER TERMS AND CONDITIONS OF THE POLICY APPLY. PA MPCPMEDEF 002 (01/08) PAGE 2 OF 2 frJ PMSLIC MEDICAL LIAB.LITY INSURAKCC POLICY NUMBER NAMED INSURED AND MAILING ADDRESS Named insured Address line 1 Address line 2 Address line 3 Address line 4 Address line 5 PRODUCER: Producer Name Address line 1 Address line 2 Address line 3 Address line 4 Address line 5 P.O. BOX 2080, MECHANICSBURG PA 1 7055-078 7 800 445-1 21 2 T 717 796-8080 F PMSUC.com ENDORSEMENT # CLIENT ID NUMBER FIRMILICENSE NUMBER ISSUE DATE EFFECTIVE DATE (12:01 A.M. STANDARD TIME AT THE ADDRESS OF NAMED INSURED) TERRITORY COUNTY ENDORSEMENT INFORMATION AND NETWORK SECURITY INSURANCE It is hereby understood and agreed that the policy is amended to add Information and Network Security Insurance as specified below. SECTION I INTRODUCTION The provisions of the policy are made a part of this endorsement, except with respect to any contrary provision contained in this endorsement, in which case the provisions of this endorsement will apply. SECTION II INSURING AGREEMENTS - THIS INSURANCE IS PROVIDED ON A CLAIMS-MADE BASIS. A. Information and Network Security Liability Insurance. We will pay damages and defense costs, up to the limits of coverage shown in Part V: Limits of Coverage, on behalf of an insured because of a claim resulting from an information security incident or a network security incident anywhere in the world, but only if all of the following conditions are met: 1. The information security incident or network security incident takes place on or after that insured's retroactive date and before that insured's termination date. 2. The claim is first made against that insured during the policy period and is first reported to us in writing by the insured during the policy period or any applicable extended reporting period. 3. The claim is originally made within the United States of America, its territories or possessions, Puerto Rico or Canada. INS-0111 1!1/2011 Page 1 of 9 B. Media Liability Insurance. We will pay damages and defense costs, up to the limits of coverage shown in Part V: Limits of Coverage, on behalf of an insured because of a claim resulting from a media incident anywhere in the world, but only if all of the following conditions are met: 1. The media incident takes place on or after that insured's retroactive date and before that insured's termination date. 2. The claim is first made against that insured during the policy period and is first reported to us in writing by the insured during the policy period or any applicable extended reporting period. 3. The claim is originally made within the United States of America, its territories or possessions, Puerto Rico or Canada. C. Regulatory Privacy Proceeding and Regulatory Fines and Penalties Insurance. We will pay defense costs on behalf of an insured in a regulatory privacy proceeding and we will pay regulatory fines and penalties assessed against an insured as a result of that regulatory privacy proceeding, up to the limits of coverage shown in Part V: Limits of Coverage, but only if all of the following conditions are met: 1. The regulatory privacy proceeding arises from an information security incident that takes place on or after that insured's retroactive date and before that insured's termination date. 2. The regulatory privacy proceeding is instituted against that insured during the policy period and is first reported to us in writing by the insured during the policy period or any applicable extended reporting period. 3. The regulatory privacy proceeding is originally instituted within the United States of America, its territories or possessions, Puerto Rico or Canada. D. Customer Notification and Credit Monitoring Expenses Insurance. We will pay loss, up to the limits of coverage shown in Part V: Limits of Coverage, on behalf of an insured in response to an information security incident, but only if all of the following conditions are met: 1. The information security incident takes place on or after that insured's retroactive date and before that insured's termination date. 2. The information security incident is first discovered during the policy period and is first reported to us in writing by the insured during the policy period or any applicable extended reporting period. E. Electronic Data Recovery and Replacement Expenses Insurance. We will pay loss, up to the limits of coverage shown in Part V: Limits of Coverage, on behalf of an insured in response to an electronic data interference incident, but only if all of the following conditions are met: 1. The electronic data interference incident takes place on or after that insured's retroactive date and before that insured's termination date. 2. The electronic data interference incident takes place during the policy period and is first reported to us in writing by the insured during the policy period or any applicable extended reporting period. SECTION III EXCLUSIONS The exclusions in Section IV Exclusions in the policy apply to any claim, regulatory privacy proceeding or loss under this endorsement. In addition, we will not defend any claim or regulatory privacy proceeding, nor will we pay or reimburse any defense costs, damages, regulatory fines and penalties, or loss, based upon, attributable to, or arising out of any of the following, whether directly or indirectly: 1. Any information security incident, network security incident, media incident, or electronic data interference incident whose circumstances were known, or should have been known, to an insured or any insurer before the effective date of this policy. INS-0111 1/1/2011 Page 2 of 9 2. Any business, joint venture or enterprise not named in the declarations page, which is owned, controlled, operated, or managed in whole or in part by an insured. Nor will this insurance respond to any claim, regulatory privacy proceeding or loss arising out of, based upon, attributable to, or alleging any conduct, act, error, or omission of any insured serving in any capacity other than as your principal, partner, officer, director, or employee. 3. An insured's gaining in fact any profit, remuneration, or financial advantage to which the insured was not legally entitled. 4. That is covered under any general liability, comprehensive general liability, health care general liability, professional liability insurance policy or other insurance. 5. The False Claims Act, or any similar federal or state law, rule, or regulation concerning billing errors or fraudulent billing practices or abuse. 6. Infringement of any patent or trade secret. 7. Any actual or alleged: price fixing, unfair competition or trade practice; a dispute over fees, income or revenue; the inducement to enter into, the interference with or the dissolution or termination of any business or economic relationship; or violation of any law or regulation including, but not limited to, Title 15 of the United States Code or any similar state statute or regulation that prohibits the unlawful restraining of trade, business or profession. 8. Any actual or alleged bodily injury or property damage. 9. Any actual or alleged electrical failure, including electrical power interruption, surge, brownout, or blackout. 10. Any actual or alleged malfunction or defect of any hardware, equipment, or component. But this exclusion does not apply if the malfunction or defect was solely the result of an insured's negligence. 11. Brought by or on behalf of an insured or any entity that is owned, in whole or in part, by an insured, or any entity directly or indirectly controlled, operated, or managed by an insured, or any entity or person that is a parent, affiliate, subsidiary, or joint venturer of any entity or person in which or with which an insured is partner. This exclusion shall not apply to an otherwise covered claim by an employee alleging a breach or violation of U.S., federal, state and local statutes and regulations as set forth in the definition of information security incident. 12. A violation of any United States of America's economic or trade sanctions including, but not limited to, sanctions administered and enforced by the U.S. Treasury Department's Office of Foreign Assets Control. 13. Loss of business income arising out of the interruption, suspension, or degradation of an insured's computer network. 14. Any administrative or management services provided by an insured to an organization that is not an insured under this policy. This exclusion applies whether or not monetary or other consideration is received for such services. 15. Oral, written, or electronic publication of material, if done by or at the direction of an insured with knowledge of its falsity. 16. Oral, written, or electronic publication of material of which the first injurious publication or utterance of the same or similar material by or on behalf of the insured was made before the beginning of the policy period. INS-0111 1/1/2011 Page 3 of 9 SECTION IV DEFENSE AND SETTLEMENT OF CLAIMS AND REGULATORY PRIVACY PROCEEDINGS A. Defense of a Claim or Regulatory Privacy Proceeding. We have the exclusive right, using counsel of our choice, to investigate, negotiate, and defend any claim or regulatory privacy proceeding covered under Part II: Insuring Agreements, A. Information and Network Security Liability Insurance, B. Media Liability Insurance, or C. Regulatory Privacy Proceeding and Regulatory Fines and Penalties Insurance. Defense costs are payable within the applicable each claim or each regulatory privacy proceeding limit shown in Part V: Limits of Coverage. Our duty to defend and pay defense costs for a claim or regulatory privacy proceeding ends, however, when any one each claim limit, each regulatory privacy proceeding limit, or the aggregate limit per policy period, as shown in Part V: Limits of Coverage, has been exhausted in accordance with Part V: Limits of Coverage, Section B below. B. Settlement of a Claim or Regulatory Proceeding. The provisions of Section VIII Conditions, Condition T, Settlement of Claims, in the policy also apply to a claim or regulatory privacy proceeding covered under this Information and Network Security Insurance. SECTION V LIMITS OF COVERAGE A. Available Limits of Coverage. 1. The limits of coverage applicable per insured to this Information and Network Security Insurance are: Insuring Agreement A: Information and Network Security Liability Insurance $50,000 Each claim Limit Insuring Agreement B: Media Liability Insurance $50,000 Each claim Limit Insuring Agreement C: Regulatory Privacy Proceeding and Regulatory Fines and Penalties Insurance $50,000 Each Regulatory Privacy Proceeding Limit Insuring Agreement D: Customer Notification and Credit Monitoring Expenses Insurance $50,000 Each loss Limit Insuring Agreement E: Electronic Data Recovery and Replacement Expenses Insurance $50,000 Each loss Limit Aggregate Limit per Policy Period $50,000 2. The named insured has the each claim limits, the each regulatory privacy proceeding limit, each loss limits and Aggregate Limit per policy period specified above. 3. Each insured physician who has separate limits of liability under Section V. Persons Insured of the policy has separate each claim limits, a separate each regulatory privacy proceeding limit, separate each loss limits, and Aggregate Limit per policy period as specified in paragraph 1 above. 4. Each insured entity has the each claim limits, the each regulatory privacy proceeding limit, each loss hints and Aggregate Limit per policy period specified above. 5. Designated employees do not have limits of coverage but will share the limits of coverage of a named insured, insured physician and/or insured entity that is vicariously or otherwise liable for the actions of the designated employee. B. Application of Limits of Coverage- General. Subject to Part VI: Conditions below: 1. The each claim limit shown in Part V: Limits of Coverage, section A above for insuring agreement A is the most we will pay per insured for all defense costs and damages arising from an information security incident or a network security incident. 2. The each claim limit shown in Part V: Limits of Coverage, section A above for insuring agreement B is the most we will pay per insured for all defense costs and damages arising from a media incident. INS-0111 1/1/2011 Page 4 of 9 3. The each regulatory privacy proceeding limit shown in Part V: Limits of Coverage, section A above for insuring agreement C is the most we will pay per insured for all defense costs and regulatory fines and penalties because of a regulatory privacy proceeding. 4. The each loss limit shown in Part V: Limits of Coverage, section A above for insuring agreement D is the most we will pay per insured for all loss arising from an electronic data interference incident. 5. The each loss limit shown in Part V: Limits of Coverage, section A above for insuring agreement E is the most we will pay per insured for all loss arising from an electronic data interference incident. Provisions B1 through B5 above apply regardless of the number o£ a. Persons or organizations sustaining damages, loss, or incurring defense costs or regulatory fines and penalties; b. claims, regulatory privacy proceedings, or losses; c. Persons or entities instituting a claim or regulatory privacy proceeding; d. Number of regulatory fines and penalties assessed; or e. Insuring agreements that apply. 6. Subject to Part V: Limits of Coverage, section B, our total liability per insured for all claims, defense costs, regulatory privacy proceedings, regulatory fines and penalties, and losses to which this Information and Network Security Insurance applies shall not exceed the Aggregate Limit per policy period shown in Part V: Limits of Coverage, section A above. 7. It is further agreed that in no event shall we be liable for any additional payments under this Information and Network Security Insurance once the applicable limit of coverage shown above has been exhausted by payment of defense costs, damages, regulatory fines and penalties, and/or loss. C. Application of Limits of Coverage - Each policy period. The limits of coverage shown in Part V: Limits of Coverage, section A above apply separately to each consecutive annual policy period or to any policy period of less than twelve months. If we extend the policy period after issuance for an additional period of less than twelve months, the additional period will be deemed part of the last preceding period for purposes of determining the limits of coverage. D. Application of Limits of Coverage - An Insured Covered by More Than One Coverage or Policy Issued by Us. If this Information and Network Insurance and any other Information and Network Insurance or policy issued by us apply to the same insured, only one such coverage or policy shall apply. The limits of coverage available to that insured shall not exceed the highest applicable limits available under any one coverage or policy that applies. But this paragraph does not apply to any policy issued specifically to apply as excess insurance above this policy. E. Application of Limits of Coverage - A Claim, Regulatory Privacy Proceeding or Loss Covered by More Than One Coverage or Policy Issued by Us. If a claim, regulatory privacy proceeding, or loss arising from the same circumstances is covered under more than one policy issued by us, then the maximum limits of coverage available under all such policies are the highest limits of coverage available under any one policy that applies. But this paragraph does not apply to any policy issued specifically to apply as excess insurance above this coverage. SECTION VI CONDITIONS In addition to the provisions of Section VIII Conditions in the policy, which apply to any claim, regulatory privacy proceeding, or loss under this endorsement, the following conditions also apply: A. Multiple Claims Arising From the same Circumstances. 1. All claims that arise from: a. The same information security incident, network security incident, or media incident; or b. A series of similar or related information security incidents, network security incidents, or media incidents: regardless of the number of persons involved will be treated as a single claim made on the date the first of such claims is made against an insured and will be deemed reported on the date the first of such claims is reported to us in writing by the insured. INS-0111 1/1/2011 Page 5 of 9 2. The only insurance that shall apply to the claim is the coverage in force on the date the first of such claims is reported to us in writing by the insured. B. Multiple Regulatory Privacy Proceedings Arising from the Same Circumstances. 1. All regulatory privacy proceedings arising from: a. The same information security incident; or b. A series of similar or related information security incidents: regardless of the number of persons involved, shall be treated as a single regulatory privacy proceeding instituted on the date the first of such regulatory privacy proceedings is instituted against an insured and will be deemed reported on the date the first of such regulatory privacy proceedings is reported to us in writing by the insured. 2. The only insurance that shall apply to the regulatory privacy proceeding is the coverage in force on the date the first regulatory privacy proceeding is reported to us in writing by the insured. C. Multiple Losses Arising from the Same Circumstances. 1. All losses that arise from the same information security incident or a series of similar or related information security incidents will be treated as a single loss and deemed reported on the date the first of such information security incidents is reported to us in writing by the insured. 