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HomeMy WebLinkAbout04-5040 v. IN THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY, PENNSYLVANIA No.: 04 -SCJlle) (!Iui.l~~ REBECCA FAERBER, D.P.M., Plaintiff BETHANY VILLAGE RETIREMENT CENTER, Defendant JURY TRIAL DEMANDED NOTICE You have been sued in court. If you wish to defend the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint is served, by entering a written appearance personally of by attorney and filing in writing with the court your defenses of objections to the claim set forth against you. You are warned that if you fail to do so the case may proceed without you and judgment may be entered against you by the court without further notice for any money claimed in the petition or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Lawyer Referral Service Court Administer Cumberland County Courthouse Carlisle, P A REBECCA FAERBER, D.P.M., Plaintiff IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY NO.: 0'1 - S'OtIb ec.>i..CT'tb( v. BETHANY VILLAGE RETIREMENT CENTER, Defendant JURY TRIAL DEMANDED COMPLAINT AND NOW comes Plaintiff, Rebecca Faeber, DPM, by and through her attorney, Andrew J. Ostrowski, Esquire, and in support of her Complaint avers as follows: 1. Rebecca Faerber, D.P.M., is a licensed podiatrist who practices in the provision of podiatric care at 1940 Market Street, Camp Hill, Pennsylvania 17011. 2. Defendant Bethany Village Retirement Center, is an elder-care facility whose principal place of business is 325 Wesley Drive, Mechanicsburg, Pennsylvania 17055. 3. From in or around 1994 through July 12, 2004, Plaintiff was employed pursuant to a contract of hire to provide podiatric consultative services for the Defendant at the retirement center. On the date of her termination Plaintiff was providing services to Defendant pursuant to a March 16, 1998 written agreement, and the policies, customs and practices of the parties as they had developed in furtherance of their agreement for the provision of the services. A true and correct copy of the March 16, 1998 employment agreement is attached hereto as Exhibit A. 4. Implied in the agreement, and clearly recognized through the course of performance of the agreement, was a termination for cause provision, and, of course, no agreement can validly be breached for one of the parties' refusal to engage in conduct that could reasonably be expected to expose that person to criminal culpability. 5. Plaintiff charged a fee for her services to her patients, and billed her patients directly for non-covered services provided, and provided and billed for all services whether covered or non-covered by insurance, whether provided on a self-paid basis and/or whether paid for through the patient's resident trust account, which is controlled by Defendant. 6. Upon information and belief, rather than paying their full liability for non- covered services paid out of resident trust accounts, Defendant, by and through its agents and employees, attempted to pass those billings along to residents' families or others to either submit through insurance for payment or to have those persons make the payment. 7. Upon information and belief, Defendant began to receive complaints from family members and/or others objecting to Defendant's effort when it was its responsibility to make payment out of the trust accounts of the subject patients. 8. At all times throughout her employment under the contract of hire as a consultant for podiatric services, Plaintiff conducted all aspects of the provision of her services, including billing, and receipt of payment of all such services in accordance with all applicable laws and regulations governing any and all such practices. 9. Upon information and belief, the Defendant, it's agents and/or it's employees determined that podiatric services payable out of residents' trust accounts may be made payable from Medicare if the Plaintiff could change her billing practices to suit the Defendant's needs, which needs Plaintiff believes to be improper. 10. Beginning in or around the fall of2003, and continuing thereafter until or around March 2004, Plaintiff and her staff received repeated and redundant inquires into their billing practices and how those practices maybe modified to secure reimbursement from public funds for services properly provided and billed by Plaintiff, and theretofore ineligible for reimbursement from these public funds. II. In or around March 2004, Plaintiff was summoned to a meeting to discuss the billing practices as to which her office had been receiving repeated inquiries. 12. In or around March 2004, Plaintiff meet with Johnna Marks, the Bethany Village Retirement Center administrator, who, rather than clarifYing and resolving the issues apparently unresolved by the repeated inquiries to Plaintiffs office, began inquiry along those same lines to which Plaintiff responded that all of her billing practices were done in accordance with any applicable laws and/or regulation, that her practices would not be changed, and that the administrator should call Medicare herself if she had any questions. 