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HomeMy WebLinkAbout12-6720i~ COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Phillip L. Conklin CIVIL ACTION -LAW Plaintiff /~ _ v. PRAECIPE WRIT OF SUMMONS JURY TRIAL DEMANDED -_. James F. Rich, and, Conner Rich Associates : PROFESSIONAL MALPRACTICE Defendants Camp Ni I I ~ PA 1701 ~ PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY: Kindly issue a Writ of Summons in the above-captioned action against the parties Defendant named therein. Attached hereto, are individual Writs of Summons, per each Defendant. November 2, 2012 c-~ c -~3 , ~ -~ ~ ~ ~~ Respectfully Submitted o '~ ~~ , ~n ~ <© Z =o z~ z~ ' P 1 p L. Conklin ~ -.; P.O. Box 54, Roseville, Pa. 17358 P ~1o3.~g PQ P~ C~r+ ,~~aea ~~ COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Phillip L. Conklin CIVIL ACTION -LAW Plaintiff : /} NO. la - 1o7a0 l:ivi l `~erNl v. James F. Rich, and, Conner Rich Associates Defendants WRIT OF SUMMONS PROFESSIONAL MALPRACTICE JURY TRIAL DEMANDED WRIT OF SUMMONS TO: Dr. James F. Rich YOU ARE HEREBY NOTIFIED, that Phillip L. Conklin has commenced an action against you. ~Jowid 7~~~1~ David D. Buell, Prothonotary Date: Deputy Prothonotary SEAL OF THE COURT COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Phillip L. Conklin CIVIL ACTION -LAW Plaintiff NO. ld~ ' ~~a~ Ciur t~l~r1 v. James F. Rich, and, Conner Rich Associates Defendants WRIT OF SUMMONS PROFESSIONAL MALPRACTICE JURY TRIAL DEMANDED WRIT OF SUMMONS TO: CONNER RICH ASSOCIATES YOU ARE HEREBY NOTIFIED, that Phillip L. Conklin has commenced an action against you. Dater 11-1~ ~~~~~~ David D. Buell, Prothonotary Deputy Prothonotary SEAL OF THE COURT r! 1' Vi-i 10'TAI f-, 2,!, P1AR 22 AM 10: 02 �i`f .E�`LA 'D COUNTY P`INh,SYLVANIA IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA PHILIP L. CONKLIN, Docket No. 12-6720 Plaintiff CIVIL ACTION—LAW V. JURY TRIAL DEMANDED JAMES F. RICH, M.D. and CONNER RICH ASSOCIATES Defendants. PRELIMINARY OBJECTIONS OF DEFENDANTS TO PLAINTIFF'S COMPLAINT AND NOW, come Defendants James F. Rich, M.D. ("Dr. Rich"), and Conner Rich Associates ("CRA") (hereinafter, collectively, "Defendants") Objections to Plaintiff's Complaint: 1. This is a medical professional liability action. 2. Plaintiff initiated this civil action by Writ of Summons on November 2, 2012. 3. On January 29, 2013, Defendants filed a Praecipe for Rule to File Complaint. 4. On February 19, 2013, Defendants sent Plaintiff a Notice of Intention to File Praecipe to Enter Judgment of Non Pros, pursuant to Pennsylvania Rule of Civil Procedure 237.1. A true and correct copy of the Notice is attached hereto as Exhibit "A". 5. When Plaintiff failed to file a Complaint, on March 4, 2013, Defendants filed a Praecipe for Entry of Judgment of Non Pros, pursuant to Pennsylvania Rule of Civil Procedure 03/20/2013 SLI 1225390v1 041199.00660 1037(a). A true and correct time stamped copy of the Praecipe for Entry of Judgment Non Pros is attached hereto as Exhibit"B". 6. Accordingly, the Court entered Judgment of Non Pros against the Plaintiff. A true and correct time stamped copy of the 236 Rule is attached hereto as Exhibit "C". 7. After Defendants filed the Praecipe of Entry of Judgment of Non Pros, Plaintiff filed an untimely Complaint.1 8. According to the Complaint, this case arises out of certain treatment and care that Dr. Rich provided to Philip L. Conklin("Plaintiff') from October 2010 through November 2010. Complaint, at IT 6-38. 9. Plaintiff alleges that he sought treatment with Dr. Rich for "constipation...swelling in his feet, congestion and/or a course-type rattling in his chest." Id., at ¶7. 10. Plaintiff alleges that Dr. Rich was negligent in his treatment and care of the Plaintiff for failing to timely diagnose his "actual medical condition". Id., at¶¶64(a), 65. 11. Plaintiff further alleges that Dr. Rich was negligent for failing to supervise his staff in promptly ordering oxygen for the Plaintiff. Id., at¶¶64(a)-(e). 