2. All losses that arise from the same data interference incident or a series of similar or related data interference incidents will be treated as a single loss and deemed reported on the date the first of such data interference incidents is reported to us in writing by the insured. D. When a Regulatory Privacy Proceeding is Instituted and Reported. A regulatory privacy proceeding is considered to have been instituted at the time an insured receives notice of a government investigation by letter notification, complaint, order of investigation, subpoena or otherwise. A regulatory privacy proceeding will be deemed reported when our Claims Department first receives written notice from an insured of the regulatory privacy proceeding being instituted against an insured. E. When an Information Security Incident, or an Electronic Data Interference Incident, Resulting in a Loss is Reported. 1. An information security incident resulting in a loss or potential loss will be deemed reported: a. On the date our Claims Department fast receives written notice from an insured of a claim made against an insured resulting from an information security incident; or b. On the date our Claims Department first receives written notice from an insured of an information security incident. 2. An electronic data interference incident resulting in a loss or potential loss will be deemed reported on the date our Claims Department first receives written notice from an insured of an electronic data interference incident that has resulted in or is likely to result in a loss. F. When a Claim is Reported. A claim will be deemed reported when our Claims Department first receives written notice from an insured of a claim. SECTION VII EXTENDED REPORTING PERIOD 1. If this Information and Network Security Insurance, or an insured's coverage under it, is canceled or non- renewed, the period of time during which an insured can report claims, regulatory privacy proceedings, information security incidents, or electronic data interference incidents otherwise covered by it is extended 60 days after the expiration or termination date of the insured's coverage at no additional cost. 2. This automatic extended reporting period provision does not reinstate the limits of coverage. The limits of coverage that will apply to this automatic extended reporting period are the limits of coverage specified in Part V: Limits of Coverage, reduced by payment of defense costs, damages, regulatory fines and penalties, or losses during the policy period. INS-0111 1/112011 Page 6 of 9 41 1 3. This automatic extended reporting period provision does not extend the policy period or change the scope of coverage provided by this Information and Network Security Insurance. This automatic extended reporting period provision is subject to all of the provisions of the Information and Network Security Insurance in existence at the time the coverage is canceled or non-renewed. 4. This automatic extended reporting period provision is not provided if the policy is canceled for non-payment of premium or if the aggregate limit per policy period has been exhausted in accordance with Part V: Limits of Coverage. SECTION VIII DEFINITIONS Defined terms are used throughout this endorsement. They are in bold. Some are defined below. Refer to Section VII Definitions in the policy for terms that are bold in this endorsement but not defined below, which apply to any claim, regulatory privacy proceeding or loss under this endorsement. If a term is defined below and in the policy, the definition below applies. A. "Claim" means: 1. any written demand for damages or other non-monetary relief against an insured regarding an information security incident, a network security incident, or a media incident; 2. any civil proceeding or arbitration proceeding against an insured, commenced by the service of a complaint or similar pleading or notification regarding an information security incident, a network security incident or a media incident; 3. any written request to toll or waive a statute of limitations relating to a potential claim against an insured, including any appeal there from; or 4. any information security incident, network security incident or media incident an insured reasonably believes may result in a claim. B. "Customer Notification and Credit Monitoring Expenses" means all reasonable and necessary expenses incurred by an insured, with our prior written consent, in notifying third persons of any actual or potential information security incident including, but not limited to: 1. legal expenses, 2. computer forensic and investigation fees, 3. public relations expenses, 4. postage expenses; 5. advertising expenses; and 6. the costs of credit monitoring services provided to affected individuals for up to a period of 12 months from the date of enrollment in such credit monitoring services. But customer notification and credit monitoring expenses does not include any costs or expenses associated with upgrading, maintaining, improving, repairing, or remediating any computer system. C. "Defense Costs" means reasonable and necessary fees, costs and expenses incurred in the investigation, defense and appeal of any covered claim under Insuring Agreements A, B and C; but defense costs shall not include any wages, salaries, or other compensation or income of any insured. Defense costs shall also include litigation expenses, court costs and costs of supersedeas and appeal bonds. D. "Electronic Data" means any and all information stored, recorded, appearing or present in or on the insured's computer systems, electronic communication systems, devices and telephony, including, but not limited to, information stored, recorded, appearing or present in or on the insured's electronic and computer databases, the Internet, intranet, extranet and related websites, facsimile and electronic mail. E. "Electronic Data Interference Incident" means any act by a party other than an insured that is carried out without an insured's consent or knowledge, whether intentional, malicious, reckless or negligent, which act causes harm or damage to the electronic data maintained by an insured, including but not limited to interference with, or intrusion or incursion into, any of the insured's computer systems, electronic communication systems, devices and INS - 0111 1/1/2011 Page 7 of 9 telephony, including, but not limited to, the insured's electronic and computer databases, the Internet, intranet, extranet and related websites, facsimile and electronic mail. F. "Electronic Data Recovery and Replacement Expenses" means all reasonable and necessary sums incurred by an insured, with our written consent, required to recover and/or replace electronic data that is compromised, damaged, lost, erased, eradicated, altered, corrupted or tainted by reason of an electronic data interference incident, including but not limited to the costs associated with the repair or replacement of any software that is compromised, damaged, lost, erased, eradicated, altered, corrupted or tainted by reason of an electronic data interference incident. Electronic data recovery and replacement expenses shall not include: 1) costs of repairing or replacing any hardware, equipment or wiring; 2) wages, salaries or other compensation or income of any insureds; or 3) costs of recovering or replacing electronic data for any third party, or any electronic data that was not within the care, custody or control of the insured. G. "Government Investigation" means an investigation conducted by any federal, state or local government agency or authority, the subject matter of which is an information security incident committed by an insured. H. "Information Security Incident" means any of the below, whether actual or alleged, but only if committed or allegedly committed by an insured: 1. wrongful entry or eviction; trespass; eavesdropping; false arrest or malicious prosecution; outrage or outrageous conduct; 2. breach of confidence; invasion, infringement, interference or violation of any rights to privacy including, but not limited to, breach of your privacy statement, breach of a person's right of publicity, false light, or intrusion upon a person's seclusion; failure to properly handle, manage, store, destroy or otherwise control a person's private information in any format; intrusion or misappropriation of a person's name or likeness for commercial gain; or 3. any breach or violation of U.S. federal, state, or local statutes and regulations associated with the control and use of personally identifiable financial or medical information, including but not limited to: a. Health Insurance Portability and Accountability Act of 1996 (Public Law 104-191)("HIPAA"), including Title II which requires protection of confidentiality and security of electronic protected health information, and the rules and regulations promulgated thereunder as they currently exist and as amended, including related state medical privacy laws as they currently exist and as amended; b. Gramm-Leach-Bliley Act of 1999 (G-L-B), also known as the Financial Services Modernization Act of 1999, including sections concerning security protection and standards for customer records maintained by financial services companies, and the rules and regulations promulgated thereunder as they currently exist and as amended; c. State Attorneys General and Federal Trade Commission enforcement actions regarding the security and privacy of consumer information; d. Governmental privacy protection regulations or laws, as they currently exist now or in the future, which require commercial Internet sites or on-line services that collect personal information or medical information (as defined by such regulations or laws) to post privacy policies and adopt specific privacy controls or to notify those impacted by identity or data thief, abuse or misuse; and e. Federal and state consumer credit reporting laws such as the federal Fair Credit Reporting Act. I. "Insured" for this endorsement means those persons and organizations qualifying as insureds under Section V Persons Insured of the policy. It does not mean persons insured on other than a full time basis. "Loss" means: 1. with respect to insuring agreement D: Customer Notification and Credit Monitoring Expenses. 2. with respect to insuring agreement E: Electronic Data Recovery and Replacement Expenses. Loss does not include: (1) taxes; (2) any amount for which the insured is absolved from payment; (3) amounts owed under any contract; (4) any return, withdrawal, restitution or reduction of professional fees, profits or other charges; (5) the multiple portion of any multiplied damages; (6) regulatory fines and penalties; or (7) any matters that are uninsurable under applicable law. An event reported by an insured to us as part of our risk management or loss control services shall not be considered a report of a loss. INS-0111 1/1/2011 Page 8 of 9 K. "Media Material" means information in the form of words, sounds, numbers, images, or graphics in electronic, print, or broadcast form, including advertising, but shall not mean computer software. L. "Media Incident" means injury, other than bodily injury, arising out of one or more of the following acts, whether actual or alleged, but only if committed or allegedly committed by an insured in the course of displaying, broadcasting, disseminating, distributing, or releasing media material to the public and/or gathering, collecting, or recording of media material in the ordinary course of the insured's business: 1. False arrest, detention, or imprisonment, or malicious prosecution; 2. Wrongful entry, wrongful eviction or invasion of, or violation of, the right of private occupancy; 3. Defamation, libel, slander, product or service disparagement, trade libel, prima facie tort, infliction of emotional distress, mental anguish, or other tort related to disparagement or harm to the reputation or character of any person or organization; 4. Unauthorized use of advertising material, slogans or titles in advertising the products, work or services of others; 5. Plagiarism, piracy, or misappropriation of literary or artistic titles or works, formats, characters, performances, or other similar material; 6. Negligence regarding the content of any media material, including harm caused through any reliance or failure to rely upon such content; or 7. Infringement of copyright, trade dress, domain name, title, or slogan, or the dilution or infringement of trademark or service mark. M. "Network Security Incident" means an actual or alleged act, error, or omission by an insured, including an unauthorized act by an insured's employee, which results in the unauthorized access or unauthorized use of the named insured's computer system, the consequences of which include, but are not limited to: 1. the failure to prevent unauthorized access to, use of, or tampering with a third party's computer systems; 2. the inability of an authorized third party to gain access to the insured's services; 3. the failure to prevent denial or disruption of Internet service to an authorized third party; 4. the failure to prevent identity theft or credit card or debit card fraud; or 5. the inadvertent transmission of harmful or corrupt software code, including but not limited to computer viruses, Trojan horses, worms, logic bombs, spyware or spiderware. N. "Public Relations Expenses" means any fees or costs an insured pays to a public relations firm, crisis management firm, or similar type firm to protect or restore an insured's reputation in response to negative publicity resulting from an information security incident. But public relations expenses does not include compensation, benefits, expenses, or any other fees or costs paid to an insured or to an employee of an insured. 0. "Regulatory Fines and Penalties" means any fines and penalties assessed against an insured in connection with a covered regulatory privacy proceeding. Regulatory Fines and Penalties does not include fines and/or penalties assessed because of any dishonest, fraudulent, willful, criminal, or malicious act or omission or uninsurable under applicable law. P. "Regulatory :Privacy Proceeding" means a proceeding involving a government investigation related to an information security incident. Q. "Retroactive :Date" for purposes of this Information and Network Security Endorsement only, means the later of January 1, 2011 or that insured's inception date. ALL OTHER TERMS AND CONDITIONS REMAIN UNCHANGED INS-0111 1/1/2011 Page 9 of 9 ??, ???? 11/07/2011 17:22 FAX 1 717 299 0643 IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA CIVIL. ACTION KELLY HODGEN, HAYI)BE PAGL AI AND TONI QUIW. . p , NO. CI-09-14652 ro VS. c?°s JURY TRIAL DEMANDED > o ` LANCASTER CARDIOLOGY =:r- CIO W ? GROUP, LLC AND DR. BERTRAM N> JOHN50N, .. ?=c -o z ?c v Defendatrts. O A ' ` ? COM P LA1111T n-., ? r*} 1. PtaitrtiffKelly Hedgen is an individual re"ag in Undisv k Permilvaaia. 2. P1mt6Haydea Pagiim is an individual residing in Lancaster, Peansylvama. 3. Plaintiff Tani Quinn is an individual resift in Lancaster, Pennsylvania. 4. Defendant Dr. Bertram Johnsot is a private physician practicing cardiology in Lancaster, Pcnnayivenia. 5, . Defeodam Lanutster Car&1ogy Group, = is Defaodam Dr. Bertram Johnson's modieai practice whore he vmines and ttum patients, mcludatg Plaintiff Tm Quinn. Defeadam Lancaster Cardiology Group is located at 1821 Oregon Pike, Lancaster, PcensylvaW& 6. At aII times rrJevaat, Defendant Dr. Bertram Johnson acted iad'ividu&W on his own behaW and/or acted as agent far Defendant Lancaster Cardiology Group. 7. PlaintiffKrllyHodgen and PlaiahWMWdee P40m were employed aed worked for Defendant Dr. Johnson at Defeada ttt Lanomer Cardiok gy? Group. 8. 2004, Defendam Wed PtaftdffH*ec Pagliei as a Medical Assistant and August 2007, Defendants hared PWndffKellyHodgea as the Oltice Manager. 11/0_7/2011 17:23 FAX 1 717 299 0045 Ia004 9. On or about February 4,20N, Plain aPIL& reported to work feeling Ol believed to be suffering a sinus inf:Won. Plaintiff spoke to Defendant Dr. Johmon about her symptoms and possible proscription medication. Deteodaat Doctor responded that he would have to exanine her first and agreed to wmatine the plainff d" er his last patient for the day. 10. Defendant Doctor examined the plaizniffT7y pulling up her blouse and exposing her breasts. When the defendant doctor Ussterted to the plaintiff's lungs, he instructed the plaintiff to bend forward so that her beasts hung down. The plaintiff felt uncomfortable and violated. Defbodard Dr. Johnson acted without Plaintiff Pagliai's conseat and was beyond the scope of the ctami nation willfully pursued for his sole pleasure and self-serving purpose to view the Plaimiff s cleavage and breasts. 11. Plaintiff PaSIW reported the defendant doctor's conduct to Plaintiff Office Manager Kelly Hodgen. Thereafter, Defendant Dr. Johnson retaliated against PlarndffPa&W. b. I CL He berated her in front of patients and staff On one occasion, he grabbed her arm tightly as he reprimanded her. He yelled and blamed her for other workers' mists ioes and errors. Plaintiff was jokingly referred to as `everyone„ e. Gross intimidation. Lifting his hands as if he would Strike the plaintiff and pounding on things white yelling at her causing her real fev of physical harm. 12. De lendeat Dr. 'John= subjected PldWffPa&W to derogatory sexual comments and solicitation. He focused his eyes and attention on her breasts and commented that she was "so lucky". Dr. Johnson made these comments in a se mn Uy explicit manner that was offensive and uncomfortable. In a separata incident, a patient made the tonunett that the plaintiff was vbry pretty to which the defendant physician said, "Why do you think I keep her around." 2 II/OT/2011 17:23 FAb 1 717 299 0643 U1005 L• ? t T 'r3 13. The sexually charged work emhronment and solicitations directed at PIdRW. Pagliai causedthe plat ffto suffer emotional distress, nervousness sad anxiety m wbicb she sought and received medical•care and treatment. 