13. Also in or around March 2004, Plaintiff was contacted by representatives of the Office of Attorney General and asked to provide billing records for eight of her Bethany Village Retirement Center patients whose services where not covered and payable out of their residence trust account. 14. Upon infonnation and belief, in or around that same time, because Defendant, it's agents and/or employees knew that Plaintiff had, was about to, and/or would have provided infonnation of waste or wrongdoing in connection with public funds and/or for other illegal reasons, decided to tenninate her employment under the contract of hire for podiatric consultative services, and, upon infonnation and belief, began recruitment efforts to fill the position which would vacated be vacated by Plaintiff. 15. On June 12, 2004, Plaintiff received notice of the tennination of her contract and, despite her extensive dedicated services which was commended by the Defendant theretofore Defendant provided no reason for her tennination, and there was no cause whatsoever for the tennination of her employment under the contract of hire to provide podiatric consultative services. 16. Plaintiff was later infonned by an agent of the Defendant that her tennination resulted from her billing practices. COUNT I-BREACH OF CONTRACT 17. Paragraphs I through 16 are incorporated by reference in their entirety. 18. The actions and conduct of the Defendant, it's agents, and/or it's employees, as alleged herein constitutes breach of the express and implied tenns of her contract, including the duty of good faith and fair dealing implied in all contracts, that her employment under the contract of hire to provide podiatric consultative service could only be tenninated for just cause, and, although Defendant provided no cause, any such cause they could provide would certainly not be just and sufficient to support her tennination. Also, Plaintiff believes, and therefore avers, that she can prove that the real reasons her contract was terminated or because she would not participate in acts and practices that she reasonable believed would violate the law, and her professional and ethical duties. In either case, and in both cases, Plaintiff claims damages and irUuries for these actions insofar as they constitute a breach of her contract with Defendant. 19. As a direct and proximate result of the unlawful actions of the Defendant, Plaintiff suffered a loss of employment and the incidents of employment, including all income gain and/or derived from her performance of services for Defendant, and has suffered, and will continue to suffer, emotional suffering, reputational injury, hwniliation, embarrassment, inconvenience, aggravation and expense. 20. Defendant's actions were outrageous and were taken without regard for the rights of Plaintiff in furtherance of their common scheme and illicit plan, maliciously and with the specific intent to harm the Plaintiff as alleged herein. WHEREFORE, Plaintiff demands that this Court enter judgment in her favor and against Defendant, including an award for all general and specific compensatory damages, costs, attorney's fees, and whatever other reasonable legal and/or equitable relief is deemed just, all in a currently unliquidated amount, but in an amount far in excess of that required for submission to mandatory arbitration. COUNT II-VIOLATION OF PENNSYLVANIA WHISTLE-BLOWER LAW 21. Paragraphs 1 through 20 are incorporated by reference in their entirety. 22. At all relevant times, Plaintiff was paid for services she performed for i Defendant, a "public body", and Plaintiff is an "employee" as those terms are defined by the Whistleblower Law. 23. During the course of her employment, Plaintiff was involved in reporting and/or Defendant, its agents and/or employees believed that Plaintiff was preparing to report instances of "waste" and/or "wrongdoing" to the "appropriate authority" as those terms are defined by the Whistleblower Law. 24. Plaintiff was terminated, in whole or in part, in retaliation for her past good faith reports made to an appropriate authority, all of which reports were known by Defendants to have been made at the time the actions were taken and/or to prevent her from making such reports in the future. 25. The actions and conduct of Defendants, singularly and collectively, violated 43 P.S. ~ 1423 and have caused Plaintiffs substantial actual damages which are continuing in nature, as above-stated, for which Defendant is liable. 