12. Count II of the Complaint, is entitled "Negligence" against CRA. Id., at Count II. 13. However, nearly all of the paragraphs in Count II relate to Dr. Rich's alleged failure to properly supervise his staff and fail to set forth how or why CRA was negligent. Complaint, at Count II. ' Defendants' Praecipe for Entry of Judgment of Non Pros is time stamped 8:12 a.m.,March 4,2013. Plaintiff's Complaint was also filed on March 4,2013,however, it is time stamped 8:38 a.m. Accordingly, Plaintiffs Complaint was filed after Defendants' Praecipe for Entry of Judgment of Non Pros and so,Defendants were"first-in-time". See Lansdowne by Lansdowne v. G.C. Murphy, Co.,517 A.2d 1318(Pa. Super. 1986). 03/20/2013 SL 1 1225390v 1 041199.00660 14. Defendants respectfully submit Plaintiff's Complaint should be stricken because it was filed after Defendants filed a Praecipe for Entry of Judgment of Non Pros and so, it is violative of Pa. R. Civ. P. 1037(a). 15. Alternatively, Defendants respectfully submit that Count II should be stricken for failing to plead his negligence claim with sufficient specificity and for failing to state a legally sufficient claim against CRA. Preliminary Objection-Motion to Strike Complaint For Failure to Conform to Rule of Court—Untimely Complaint 16. Defendants incorporate by reference the preceding paragraphs as though set forth more fully herein. 17. On January 29, 2013, Defendants sent Plaintiff a Notice of Intention to File Praecipe to Enter Judgment of Non Pros due to Plaintiff s failure to file a complaint. 18. Because Plaintiff failed to file a complaint by March 1, 2013, Defendants filed a Praecipe to Enter Judgment of Non Pros,pursuant to Pa. R. Civ. P. 1037(a). 19. However, after the Court entered Judgment of Non Pros against Plaintiff, he filed a Complaint. 20. As such, Plaintiff's Complaint was untimely. 21. Because Plaintiff filed a Complaint after Defendants filed a Praecipe to Enter Judgment of Non Pros, Plaintiff's Complaint is violative of Pa. R. Civ. P. 1037(a). See Lansdowne by Lansdowne v. G.C. Murphy, Co., 517 A.2d 1318 (Pa. Super. 1986). 22. Since Plaintiffs Complaint is untimely and violative of Pa. R. Civ. P. 1037(a), it should be stricken. See Pa. R. Civ. P. 1028(a)(2). 03/20/2013 SL 1 1225390v 1 041199.00660 WHEREFORE, Defendants respectfully request that this Honorable Court grant their Preliminary Objection and enter an Order striking Plaintiff's Complaint, with prejudice, for failure to conform to rule of court. (In the Alternative) Preliminary Objection- For Insufficient Specificity and For Legal Insufficiency (Demurrer--Count II 23. Defendants incorporate by reference the preceding paragraphs as though set forth more fully herein. 24. Although Plaintiffs Complaint should be stricken, to avoid waiver of other appropriate preliminary objections, in the alternative, Defendants contend that Count II of the Complaint should be stricken. 25. Count II of Plaintiffs Complaint is entitled"Negligence" and is purportedly a claim for negligence against CRA. 26. Notably, Plaintiff fails to specify whether Count II is a vicarious claim for negligence against CRA for the acts of Dr. Rich, or a direct claim for corporate negligence against CRA. 27. Nonetheless, nearly all of the paragraphs in Count II concern why Dr. Rich was allegedly negligent for failing to supervise his staff to ensure that Plaintiff promptly received his prescribed oxygen. 28. Indeed, none of the averments address how or why CRA acted negligently. 29. Under Pennsylvania Law, the material facts upon which a cause of action is premised must be pled with sufficient specificity so as to set forth the prima facie elements of the tort alleged. Furthermore a properly pled tort action requires a prima facie showing of a duty, a 03/20/2013 SL 1 1225390v 1041199.00660 breach of that duty, and resultant damages. See Baker v. Rangos, 324 A.2d 498 (Pa. Super. 