14. As a result of the intolerable work condidons and work enviroomeat; Ydnuary 27, 240$, l;'iaietifflPagWLtenderod hoer t+esignago; &aai employment with the defendara is. Plaintiff PaglW repotted and 5Ied a mn!aE para. q* complaint against. - Defeadaats with the Laacasta County Relations Coaaaassion dual-fled with the Petmsylv=i Human Relations Commission. Aftw investigation; the Lwcaster County,Huanaa Relations Commission made a probable arose finding of disaimhuttion against Defendants, atma ohed. EAUt A. 16. Defendant Dr. Johnson treated Plaintiff Toni Q4*'s husband for a beartw, l condition. Summer 2007, PlainiiTToni Qui.w experienced chest pains :»4 likewise she sought care and treatment from Dr. Johnson. 17. Dr: rolmson ordered tests for Plaintiff Quip izrocll eft a chemical stress test that he personally, observed.,. • ,: ,.. .. . , x , . . 18. On or about WpbeQ. 2007, Defendant Dr. Johpaoa wexatuiued PlaWQM.- In alone inthe examination room without the presence of a tbmale nurse or medical assistant. Defendsm PhysMan told the plain W"you look very pretty today". Defendant Dr. Johnson did not provide a personal cover or gown for the plaintif s upper efendant Dr. Johnson unclasped the plaiatif a bra xW used Ns stethoscope ip a taaiaxr that fondled her exposad ? breasts. Plainrtiff was an aged, shocked and paralyzed. Defendant Physl _ an then 9d ,the plaint'V s bra and stated to her "I used to be rather good at this". 3 11/08/2011 12:30 FAX 1 717 299 0645 ..Q O02 19. Defendant Dr. Johnson touched and fondled Plaintiff Quinn's breasts without her consent and permission. kris conduct was beyond the scope of the examination willfully acted to grope her for his sole pleasure and self-serving purpose. 20. Defendant Dr. Johnson placed his hand on Plaintiff Quinn's waist and escorted her to the reception area to schedule another appointment. 21. Plaintiff Quinn met her husband in the outer office- She was in viss'ble distress and instantly recounted the defendant doctor's conduct to her husband. Pla=Vs lwsband, C71= Quinn. contacted the defendant and confronted him about sm*Uy harassing and assaulting his wife. ' 22. Defendant Physician admitted his conduct and apologized to Glen Quinn, 23, Defendant Dr, Johnson's 5amal,encounterwMPatient Plain:WQuinn-caused Plaintiff Quinn to suffer emotional distress -and anxiety to which she sought and received medical We and treatment. 24. Plaintiff Quinn reported and filed a sexual ibarassment complaint against Defendaats filed with the Lancaster County Human Relations Commission dual Bed with.the Pennsyly iia Human Relations Commission. After investigation, the Lanaswr•County Duman Relations Commission made a probable cause funding of discrimination against Defendants, attached Exhibit B. 25. June 20011, Plaintiff Office Manager Kelly Hodgen was slaved a subpoena to appear before the Lancaster County Human Relations Commission to testify as a witness as part of the investigations for the allegations of seanaal barassment filed by Plaintiffs Quinn and Paglial against the defendanU, 4 i 11/07/2011 17:23 FAX 1 717 299 0648 Q006 26. Plaintiff Hodgen was served the subpoena while at work on the premises of Defendant Lancaster Cardiology Group.* 27. On July 1, 2008, PldntiffHodgea dut"dnlly complied with the Subpoena and she appearod at the Lancaster County Ilan Relations Comm*sion as part of the invwtioc m of abepdons of wnW harassment Med by PWwiM Quinn and PagTiai against Defendant f , Lancaster Cardiology Croup and Defimdant Dr. Johnson. 28. Thereafter, Defendants retaliated against PWDWHodges Od subjected her to extreme cruelty, aggression, hoolity and intokrable work conditions. Defendant Dr. Johnson yelled at the plaintiff at the same time spitting in her face. On one occasion, he followed her ' throughout the office yedfirtg at her until she retreated and locked herself in one of the offices to esatu his wrath. 29. Ott August 3, 2008, Defendant Johnson approached Plaintiff Hodgen shaking his fist wW screaming at her about office management issues. Plaintiff Hodgen was called a "Bitch" Mg a "Lia '. Defendant Johnson shoved the plaintiff with his chest Into the break room Plaintiff was in &ar for her safety and fled the pm*dsea. The following day the PWntiff retwned only to pack her belongings. - 30. Defendant Johnson wronoAy discbwrged Plaintiff Hodges. 31. Plaintiff Hodgen reported and Sled a discrimination and retab diom complaint AgWrAA DefoxhM g led with the Lancaster County Htr= Relations Commission du&Sle d with the Pennsylvwa Human Reladons Commission. After investigatim t1w Lancaster County Human Relations Commission found for PlainhffHodgen and'made a determination of probable cause of &cdmh*tkm against DeEandants, attached Exl' M C. S 11/07/2011 17:23 FAX 1 717 299 0645 W 007 rr?rr rTi r • 32. Defendant Physician subjected the staff and patients to a aexm* charged work envkoeimt that was unwelcome and offensive. Defendant Physician demanded that his female patients appear topless and alone with him without a nurso in the examht& n room. Magarznes with photographs of nude bwwm women were in plain ai& at work at Exhibit D. Plaintiff Hodgen was offWed and repulsed by the nudity and offensive treatment of the fanale patiarts. 33. The separate PIaihtiffs'suffived harm, damages and Im' es as a re ill ofDefendant Dr. Jobason's conduct. 34. Defendants' sexual harassment towards the separate p>ait dM and towards female patients and staff was pervasive and/or severe. 35. Because ofPlaintiff Toni Quinn's sex; De&ndants denied Patient Plaintiff Toni Quinn the accommodations, advantages, facilities and services and prWages available to a patient of the public accommodation provisions under the Lancaster County Hunan Relations Act and Penusy]varna Humans Relations Act. 36. Dafendants retaliated against PlaisuiffPagliai and PlaintiffHodgen for complaining and reporting scacval harassment and discrimatation. 37. Defendants retaliated And wiongfully discharged PlaisdUHodgen for mrnplying with a Subpoena issued by the T ancaster County Human Relations Commission for investigation of the sexual harassment complaints filed by Plaint&Pagliai and Ptaindff QuiwL 38. Plaice exhausted their available admiaisuative procedures. See attaebed Nadoes of tight to sue at Exhibit E. 3 9. Plaintif demand a Jury Trial on all issues counts and claims. 6 11/07/2011 17:29 FAX-1 717 299 0845 Q008 COUNT' I VTOLATIDNJ OF ,ice NCAIM ED. UM jWmL m xr ,i u KELLY HODGEN, HAYIbEE PAGLL41 AND TONI QUM V. LANCASTER CARDIOLOGY GROUP,.LLC AND DR. BERTRAM JOHNSON 40. Paragraphs 1 through 39 are ioom-pporated heron by reference as though full set forth 41. Because ofPlaintiffToni Quinn's sex, Defendants denied Patient ftntiffToni Quim the accommodations, advantages, faci}ities and services and privieges available to a patient of the public aeWmm?atidn provisions under the Lancaster County 91man Relations Act and Pennsylvania Eftmun Relations Act. 42. Defendants subjected the plaintiff4, Mviduaily and collectively, to severe and/or pervasive sexual barumnent. 43. Defendants retaliated asst PlaintiffHaydee Pagliai and against Plaintiff Kelly .Sa Hodgen for reporting discrimination and harassuL at and/or due to ber participation and cooperation in investigations conducted by Lancaster County Human Relations Commission for allegations against the defendants. 44. Defendai to conduct described above violates the Lancaster County Human Relations Act. See Findings of'a7isedinination at Exhibits A thsu C. 45. Defendants onduct deknibed above was willful is violation of the Lancaster County Husaan Relations Act. 46. Defendants an liable to the separate plaiutiffl'ot violations af the Waster County Human Relations Act. 7 11/07/2011 17:23 M 1 717 299 0646 X009 C f t• 47. Plan?ti$§ are emitted to statutory rdiefavanW* under dw 14neada County Human RtWioas Act_ WfEXEFORE, Plaintiff Kelly Hodgen and Plaintiff Ilaydea NOW and Plaintiff Toni Quinn demand judpwt in their favor end against Dden:da m Lancaster Cardiology Group LLC and Dr. Bertram Joh mon in an amount in exem cf 550,000, phis i ntereat and costs. COUNT U KELLY HODGEN, RAYDEE PAGLW AND TOM QUM V. LANCASTER CARDIOLOGY GROUP, LLC AND DR BIRTRAM JOHNSON 48. paragraphs 1 through 47 are incorpotated herein by refim,ence as though full set forth ' 49. Baw", ofPis CWTanx QuW$ set Defendam denied Paticnt Plaintiff Toni Quince the accw=odations, advantages, facilities and services and privileges evadable to a Patient oftbe public acoommo&don provisions under the Pemn*ania Human Relations Act. 50. Defendants subjected the plaintiffs, individually acid contWvely, to severe aod/or pavasivc smal harassatent. 51. De&ndants retaliated against Plaintiff Haydee Pagbai and against PlabWEKefy Hodgen for reporting di=fminafioa and hatustaent and/or due to her participation and cooperation in investigations conducted by Lwwasttr Cowrty Hinman Relations Connmission for allegations against the defendants. 52. Defendants' conduct descn'bed above violates the Pennsylvania Human Relations i Act. 9 11/08/2011 12:30 F.4a 1 717 299 0648 X003 i 53. Defendants conduct desazbed above was willful in violation of the Pennsylvania ` Human Relations Act. 54. Defendants are liable to the separate plaintiff for violations of the Pennsylvania I Human Relations Act, j $5. Plaintiffs are entitled to statutory relief under the Pennsylvania Human Relations 4 Act. wE1FREFORE, PlaiutiffKelly Hodgen and Plaint-drHaydee Paow and Plaintiff Toni Quinn demand judgment in their favor and against Defendants Lancaster Cardiology Group LLC and Dr.'Bertcam Johnson in an amount in excess of $50,000. plus interest and costs. COUNT lu ASSAULT AND BATTERY KELLY .TiODGLN, HAYDEE PAGLIA! AND TONI QUIIVN V: DR. BERTRAM IORNSON 56. Paragraphs 1 through 55 are incorporated herein by reference as though full set faith. 57. Defendant Dr. Bertram Johnson assaulted and battered Plaintiff Itaydee Pagliai. He grabbed PlaintliffHHaydee Paglial by her arm tightly as he reprimanded her Defendant Dr. Bertram Johnson berated PlahttiffPagliai in fiva ofpadmu and staff and subjected her to gross intimation. Fie lifted his hands -as if be would strike her and pound on things while yelling at her causing her real fear of physical harm. 58. Defendant Dr. Bertram Johnson assaulted and battered Piaintaff Toni Quinn. He fondled and touched Plaintiff Quiarc's breasts without her consent and permission, Iris conduct was outside of the scope of the physical examination of a patient. r 11/08/2011 12:31 FAX 1 717 299 0645 IZO04 59. Defendant Dr. Bertram Johnson assaulted and battened Plaintiff Ke ly Hodges. He terrorized her until she retreated and locked herself in an office for safety. On August 5, 2008, Defendant Johnson approached PlaiatiffHodgen shaldng his fist. He called her a `Bitch" and &%W. Defendant Johnson physically shoved the plaintiff with his nhest. She feared for her safety and fled. 60. As a direct resuh of the assaults and battery; the separate plaintiffs suffered damages, losses, expenses, pain and suffering. 61. As a direct result of the assaults and battery; the separate plaintsuffered physical and mental injuries to whicli they received cane and treatment 62. The acts of Defendant Dr. Johnson were done wantonly, recldessiy, intentionally, dehbvWd and with an absolute disregard for-the health -safety and welfares of the plaintiffs, WHEREFORE, PlainliffKclly Hodges and PlaintffHaydee Pagliai and Plaintiff Toni Quinn demand judgment ici their favor and against Defendam Dr. Bertram Johnson in an amount in excess of $50,000. plus interest and costs. COUNT IV IIQT11;N'MNAL YNFLIMON OF LM0TIONAL D SS XXLLY HODGZN, HAYDIEE PAGLIAr AND TOM QUM V. LANCASTER CARDIOLOGY GROUP AND. DR. BERTRAM JOHNSON 63. Paragraplss t through 62 are in=Porated herein by reference as though AM set forth, 64. The actions by the deftdants described above were outrageous, indecent, extreme, deliberate, intentional, malicious, wanton, wtflW and reckless. 10 • 11/07/2011 17:24 FAX 1 717 299 0845 t?011 r. i r h 65: The plaintift sffered'harm and damps as a result o£the intentimW diction of emotional distress. 66. The plaintiff suffered great eaotionA distress, anguish physical aftents, shame and huatll don to which the plaintiff rwdvcd care and Ua tment. 67. Defenda ms are Rabic to the plaintiffs for hdmdoaW itdliction of emotional diBGrass. 68. Defeadaats' coadto. as fU11y id for9r above, was outrageou9, iudecxnt, extreme, deliberate, intwtioual, malicious, waaton, wiitibl and reeMm and form the basis for pu litive damages. WHERUORS, Plaintiff Kcily Hodpa and Plainti$Haydee ParBliai and plaintiff Tom Quinn demand judgment in their $vor and ag*rst Defeada nu Lancaster Cardiology Group and Dr. Bertram Johnson in am amount in excess of $50,000. plus interest fund costs. C01M V ONGFSTL DIS • GE • •IMLLYMODGM V. LANCASTER CARDIOIAGY GROUP AND D1L BE WMAM J013NSON 64. Pardgralrhs i through 68 are incorporated herein by re&m= as-though £ull set forth. 70. Defendants retaliated ad wroa>ovlly disebarged PitintiffHndgen for complying with a Subpoa a issued by the, Lancaster County Hunan Relations Coaunission for invesdgation of the sexual baraw ent•complaims bled by Plaindff Pagtiai and Matiff Quinn. 71. The wrongful discharge-vioW ed public policy. 72. Defbndaats are liable to Plaintiff KeHy Hodgan for wrongful discharga 11 11/07/2011 17:24 FA8 1 717 299 0846 4012 r t i 73. As a Mdt ofthe wrongful discharge, Plaintiff Hodgen xdkred harm and losses. 74_ Defendants' coaduct, as /';ally sat forth above, was Mragwus, deliberate, intentional, malicious, wmaton, willful, reckless and in blatant disregard of the Plaintiff's rights and protection and form the basis for punitive damages WHMWORE, PlaintifrKedly Hodges demands judgment in her fkvor and against Defendants Lancaster Cardiology Group and Dr. Bertram Johnson in an Mount in excess of $50,000. plus interest and costs. Date: September 30, 2011 Rasp submitted, N BS Atto ED# 53 N b Duke Street, Suite 201 Lan or, PA 17602 717-399.8720 12 I ! 11/V7/LU11 17:24 FAA 1 717 298 0643 I YLRMCATION • .t I VERIFY that the foreping statemerits are true end coaact to the best of my lanawledgG information, and belief. I ®dcrstand the Use statenmmts bentiia a v made subject to the pa olties of 18 P&C.S. section 4904, relating to unswom falsification to authorities. DATE: O I b o l l l . Tani QWM 11013 11/07/2011 17:24 FAX 1 717 299 0645 W014 i y t r 1 1 1 ' , y=nCATION I VERIFY that the foregoing statanents are true and cornet to the best of my knowledge? infozmadon, and balief,, I understand that false statements herein are made, subject to the pen4hies of 18 Pa.C.S, section 4904, relating to unworn falsification to sutboritim r DATE: a 1301%\ y a Pegliai 11/U'f/LU11 17:24 VAA 1 717 Z99 0043 VERMCAMN I VERIFY that the foregoing statements are true and correct to the best of my knowledge, information, and belief. I undo s and that false statements herein are made subject to the penaldes of 19 Pa.C.S. section 4904, reladng to unworn falsification to authorities. DATE.') 13C) . Kelly ea moss t 11/U712U11 17:24 h'Al 1 717 288 0643 X1018 4'ERMCATE OF SERVIC-E 1, Nwa B. Shapiro, Esquire, hereby versify that she foregoing Complaint was served upon the fallowing individual(s) or agent(s) by first-Was mail, postage prepaid, addressed as hollows: Dr. Bertram Johnson Lancaster Cardiology Group 1821 Oregon Pike Lancaster, PA 17601 Lancaster Cardiology Omp _ 1821 Oregon Pikc ' Lancaster, PA 17601 DATE: 0 Hy: N B. , Attorn for Plaintiffs M# AAdAn 53 N DWw Street, Suite 201 Langsmr, PA 17602 (717) 399-8720 11/U7ILU11 17:25 NAl 1 717 288 0545 0018 LANw%A*TKR, 00UNTV- coup" COMMIES UNM SCM UJ1RttN, "MCh~ Nov=ber 19, 2008 HUMAN RELATIONS COMMISSION • ass wda'r Kara s71Aa?t po taox tango t/1tIC?9iFA, FiR 47t;ONNO ' T'tr 7177a?0 FAV 717 7747 WFA ttM oale www' a.w • Exeaaly. t?rnoeer Jamua A. Nutt COO Eel. NE'PT wow d<MMOM P.C. 1834 OM M Pike Lm=W; PA 17601-6463 , 'RE: Hayden P4ai v. Lac=ft Cac+diolov GroupfBaIrrm L. Job btD LMC DocketNo,33 2005;?MC CadeN'o. x00705'371 Dear Mr. Nettlot m. Shia le#ex is is drrcice to the complaint of diserimanation 51od by liaydne .-Pa" C'Comylaiaaaat" 4r "Ms. P.*W", whatin do adle gea that Set= U Jolmsa¢?, M.D. rR apoudaat pk4dsn" at "Dr. fobo+&W). oww 6f Laneastar Cardi aV o3wV r1ws Ddenit ewe and collectively as `Ztelowdenn, subjeatvd her to. sexnsl bu mamets wbilt she way an emtplom of Revonde L Aft ovatuft ft r4demce pt owed by tht ComWaiaaat " ksspouft the Commissions beHewu doss a fie ft of PROBABLis CAUSE may be approp&ts in ttds case. The dent 1s of this ooatplaW sqd our Eadiztp am far ac as .Wows: 1. A Motiow Commissioner detewdued on My 16, 2008 that aeec--based diso immahou v r dw Cvnotr Otdiuoe Na " ntaiudes srag huseums, so this complaint is ataiwWar tmder tha oft cownt powers of the Lm=aocr CountyBuman Relatious ComutissiciL See MoAoru Fam JNy 14 2w. • 2. Complaiwa was Mau! in 2005 to work at It franc desk of Respoudad cKA6 toot was only in that position for one month. Tauumy load was the office t:tanoger at -the bass CotnpWuzt was land. 3. Wirhaut any prior traioiag or wUutiott, Complsi uwA wu moved 1M as abruptly vaeare Medical Assistant position by RcWndeot physician. 4. As a UediW Assistant, Cornplak arzt ordwed weftiucs, cmnbowd telaphatdc paete-maker cwtJca-tod tet V pace-maker elWcs and tabors for pM enm When XsUy Hodew became the dace rrwager in August 2007, Complainaw Wre d bar to perform tbese tacks, as v,41L r 11107/2011 17:25 FAX 1 71T 299 0045 0 019 S. 00 Fcbrnsry 4, 2008, Complainaat come to werlc fee1jug sick aslair:g hg • ptesaPtkm ftm Respondent. 7bere is sozue dirpada as to•wbd CoeapSs WW claimed sate had - ML PagXz allege telling bim sbc bad a chats jawdan rn8 Ds: JACS04 reOD$ her Ulf! butt she bad b wbitia. 