26. Defendant's actions were outrageous and were taken without regard for the rights of Plaintiff in furtherance of their common scheme and illicit plan, maliciously and with the specific intent to hann the Plaintiff as alleged herein. WHEREFORE, Plaintiff demands that this Court enter judgment in her favor and against Defendant, including an award for all general and specific compensatory damages, costs, attorney's fees, and whatever other reasonable legal and/or equitable relief is deemed just, all in a currently unliquidated amount, but in an amount far in excess of that required for submission to mandatory arbitration. Plaintiffs further demand that this Court award them such further relief as is deemed appropriate, including the costs of this litigation and a reasonable attorney's fee, all as permitted by the Whistleblower Law. Res Andrew J. I.D.No.: 6. BAILEY, STRETTON & OSTROWSKI 4311 North Sixth Street Harrisburg, PA 17110 (717) 221-9500 Attorney for Plaintiff Date September 23, 2004 Bethany Village Retirement Center 325 Wesley Drive Mechanicsburg, P A 17055 Agreement for Consultant Services AGREEMENT between BETHANY VILLAGE RETlKEMENT CENTER, hereinafter called "Facility" and DR. REBECCA FAERBER, hereinafter called "Consultant" for podiatric consultative services. 1. Consultant agrees to provide the following services to Facility: A. Routine podiatric care as needed by the residents. B. Advises physicians, nursing staff, via the resident's medical record, relevant medical data, treatment plan, etc. C. Directs in-service education as requested, no more than one time annually. 2. This agreement will be reviewed annually and may be terminated by either party with a 30 day written notice. 3. Facility will furnish Consultant with name and address of whom is responsible for the resident's bills. Payment will be made by the resident, responsible party, or third party payor for each visit. It is advised that the Consultant realizes that there are certain Medicaid residents for whom she will be caring. 4. Facility and Consultant agree that their relationship is that of independent contractor and not as employee and employer. It is understood that the Facility will provide Clinic ------S,Eace and limited equipment for the Consultant. If the Consultant needs additional staff . otliff than that provided by volunteers and Bethany Village staff, she must assume payment for their services. 5. It is understood that the Consultant will provide us with appropriate documentation of qualifications to practice podiatric medicine in the Commonwealth of Pennsylvania. 6. It is understood that Consultant has furnished proof of liability insurance coverage and that Consultant will provide such proof each time it is renewed. 7. Consultant shall indemnify and hold harmless the Facility, its agents and employees from and against all claims, damages, losses, and expenses, including reasonable attorneys' fees, arising out of or attributable to the wrongful actions or omissions or negligence by Consultant, his agents and employees, except to the extent that claims are attributable to the wrongful actions, omissions or negligence of the Facility, its agents and employees. this clause shall survive the termination or expiration of this Agreement. Anti-Discriminatory Clause This agreement specifically states that all parties in the said agreement certify that they are in full compliance with Title VI of the Civil Rights Act of 1964 which states there is no discrimination because of race, color, religion, sex, age, national origin, disability or handicapping condition in its admission and treatment of patients or in its signing of any contract agreement with outside resources, Bethany Village Retirement Center hires and contracts with outside services without regard to race, color, national origin, ancestry, age, sex, religious creed, disability, or handicapping condition. Signed this ~ day of .1JM~vc t\, 191...b' . 1/ _/ ....(.t~,;c4. (1L~ Consultant .~ Bonnie S, Mauldin, Executive Director Bethany Village Retirement Center VERIFICATION !, Rebecca Faerber, D.P.M" hereby state that! am a Plaintiff herein and that! have reviewed the foregoing Complaint and that the facts stated therein are true and correct to the best of my knowledge, information and belief. This verification is made under any applicable penalties for unsworn falsification to authorities, Dated: ;/co/~ ~~. ~. J /"".-. Rebecca Faerber, D.P.M. (J <<;l 8 "):::J Irt 'It CIl t ~, , . '.--- 1ft .' .._1 () C " ........ '-> -U ~ C> , fL C. - W - ~ - 0 J . r.,) (.-,-, -' SHERIFF'S RETURN - REGULAR CASE NO: 2004-05040 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND FAERBER REBECCA DPM VS BETHANY VILLAGE RETIREMENT RONALD HOOVER , Sheriff or Deputy Sheriff of Cumberland County, pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon BETHANY VILLAGE RETIREMENT CENTER the DEFENDANT , at 1117:00 HOURS, on the 7th day of October 2004 at 325 WESLEY DRIVE MECHANCISBURG, PA 17055 by handing to DEBBIE BARRIS, DIR OF ADMIN, ADULT IN CHARGE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof, Sheriff's Costs: Docketing Service Affidavit Surcharge So Answe~ ~ .