1974); see also Erdely v. Hinchcliffe and Keener, Inc., 875 A.2d 1078 (Pa. Super. 2005). 30. Here, Plaintiff has failed to plead the requisite elements to establish a claim of negligence against CRA. 31. Accordingly, because Count II is legally insufficient and insufficiently specific, Plaintiff respectfully requests that Count 11 be stricken from the Complaint. WHEREFORE, Defendants respectfully request that this Honorable Court grant their Preliminary Objection and enter an Order striking Count II of Plaintiff's Complaint, with prejudice, for legal insufficiency and insufficient specificity. Respectfully submitted: Dated: March 21, 2013 STEVENS & LEE, P.C. By: Michael D. Pipe', E uire Attorney ID No 5 624 Collin T. Keyser, Esquire Attorney ID No. 307505 17 North Second Street, 16'' Floor Harrisburg, PA 17101 (717) 255-7376 (610) 371-7743 ctk @stevenslee.com sjm @stevenslee.com Attorneys for Defendants 03/20/2013 SLl 1225390v1 041199.00660 CERTIFICATE OF SERVICE I, Collin T. Keyser, certify that a true and correct copy of the foregoing Preliminary Objections to Plaintiffs Complaint was served by first class mail, postage prepaid, upon the following: Philip L. Conklin P.O. Box 54 Rossville, PA 17358 Pro Se Philip L. Conklin 22 Mairdale Avenue Pittsburgh, PA 15214 Pro Se JL- Date: March 21, 2013 77 03/20/2013 SLl 1225390v1 041199.00660 ... .. . ... . . .._.__ COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Phillip L. Conklin CIVIL ACTION—LAW - 3 v a; rn Co Plaintiff NO. 12-6720 ��' �' S Fr} �> f :jam V. r C PETITION TO OPEN NON 9ROCO ' i James F. Rich, and, Conner Rich Associates : PROFESSIONAL MALPRA�TI& _ Defendants JURY TRIAL DEMANDED PETITION TO OPEN NON PROS NOW COMES, Plaintiff, Phillip L. Conklin("Petitioner") who timely petitions for relief of judgment for Non Pros, and in support thereof, states as follows: I. On March 4, 2013, at 8:38 am, Petitioner filed a Complaint for Professional Malpractice. Attached hereto, is a true and correct copy of Petitioner's complaint, marked as Exhibit"A". 2. On or about March 24, 2013, Petitioner received from Defendants' counsel (dated March 21, 2013) Preliminary Objections, stating to the effect that: a. a judgment of non pros had been entered against Petitioner, on or about March 4, 2013, at 8:12 am. b. Count II of Petitioner's complaint, against Defendant Associates, fails to state a claim upon which relief can be granted. 3. Though referenced in Defendant counsel's preliminary objections, no attachment(s), I.e., (Exhibits¶4 - "A", ¶5 —"B", ¶6—"C") indicating a judgment of non pros had been entered were actually provided. 4. As of the date of the filing of this Petition, Petitioner has not received from the Prothonotary, pursuant to Pa.R.Civ.P. 236, a copy of the judgment of Non Pros. 5. Pa.R.Civ.P. 236 provides in pertinent part that: (a) The prothonotary shall immediately give written notice of the entry of (2) any other order or judgment to each party's attorney of record or, if unrepresented,to each party. The notice shall include a copy of the order or judgment. 6. Given the date of Defendant counsel's preliminary objections,that being, the only date by which Petitioner is and/or has been made aware that ajudgment may have been entered, Petitioner now timely files this Petition for relief from judgment of non pros . 7. During the course of this action, Petitioner,a long-time resident of York County, was forced to re-locate to Pittsburgh, Allegheny County,which has served to significantly complicate matters that can only be addressed in Cumberland County. 8. Petitioner attempted to file his complaint on Friday, March 1, 2013, but for serious car trouble en route, simply could not make it to the courthouse prior to its closing. 