6. A]lhmsglt Dr, rothason *We$ in Ss Answer having reapaut M to Ms. Pagliai's nogtteat in -d" MR== be CoaSsmed dcbg a &g-finft muting that be cold her she'd ]Lava is be atsmined fu t b*m he could ph'eectt'be mad`u?tton sad that there arv mki medied and etbical iza9ans far this protoonl. . 7. Ms. Psgliai had ne:va asked' br. Mum to aambu trey or to pw mba medication for her, and the confirms that fate wu the fiM time shc' bad appmaebed him in this ttttanrer. S. Wbm LAW wby sbe did not nuke w app * t mt with het owe dorW, CoaaplaE=d rued that 1) it was cost ptobAitive - her employes badth iasuramx celled !bar a S40 capq for PM mod S30 coapsy for Specialists -and 2) she had necc * mcdvvd it pay cut b iRespondcm. 9. The time of day CoMlainatrt Wyl owWd RmpoWmt is is dbpota -- she adages speakfng with him at 108m aced godng.bI to -M hint at 11:30am, and be Wlgm tW She 0&0 to hire late In the afters o and t+aas.antirted arse evayane had ' -left the office. Both parties eatSam tbat FAVandeat would have trees: CorhlplMUt sBa NOM bss`Wm iomstyscbedvW pabows. . l0. Ms. Hvdgm it'idiMW &d Dr. Johmm saw patients in the morning on Mondays, U NYeduesdays and Fridays, and in the afterncon on Tmdes and T9htardays. Febzasry 4, 2008, the 4ate of the. alleged iaappropd to ==don, was a Mopday, suggesting that I&. Peavi was enmiard in tbo monkg, vvbea other Wm a was in the of ace to assist. 11. Whan Mir PaSIW west into tie Unnination room: Ik. Jotmsoa cloaed t' dear and did not invite motha feaoale staffer to joie them. Accadi4g to m Iftwo, there was aA one the in %i cftice to aak bw4u% of the late bout of the request and mbsogtmxl examination. Ebwevar, sea g 10 above. 12. Ms. Hodgan udicated that Respondmt offnic was mgttb4 VrAa the Medical Csm Availability & Rtxtucdott of Em 04CAIM Act, to haws a female ptactitlom in the etamh%tion room with female patients. But 1x ]obasou Owiaue$10 Melt bar that the office was `i ndersaa5W." 13.On the day of the motion, Ccmplsdnant was wearing Scrubs, ibe usual undcrgarmahp xdd shoes. 14.1106 psrtits eonfitm that site was asked- to sit on en examination table located against the Well an the right sida.of the room. IS- Aceor+diag to Dr. Johnson, be asked Ms. P494 to lcaa forvvartl. so be could puJJ up Ms. Pagliai's sbirt iA thebaclc and lbft to bts ]thugs with a st &mcape. 16. Aeeorda$ to Ms. Pag W, Dr. J'4hnson pulled cep her dram: without Asking, Swm the firo L When be got to but that arse, she W*bed the stirt to here stint Aces towj tg her bre"U. Accasdisa$ to °Ceraplairsant, he ]mocked her hand out of do .; way and cordneted to put: aprher-shirt ?d bm over and above ha brine. He then atl?odly kept hie left hasia on-her bsaast arse ad pushed bet forward with his right to •°cbOW bar lungs- with the atethascope. Daring ads tarns, I 11/07/2011 17:25 FAX 1 717 299 0045 Q020 s f'. tt.. G ' ?. . . . . . . . . . . . . . . . . . . . . . . . . . . . • Complainant's btasats wart ailegodly lumft down and being toothed k9propdately by Raslwndeat. 17. During a that--ftlinS coub enca. when dds Investigetor MW questions above the estattdutim, Dr. Johnson made the following corru w= Vdim nrel die doasa7h maPvbkM ra" AWbmwor howdowtal" 18. During the name canfereace and to t+a"m to Dr. JvhssoWS W=Xent, bL a#CMvy "ked this invatiptor. "Rave puss met lies, yet? Sbe u pft)p %uM sadowedle 19. Alter the mtMaiVAdon..COMOahW told ML Hodges.• Donna CzW, CbMJI OW nazw=kno"I all maplayees ofRgwdeat clime at that time. 8be.also aft as to bare sp k a to Denny Prasogy, pat owner of'Urgsnt Care Canna of Lancaster. whose primarypbyticbn is Dr.. Jobdeaa 20. C.onvishunt did receive a Medptloa ibrpenicillin, 21. Wimam Rg&m, K D. pdv ry care *ysicka Ar a ooImtp}simnt to s Mliftd oateiplaint agtdast Dt. Iabnsan. recalled sllegn:ioas a?f sexual h?rnotlt made by a forma empbyea oa bis staff'*A Dr. Job taada.=tW advmxes toward Des wham abe * rbed Mth bim at the IbMW Co%M* $oepi>RL 22. When Ms. Hodgen admd Dr. Johnson about Ca®pWbant's allegations, be c'leWCd wroogdobra; howeper: . a. Although do was not in the exaraiz aft room on Fek=y+ 4', Ms. Hodges witnessed Dr. Jobwoo emirs a hcidla Motk• eonvhmmunt !br Camplainaat and odwr'aromen iu and around the ofacc' y yelling stud. Vubbitng bet; . 'b. 'ICatsn, Ms. Hodgrao'a. motber and *.a fonria' employes of Rtapwdcat clinic, had an issue with her breasts berg tovaW by Dr. Iobman; c. Thcoughout her tenum,,as office a wager, alas received five complairb ft+om *c= regarding iump costs touching. Bemur, doe was no grievance process, she *sma't sure wbat td do with them and the p4tots decided to go to ether d6eu s; d. At least taro other cdaaplaints mere utiade to then t rPd Care ofat mauSm. Diane Garber e, Ms. Hodges: vitneased Dr. Johnson make "Reads jokes" and othv . dlrcriaaitt dayrenm wbila in the ofd and £ She was a vmass to' end was berself s*ootcd to Dn Jobnsoa?'s verbal and pWeal assaults (he bas thmwa things at bee nod other employee. all of Whom have ban *osaea} 23. According to Cwnpldnaat, w pidgD . Warren Yo, also witnessed the alkeed eealatad Mmunew aft the repadad P=pwndeat to Wwa=lor M- U. In a relatod ompldnt, Respondent ioitislly indicated that tbere was no saws] harassment policy (See 6AFeA' MMC boalret Na 234008, Aw al 29'r' Reapawc Hawavar, note the folloM4' L Ma, Hodgen Indicated these was a sexual harassmwt policy contained witl& =ZTnp)nyev Handbookatop a Cabinet in the raga offce; I 21/UT/XU11 17:23 FAX 1 717 299 0645 b. Comptainaot pcavided to the Camzcivsic? a cayy of Respondges smal hatassmad policy, Which kWh[&= pro ass against sucb harassment and as office gricraaes poeedpre: tdated dh dw. and c. Dr. Johnson Wmawledgeo bring a Got tmdW ouafattsmee that his office did, in "'have an employee betdbo* and that a svxW haeasamco poUq vas Contained within it, altba* be was =at& of du ddsib. 25.Ybe Co mduion bai• made noatlil = aawp% decor the. onset of the irrv 36p iem - in wdtt g and via electrantc mail and tetephaae _ to goftii dmely nVanses an t>te•pars of Ruponda3k but to so avail. L 7D a letter dated Odobar 2. 2008, the Canmdsdon togi c#cd that Respondent fncsvud additional intoaa d= & for =am* Complaimant'a ,=, otmel file. To elates, they Have not tupowled. The Cot>itnissian has thanef re detetmiaed that: a) Comp}tiarma we9 s titernbe r of tbo pmtecteod clan of feaule etnployeex b) Cornplaming was if k* amu dly harassed and the co* W of this bwasanant relatad dbudyto bar vmmud dam stew a) The hwumespt was aevem. d) The harassment detrimadgly sffbawd the Cortplahod; e) The hwatsiaeat world detrimentally affect a t,--A able paison of tho Same pccteoted U class; and fl Respondent knew orled mmn to kmow about tho harassment. It is the deeiaion of the Coal dWoa thal•the actioas'of Respondent Laoaastes Car&ology{iconp/Dr- Bertram A Joh mn indicate that Complaimat osy4ce Pagliai may Nava Um me=ally burned directly because: At was a f rnek mWoyto of esportdan pbrMm. • By his witiliagtuSS;:o engage is condud of a swr al am" with ! !Annals vAot lum Rcspdadent physicdan has most bkety denied to Complama.ot, becmnae ofher ax, the his, cmadoas and Ildvaegas • available io her in her m?ployMIML It is thae1ba deemed that is dds o0w1aW JLMC Docent No. 33-2006, PERC Can 140. 24470628183, PROBABLE CAUSE lil* tcosta to mail the i0z*sid ailosatiam D. The Reaa?dS!Recaertmeridition The Commission is net' Mmoft the foUefw Wg be eoaWamd for a mefttion ' offer to the Complaint, as rt uaiesd by the Complai=t 1.l Fiftbusseawd of loaf waps tataiing 519, 760.00, which is an Dourb? txte of 813.001hoar tot 40 hamslweek ft 38 weeks as of November 21. 2001 and 1.2 &anW huatSment traWd& 'far all staff of the Lamm tci Csdiology Gmup, in? its sok practitioner, 1lettrani L, Johmoo. M.D.. candutad by the Lenvaga C= W Av msn Rdaum CommUdan aid romftmd by ft Cvmmiu* for future ovinptianeca, la 021 ;ti 0 022 A t 11/07/2011 1T:26 PAX 1 717 299 0645 1024 HUMAN RELATIONS COMMISSION ? vrtsr xpun atAearr ro soot aaaa 6944VIA fu left-W0 cocurty aoWssrorltRS TELt;A4M "?.Mao ,? ?,??+T s b snuacar, CM"m 3= wumrr, were Srrt aorta=dmpe.w v?a+aio?;m, CRM L044 M Mull L W=x . E:alevria t7ne?01of November 18, 20M Jcwe G Futefftle, ksq.' NETT N & P2WROM P.C, ' 1834 Ort?oa Pl1ca • . Laaeesteat, PA 176101 RE; Toni Qaion v. Leecuter Cattliolov atoupffift ai 1.• Joh no% bm LMC VOWM No. 23 2008; PMC Case No. 200704420 Da w Mr. Fias&aak: Dais letter iv in refareaee to the cornplaW of diseriminu = filed by Tonni Qtitea ("Complainme or Ns. Qui="), wherein she vieges that Bosom L Johnson, X.D. . (" R t ,phydc:iao" of "Dr, Johrave l owm of Weasber C xffialoV (i'" ("RaVondw clinic" and collectively as Tapondoosn, subjected bar to same] bacas?aant while she was his patient After evaluating iatbst abon and evideaaat ft M the Regmakat and the Comphdammt, the Caaomisdan finds d adt PROBABLE CAUSE malt be appmpnm based on the fotlowiogr 1..A Motions CorcmiWom deb mined oa July 16, • 2008 that eat-baed &crimtaadon includes assaml hatbsanteat under County or&pcts No. 64. See Mostoaa Form, tidy 16, 2008 7- Nblie ao onmodations discrianinadon oosaphints at. actionable &*n o hspitals send ethics and their o"svneta, pmpcietasa and aaployam See cook v Wuftz,1996 WL 1044800, ?a• Cam. PL (Sept. 3,1996). 3, Co®Phinant Ives ref a d in May 2007 to R ptWdclan by ha hudbxad, Glen Q4%n, whin Lid pr*Wt naly been a *cat W. Quinn called and made die ral appoiutm a, Mr- Qtissn bcosm s pst'et of. ?tespatider11 ptolkiaa after hVing a he wt attack and dl?imately beipg •sefs:red er' him by,the family Onway mv pbysiaaa Williarrl Hakteq M.D. ' 5. Mr. Quirm visited with Rospondent phy3ki= baweat tat arnd Mean tlmui B)r bier heart eoa tlom Although EKG monitoring called for W. Quddn to remove 11 11/07/ 7:26 FAX 1 717 299 0645 Z025 bill shftt at the onset of his visi% be was fully elotttad by the Lima Ampoodent pbyaieiati WATed the eacmWud m tom hi his Check-upL 6. Kelly Aodgen, foamer office manager for Rtspaadcut, wttfumad that It was only dntiAs, the EKG'pwOoa of the visit - that abo and the Modicai Assistant eoGftCtecd - that pddmts woe re On d m ramove Clot dA& 7. Aow ding to Mr. Quito. Dr. Johnson amer made emun ats dmat Us *=mm Of Was fnipptapd* to nay way fining X3 txa?atiores• 8.. Us. QuImi canfams that am made mcml visits to see Dr. Johnsw for chest pales. Mr, Quiaa went wi* her for each visit except fat a Msy 246 atria teat and rho Ootobor r visit dual is the snbjoot of ,W Q*W# alle prim 9. Dtuing the October S1h visit, CcanylaMt allegro that RcWmdml tdW ha dw lo*k$d wmy pr ttytoday." 10. Dudog ft October Se visit; Coinpliimut alleges that R espondeat &*ad her to rsmove has bkmsc, but did not provide a cover for bet. 11. Duaing the Octobw S`` visit, CasrtpIduut al q= That "pondent wwftq* her bra while Sesy wend in the mm iaa6m tom alone and =W his atcdwwvpa to awn bisbrand all over tier brasta in as k a mptiatasausaar. 12, Ms. Hodgm tnadwomd diet-their dbe wag roquhvd, wWw the Mtidical Cara Avallzbitity 8t Radatiaat of Psm (MCARE) Act, to bave a: fan* stiffer to the mt aation room wittt j%male .patients: But Dr, Johnson continued to tell ber tbst the office was `•WentafW whiob -be confirmed, At a•Felt lrmdiag. Comfereetae, 13. Acwrding to l?fs• Hvdgm, Respondmi chdo also did not have a Patient Safbty plan, as requbcd• by the Act, 40 F,& j 1303.307(a). . 14. At the and of the ex=h adau, 6tapla3aaat• allagas that Respondent said, "1 used to be rather good at thus:' RespQodeztt deai08 haAngmado this ==oft 15. Complainant aliases that, bakro sbA was able to • leave the AcHity, AeVomdent agYptoacbed fur. put bis arm %mw A tmr waist, and asked ilia office person to r+e8edute Complawast ft another appointment. 16, Aft ft October Sr sppeintme4% Ms. Quinn met with her husband ht hmab atnd told bim what happowd, aft which Mr. NOR made Ilene teiapboad calls. Ho caIM the Reapoadent, dank first and spoke to Haydn NOW (6orata1 employee and complatumt at a zelated =attest) v/w kww about ismt s of bwadsmmild • but was iela?nt to ory aa?hing weer m tea of5ct^ 17. Mr. Quirnc called the cWdc back, dw> W vuf ch time be asked Dr. Johnson about the alleged iruppropriare tout %WX Acaord(ng vo Mr. Qnira+, IZ~: Jots astrod if Ms. Qubw was sW wim bin anti than apologized std told W. Quinn drat it would tuver hatppw again. Dr. lohom never 40lieb tau alla plow, 18. FbWly. Mr. Qufaa called the fiaaity pCP, Dr. Dften, who mepresee d concern that ho had refnsr+ed kU wife to Vr. Johmz 19. Dr. Bakken encouraged Complainant aitd' Mr. Quinn trot to $a badt to Dr. Johnson and to contact the, );aoeaster Cou* Medical Society said' the - PeourAvernla Stew Medical Aisoa"sc'son to lodge complaints, `..J 20. Dr. Batsbw natal that be did t 6erefor womorn to Dr. Johnson becavsd of tumors of misconduct toward other wolnam go aiso stated that ha would have odvisad agahW Conl4nant's referral hid he kooronn. ' w i • a I i i r f f 11/07/2011 17:26 FAX 1 717 299 0645 X026 21. Whin asked by Me LCHRC Wves4PW Whetbar he had first-hand knowledge of a pouem or pracdce of text •harumew by 1ht Raipoodew pbyaieias, Dr. Baktea stated tint, bo awe • of Mi solo in Staplistaty proceedings against medical petSOnAeI, bs was not able to disclose such k tb audoa: 22. Der. Bakken did mauWn Olagafian of seams' hiss awn wade by a former empWY an big staff W Dr.- Johnson made saal advum wwatd ba wben she worked with lima at the Loaner Colambls Hospital. 23. When Ms. Hodgen ag and Dr. Johasam about C Vlainant's apegatiens. be denied wronging however: • a. Kam Ms, Hodgen's mnotha ad a f w ner amplageb of Ruptn ecd clinic, had an blue with bar bteasta being warted byDr. Johttsoa: ' b. At least twp other patient aOmitpWats were malt: ao Di= Garber dwbg ha tt nate as 050 tai agcr of d M Urrut an cater of t imete tM loeated in the lama facility as Rupondemmt c5k 0. W Hodgm bas M"oo on related w fit?b vident complaints of s=W hussament mad kWpeo0ate towl* byDr. Johnson, all of Whom didn't make follow-up appaidtments; d Ma Hodgen whnmcd Dr. Meson ameatie a hostile Woddng envhonIDQn farMs. Psgliai; e. Ms. Hodges whaes W . Dr. Johasaa make Vadai jokes" cad via ftarimoiaatomy mnsdts while in flu of l6r. od ?J £ Ms. Hodges was a Wltztess to and was acbjeded to Dr.' Johnson's verbal and physical assaults (MI-as dawn thing: at Liar and-other employers, all 'of whom Nava been wbzam} Her elcvca-year-old daaghot r wit>tessed ona :. socb incident 24. Scaly two end a' half i i=6 after a' Cotnmieeioa request for addi0wial information. Respondent indicated, coatruy to IVJs. Hodgm's testimony. ft no other campbd cta had ever been mzds. Ste Argwt 29'a Ragpoute. 25. In this rte wr 29* Raspout, Itespandent filody indicated that these was no sexual horwimag policy for the,ofce and mslnme became: & Ms. Hodges. b6cattod t7itn was a emal hamasoment policy Contained Witbin an Em">+ee b. CvnnpWnw2 Paosk .Raw6m); and' .ORC Docket No. 33-2008, provided a copy of Respoadtnt'a sexual hi =svmt policy, wlrA* ttmcludet pmhWors against sash batassmtat'aad so office aievance prot:edtM relsw tbenno. 26. During het wibmt interview on July 1. 2008. Me. HWSen iatdiMW ga she fleambd e?iuios ? Reaparidffit f brspeaking with tJie •Cammisaien about these madw. • within a few motes of her btttMa w, sbe resigned her poddtmn sad Darns to the • Commission to •'iodgo bar Owsm emplaint; of s Aagpondear employee turd relative of Rmopdent pityaieiaa aUtgedly attempted to bit 'hex with a anovatg vebicla 27• The Commission lots made' mt o*us attagtc, fi m the oesti of the hrmdSolion - in `stuffing mod. via eteckoaic m W ad telepbone - to enf=e ?J . titrielyteaponasa an the part ofRaspopdeat: bat to no xvail a. Shoe: early September' '2008, the Commission hu rnads nmaemou9 sOmpts to rescbadula a'proviously cascaded Feat Finding Confit tca in l 11/07/2011 17:26 FAX 1 717 299 0643 IM 027 M •r •?VV .i1. v? •li?. I?1 V?V 11\• . YV?A11 ?W.11\.?V.I • , vduvu order to give lt%T=deet Mn apporbMity to reapood to the ku tb of the 10mgoing alleDdotm To dace, gley have not responded. The Commission has therefam dctennined that:' a) Coatplah=t Wda a number of 6dprotected class of female eats; b) Camplahmt was fikety seuwny harassed and dw eoatent•of tke hwassmeat related directly to her protected class status; 0) The harassment was wat; ' d) The hwamnw dodma telly dNcted the COmplaiaurt; e) The }rant would dehimwMy affed a raasoeable pctatra of the game protected din; and Q Respondent lmow or had reaaoa to bow Oc the haras?ML It is th decision of the Coatt?on that tie aotiaus of Responders Lancaster tfrdWogy CroBPU Bertram L Jabhon oould`Wimte that Complsinaat Toni Quhm may • have been oaarally harassed dirwdy because she was a lbmale patient of ' Rrslie?,rdeart physician. Sy Iris un7liAg?a to ea?age in condttot of a sacral altitme winb' a ' female patient, kespondent ph*6aa ataybavs denied to Cornp4i?ntr beown of her sat, the aooommodadGL% adveatages,-flatus, services sad privilege: available to any patient of the public: ammumodatitm:tllst is Respmdmt chide. It is dwdM deem ttw in this cosplaint MMC Do&,vt No. •23-208, PMtC. Cm No. 20070642011P PRARAHIE CAUSE ccftQ exist.t+e merit the-eamplaiat aUagations. The CatnacMon is recommending the N own be wWdaed fer a nradiatioo offer to the complaint, as requested by the CompWwmt: 1.1 ROmbutsement• of any co-pay dollar amounts Complaataut remitted to ReR=dett wbile a patient; ' 12Reimbursement of any dollar aii o=ts Comgplaiaant paid *tall testing wdered by Respondent. including co-pan 00-nosMance a,motmn and eetnal amotmtt •not coveted byber be ft fn3Ltlrwe policy; 13 A W ttm apology bey Respondew pby&isn for his wdmv an October •i, 20o7; and LA Sexual }uuarsanent training fez' A staff of the L==M Cardiology Ctoup, utcluding its sole prao*W ner,::Bem= L. Johnsoo, M.D., cm duftd• by the [Faster •Cmmty Rtmtaa Reaadow Coaaainiaa amd monitored by the Commission for future comphm?c We would appreciate )searing frwa you in Writing by -WednesdM DacMftr 4. QQ,$ (ten days). 