~ -1~ 18,00 10.36 ,00 10,00 ,00 38,36 R, Thomas Kline 10/07/2004 ANDREW OSTROWSKI Sworn and Subscribed to before By, ~q Deputy Sher~ff me this 13::::- day of (}c.4L ..:<~O '/ A,D, o .,,-0 ))l,if~. ',I1#,a;;- ~honotary '7 ' II MARGOLIS EDELSTEIN BY: JOSEPH GOLDBERG, ESQUIRE Identification No,: 21376 BY: Wendi D, Barish, Esquire Identification No.: 78016 The Curtis Center, Fourth Floor Independence Square West Philadelphia, PA 19106-3304 (215) 922-1100 REBECCA FAERBER, D.P,M, V. BETHANY VILLAGE RETIREMENT CENTER I hereby certify that I have served a copy of this paper upon all other parti~s or their attorneys by: . regular mail certified mail other < BY'Att~~s for Defendant, Bettiany Village Retirement Center COURT OF COMMON PLEAS CUMBERLAND COUNTY NO,: 04-5040 CIVIL ENTRY OF APPEARANCE AND JURY TRIAL DEMAND TO THE PROTHONOTARY Please enter our appearance on behalf of the Defendant, Bethany Village Retirement Center, in the above captioned case, Defendant, Bethany Village Retirement Center, demands a jury trial in the above case, Jury of twelve, with alternates demanded. MARGOLIS EDELSTEIN ,Ji~L~J~ JOSEPH GOLDBERG,' ESQUIRE WENDI D. BARISH, ESQUIRE Attorneys for Defendant, Bethany Village Retirement Center BY, C.l ~'11 i "~. I "'Y. (.-:' (.,) MARGOLIS EDELSTEIN BY: JOSEPH GOLDBERG, ESQUIRE BY: WEND I D. BARISH, Esquire Identification No.: 21376 Identification No.: 78016 The Curtis Center, Fourth Floor Independence Square West Philadelphia, P A 19106-3304 (215) 922-1100 (00 A!~H1:;REBV NOllFlto.TOA.EAD TOlHf: ENClOSED fllEAOING .....1WEMY am _HBllOfCllAIllfIO.l . ~~'YOJ~. Attorneys for Defendant, Bethany Village Retirement Center REBECCA FAERBER, D.P.M. COURT OF COMMON PLEAS CUMBERLAND COUNTY V. NO.: 04-5040 CIVIL BETHANY VILLAGE RETIREMENT CENTER DEFENDANT'S ANSWER WITH NEW MATTER TO PLAINTIFF'S COMPLAINT Defendant, Bethany Village Retirement Center, by and through its attorneys, Margolis Edelstein, files this Answer with New Matter to Plaintiff s Complaint, and in support thereof, avers the following: 1. Admitted in part; denied in part. Upon information and belief, Rebecca Faerber, D.P .M., is a licensed podiatrist. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining averments contained in this paragraph and, therefore, such allegations are denied. Strict proof thereof is demanded at trial. 2. Denied as stated. By way of further response, "Bethany Village Retirement Center" is a fictitious name. 3. Admitted in part; denied in part. Plaintiff entered into an Agreement for Consultant Services with Defendant as an independent contractor. Plaintiff was not an employee of the Defendant. Plaintiffs contract with Defendant was tt:rminated in accordance with the terms of contract. Plaintiff's employment is a document, the content of which shall speak for itself. The remaining averments of this paragraph constitute conclusions of law to which no further response is required, 4. Denied. The averments ofthis paragraph constitute conclusions oflaw to which no further response is required under the Pennsylvania Rules of Civil Procedure. 5. Denied. By way of further response, Plaintiffwas responsible for billing her patients. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining averments contained in this paragraph and, therefore, such allegations are denied. Strict proof thereof is demanded at trial. 6. Denied. It is specifically denied that Defendant, by and through its agents and employees, attempted to escape liability for non-covered services paid out of resident trust accounts. 7. Denied. It is specifically denied that Defendant received the complaints as described in this paragraph. 8. Denied. The averments ofthis paragraph constitute conclusions oflaw to which no further response is required under Pennsylvania Rules of Civil Procedure. 9. Denied. It specifically denied that the Defendant requested Plaintiff to commit any improper billing practices. 10. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining averments contained in this paragraph and, therefore, such allegations are denied. Strict proof thereof is demanded at trial. 11. Denied as stated. Plaintiff was called into a meeting regarding billing practices following the conclusion of review by a Utilization Review Board. 2 12. Denied as stated. Johnna Marx met with the Plaintiff to review deficiencies in her billing which were revealed by an independent billing evaluation by the Utilization Review Board. During this meeting the Plaintiff refused to comply with requests to include specific diagnostic codes on her billing statements. 13. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining averments contained in this paragraph and, therefore, such allegations are denied. Strict proof thereof is demanded at trial. 14. Denied as stated. Defendant conducted reeruitment efforts for a podiatrist only after the Plaintiff made its quite clear that she had no intention of complying with the repeated requests for her to provide supporting diagnostic codes on her billing statement. 15. Denied as stated. On June 12,2004, in accordance with the provision of her contract, Defendants provided the Plaintiff with notice of the termination of her contract. 16. Denied, After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of the remaining averments contained in this paragraph and, therefore, such allegations are denied. Strict proof thereof is demanded at trial. COUNT I - BREACH OF CONTRACT 17. Plaintiffs paragraph 17 is an incorporation paragraph and as such, no response is required thereto. 3 18. Denied. By way of further response, the: allegations contained in this paragraph constitute conclusions of law to which no further response is required under Pennsylvania Rules of Civil Procedure. 19. Denied. By way of further response, the allegations contained in this paragraph constitute conclusions of law to which no further response is required under Pennsylvania Rules of Civil Procedure. 20. Denied. By way of further response, the allegations contained in this paragraph constitute conclusions of law to which no further response is required under Pennsylvania Rules of Civil Procedure. WHEREFORE, Defendant denies that it is liable on the causes of action declared upon by Plaintiff and demands judgment in its favor and against the Plaintiff together with reasonable attorney's fees and costs of suit. COUNT II - VIOLATION OF THE PENNSYLVANIA WHISTLE-BLOWER LAW 21. Plaintiff's paragraph 17 is an incorporation paragraph and as such, no response is required thereto. 22. Denied. The allegations contained in this paragraph constitute conclusions of law to which no further response is required under Pennsylvania Rules of Civil Procedure. 23. Denied. Defendant was never made aware of the reporting of any alleged instances of "waste" and/or "wrongdoing" to the "appropriate authority". By way of further response, the allegations contained in this paragraph constitute conclusions oflaw to which no further response is required under Pennsylvania Rules of Civil Procedure. 24. Denied. It is specifically denied that the Plaintiff was terminated in retaliation for her alleged reporting or intent ofreporting any acts to an appropriate authority. 4 " 25. Denied. By way of further response, the: allegations contained in this paragraph constitute conclusions of law to which no further response is required under Pennsylvania Rules I of Civil Procedure. 26. Denied. By way of further response, tht:: allegations contained in this paragraph constitute conclusions of law to which no further response is required under Pennsylvania Rules of Civil Procedure. WHEREFORE, Defendant denies that it is liable on the causes of action declared upon by Plaintiff and demands judgment in its favor and against the Plaintiff together with reasonable attorney's fees and costs of suit. NEW MATTEF~ 27. This Complaint fails to state a claim upon which relief can be granted. 28. Plaintiff's claims are barred and/or limited by the Pennsylvania Workers' Compensation Act and/or Doctrine of Statutory Employer. 29. Plaintiff's claims are barred by the applicable Statute of Limitations, laches, and Plaintiff's failure to exhaust available administrative remedies. 30. The termination of Plaintiff's was caused by Plaintiff's conduct and not by any unlawful discharge. 31. Defendant at all times acted in the exercise of good faith and reasonableness with respect to Plaintiff. 32. Defendant was not at any time motivated by an improper, unlawful or discriminatory motive with respect to Plaintiff's Agreement for Consultant Services. 33. The termination of the Plaintiff's Agreement for Consultant Services was made in accordance Paragraph 2 of the Agreement. 5 " 34. Paragraph 2 of the Plaintiffs Agreement for Consultant Services states, "This agreement will be reviewed annually any may be terminated by either party with a 30 day written notice". 35. Plaintiff was given 30 days notice of the temlination of her Agreement for Consultant Services. 36. Defendant did not breach Plaintiffs Agreement for Consultant Services. 37. Defendant's acts did not violate public policy. 38. Plaintiff has failed to mitigate her damages. 39. At all times concerned with this litigation, Defendant acted in a manner which was proper, reasonable, lawful, and in the exercise of good faith. 40. At all times concerned with this litigation, Plaintiff was treated in a proper and lawful manner. 41. Plaintiff has failed to join an indispensable party. 42. Defendant incorporates by reference and pleads as affirmative defenses all those defenses specified in Pa. R.c.R.P. 1030. WHEREFORE, Defendant demands judgment in its favor and against Plaintiff together with all costs of suit. MARGOLIS EDELSTEIN BY: t}fIVA'fI~~ ~~DBERG, ESQUIRE WENDI D. BARISH, ESQUIRE Attorneys for Defendant, Bethany Village Retirement Center Date: November 5.2004 6 2004/NOV/05/FRI Ol:38 PM p, 002 VERIFICA TION JOHNNA MARX, having read the foregoing Answer with New Matter to Plaintiff's Complaint hereby verifies that the foregoing is based on infonnation fumished to counsel ill the course of this lawsuit. The language of the foregoing is that of counsel and llot of signer. Signer verifies that she has read the within pleading and that it is true and correct to the best of signer's knowledge, information and belief. To the extent that the contents of the foregoing are that of counsel, verifier has relied upon counsel in. taking this Verification. This Verification is made subject to the penalties of 18 Pa. C.S. 4904, relating to unsworn falsification of authorities. 