'If we can be helpful in '8IWWMing say quay ions, please do rot hadu trs to contact va. .Ni mn-jo 4, 1i/U7/LU1i 17:27 NAL 1 TIT '288 U545 10030 HUMAN RELATIONS COMMISSION* FAIR HOUSING PROGRAh /• ?? ? sD nFOrD?Oueen atre? L.dfll Cc,I May 26, 2010 9uQe Kt: t rmsw,, A41700¢ Jaancs A Nettleton, yr., Esq. +nr?Ba ??+ GOU*C=Wd1 OMM Nettleton & Fincliock. P.C, max; 711-M"4'. P%d ffW PO Box 4852 w+anrm?noKt.rva?u cretp Leheae Leacul a, PA 176044852 U* My Hodges v. Lancaster Candtologv Group IdM Docket No. 73-2008/ PHRC Docket #2008025) I/ EEOC 017F20OM68 Dear Mr. NeWeton: INs letter is in reference to the =Mldm of won filed by Kefiy Hodgm ("Cornplainanr or Ogg. Hodges, wherein she alleges that Bertram L, Job wa, M.D. ('Respondent physicfarn" or Vr. Jobwon% Owra of Lancaster Cmfiology Group (Tospondent cHnie sad collectively as 'Respondene), subjected her to retaliation based on her caopendon with *two prior complaints of 11tc-god discrimination toward two females by Respondent owner, B«tram L Johusort, AD. After evalaat[ng the evidence presented by the Complabnd aad R.cspomdcnt, the,•Lwastcr County Elio= 'Relations ComniWan (I.C1mq reiterates the details of this complaint, and the Commission's findings thus far, as follows: 1. Ms. Hodges wiUmsed Dr. Johnson - =ft a bostile work envim:muct for women in arid, mad the office and reported sho was also submitted to hostile actions in the workplaoe, as verified in her. statements to x.CliliC during the isveatiphom of this complelat and taro prior sgwate discriaicadon complainu filed aSsinst Respondent. , 2. Thrvr;gbout Cbmplalnant'B tenure as office man8ger, site received five complaints front padeoU regarding inappropriate touching end shared this fnfotmetion' for this complaint Investigation wilt a list of witnesses available to be contacted . and intcrvfewed.' 3. Karen t, raq, .Ms. Hodgen's mother, and foster employee of Respondent cjWc, ebnfi=.qod f& Hodgen'a Ademmts and those of two other woman who have filed complaints aphnst Respondent. Ms Green also reported she also experienced inappropriate unwanted wwbing by Dr. Johnson wbile in Respondent's employ. gxwntlw Dlreaor tsstEsl.fryrmr? . k 11/u7/1011 17:27 FAL 1 717 299 0645 Q031 4.. ?& ,often statics she witnessed Dr. Johnson realm "ger>det• jokes' and other disc minatory raaarks toward women wmle io do offica during her scheduled work days. 5. Ma Hodgen:yvas a witness to, and was herself subjected to Dr. Johnson i verbal and physical assaults in the workplace. 6. Ms. Hodg¢tt• indicated that this hostile cavironmaat foroed her decision to-quit woftS for Respoaft4 resulting in income loss sad the need to secure new employment. -After coueodog sad cxamirring documcn% data, and witness statements, the Com issiea has therefor determined that the actions of Respondw% Lancaster Cadfplogy Gmup/Ar. Bwtran+ L Johnson. indicate that C.amplainant, Kelly Hodges, may Gave been retaliaeed against due to participation and cooperation in investigatwo alleging discrimination by Respondent. It is thaefom deemed that in this complaint LCSRC Docket No. 73-20M PHRC Docket 0200802521/ EEOC 04 7F200960748, PROBABLE OUSE tdcely exists to mcrh the Complaint allegations. no Reav Re=tfb endation The Coaunission•:a pcommending the following be considered for a medfadw offer to igic"comphdnt, as requested by the Complahunt: 1. Lost wages '4W to S l4.00/homr x 40 boumAweck ($560.00 per week) X Wweeks (to April 16, 2010) for an ammmt of $49,840.00... . Upon your review,pplease contapt the'Commisaion with arty n6umd;' questions or concerns you rgigbt have regmft the mediation or otber resoMon of thfs matter by June 10, 2010. Respec&Uy, Melostie L. PottOo,..,`. Deputy Dh=tor, LCHItC, cc: Kelly M. Rodgen . Mna Shapiro, B4 Dr. Bea ft Johnson ' _x 1;Q7?2v11 17;27 F.j 1 717 299 0645 I E moss BERTRAMJOHNSON, aa•.••••llDTp••7?LT, FOR XWC 173 You've been selected r?.a?r?Nr.?r?.ap????rL?t.n???uu???u??r?ua?t,??raa to enjoy PLAYBOY for . i,s m' ss . just $1 an Issue, OUr. ,cu?cnss?:r.? •17601-646e absolute lowest prices And get a-FREE DW. „MM. . i ......, f f x wPP_ M 11/UT/1U11 17:28 FAX 1 71T 299 0645 Q 035 - C. J Cbdmmom L AS?rAN snPJEN A. ___ D I`/?MCOAXXL !!M)Si?1f0?SNE.?S Vkrl Www? 46 '1`Ji W1'I?Y a6A'l ' AAQU9L a Yi&W.$r . YAMis EARLQAJOaOY, s0. REV. OIL as navy 1 WHYM Wo"26109 DM7LL A YUN 1cwtALIN K" Al Imtoobbakc HOMER G rLOYD DAMtIL L, WWDALUA COiNA'1 NWEAL7H0F't'EMNSYLVATM 11LUANRI LAtlIONSCOMMISBION ' m cLaataa! St: ligta no P.o. Boat 9115 wwW*wjmtfPa 0 8 ikmi , PA InO=* (717)1974414 (vow, Imo 4, 2009 ' Toni Quinn 2413 Mayfair Drive , Lanca,ta' PA 117603 RE Toni Quinn v Lmcasw Cardiology Group Case No. 200706420 Dear Toni Quiwr It has boo ow year since you ftd yoat eo wit tbo Pctnayivmit Humaol Roboona Comaad"bL 'ibis is a na*you that you now have the d& to ftg an action in drc Wr olxiato Pmutsylra A C40 of'C=mob Plans based on the dkged violations of the PRUct •oootautod in your CorxnrWon c mplimL This right is Provided under Section 12(c) of do Hurm Relations Act. 43, P,S. $ 962(cl Please be advised that ycu ere not tae, &W to file U rb an sedan h t& Srne Corot of Common pigs,. 7.be Commission is ooatim tg to peooass your ease, and we will tnsice ovary effbtt io aosotve k m um as possible. If we am mt wd&d oth zwise. we will assume that you want the Ca mr6sion to ton tm bandlmg your case. If you do file a eanFISim is a Court of Common Pleas, the Cm missida will ftal s your cowpideL This mesas that you will be enable to bave the Cmcnisdw desdde yoau ass avati if yarn eomapht3nt is dtsttsiped in Sm Covet because of s proeadural,rant Proeedm'al am may include farms the t3n$taoo colas into wrom wow waft In Sta Coo cellar your time to flit bad vWh& For this mason, you sboWd mah every e&ft w assure that any amviahtt you file to Sam Court wM be properly -filed behm you file IL If you believe you tcWwant to take your case to Smte Can; we augaest tdaa yet oon,selt a ptivROs attaestayabomrep, m nth, g you fa that action. 7bis should be done before you ills the oort*Wat so that your attorney may advise you on the best omarseof action for yet to lalta, • ShoWd you file a eons is Stun Ccaz<t, you as i oggirod by Section 12(c)(2) of the Pomml 4vtmia Huraaet RbTedm Acs to ,erns *9 Humes Relations Corm?tit w with a copy ottbe Court eompldm Ibis cagy ar®t be served m the Commisdoo at the saasatinieyas file itlaat jomt.'i'be copy,istobe:aaytta , . MWWW Haedanan, PWConasel • P=Mlvanla Human Relations Commission 301 C2teUM Street - Saito 300 ..PA. Box 3145' Hanidws PA 171 *3145 If you have nary questions com anatg ibis maft, please ikel fsc to t amtscttho iovptigntw wb is handling yaear case. Very truly yowl, Arberdeft White-Davis naacsor efCompliaace AWD: jmb cc: N`ma B. Shapira 1f 11/07/2011 17:28 FAX 1 717 299 0643 W036 !1'I>rP GtA9.SW Vtt*Chetrptson RAQM C. YWMT OAPM OL AM ?GAIWON,Si'1 f I rI ft 01netmr NoMat c.t4rnn r r CWHONWIALTtt OFPENNSYLVAMA Humstt Iteltt8M Cot 01islvn Sol Cbssbattr salsa 300 Haftbw% PA 17101.1"2 027) "7.441ogatn (717)"7_4101117TY ...rw?tplm.elaM.pa.da CO COWNaetS ZSMAELARCRV KJOILti0LSTE" • ' J'WHYATf MONN?RB' OEPA D S IIOQOMN MVIA A. V AflRi OANML WDOW U143R 7 S December 9, 2M Kslly Hodpeo 96S Weat6eld Drive Lsadisvfile PA 17538 M- Kelly Hodges v Laocaatcr Cardiology Group , Case No. 200802521 EEOC No. IM00960768 Dear Kelly gadget It bag bead ore year since you tiled your cot SE wt t tote Petattyyhrama [iauM RaiWW4 Carandsdat. IU is to W* YOU OW yQu now bane ft tight to buns an action in the aPlvapchto Pt=*Ivania CM of Conw= PION based om the alleged vWxdow of the PHMa contained in your Owasnission carupiaint:11ris right b provided under Sec don 1.2(c) of the H=u Relations Ad, 43, P.S. j 96*( Plesse be advised that you are not req AW to rile such an action iat the State Court of Cann Pleas. 7'he Cot vubsien is eoatiading to prods your two. and we wig make awry eltbtt to mstiive it as soon sa pubis If we are not notified otherwise, ova will assume that you %W the 't.ootmntsioo to conhave haadling your rase ` F lfyoo do Sie a complaint in a CatsofCmwon Piers, the Comnbsiom will AwrA- your ooaWilnt• This meant that you Will be mabte to fmve tltt Cou ptmat decide y" case am if your oatmplpart b ditsmmW in State Cant bemn of a p mcWkvd am. ProcedmW errors stay btclude filing the compWat ti Stara Cause in rise wemtg aotmty or Oft in State Conn aft yaw tho 0 6 bas expired. Fortbb msso4 you should make every of wt to smure that any eomplaLtt yob fib in 5taor Can will be property filed bdbm you file 11; If you balk-a yam waatto Wm your care to Soft Court we sawed dW * ea nk a p ivo m= W about npaaeadng you in Ilk aotlr2i.'CWs:bouki be dam bt a you tiLe i6e oomplaistt m that your atoosttey may advise you an ft bast otnarsa of actual Swro to talon. sltouldyan file a mrolaint in Stara Court you we regA-.--4 by See!f m 12(c)(2) eft to Peti Wvaaia V== P distiaas 1.= to am *a Hmm= Rslaeim Comte dan wM a copy of the Court complaint. 71tis copy spun be served an dw 0 mulwiaa at rise tmae tiara you tgc k is CoaL 7be ropy is to be sent4o: Michael tia?snit, Chief ibtmgel'- Pennaylno? Htaflari IWatioas aoamslssioa . 301 Cba Sorest - SuiEa 300 P:O• Boa 3145 HaribburL PA 17105.3145 If yaa hate say attesdoons conaattiag this mstser, please feet free to coutaa the roar grho i, ]nmaliag yota case: AAwdel4 tiVblle,4)av1s Meow of Compfluot AWD. tlr 1 YT LRt t* C • to ti ,.. t0H0'A' SAUL EWING LLP 3 Al 11: 23 Attorneys For Plaintiff Joel C. Hopkins, Esquire Laura A. Gargiulo, Esquire (:' U'M B E R L A D C N N, ( Y Pa. Attorney ID Nos. 85096 and 8612 N N c Y LVA N @ A' 2 North Second Street, 7th Floor Harrisburg, PA 17101 (717) 257-7525 (717) 257-7590 (facsimile) PMSLIC INSURANCE COMPANY, IN THE COURT OF COMMON PLEAS Plaintiff, V. BERTRAM L. JOHNSON, JR., M.D., Defendant, and KELLY HODGEN, HAYDEE PAGLIAI, and TONI QUINN, Nominal Defendants : CUMBERLAND COUNTY, : PENNSYLVANIA : NO. 12-cv-1393 : ACTION FOR DECLARATORY : JUDGMENT AFFIDAVIT OF SERVICE True and correct copies of the Complaint filed in the above-captioned matter were served upon Defendant Bertram L. Johnson, Jr., M.D. on March 19, 2012, and upon Nominal Defendants Kelly Hodgen, Haydee Pagliai and Toni Quinn on March 30, 2012 as evidence by the Acceptance of Service forms attached hereto. I make these statements pursuant to 18 Pa. C.S.A. § 4904 relating to unsworn falsification to authorities and understand that false statements may subject me to criminal penalties under that statute. Date: April 2, 2012 Laura A. Gargiu o Attorney ID No. 86128 Saul Ewing LLP 2 North Second Street, 7`h Floor Harrisburg, PA 17101 (717) 257-7509 Attorneys for Plaintiff 179301.104/02/2012 SAUL EWING LLP Attorneys For Plaintiff Joel C. Hopkins, Esquire Laura A. Gargiulo, Esquire Pa. Attorney ID Nos. 85096 and 86128 2 North Second Street, 7th Floor Harrisburg, PA 17101 (717) 257-7525 (717) 257-7590 (facsimile) PMSLIC INSURANCE COMPANY, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, Plaintiff, PENNSYLVANIA V. . NO. 12-1393 BERTRAM L. JOHNSON, JR., M.D., Defendant, and KELLY HODGEN, HAYDEE PAGLIAI, ACTION FOR DECLARATORY and TONI QUINN, JUDGMENT Nominal Defendants ACCEPTANCE OF SERVICE I accept service of the Complaint filed in the above matter on behalf of Bertram L. Johnson, Jr., M.D., and certify that I am authorized to do so. Date: Je me Finel?bck; ?? Ne leton & Fine rock P. 316 orth Pine Street Lancaster, PA 17603-3333 SAUL EWING LLP Attorneys For Plaintiff Joel C. Hopkins, Esquire Laura A. Gargiulo, Esquire Pa. Attorney ID Nos. 85096 and 86128 2 North Second Street, 7th Floor Harrisburg, PA 17101 (717) 257-7525 (717) 257-7590 (facsimile) PMSLIC INSURANCE COMPANY, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, Plaintiff, PENNSYLVANIA V. NO. 12-1393 BERTRAM L. JOHNSON, JR., M.D., Defendant, and KELLY HODGEN, HAYDEE PAGLIAI, ACTION FOR DECLARATORY and TONI QUINN, JUDGMENT Nominal Defendants ACCEPTANCE OF SERVICE I accept service of the Complaint filed in the above m9tf/r on behalf of Haydee Pagliai, and certify that I am authorized to do so. Date: Mina hapiro, Esquire 53 No Duke Street, Suite 201 Lanca ter, PA 17602 SAUL EWING LLP Attorneys For Plaintiff Joel C. Hopkins, Esquire Laura A. Gargiulo, Esquire Pa. Attorney ID Nos. 85096 and 86128 2 North Second Street, 7`n Floor Harrisburg, PA 17101 (717) 257-7525 (717) 257-7590 (facsimile) PMSLIC INSURANCE COMPANY, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, Plaintiff, PENNSYLVANIA V. NO. 12-1393 BERTRAM L. JOHNSON, JR., M.D., Defendant, and KELLY HODGEN, HAYDEE PAGLIAI, ACTION FOR DECLARATORY and TONI QUINN, JUDGMENT Nominal Defendants ACCEPTANCE OF SERVICE I accept service of the Complaint filed in the above)afa4er on behalf of Kelly Hodgen, and certify that I am authorized to do so. Date: 7:7??, U I l Z Nina . Shtapiro, Esquire 53 N h Duke Street, Suite 201 Lan ster, PA 17602 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION PMSLIC INSURANCE COMPANY, Plaintiff, V. BERTRAM L. JOHNSON, JR., M.D., Defendant, and KELLY HODGEN, HAYDEE PAGLIAI, and TONI QUINN, Nominal Defendants. CIVIL ACTION NO. 12-1393 ACCEPTANCE OF SERVICE I accept service of the Complaint filed in the above matter on behalf of Toni Quinn, and certify that I am authorized to do so. Date: C? U Nina Shapiro, Esquire 53 rth Duke Street, Suite 201 L aster, PA 17602 Cl 12-1393 NETTLETON & FINEFROCK, P.C. BY: JEROME C. FINEFROCK Attorney ID. No. 29146 s 316 North Pine St. Lancaster, PA 17601-3333 (717) 808-4821(Tele) ` -v finefoz(a),comcast.net (e-mail) y -, Attorneys for Defendant s _ PMSLIC INSURANCE COMPANY w - : IN THE COURT OF COMMO . L S : CUMBERLAND COUNTY, Plaintiff PENNSYLVANIA V. BERTRAM L. JOHNSON, JR., M.D NO. CI 12-1393 Defendant And KELLY HODGEN, HAYDEE PAGLIAI, AND TONI QUINN ACTION FOR DECLARATORY JUDGMENT Nominal Defendants : PRAECIPE TO ENTER APPEARANCE TO THE PROTHONOTORY: Please enter my appearance in the above captioned matter. Respectfully submitted, NETTLETON & FINEFROCK, P.C. BY: Irome .Fefr rock orney for or Defendant ID #29146 316 North Pine St. Lancaster PA 17603-3333 DATED: ?` i (717) 808-4821 Cl 12-1393 CERTIFICATE OF SERVICE I hereby certify that I have this day served the foregoing attached document upon the following person, in the following manner: Service by first class mail, postage prepaid, as follows: Joel C. Hopkins, Esquire Laura A. Gargiulo, Esquire Saul Ewing, LLP 2 North Second St., 7 h Floor Harrisburg, PA 17101 (717) 257-7525 Attorneys for Plaintiff PMSLIC Insurance Company Nina B. Shapiro, Esquire 53 N. Duke St., Ste 201 Lancaster, PA 17602 Attorney for Nominal Defendants; Kelly Hodgen, Haydee Pagliai, & Toni Quinn Dater C. Finefrock--`- y for Defendant ID #29146 316 North Pine St. Lancaster PA 17603-3333 (717) 8084821 NETTLETON & FINEFROCK, P.C. BY: JEROME C. FINEFROCK Attorney ID. No. 29146 316 North Pine St. Lancaster, PA 17601-3333 (717) 808-4821(Tele) finefoz(a-),comcast.net (e-mail) Attorneys for Defendant Cl 12-1393 PMSLIC INSURANCE COMPANY IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, Plaintiff PENNSYLVANIA v.? ;- -3 BERTRAM L. JOHNSON, JR., M.D NO. Cl 12-1393, Defendant And rv KELLY HODGEN, HAYDEE PAGLIAI, AND TONI QUINN ACTION FOR DECLARATORY JUDGMENT Nominal Defendants TO: Joel C. Hopkins, Esquire Laura A. Gargiulo, Esquire Saul Ewing, LLP 2 North Second St., 74' Floor Harrisburg, PA 17101 NOTICE TO PLEAD You are hereby notified to file a written response to the enclosed Preliminary Objections within twenty (20) days from the date of service hereof or a judgment may be entered against you. & FINEFROCK, P.C. BY: DATED: ? lome C. Fine$dck A orney for Defendant ID 29146 316 North Pine St. Lancaster PA 17603-3333 (717) 8084821 Cl 12-1393 NETTLETON & FINEFROCK, P.C. BY: JEROME C. FINEFROCK Attorney ID. No. 29146 316 North Pine St. Lancaster, PA 17601-3333 (717) 8084821(Tele) finefoz(4comcast.net (e-mail) Attorneys for Defendant PMSLIC INSURANCE COMPANY : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. BERTRAM L. JOHNSON, JR., M.D NO. Cl 12-1393 Defendant And KELLY HODGEN, HAYDEE PAGLIAI, AND TONI QUINN ACTION FOR DECLARATORY JUDGMENT Nominal Defendants PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT Defendant, Bertram L. Johnson, MD, by and through his attorneys, preliminary objects to the Complaint for Declaratory Judgment filed by plaintiff and asks that the Complaint be dismissed, amended, or transferred, assigning the following reasons therefore. Cl 12-1393 1. Plaintiff sued Defendant praying for a Declaratory Judgment that an Insurance Policy, attached to Plaintiff's Petition, and issued in favor of Defendant does not cover him for the defense of a certain lawsuit also attached to Plaintiff's Petition. Preliminary objection, the complaint fails to attach venue in this Court 2. Plaintiff claims that venue is proper in this jurisdiction. 3. Plaintiff's claim of proper venue is incorrect as set out in the accompanying brief. 4. In the absence of proper Venue this Court has no authority to hear the instant matter. 5. Defendant is subject to proper Venue in the Court of Common Pleas of Lancaster County. WHEREFORE, Defendant asks that the complaint be dismissed or in the alternative be transferred to the Court of Common Pleas of Lancaster County, Pennsylvania. Preliminary objection, insufficient specificity of the complaint. 6. In its prayer for relief, plaintiff prays in one paragraph that it has no obligation to defend. The defendant, and in another paragraph that it has no obligation to indemnify the defendant. 7. Under Pennsylvania law, there is a difference between the obligation to defend, and the obligation to indemnify; the former obligation being more severe upon an insurance company. 