4 DATE: /11.5'/of I NOU 135 '134 12:56 PF=lGE.B2 CERTIFICATE OF SE:RVICE WENDI D. BARISH hereby certifies that a true and correct copy of Defendant's Answer with New Matter to Plaintiff's Complaint was served via First Class Mail, postage prepaid upon the following interested counsel: Andrew H. Ostrowski, Esquire BAILEY, STRETTON & OSTROWSKI 4311 North Sixth Street Harrisburg, P A 17110 f}fj,4frJ)~ WENDI D. BARISH DATE: November 5. 2004 (') "'" 0 (.? c: c.::> "11 ..r:- -- --1 -"\ ~ "'TOo ...,., C') rI'i -..~': i'''''' "T1 1'1'1 i , ~i:it? .. ex> ~Oo? (:~? .-,' , .. \,: 'j" l( -;:J i} -11 -"I"" ('') -- ,) fl1 '. s.- --I .,t_.. "1'~J'. '-0- "-1 _oJ -< 0 -<:,. REBECCA FAERBER, D.P.M., Plaintiff :IN THE COURT OF COMMON PLEAS :CUMBERLAND COUNTY, PENNSYLVANIA v. No.: 04-5040-CIVIL BETHANY VILLAGE RETIREMENT CENTER, Defendant JURY TRIAL DEMANDED MOTION TO AMEND CAPTION AND NOW comes Plaintiff, Rebecca Faerber, D.P .M., by and through her attorney, Andrew J. Ostrowski, Esquire, and in support of her Motion to Amend Caption avers as follows: 1. On October 25,2004, Plaintiffs Counsel was informed by Defendant's Counsel, Wendi D. Barish, Esquire that the Defendant in the above captioned matter was named incorrectly in Plaintiff s Complaint. 2. Defendant, named as Bethany Village Retirement Center in Plaintiffs Complaint, should be named Wesley Affiliated Services Inc., d/b/a Bethany Village Retirement Center. 3. Plaintiff respectfully requests that this Court change the caption to reflect the substitution of Wesley Affiliated Services Inc., d/b/a Bethany Village Retirement Center as Defendant in this matter, and remove Bethany Village Retirement Center as a named Defendant. 5. Defendant's Counsel has been contacted regarding this motion and has offered her concurrence in the foregoing motion. WHEREFORE, Plaintiff respectfully requests that this Court enter an appropriate Order consistent with the foregoing request. Respectfully submitted, Andrew J. s rowski, Esquire PA J.D. No.: 66420 BAILEY, STRETTON & OSTROWSKI 4311 North Sixth Street Harrisburg, P A 17110 (717) 221-9500 Attorney for Plaintiff CERTIFICATE OF SERVICE I, Angela L. Hewitt, an employee of Andrew J. Ostrowski, Esquire, hereby certify that I have served a true and correct copy of the foregoing document, by depositing such in the U.S. Mail, first class, postage prepaid, addressed as follows: Wendi D. Barish, Esquire Margolis Edelstein The Curtis Center Fourth Floor Independence Square West Philadelphia, PA 19106-3304 By JjJ~ Angela L. Hewitt 4311 North Sixth Street Harrisburg, PA 17110 (717) 221-9500 Dated: October 26,2004 -- 0 1'..) C <..-::::; 0 .~ :- ("::'-.'JI 11 .. ...- '\'J :#:":. X,., ;'T1 """-'" <...:) ";:"'T -<: fllp /. {/'; -elm -"... a ~f.JS? C>( ,.-~ :.,J -r' .""'" "'-,i ( ""'"' ~rJ f;~ (:~ co - r ~.:..~ OJ;! -../ -< :.0 1..0 -..< REBECCA FAERBER, D.P.M., Plaintiff v. BETHANY VILLAGE RETIREMENT CENTER, Defendant AND NOW, this Jgthday of NOV 1 7 2004 f1 \7 :IN THE COURT OF COMMON PLEAS :CUMBERLAND COUNTY, PENNSYLVANIA No.: 04-5040-CIVIL JURY TRIAL DEMANDED ORDER \ -rlIj> ~O\lembel<.. PI '1 ,2004, upon consideration of Plaintiffs Motion for Correction of Docket, it is hereby Ordered that said Motion is GRANTED and the correct caption of this matter shall read as follows: REBECCA FAERBER, D.P.M., Plaintiff v. WESLEY AFFILIATED SERVICES INC., d/b/a BETHANY VILLAGE RETIREMENT CENTER, Defendant : /) IN THE COURT OF COMMON PLEAS : L..~~~clcOUNTY, PENNSYL VANIA No.: 04-5040-CIVIL JURY TRIAL DEMANDED BY THE/!6~;?; U J. ljJ Q Cl. '..1,.. o \ ,-, L,..' LLJ "c..U.l 1_'- :C 1-' c....1 C~) (~ t-~_ C1 ...',...... """- (..J_ . -'I '~.:-J CI'\ I '\- '"". (::, :':b.': i.l _T' c:.~ (,::";') C-...l ) () REBECCA FAERBER, D.P.M., Plaintiff :IN THE COURT OF COMMON PLEAS :CUMBERLAND COUNTY, PENNSYLVANIA v. No.: 04-5040-CIVIL BETHANY VILLAGE RETIREMENT CENTER, Defendant JURY TRIAL DEMANDED MOTION TO AMEND CAPTION AND NOW comes Plaintiff, Rebecca Faerber, D.P.M., by and through her attorney, Andrew J. Ostrowski, Esquire, and in support of her Motion to Amend Caption avers as follows: 1. On October 25,2004, Plaintiffs Counsel was informed by Defendant's Counsel, Wendi D. Barish, Esquire that the Defendant in the above captioned matter was named incorrectly in Plaintiff s Complaint. 2. Defendant, named as Bethany Village Retirement Center in Plaintiff s Complaint, should be named Wesley Affiliated Services Inc., d/b/a Bethany Village Retirement Center. 3. Plaintiff respectfully requests that this Court change the caption to reflect the substitution of Wesley Affiliated Services Inc., d/b/a Bethany Village Retirement Center as Defendant in this matter, and remove Bethany Village Retirem(~nt Center as a named Defendant. 5. Defendant's Counsel has been contacted regarding this motion and has offered her concurrence in the foregoing motion. WHEREFORE, Plaintiff respectfully requests that this Court enter an appropriate Order consistent with the foregoing request. Respectfully submitted, K Andrew J. s rowski, Esquire PA I.D. No.: 66420 BAILEY, STRETTON & OSTROWSKI 4311 North Sixth Street Harrisburg, P A 17110 (717) 221-9500 Attorney for Plaint{fJ CERTIFICATE OF SERVICE I, Angela L. Hewitt, an employee of Andrew J. Ostrowski, Esquire, hereby certify that I have served a true and correct copy of the foregoing document, by depositing such in the U.S. Mail, first class, postage prepaid, addressed as follows: Wendi D. Barish, Esquire Margolis Edelstein The Curtis Center Fourth Floor Independence Square West Philadelphia, P A 19106-3304 By ~ Angela L. Hewitt 4311 North Sixth Street Harrisburg, PAl 711 0 (717) 221-9500 Dated: October 26,2004 p r-..;, <;..,,-:. 0 ~:: ~: c::> ..e- I, ..\:; ;U",: ;~1 rr; ,: '.'.-> <.:) hi F2 '< -om C> i~5? ,..'..... ~...:J~) .. '. r:-~-il l>t.. _b. ..} (') CO ;,,; I'll '. ) '1;! -< :'1) 1...0 ...< ~ts, o. REBECCA FAERBER, D.P.M. Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY v. : NO.: 04-5040-CIVIL WESLEY AFFILIATED SERVICES INC., d/b/a BETHANY VILLAGE RETIREMENT CENTER, Defendant : JURY TRIAL DEMANDED PLAINTIFF'S REPLY TO DEFENDANT'S NEW MATTER AND NOW comes Plaintiff, Rebecca Faerber, D.P .M., by and through her attorney, Andrew 1. Ostrowski, Esquire, to file this Reply to Defendant's New Matter and in support thereof, avers the following: 27. Paragraph 27 of Defendant's New Matter constitutes a conclusion oflaw to which no response is required and is therefore deemed denied. 28. Paragraph 28 of Defendant's New Matter constitutes a conclusion of law to which no response is required and is therefore deemed denied. 29. Paragraph 29 of Defendant's New Matter constitutes a conclusion oflaw to which no response is required and is therefore deemed denied. 30. Denied. It is specifically denied, for all the reasons set forth in Plaintiff s Complaint, that Plaintiff was the cause of her termination or that any of her conduct was anything other than proper, professional, and rendered in accordance with all appropriate professional standards. Strict proof of Defendant's allegation is demanded. 1 31. Denied. It is specifically denied for all the reasons set forth in Plaintiff s Complaint that Defendant acted in good faith. To the contrary, through a course of conduct beginning before Plaintiff s termination, and continuing through and after her termination, Defendant, its agents and/or employees have engaged in a course of bad faith conduct that constitutes improper interference with Plaintiff s relations with her patients, and in addition to the loss of direct income from her employment, Plaintiff has suffered the loss of business good will in addition to reputational injury and other general damages. Investigation into all these matters continues, and Plaintiff reserves the right to amend and/or supplement her Complaint to the extent necessary and appropriate to place all aspects of this case and controversy before the court. 32. Denied. It is specifically denied for all the reasons set forth in Plaintiffs Complaint that Defendant was not improperly motivated. To the contrary, through a course of conduct beginning before Plaintiff s termination, and continuing through and after her termination, Defendant, its agents and/or employees have engaged in a course of improper, unlawful and/or discriminatory conduct that constitutes improper interference with Plaintiffs relations with her patients, and in addition to the loss of direct income from her employment, Plaintiff has suffered the loss of business good will in addition to reputational injury and other general damages. Investigation into all these matters continues, and Plaintiff reserves the right to amend and/or supplement her Complaint to the extent necessary and appropriate to place all aspects of this case and controversy before the court. 33. Denied. It is specifically denied for all the reasons set forth in Plaintiffs Complaint. 2 34. Admitted. By way of further answer, the full and complete express terms of the contract are set forth in Plaintiff s Complaint and incorporated herein as setting forth the full written agreement, and Plaintiff further incorporates herein all implied te:rms, conditions and courses of conduct that have governed their relations as alleged in her Complaint. 35. Admitted. By way of further answer, the basis for the termination was unlawful for all the reasons set forth in Plaintiff s Complaint, and as alleged herein. 