8. This difference is recognized by the plaintiff in its exclusion S. (which is directly germane to the instant case) "to any liability that results from or is aggravated by alleged or actual sexual misconduct. However: 1, we will defend any claim directly resulting from sexual misconduct, except that no will be provided to any insured who admits or is CI 12-1393 adjudged or as otherwise proven to be the perpetrator;" 9. The plaintiffs main allegations are contained in paragraphs 16 through 60, however, these paragraphs do not specify whether each applies to the obligation to defend or the obligation to indemnify, nor do these paragraphs differentiate between two obligations. 10. The defendant is entitled to sufficient specificity so that he can plead his answer to each of these paragraphs and should not have to guess which one applies to which obligation. WHEREFORE, Defendant asks that the Complaint be dismissed or amended to satisfy this Preliminary Objection C _ Respectfully submitted DATED: Jbmi'Re C. Finefr6clt?-' tt om y for Defendant I =Irth 46 3Pine St. Lancaster PA 17603-3333 (717) 808-4821 CI 12-1393 NETTLETON & FINEFROCK, P.C. BY: JEROME C. FINEFROCK Attorney ID. No. 29146 316 North Pine St. Lancaster, PA 17601-3333 (717) 808-4821(Tele) finefox(4comcast.net (e-mail) Attorneys for Defendant PMSLIC INSURANCE COMPANY Plaintiff V. BERTRAM L. JOHNSON, JR., M.D Defendant And KELLY HODGEN, HAYDEE PAGLIAI, AND TONI QUINN IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. Cl 12-1393 ACTION FOR DECLARATORY JUDGMENT Nominal Defendants MEMORANDUM OF LAW IN SUPPORT OF PRELIMINARY OBJECTIONS 1. Introduction Plaintiff is an insurance company. Defendant is a medical doctor insured by plaintiff. Plaintiff has brought this declaratory judgment action, claiming that it does not owe the doctor a duty of defense or of indemnification. This claim is based on the nature of the underlying lawsuit, which itself claims that the defendant doctor engaged in sexually Cl 12-1393 impermissible actions, while performing physical examinations. The underlying lawsuit. also has causes of action relating to termination of employees, and various employment issues. II. Analysis A. A case should be dismissed on preliminary objections where the dismissal is clearly warranted and free from doubt. The test on preliminary objections is not, whether the applicable law is clear and free from doubt, but whether it is clear and free from doubt from the facts pleaded that the plaintiff will be unable to prove facts legally sufficient to establish its right to relief. Interstate Traveler Services, Inc. v. Commonwealth Department of Evironmental Resources, 486, PA. 536, 406 A.2d 1020 (1979), Firing v. Kephart, 466, Pa 560, 353 A.2d 833(1976). Of course, the preferred solution to a preliminary objection is in the case of venue, transfer, and in case of insufficient specificity, amendment. In the instant case, there is no question of statute of limitations. B. The complaint should be transferred or dismissed, because it improperly sets venue in this Court. As a threshold observation the policy of insurance attached to plaintiffs declaratory judgment action does not contain a forum clause. The drafting of a policy of insurance is clearly within the purview of the insurance county and the insurance company must have any doubts raised by that policy decided against it.., Cadwallader v. New Amsterdam Casualty Co., 396 Pa. 582, 587, 152 A.2d 484, 487 (1959). Clearly, such a forum clause would have made the question of venue easy to decide. The court should assume that it was the plaintiff insurance company's decision to not have a stated venue or forum clause Cl 12-1393 and that the plaintiff would rely upon Pa R.C.P. 1006 (a)(1). Given that the defendant physician could have been served where he resides in Lancaster County the operative provision of the section is "... where a transaction or occurrence took place out of which the cause of action arose" The Pennsylvania Supreme Court, in the seminal case of Craig v. W.J. Thiele & Sons, Inc., 395 Pa. 129, 149 A.2d 35 (1959) clearly held that an occurrence is not a part a transaction and that the various operative parts of the contract formation transaction cannot be split so that venue may attach where any portion of the formation formalities were performed. Rather, the transaction that governs the formation of a contract of insurance occurs where acceptance occurs. So, just because the plaintiff had issued the policy in Cumberland County, and the defendant had paid for the policy in Lancaster County is not dispositive. Applying the well known concept of commercial law, the Court, in Craig held that a contract of insurance is made where it is accepted. In the instant case, the plaintiff and the defendant had been contracting for insurance for 35 years. It is now impossible to determine where the original contract was made; was it made by an agent, was it made by telephone or was it made in an of written material. We do know, however, how the contract of insurance that specifically covers the underlying case was made. The defendant received an insurance policy by mail, along with a bill. This was an offer At his office in Lancaster County he paid the bill by an office check and deposited in the U.S. mail. He thus accepted the offered policy and formed the contract of insurance in Lancaster County. The occurrence was in Lancaster County, Pennsylvania. Venue is improper in Cumberland County. CI 12-1393 C. The Complaint should be dismissed or amended since it is insufficiently specific. In its prayer for relief, plaintiff prays separately for two reliefs, one, that it has no obligation to defend the plaintiff and two, that it has no obligation to indemnify the defendant. Our jurisprudence establishes a difference between the obligation of an insurance company to defend an insured and the obligation of an insurance Company to indemnify an insured. The insurance company that fails to defend, as opposed to indemnify does so at its risk. It is obligated to defend its insured if the underlying cause of action may fall within the policy coverage. Cadwallader, at 589,488, Germantown Insurance Company v. Martin, 407 Pa. Super. 326, 595 A.2d 1172 (1991), United Services Auto Ass'n v. Elil*y, 358 Pa. Super. 362, 517 A.2d 982 (1986). The underlying complaint sets the parameters of the obligation to defend. Hartford Mut. . Ins. Co. v. Moorhead, 396 Pa. Super. 234, 238-9 578 A.2d 492, 494-5 (1990). Here, we underlying complaint is replete with claims that relate to medical happenings. Paglia spoke to defendant about her symptoms and possible prescription medication, defendant agreed to examine her after his last patient, and that his actions were beyond the scope of examination. Quinn experienced chest pains sought care and treatment from Dr. Johnson. Defendant ordered a chemical stress test. The defendant examined Quinn in the examination room, and again the same language--beyond the scope of examination. These claims bring that portion of the underlying complaint under the duty to defend the insured doctor against a medical happening, even if the ultimate judgment, because of a verdict, would be one that would not be indemnifable. The plaintiff insurance company clearly agrees with this difference. See its exclusion S. CI 12-1393 (which is directly germane to the instant case) "to any liability that results from or is aggravated by alleged or actual sexual misconduct. However: 1, we will defend any claim directly resulting from sexual misconduct, except that no will be provided to any insured who admits or is adjudged or as otherwise proven to be the perpetrator;" This exclusion should be construed against Plaintiff, Cadwallader at 587,487. If the plaintiff had separated its allegations by those relating to defense and those relating to indemnification the defendant would have a fair opportunity to defend. The plaintiffs main allegations are jumbled together in paragraphs 16 through 60 and these paragraphs do not specify whether each applies to the obligation to defend or the obligation to indemnify, nor do these paragraphs differentiate between two obligations. The defendant is entitled to sufficient specificity so that he can plead his answer to each of these paragraphs and should not have to guess which one applies to which obligation. Respectfully submitted, NETTLETON & FINEFROCK, P.C. BY: 1 "J" `- Jer me C. `Fti bc? ?tt ev for Defendant oArzD f Q#29146 316 North Pine St. Lancaster PA 17603-3333 (717) 808-4821 Cl 12-1393 VERIFICATION I, Bertram L. Johnson, Jr., M.D. hereby verify that the information contained in the foregoing Pleading is true and correct to the best of my knowledge, information and belief. I further understand that false statements made herein are subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities. BE L. JO DATED: Lt 1a1??. Cl 12-1393 CERTIFICATE OF SERVICE I hereby certify that I have this day served the foregoing attached pleading upon the following persons, in the following manner: Service by first class mail, postage prepaid, as follows: Joel C. Hopkins, Esquire Laura A. Gargiulo, Esquire Saul Ewing, LLP 2 North Second St., 70' Floor Harrisburg, PA 17101 (717) 257-7525 Attorneys for Plaintiff PMSLIC Insurance Company Nina B. Shapiro, Esquire 53 N. Duke St., Ste 201 Lancaster, PA 17602 Attorney for Nominal Defendants; Kelly Hodgen, Haydee Pagliai, & Toni Quinn NETTLETON & FINEFROCK, PC Date: Je e C. Finefrock Atty for Defendant ID #2 46 316 North Pine St. Lancaster PA 17603-3333 (717) 808-4821 SAUL EWING LLP §: ?` r g `R V' `' Attorneys For Plaintiff Joel C. Hopkins, Esquire Laura A. Gargiulo, Esquire' r - t, Pa. Attorney ID Nos. 85096 and 86128 Cf COUNT': 2 North Second Street, 7 Floor Harrisburg, PA 17101 (717) 257-7525 (717) 257-7590 (facsimile) PMSLIC INSURANCE COMPANY, : IN THE COURT OF COMMON PLEAS Plaintiff, . CUMBERLAND COUNTY, V. : PENNSYLVANIA : NO. 12-cv-1393 BERTRAM L. JOHNSON, JR., M.D., Defendant, and KELLY HODGEN, HAYDEE PAGLIAI, and TONI QUINN, : ACTION FOR DECLARATORY : JUDGMENT Nominal Defendants PMSLIC INSURANCE COMPANY'S RESPONSE TO DEFENDANT BERTRAM L. JOHNSON, M.D.'S PRELIMINARY OBJECTIONS AND NOW, comes Plaintiff, PMSLIC Insurance Company ("PMSLIC"), by and through its undersigned counsel, Saul Ewing LLP, and files this response to Preliminary Objections of Bertram L. Johnson, Jr., M.D. ("Johnson"), averring in support thereof as follows: 1. Admitted in part, denied in part. It is admitted that PMSLIC filed this action for Declaratory Judgment. The remaining averments of this paragraph are denied as an attempt to characterize a written document that speaks for itself, which constitutes a conclusion of law to which no response is required. 2. Admitted. 3. Denied as a conclusion of law to which no response is required. By way of further response, this Court has already determined that venue in a declaratory judgment action seeking to interpret a policy of insurance issued by PMSLIC is appropriate in Cumberland County. See PMSLIC Insurance Company v. Robert C. Knapp, M.D., No. 2011-1388, Opinion and Order (Cumberland Co. May 9, 2011), a copy of which is attached hereto as Exhibit A. Moreover, PMSLIC's choice of forum is to be given "great weight," Shears v. Rigley, 623 A.2d 821, 824 (Pa. Super. 1993), and Johnson has offered nothing to show that PMSLIC's "chosen forum is oppressive or vexatious to the defendant." See Catagnus v. Allstate Ins. Co., 864 A.2d 1259, 1264 (Pa. Super. 2004) (reversing a trial court's grant of a petition to transfer venue) (internal quotation marks omitted) (quoting Cheeseman v. Lethal Exterminator, 701 A.2d 156, 159 (Pa. 1997)). Nothing in Johnson's objections indicate that PMSLIC's choice of forum was designed to harass Johnson or that trial in Cumberland County is oppressive to him. See id. (internal quotation marks omitted) (quoting Wood v. E.I. DuPont De Nemours and Co., 829 A.2d 707, 712 (Pa. Super. 2003)). 4. Denied as a conclusion of law to which no response is required. 5. Denied as a conclusion of law to which no response is required. WHEREFORE, Plaintiff PMSLIC Insurance Company respectfully requests that this Court overrule the Preliminary Objections of Bertram L. Johnson, M.D., order Johnson to answer the Complaint within twenty (20) days of the Court's Order, and grant such further relief as the Court deems just and equitable. 6. It is admitted that subparagraph a. of the Complaint's prayer for relief seeks a declaration that PMSLIC has no duty to defend Johnson in connection with the Underlying Action, and that subparagraph b. seeks a declaration that PMSLIC has no duty to indemnify Johnson in connection with that action. 7. Denied as a conclusion of law to which no response is required. -2- 8. Denied as an attempt to characterize a written document that speaks for itself, which constitutes a conclusion of law to which no response is required. 9. Denied as an attempt to characterize a written document that speaks for itself, which constitutes a conclusion of law to which no response is required. By way of further response, there is no requirement under the Rules of Civil Procedure that the Complaint attempt to tie certain factual allegations to the specific relief requested. 10. Denied as a conclusion of law to which no response is required. By way of further response, the facts set forth in the Complaint are more than specific enough to allow Johnson to respond thereto, and Johnson's purported inability to discern what facts relate to the duties to defend or indemnify, to the extent such facts were severable in that manner, which is expressly denied, does not prevent Johnson from being aware of what is being alleged and responding thereto. WHEREFORE, Plaintiff PMSLIC Insurance Company respectfully requests that this Court overrule the Preliminary Objections of Bertram L. Johnson, M.D., order Johnson to answer the Complaint within twenty (20) days of the Court's Order, and grant such further relief as the Court deems just and equitable. Respectfully submitted, Dated: April 24, 2012 -? Joel C. Hopkins, Esquire Attorney I.D. # 85096 Laura A. Gargiulo, Esquire Attorney I.D. # 86128 Saul Ewing LLP 2 North Second Street, 7th Floor Harrisburg, PA 17101 (717) 257-7525 Attorneys for Plaintiff PMSLIC Insurance Company -3- e;????? ,•9 PMSLIC INSURANCE COMPANY, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. ROBERT C. KNAPP, M.D., No. 2011-1388 CIVIL Defendant, and TRACY COTTERS; ROBERT LANEY and KRISTY PALITTI, husband and wife; BOBBI ANN CONNIFEY and MICHAEL CONNIFEY, husband and wife; REGINA WINTERS; MECHELLE POLING and DAVID POLING, husband and wife, Nominal Defendants IN RE: DEFENDANTS' PRELIIVIINARY OBJECTIONS AND PETITION TO TRANSFER VENUE ORDER OF COURT AND NOW, this 9d' day of May, 2011, after consideration of Defendants' Preliminary Objections and Defendant Knapp's Petition to Transfer Venue, IT IS HEREBY ORDERED AND DIRECTED that the Defendants' Preliminary Objections are OVERRULED and Defendant Knapp's Petition to Transfer Venue is DENIED. By the Court, \o, M. L. Ebert, Jr., J. 1 Amanda R. Gerstnecker, Esquire Beth A. Slagle, Esquire Meyer, Unkovic & Scott, LLP 1300 Oliver Building Pittsburg, PA 15222 Attorneys for Defendant Knapp Charles F. Bowers III, Esquire Bowers Ross & Fawcett, LLC 820 Kennedy Drive P.O. Box 280 Ambridge, PA 15003 Attorney for Nominal Defendants Tracy Cotters, Kristy Palitti, Robert Laney, and Bobbi Ann Connifey Michael A. Murphy, Esquire Ogg, Murphy & Perkosky, LLP 245 Fort Pitt Boulevard Pittsburgh, PA 15222 Attorney for Nominal Defendant Regina Winters Mechelle and David Poling 230 Dogwood Circle Baden, Pennsylvania 15005 Nominal Defendants 2 PMSLIC INSURANCE COMPANY, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. ROBERT C. KNAPP, M.D., Defendant, and TRACY COTTERS; ROBERT LANEY and KRISTY PALITTI, husband and wife; BOBBI ANN CONNIFEY and MICHAEL CONNIFEY, husband and wife; REGINA WINTERS; MECHELLE POLING and DAVID POLING, husband and wife, Nominal Defendants No. 2011-1388 CIVIL IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS AND PETITION TO TRANSFER VENUE OPINION AND ORDER OF COURT Ebert, Jr., May 9, 2011 - Background Plaintiff is PMSLIC Insurance Company ("PMSLIC"), a Pennsylvania medical professional liability insurance company with its principle place of business at 1700 Bent Creek Boulevard, Mechanicsburg, Cumberland County, Pennsylvania.' Defendant Robert C. Knapp, M.D., resides at 104 Brian Drive, Beaver, Beaver County, Pennsylvania, and operates a medical practice at 701 Sharon Road, Beaver, Beaver County, Pennsylvania.2 Nominal Defendants Tracey Cotters, Robert Laney and wife Kristy Palitti, Bobbi Ann Connifey and husband Michael Complaint, Sled Feb. 7, 2011, 91. Z Complaint, 12. 3 Connifey, and Mechelle Poling and husband David Poling, are all residents of Beaver County, P ennsylvania.3 Nominal Defendant Regina Winters is a resident of East Liverpool, Ohio.4 Defendant Knapp is insured by Plaintiff and complaints have been filed against him in B eaver County by Nominal Defendants alleging intentional and negligent conduct and inappropriate contact that was not for the purposes of medical treatment or diagnosis. Defendant Knapp's insurance policy issued by Plaintiff contains certain exclusions to coverage. 5 on February 7, 2011, Plaintiff filed a Complaint for Declaratory Judgment in Cumberland County for relief from defense and liability of Defendant based on the nature of the complaints against him brought by Nominal Defendants. Because Defendant's insurance policy was formed in and issued from Cumberland County, Plaintiff filed its Action for Declaratory Judgment in Cumberland County. Defendant Knapp and Nominal Defendants Cotters, Laney and Palitti, the Connifeys, and Winters filed Preliminary Objections for improper venue. Defendant Knapp also filed a Petition for Change of Venue. For the reasons discussed below, we overrule Defendants' Preliminary Objections and deny Defendant Knapp's Petition for Change of Venue. Discussion A. Venue is proper in Cumberland County. Venue is proper in Cumberland County because the insurance policy to be interpreted is a contract that was formed in Cumberland County. Formation of a contract is a transaction or occurrence sufficient to establish venue in this case. An action against an individual may 3 Complaint, 13, 4, 5, 7. a Complaint, 16. 