36. Paragraph 36 constitutes a conclusion oflaw to which no response is required and is therefore deemed denied. It is further specifically denied for all of the reasons set forth in Plaintiffs Complaint. 37. Paragraph 37 constitutes a conclusion of law to which no response is required and is therefore deemed denied. It is further specifically denied for aU of the reasons set forth in Plaintiffs Complaint. 38. Denied. At all times since the unlawful termination of her employment to provide podiatric consultative services, Plaintiff has undertaken all appropriate measures to mitigate her losses. 39. Denied. It is specifically denied for all the reasons set forth in Plaintiffs Complaint that Defendant acted in good faith, To the contrary through a course of conduct beginning before Plaintiff s termination, and continuing through and after her termination, Defendant, its agents and/or employees have engaged in a course of bad faith conduct that constitutes improper interference with Plaintiff s relations with her patients, and in addition to the loss of direct income from employment, Plaintiff has suffered the loss of business good will in addition to reputational injury and other general damages. Investigation into all these matters continues, and Plaintiff reserves the right to 3 amend and/or supplement her Complaint to the extent necessary and appropriate to place all aspects of this case and controversy before the court. 40. Paragraph 40 of Defendant's New Matter constitutes a conclusion of law to which no response is required and is therefore deemed denied. 41. Paragraph 41 of Defendant's New Matter constitutl;:s a conclusion of law to which no response is required and is therefore deemed denied. It is specifically denied for all the reasons set forth in Plaintiff s Complaint, and as set forth herein that Plaintiff was treated in a proper and lawful manner. 42. Paragraph 42 of Defendant's New Matter constitutes a conclusion oflaw to which no response is required and is therefore deemed denied. WHEREFORE, the Plaintiff demands judgment in her favor and against Defendant with all relief claimed in her Complaint. Andrew . Ostrowski, Atty. LD. 6 '20 4311 North Sixth Street Harrisburg, PAl 711 0 (717) 221-9500 Attorney for Plaintiff 4 VERIFICATION I, Andrew J. Ostrowski, Esquire, have reviewed the foregoing Reply to New Matter with the Plaintiff, Rebecca Faerber, D.P.M., and verify, on her behalf, that the factual statements made therein are true and correct to the best of her knowledge, information and belief. I certify that I am specifically authorized to execute this verification on her behalf -- CERTIFICATE OF SERVICE I, Andrew J. Ostrowski, hereby certifY that I have served a true and correct copy of the foregoing document by depositing such in the U.S. Mail, first class, postage prepaid, addressed as follows: Wendi D. Barish, Esquire MARGOLIS EDELSTEIN The Curtis Center Fourth Floor Independence Square West Philadelphia, PA 19106-3304 Dated: lJ(a {o V ..l. ~'2 -.0 ( ..) CO ~.~ coco:> .J.C~ r-"l I'::;'l C') I 0:J o <1 ::;3 iii;JJ - -, ('n ,.":-~ Cr~.J 'jt) :.cl ':~ r rl :--.")1 .. . ., ~..' -< WEBER, GALLAGHER, SIMPSON STAPLETON, FIRES & NEWBY, LLP BY: Joseph Goldberg, Esquire Attorney I.D. No, 21376 BY: Wendi D, Barish, Esquire AttorneyI.D.No.78016 2000 Market Street, 13th Floor Philadelphia, PA 19103 (215) 972-7935 Attorneys for Defendant, Bethany Village Retirement Center REBECCA FAERBER, D.PM, v, BETHANY VILLAGE RETIREMENT CENTER COURT OF COMMON PLEAS CUMBERLAND COUNTY NO, 04-5040-CIVIL NOTICE OF CHANGE OF ADDRESS TO THE PROTHONOTARY: Kindly note new contact information and firm affiliation for counsel for Defendant, Bethany Village Retirement Center in connection with the above-captioned matter, as indicated herein. GALLAGHER, WEBER, SIMPSON, STAPLETON, FIRES & NEWBY, LLP BY: OtitYdJd)cft1rllA WENDI D, BARISH, ESQUIRE ~~..:> ';;1, ,J'I t.~:: -- -c\ ~,.., ' (..,) .;::~) u"'. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA REBECCA FAERBER, D.P.M. Plaintiff VS. BETHANY VILLAGE RETIREMENT CENTER Defendants ) ) ) ) ) ) ) ) ) ) ) NO. 04.,5040 Jury Trial Demanded PRAECIPE TO DISCONTINUE AND END THE ABOVE CAPTIONED MATTER Kindly discontinue and end the above captioned matter. The case has been settled to the satisfaction of all parties. Kindly enter a final Order. By: Re~ectfull~mitted, . ~ostrowski :f,sq. Bailey & Ostrowski 4311 N. 6th Street Harrisburg, Pa 17110 CERTIFICATE OF SERVICE I, ANDREW J. OSTROWSKI do hereby certify that on this 8th day of August 2005, I served a true and correct copy ofthf: foregoing Praecipe to Discontinue and End to the following attorneys via First Class Mail: WEBER GALLAGHER SIMPSON STAPLETON, FIRES, NEWBY LLP Joseph Goldberg, Esquire 2000 Market Street 13 th Floor Philadelphia, PA 19103 By: ~ Submitted, Sf Adrienne Bailey Bailey & Ostrowski 4311 N. 6th Street Harrisburg, PA 17110 ... 0 ....., ,.- = fr1 '- = ;;c- c..r> ~~Fn >- -f c:: :~ -. 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