5 Complaint, 117. 4 properly be brought in and only in a county in which: (1) the individual may be served or in which the cause of action arose or where a transaction or occurrence took place out of which the cause of action arose or in any other county authorized by law, ... . Pa. R.C.P. 1006 (a)(1). (emphasis added). In the case of multiple defendants, 2) If the action to enforce a joint or joint and several liability against two or more defendants includes one or more medical professional liability claims, the action shall be brought in any county in which the venue may be laid against any defendant under subdivision (a.l). Pa.R.C.P. 1006 (c)(2). Defendant Knapp claims in part that venue is improper because he completed the insurance application in Beaver County, signed the policy and received bills in Beaver County, and mailed premium payments from Beaver County.6 Pennsylvania courts have made it clear that these actions do not constitute acceptance of a contract, and that venue is proper where acceptance takes place. The Pennsylvania Superior Court has held that the "making of a contract, which takes place where the offer is accepted, undoubtedly constitutes a `transaction or occurrence' sufficient to establish venue." Lucas Enterprises, Inc. v. Paul C. Harman Company, Inc., 417 A.2d 720, 721 (Pa. Super. 1980). An insurance policy is a contract, and the interpretation of a contract is a question of law. Wall Rose Mut. Ins. Co. v. Manross, 939 A.2d 958, 962 (Pa. Super. 2007). The Pennsylvania Supreme Court has held that an application for life insurance is an offer or proposal to contract, not a contract, and that even payment of a premium does not create a contract. Munhall v. Travelers' Ins. Co., 150 A. 645, 648 (Pa. 1930). In Munhall, the plaintiff could not recover when her husband had completed an application for life insurance and paid premiums, but died before the policy was issued. The court stated 6 Defendant Knapp's Preliminary Objections to Complaint, filed 3/31/11, 127-29. As the application was but an offer, the company was free to accept or reject it. The mere execution of the policy is not an acceptance; an acceptance, to be complete, must be communicated to the offeror, either directly, or by some definitive act, such as placing the contract in the mail. Id. at 648. Like in Munhall, Defendant in the present case only made an offer when he completed the application for insurance. A contract was formed between the parties when Plaintiff accepted the offer by approving Defendant's application and issuing and delivering his policy to him. Plaintiff accepted Dr. Knapp's application for insurance at its offices in Cumberland County.? The Pennsylvania Commonwealth Court held that venue was proper in Dauphin County when a Beaver County debtor entered into a loan agreement with a Beaver County lender and a Dauphin County guarantor and the guarantor filed an assumpsit action in Dauphin County when the debtor defaulted on the loan. Pennsylvania Higher Education Assistance Agency v. Christon, 400 A.2d 1329 (Pa. Cmwlth. 1979). The Commonwealth Court used the Pennsylvania Supreme Court's reasoning behind the rules for venue, stating that the purpose is to "permit a plaintiff to institute suit against the defendant in the county most convenient for him and his witnesses and to assure that the county selected had a substantial relationship to the controversy between the parties and was thereby a proper forum to adjudicate the dispute." Id. at 1330 (quoting County Construction Co. V. Livengood Construction Corp., 142 A.2d 9,13 (Pa. 1958)). The court found that Dauphin County and the controversy in that case had met the substantial relationship test and that it was clearly more convenient for appellee to institute suit in its home county. In the present case, venue is proper in Cumberland County because the contract was accepted and formed in Cumberland County. Furthermore, a substantial relationship with Cumberland County exists because Defendant Knapp submitted his claims governed by the ' PMSLIC's Response to Preliminary Objections of Regina Winters, filed Mar. 28, 2011, 17. 6 contract to Cumberland County, and, because PMSLIC's only office is in Cumberland County, insurance premiums were paid in Cumberland County.8 The underlying issue in the present action for declaratoryjudgment involves a request for interpretation of an insurance contract between PMSLIC and Knapp. It is well-settled that the interpretation of an insurance policy is a question of law for the court. Young by Young v. Equitable Life Assur. Soc. of U.S., 504 A.2d 339 (Pa. Super. 1986). Furthermore, the interpretation of an insurance policy is a matter properly resolved in a declaratory judgment action. Erie Ins. Exchange v. Muff, 851 A.2d 919, 925 (Pa. Super 2004) (citing Aetna Cas. and Sur. Co. v. Roe, 650 A.2d 94, 98 (Pa. Super. 1994). The Pennsylvania Superior Court has stated that: It is not the actual details of the injury, but the nature of the claim which determines whether the insurer is required to defend. The duty to defend is limited to only those claims covered by the policy. The insurer is obligated to defend if the factual allegations of the complaint on its face comprehend an injury which is actually or potentially within the scope of the policy. Thus, the insurer owes a duty to defend if the complaint against the insured alleges facts which would bring the claim within the policy's coverage if they were true. It does not matter if in reality the facts are completely groundless, false, or fraudulent. It is the face of the complaint and not the truth of the facts alleged therein which determines whether there is a duty to defend. Tuscarora Wayne Mutual Insurance Company v. Kadlubosky, 889 A.2d 557, 561 (Pa. Super. 2005) (quoting Erie Ins. Exchange v. Muff, 851 A.2d at 926). Interpretation of the contract is a proper matter of law for this court to decide in a declaratory judgment action. The contract was accepted in, and policy issued from, Cumberland County. A substantial relationship exists between the controversy in this case because the policy at issue was formed in Cumberland County, premiums were paid in Cumberland County, and 8 In Lucas, the Pennsylvania Superior Court adopted the rule that "in the absence of agreement to the contrary, .. . payment is due at the plaintiff's residence or place of business, and venue is proper there in a breach of contract action alleging failure'to make payment." Lucas, 417 A.2d at 721. 7 claims were submitted in Cumberland County. Accordingly, we find that venue is proper in Cumberland County for this declaratory judgment action. B. Venue should not be transferred to Beaver County. In reviewing Defendant's Petition to Transfer Venue, we find that Defendant has not met the required burden to establish that venue should be transferred to Beaver County for consideration of this declaratory judgment action. It is well established that "the trial court is accorded `considerable discretion in determining whether or not to grant a petition for change of venue, and the standard of review is one of abuse of discretion."' 84 Lumber Company, L.P. v. Fish Hatchery, L.P., 934 A.2d 116,117 (Pa. Super. 2007). Pennsylvania courts have established that a plaintiff s choice of venue should be given great deference. See Cheeseman v. Lethal Exterminator, Inc., 701 A.2d 156 (Pa. 1997). In Cheeseman, the Pennsylvania Supreme Court stated that a petition to transfer venue should not be granted unless the defendant meets its burden of demonstrating, with detailed information on the record, that the plaintiffs chosen forum is oppressive or vexatious to the defendant. Thus, ... the defendant may meet its burden of showing that the plaintiffs choice of forum is vexatious to him by establishing with facts on the record that the plaintiffs choice of forum was designed to harass the defendant, even at some inconvenience to the plaintiff himself. Alternatively, the defendant may meet his burden by establishing on the record that trial in the chosen forum is oppressive to him; for instance, that trial in another county would provide easier access to witnesses or other sources of proof, or to the ability to conduct a view of premises involved in the dispute. But, we stress that the defendant must show more than that the chosen forum is merely inconvenient to him. Id. at 162. In Wilson v. Levine, 963 A.2d 479 (Pa. Super. 2008), the Pennsylvania Superior Court found that the trial court erred when it granted the appellees' preliminary objections and transferred venue from Butler County to Montgomery County, even when most witnesses were located in Montgomery County, appellee lived in Montgomery County, appellee's principle place of business was in Montgomery County, and appellee had a medical condition which appellee alleged made travel difficult. The court found that the record did not support the trial court's conclusions that Wilson's choice of forum was oppressive or designed to harass appellees. The court stated "at best, the record reflects Appellees' showing that Wilson's chosen forum is `merely inconvenient' to them. Thus, the trial court abused its discretion in granting the petition to transfer." Wilson, 963 A.2d at 489. (internal citations omitted). Like in Wilson, Defendant in the present Action for Declaratory Judgment establishes only that Plaintiff's choice of forum is inconvenient. Defendant Knapp alleges that (1) Beaver County is "more convenient to the majority of witnesses in this matter,"9 (2) Knapp maintains business records relating to the Policy and medical records relating to the underlying claims in Beaver County, 10 (3) the burden to Dr. Knapp of proceeding in Cumberland County would be significantly greater than the burden to PMSLIC of proceeding in Beaver County. 11,12 Defendant also states the conclusion that litigation in Cumberland County would be unduly oppressive and/or vexatious for Dr. Knapp13 and to the Nominal Defendants.la In reviewing Defendant Knapp's reasons for requesting transfer of venue using the applicable standard, we find that Defendant has not met his burden of demonstrating that Plaintiff s choice of forum is oppressive and/or vexatious. He states only matters of convenience and makes conclusory statements without the required supporting facts. Defendant has shown that Plaintiff's choice of forum is merely inconvenient. Therefore, Defendant has not met his burden to allow a transfer of venue to Beaver County, and this action will proceed in 9 Petition to Transfer Venue, 119. to Petition to Transfer Venue, 23. 11 Petition to Transfer Venue, 27. 12 The Pennsylvania Superior Court has made it clear that a defendant must prove more than inconvenience and that using a balancing best is a misapplication of the law. See Catagnus v. Allstate Ins. Co., 864 A.2d 1259 (Pa. Super. 2004), see also Raymond v. Park Terrace Apartments, Inc., 882 A.2d 518 (Pa. Super. 2005). 13 Petition to Transfer Venue, 128. 14 Petition to Transfer Venue, 129 9 Cumberland County. Again, what is being decided here in Cumberland County is not the underlying claims of the Nominal Defendants against Dr. Knapp, but whether or not PMSLIC has any obligation to defend or indemnify Dr. Knapp. Accordingly, the following Order shall be entered: AND NOW, this 9 h day of May, 2011, after consideration of Defendants' Preliminary Objections and Defendant Knapp's Petition to Transfer Venue, IT IS HEREBY ORDERED AND DIRECTED that the Defendants' Preliminary Objections are OVERRULED and Defendant Knapp's Petition to Transfer Venue is DENIED. By the Court, ? I UA M. L. Ebert, Jr., J. Amanda R. Gerstnecker, Esquire Beth A. Slagle, Esquire Meyer, Unkovic & Scott, LLP 1300 Oliver Building Pittsburg, PA 15222 Attorneys for Defendant Knapp Charles F. Bowers III, Esquire Bowers Ross & Fawcett, LLC 820 Kennedy Drive P.O. Box 280 Ambridge, PA 15003 Attorney for Nominal Defendants Tracy Cotters, Kristy Palitti, Robert Laney, and Bobbi Ann Connifey Michael A. Murphy, Esquire Ogg, Murphy & Perkosky, LLP 245 Fort Pitt Boulevard Pittsburgh, PA 15222 Attorney for Nominal Defendant Regina Winters 10 Mechelle and David Poling 230 Dogwood Circle Baden, Pennsylvania 15005 Nominal Defendants 11 CERTIFICATE OF SERVICE I hereby certify that on this 24'x' day of April, 2012, I served a true and correct copy of the foregoing document by first class mail, postage prepaid, upon the following persons: Jerome C. Finefrock Nettleton & Finefrock, P.C. 316 North Pine Street Lancaster, PA 17601-3333 Attorney for Defendant Johnson Nina B. Shapiro, Esquire 53 North Duke Street, Suite 201 Lancaster, PA 17602 Attorney for Nominal Defendants Kelly Hodgen, Haydee Pagliai, and Toni Quinn aura A. G iulo -4- C? lK PRAECIPE FOR LISTING CASE FOR ARGUMENT FIC? (Must be typewritten and submitted in triplicate) ° a? r y _1 r U, TA. TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter fornl?ielr 27 AIN I I : 10 Argument Court.) June 1, 2012 ------ --------------------------------------------------------------------------- ------- ------- ------..---- ., , 'TI CAPTION OF CASE r} D ?? S Y LW? V i. (entire caption must be stated in full) PMSLIC Insurance Company vs. Bertram L. Johnson, Jr. M.D. (Defendant) ar © No. CI 12 1393 Term 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Defendant, Bertram L. Johnson, Jr., M.D.'s Preliminary Objections to Complaint 2. Identify all counsel who will argue cases: (a) for plaintiffs: Joel C. Hopkins, Esquire (Name and Address) Saul Ewing, 2 North Second Street, Harrisburg, PA 17101 (b) for defendants: Jerome C. Finefrock, Esquire (Name and Address) Nettleton & Finefrock, 316 North Pine Street, Lancaster, PA 17603-3333 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: June 1, 2012 Laura A. Gargiulo Sig , ur Prin your name PMSLIC Insurance Company Date: 4/26/2012 Attorney for 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. au4 %119- 750 ON 01, *j I -S'? USS V #.27 4 3.?-? SAUL EWING LLP Attorneys For Plaintiff Joel C. Hopkins, Esquire Laura A. Gargiulo, Esquire Pa. Attorney ID Nos. 85096 and 86128 w 2 North Second Street, 7 Floor Harrisburg, PA 17101 (717) 257-7525 (717) 257-7590 (facsimile) PMSLIC INSURANCE COMPANY, : IN THE COURT OF COMMON PLEAS Plaintiff, . CUMBERLAND COUNTY, : PENNSYLVANIA V. : NO. 12-cv-1393 BERTRAM L. JOHNSON, JR., M.D., Defendant, and KELLY HODGEN, HAYDEE PAGLIAI, and TONI QUINN, : ACTION FOR DECLARATORY : JUDGMENT Nominal Defendants PRAECIPE TO LIST FOR ARGUMENT TO THE PROTHONOTARY: Pursuant to C.C.R.P. 1028(c), kindly list the Preliminary Objections filed by Defendant Bertram L. Johnson, Jr., M.D. for the next Argument Court. Dated: April 24, 2012 Respectfully submitted, 2 North Second Street, 7 Floor Harrisburg, PA 17101 (717) 257-7525 Attorneys for Plaintiff PMSLIC Insurance Company Saul Ewing LLP th Joel C. Hopkins, Esquire Attorney I.D. # 85096 Laura A. Gargiulo, Esquire Attorney I.D. # 86128 CERTIFICATE OF SERVICE I hereby certify that on this 24`h day of April, 2012, I served a true and correct copy of the foregoing document by first class mail, postage prepaid, upon the following persons: Jerome C. Finefrock Nettleton & Finefrock, P.C. 316 North Pine Street Lancaster, PA 17601-3333 Attorney for Defendant Johnson Nina B. Shapiro, Esquire 53 North Duke Street, Suite 201 Lancaster, PA 17602 Attorney for Nominal Defendants Kelly Hodgen, Haydee Pagliai, and Toni Quinn -0 1 ? ft ? ?-- Is Laura A. Gargiulo -2- Nina B. Shapiro, Esquire 17 prney for Nominal Defendants PA ID # 44040 53 North Duke Street, Suite 201 Lancaster, PA 17602 ° - r r ' SJ i ( " (717) 399-8720 (717) 399-8744 (facsimile) PMSLIC INSURANCE COMPANY, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY. Plaintiff, PENNSYLVANIA V. NO. 12-1393 BERTRAM L. JOHNSON, J R., M.D., Defendant, and KELLY HODGEN, HAYDEE PAGLIAI, : ACTION FOR DECLARATORY and TONI QUINN, : JUDGMENT Nominal Defendants NOMINAL DEFENDANTS' ANSWER TO PLAINTIFF'S ACTION FOR DECLARATORY JUDGMENT AND NOW COMES, Nominal Defendants Kelly Hodgen, Haydee Pagliai, and Toni Quinn, by and through their counsel, Nina B. Shapiro, Esquire, files this Answer to the Action for Declaratory Judgment as follows: The Parties: 1. Neither admit or deny that PMSLIC Insurance Company ("PMSLIC") is a medical professional liability insurance and that it operates out of Mechanicsburg. Nominal Defendants are without information, knowledge or belief without investigation and discovery. 2. Admitted. 1 It is admitted only that Nominal Defendant Kelly Hodgen ("Hodges") is an adult individual residing in Lancaster County, Pennsylvania. 4. It is admitted only that Nominal Defendant Haydee Pagliai ("Pagliai") is an adult individual residing in Lancaster County, Pennsylvania. It is admitted only that Nominal Defendant Toni Quinn ("Quinn") is an adult individual residing in Lancaster County, Pennsylvania 6. Neither admit or deny. The allegations contained in this paragraph of the Action for Declaratory Judgment constitute conclusions of law to which no responsive pleading is required. Jurisdiction and Venue: 7. The allegations contained in this paragraph of the Action for Declaratory Judgment constitute conclusions of law to which no responsive pleading is required, and they are therefore deemed denied and otherwise, in the alternative, are the subject of pending preliminary objections filed by Defendant L. Bertram Johnson, M.D. 8. The allegations contained in this paragraph of the Action for Declaratory Judgment constitute conclusions of law to which no responsive pleading is required, and they are therefore deemed denied and otherwise, in the alternative, are the subject of pending preliminary objections filed by Defendant L. Bertram Johnson, M.D. The PMSLIC Policy: 9. Neither admit or deny. Nominal Defendants are unable to respond without investigation and discovery. 10. Neither admit or deny. Nominal Defendants are unable to respond without investigation and discovery. 11. Neither admit or deny. Nominal Defendants are unable to respond without investigation and discovery. The allegations contained in this paragraph of the Action for Declaratory Judgment constitute conclusions of law to which no responsive pleading is required, and they are therefore deemed denied. 12. The allegations contained in this paragraph of the Action for Declaratory Judgment constitute conclusions of law to which no responsive pleading is required, and they are therefore deemed denied. In the alternative, Nominal Defendants are unable to respond without investigation and discovery. 13. The allegations contained in this paragraph of the Action for Declaratory Judgment constitute conclusions of law to which no responsive pleading is required, and they are therefore deemed denied. In the alternative, Nominal Defendants are unable to respond without investigation and discovery. 14. The allegations contained in this paragraph of the Action for Declaratory Judgment constitute conclusions of law to which no responsive pleading is required, and they are therefore deemed denied. In the alternative, Nominal Defendants are unable to respond without investigation and discovery. 15. The allegations contained in this paragraph of the Action for Declaratory Judgment constitute conclusions of law to which no responsive pleading is required, and they are therefore deemed denied. In the alternative, Nominal Defendants are unable to respond without investigation and discovery. The Underlying Complaints: 16. Admit and refer in entirety to attached Complaint filed in Lancaster County Court of Common Pleas captioned Kelly Hodgen, Haydee Pagliai and Toni Quinn v. Lancaster Cardiology Group, LLC and Dr. Bertram Johnson, No. CI-09-14652. 17. Admit that Kelly Hodgen and Haydee Pagliai were employed by Defendant Johnson and that otherwise the attached Complaint is incorporated and referenced in its entirety. 18. Admit but not limited to and that otherwise the attached Complaint is incorporated and referenced in its entirety. 19. Admit but not limited to and that otherwise the attached Complaint is incorporated and referenced in its entirety. 20. Admit but not limited to and that otherwise the attached Complaint is incorporated and referenced in its entirety. 21. Admit but not limited to and that otherwise the attached Complaint is incorporated and referenced in its entirety. 21 Admit but not limited to and that otherwise the attached Complaint is incorporated and referenced in its entirety. 23. Admit but not limited to and that otherwise the attached Complaint is incorporated and referenced in its entirety. 24. Admit but not limited to and that otherwise the attached Complaint is incorporated and referenced in its entirety. 25. Admit that Johnson wrongfully discharged Hodgen in retaliation for her testimony before the Commission but not limited to as well as for complaining and reporting sexual harassment and discrimination and for complying with a Subpoena issued for investigation of the 4 incorporated and referenced in its entirety. 26. Admit but not limited to and that otherwise the attached Complaint is incorporated and referenced in its entirety. 27. Admit and that otherwise the attached Complaint is incorporated and referenced in its entirety. 28. Admit but not limited to and additional damages sought for statutory relief under the Lancaster County Human Relations Act and statutory relief under the Pennsylvania Human Relations Act including payment of attorney's fees and costs. The attached Complaint is incorporated and referenced in its entirety. 29. Admit but not limited to and that otherwise the attached Complaint is incorporated and referenced in its entirety. 30. Admit but not limited to and that otherwise the attached Complaint is incorporated and referenced in its entirety. 31. Admit but not limited to and that otherwise the attached Complaint is incorporated and referenced in its entirety. 32. Admit and that otherwise the attached Complaint is incorporated and referenced in its entirety. The Coverage Dispute: 33. Answering Nominal Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph of the Action for Declaratory Judgment without investigation and discovery. 5 34. Answering Nominal Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph of the Action for Declaratory Judgment without investigation and discovery. 35. Answering Nominal Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph of the Action for Declaratory Judgment without investigation or discovery. 36. Answering Nominal Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations of this paragraph of the Action for Declaratory without investigation or discovery. 37. The allegations contained in this paragraph of the Action for Declaratory Judgment constitute conclusions of law to which no responsive pleading is required, and they are therefore deemed denied. In the alternative, Nominal Defendants are without information or knowledge to respond without investigation and discovery. 38. The allegations contained in this paragraph of the Action for Declaratory Judgment constitute conclusions of law to which no responsive pleading is required, and they are therefore deemed denied. In the alternative, Nominal Defendants are without information or knowledge to respond without investigation and discovery. 39. The allegations contained in this paragraph of the Action for Declaratory Judgment constitute conclusions of law to which no responsive pleading is required, and they are therefore deemed denied. 40. Neither admit nor deny. The attached Complaint filed by Nominal Defendants against Dr. Johnson reads for itself and is incorporated and referenced in its entirety. 41. Neither admit nor deny. The attached Complaint filed by Nominal Defendants against Dr. Johnson reads for itself and is incorporated and referenced in its entirety. 42. The allegations contained in this paragraph of the Action for Declaratory Judgment constitute conclusions of law to which no responsive pleading is required, and they are therefore deemed denied. 43. The allegations contained in this paragraph of the Action for Declaratory Judgment constitute conclusions of law to which no responsive pleading is required, and they are therefore deemed denied. In the alternative, Nominal Defendants are without information or knowledge to respond without investigation and discovery. 44. The allegations contained in this paragraph of the Action for Declaratory Judgment constitute conclusions of law to which no responsive pleading is required, and they are therefore deemed denied. In the alternative, Nominal Defendants are without information or knowledge to respond without investigation and discovery. 45. The allegations contained in this paragraph of the Action for Declaratory Judgment constitute conclusions of law to which no responsive pleading is required, and they are therefore deemed denied. In the alternative, Nominal Defendants are without information or knowledge to respond without investigation and discovery. 46. The allegations contained in this paragraph of the Action for Declaratory Judgment constitute conclusions of law to which no responsive pleading is required, and they are therefore deemed denied. In the alternative, Nominal Defendants are without information or knowledge to respond without investigation and discovery. 47. The allegations contained in this paragraph of the Action for Declaratory Judgment constitute conclusions of law to which no responsive pleading is required, and they are therefore deemed denied. In the alternative, Nominal Defendants are without information or knowledge to respond without investigation and discovery. 48. The allegations contained in this paragraph of the Action for Declaratory Judgment constitute conclusions of law to which no responsive pleading is required, and they are therefore deemed denied. 49. The allegations contained in this paragraph of the Action for Declaratory Judgment constitute conclusions of law to which no responsive pleading is required, and they are therefore deemed denied. 50. The allegations contained in this paragraph of the Action for Declaratory Judgment constitute conclusions of law to which no responsive pleading is required, and they are therefore deemed denied. 51. The allegations contained in this paragraph of the Action for Declaratory Judgment constitute conclusions of law to which no responsive pleading is required and allegation is deemed denied and otherwise the actions by Johnson included but were not limited to physical assault of a sexual nature. 52. The allegations contained in this paragraph of the Action for Declaratory Judgment constitute conclusions of law to which no responsive pleading is required, and they are therefore deemed denied. 53. The allegations contained in this paragraph of the Action for Declaratory Judgment constitute conclusions of law to which no responsive pleading is required, and they are therefore deemed denied. Claim for Declaratory Relief: 8 54. The allegations contained in this paragraph of the Action for Declaratory Judgment constitute conclusions of law to which no responsive pleading is required. 55. The allegations contained in this paragraph of the Action for Declaratory Judgment constitute conclusions of law to which no responsive pleading is required therefore deemed denied. 56. The allegations contained in this paragraph of the Action for Declaratory Judgment constitute conclusions of law to which no responsive pleading is required therefore deemed denied. 57. The allegations contained in this paragraph of the Action for Declaratory Judgment constitute conclusions of law to which no responsive pleading is required therefore deemed denied and in the alternative, Nominal Defendants are without information and knowledge to respond without investigation and discovery. 58. The allegations contained in this paragraph of the Action for Declaratory Judgment constitute conclusions of law to which no responsive pleading is required therefore deemed denied and in the alternative, Nominal Defendants are without information and knowledge to respond without investigation and discovery. 59. The allegations contained in this paragraph of the Action for Declaratory Judgment constitute conclusions of law to which no responsive pleading is required therefore deemed denied, and in the alternative, Nominal Defendants are without information and knowledge to respond without investigation and discovery. 60. The allegations contained in this paragraph of the Action for Declaratory Judgment constitute conclusions of law to which no responsive pleading is required, and are deemed denied. Date: Res lly submitted, uire 1 Defendants ra North Duke Street, Suite 201 ncaster, PA 17602 (717) 399-8720 10 ATTORNEY VERIFICATION I, Nina B. Shapiro, Esquire, counsel for the Nominal Defendants, hereby verify that the foregoing statements made in the Nominal Defendants' Answer to Action for Declaratory Judgment are true and correct to the best of my knowledge, information and belief. This verification is made pursuant to the provisions of 18 Pa.C.S. section 4904 relating to unsworn falsification to authoritie DATE: CERTIFICATE OF SERVICE I, Nina B. Shapiro, Esquire, hereby certify that the foregoing Nominal Defendants' Answer was served upon the following individual(s) or agent(s) for Plaintiff PMSLIC and Defendant Bertram L. Johnson by first-class mail, postage prepaid, addressed as follows: Ms. Laura A. Gargiulo, Esquire Saul Ewing LLP 2 North Second Street, 7th Floor Harrisburg, PA 17101-1619 Mr. Jerome C. Finefrock, Esquire 316 North Pine Street Lancaster, PA 17603 DATE: q 7 By: Tiro, Est uire Nominal Defendants ID#f/44040 53North Duke Street, Suite 201 Lancaster, PA 17602 (717) 399-8720 r SAUL EWING LLP Joel C. Hopkins, Esquire Laura A. Gargiulo, Esquire Cory S. Winter, Esquire Pa. Attorney ID Nos. 85096, 86128, and 306552 2 North Second Street, 7th Floor Harrisburg, PA 17101 (717) 257-7$25 (Mr. Hopkins) (717) 257-7$90 (facsimile) PMSLIC INSURANCE COMPANY, Plaintiff, V. BERTRAM L. JOHNSON, JR., M.D., Defendant, and KELLY HODGEN, HAYDEE PAGLIAI, and TONI QUINN, Attorneys For Plaintiff Nominal Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 12-cv-1393 . ACTION FOR DECLARATORY : JUDGMENT 77 'c- PRAECIPE FOR ENTRY OF APPEARANCE 77 TO THE PROTHONOTARY: Please enter my appearance on behalf of Plaintiff PMSLIC Insurance Company. Respectfully submitted, Dated: June 1, 2012 Joel C. opkins,-Esquire Attorne I.D. # 85096 Laura A. Gargiulo, Esquire Attorney I.D. # 86128 Cory S. Winter, Esquire Attorney I.D. # 306552 Saul Ewing LLP 2 North Second Street, 7th Floor Harrisburg, PA 17101 (717) 257-7525 (Mr. Hopkins) Attorneys for Plaintiff PMSLIC Insurance Company r. _, i R3 CERTIFICATE OF SERVICE I hereby certify that on the date set forth below, I caused a true and correct copy of the foregoing Praecipe for Entry of Appearance to be served upon the following via first-class mail, postage prepaid: Jerome C. Finefrock Nettleton & Finefrock, P.C. 316 North Pine Street Lancaster, PA 17601-3333 Attorney for Defendant Johnson Nina B. Shapiro, Esquire 53 North Duke Street, Suite 201 Lancaster, PA 17602 Attorney for Nominal Defendants Kelly Hodgen, Haydee Pagliai, and Toni Quinn -2- I' , f PMSLIC INSURANCE COMPANY, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. BERTRAM L. JOHNSON, JR., MD,: Defendant and KELLY HODGEN, HAYDEE PAGLIAI, and TONI QUINN, Nominal Defendants co ._.., ACTION FOR DECLARATORY JUDGMENT IN RE: PRELIMINARY OBJECTION OF DEFENDANT BERTRAM L. JOHNSON, JR.,M.D. BEFORE HESS, P.J. AND PECK, J. ORDER AND NOW, this 1-5?0 day of June, 2012, the preliminary objection of the defendant to venue is sustained but the plaintiff is given thirty (30) days within which to file an amended complaint setting forth, in detail, the factual basis upon which it alleges that venue in Cumberland County is proper. In the event an amended complaint is not filed, the Prothonotary, on praecipe of the defendant, shall transfer the matter to Lancaster County with payment of the cost of transfer to be borne by the plaintiff. BY THE COURT, ---- -? Kevin A,l ess, P. J. CIVIL ACTION - LAW NO 12-1393 CIVIL / v /Joel C. Hopkins, Esquire Laura A. Gargiulo, Esquire For the Plaintiff Jerome C. Finefrock, Esquire For the Defendant i*' Nina B. Shapiro, Esquire For Nominal Defendants &L a?» SAUL EWING LLP r ?i I ` , u Attorneys For Plaintiff Joel C. Hopkins, Esquire s Laura A. Gargiulo, Esquire Cory S. Winter, Esquire Pa. Attorney ID Nos. 85096, 86128, and 3Q6 r, RL IMP -yLy D 'iNSimilp, 2 North Second Street, 7 Floor Harrisburg, PA 17101 (717) 257-7525 (717) 257-7590 (facsimile) PMSLIC INSURANCE COMPANY, : IN THE COURT OF COMMON PLEAS Plaintiff, . CUMBERLAND COUNTY, V. : PENNSYLVANIA : NO. 12-1393 BERTRAM L. JOHNSON, JR., M.D., Defendant, and KELLY HODGEN, HAYDEE PAGLIAI, and TONI QUINN, : ACTION FOR DECLARATORY : JUDGMENT Nominal Defendants PRAECIPE TO TRANSFER VENUE TO THE PROTHONOTARY: Pursuant to this Court's June 15, 2012 Order, PMSLIC Insurance Company was provided thirty (30) days to file an amended complaint setting forth the bases upon which venue in Cumberland County is proper or have this matter transferred to Lancaster County. PMSLIC does not intend to file an amended complaint and hereby waives the thirty (30) days afforded by the Court to do so. Accordingly, please transfer the matter to Lancaster County in accordance with the Court's June 15, 2012 Order. Respectfully submitted, Dated: June 20, 2012 Joel C. Hopkins, Esquire Attorney I.D. # 85096 Laura A. Gargiulo, Esquire Attorney I.D. # 86128 Cory S. Winter, Esquire Attorney I.D. # 306552 Saul Ewing LLP 2 North Second Street, 7 Floor Harrisburg, PA 17101 (717) 257-7525 (Mr. Hopkins) Attorneys for Plaintiff PMSLIC Insurance Company -2- CERTIFICATE OF SERVICE I hereby certify that on the date set forth below, I caused a true and correct copy of the foregoing document to be served upon the following via first-class mail, postage prepaid: Jerome C. Finefrock Nettleton & Finefrock, P.C. 316 North Pine Street Lancaster, PA 17601-3333 Attorney for Defendant Johnson Nina B. Shapiro, Esquire 53 North Duke Street, Suite 201 Lancaster, PA 17602 Attorney for Nominal Defendants Kelly Hodgen, Haydee Pagliai, and Toni Quinn Dated: June 20, 2012 Laura A. Gargiulo -3- Laura A. Gargiulo Phone: (717) 257-7509 Fax: (717) 257-7595 LGargiulo@saul.com www.saul.com June 20, 2012 David D. Buell, Prothonotary 1 Courthouse Sq. Suite 100 Carlisle, PA 17013 Re: PMSLIC Insurance Co. v. Bertram L. Johnson No. 12-cv-1393 Dear Prothonotary Buell: By Order dated June 15, 2012, the Honorable Kevin A. Hess gave PMSLIC thirty (30) days to file an amended complaint setting forth the bases upon which venue in Cumberland County is proper or the matter would be transferred to Lancaster County. PMSLIC does not intend to file an amended complaint or further object to the transfer of venue. Accordingly, enclosed is a Praecipe to Transfer Venue to Lancaster County pursuant to the Court's June 15, 2012 Order. Please do not hesitate to contact me should you have any questions or concerns regarding this matter. Sincerely, Laura A. Gargiulo LAG/aw Enclosures Cc: Jerome C. Finefrock, Esquire Nina B. Shapiro, Esquire 2 North Second Street, 7`h Floor • Harrisburg, PA 17101-1619 • Phone: (717) 257-7500 ? Fax: (717) 238-4622 185615.106/20/2012 DELAWARE MARYLAND MASSACHUSETTS NEW JERSEY NEW YORK PENNSYLVANIA WASHINGTON, DC A DELAWARE LN9TED LIABILITY PARTNERSHIP