9. Unable to file his complaint on the above-date as desired,Petitioner then attempted via another vehicle,to be first in line at the Courthouse on Monday, March 4, 2013 at 8:30 am, believing the courthouse did not open until then, and accordingly filed his complaint, as stamped at 8:38 am. 10. As a(previous) long-time resident of York County,Petitioner was familiar with the York courthouse opening at 8:30 am, and only following Defendants preliminary objections, learned that the Courthouse opened earlier. Petitioner attempted to file this Petition on March 29,2013,only to find the Courthouse closed. 11. As noted in T 2 above, Defendants counsel filed preliminary objections to Petitioner's compliant. 12. Pa.R.Civ.P. 1028(b) states that: All preliminary objections shall be raised at one time. They shall state specifically the grounds relied upon and may be inconsistent. Two or more preliminary objections may be raised in one pleading. 13. Presumably, Defendants counsel could have rested on having entered onto the record a judgment in non pros; however, said counsel instead chose to file preliminary objections, without either incorporating by reference or providing a copy the judgment or any exhibit upon which relied, 14. Moreover, in addition to citing a judgment entered, Defendants' counsel specifically chose to address Count 11 of Petitioner's complaint, as failing to state a claim for relief, omitting objections in their entirety,as to Count 1. 15. Petitioner reasons,that Defendants counsel failure to raise all of their preliminary objections, (as otherwise required per Rule 1028(b)) and most notably, any that pertain to Count I (Defendant Rich) is minimally, a tacit acknowledgement that Petitioner's Complaint at Count I represents both a valid claim stated, and a meritorious cause for this Court to open any judgment of non pros that may have been entered. 16. Additionally, Petitioner has consulted with a licensed professional, and given said professional's assurance that a valid cause exists, Petitioner fully expects to timely file a certificate of merit,pursuant to Pa.R.Civ.P. 1042.3(a)(1). 17. But for, the licensed professional's currently extended leave out of state on other medical matters, Petitioner would have already filed that, "an appropriate licensed professional has supplied a written statement..."thus meeting the threshold requirement of Rule 1042.3(a)(1). 18. For the foregoing reasons and in the interest of justice, Petitioner respectfully requests, in the interest of justice, that this Court open any judgment of non pros which may have been entered against petitioner. WHEREFORE, consistent with the foregoing reasons and more, Petitioner, for good cause, respectfully requests that this Court open any judgment of non pros that may have been entered against Petitioner, and return this case back to its former status quo. Respectfully Submitted, Phillip L.'Conklin 22 Mairdale Avenue Pittsburgh, Pa. 15214 (717) 460-5450 COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Phillip L. Conklin CIVIL ACTION—LAW Plaintiff NO. 12-6720 V. PETITION TO OPEN NON PROS James F. Rich, and, Conner Rich Associates : PROFESSIONAL MALPRACTICE Defendants JURY TRIAL DEMANDED VERIFICATION 1, Phillip L. Conklin,petitioner in the above-captioned matter, do hereby verify this 28`h day of March 2013 that the foregoing statements in my Petition to open Non Pros, are true and correct to the best of my knowledge, information and belief. I understand any false statements are subject to penalty of perjury,pursuant to 18 Pa.C.S.A. § 4904, relating to unsworn falsification to authorities. Philli L. Conklin 22 Mairdale Avenue Pittsburgh, Pa. 15214 (717) 460-5450 COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,PENNSYLVANIA Phillip L. Conklin Plaintiff NO. 12-6720 C-) CIVIL ACTION— TT V- MEDICAL PROFESSIONS XjE'-- LIABILITY ACTION -L— c James F. Rich.and, Conner Rich Associates C CD Defendants Zt i-1- JURY TRIAL DEMANDEI;�- COMPLAINT FOR MEDICAL PROFESSIONAL LIABILITY Defendant,James F. Rich is a licensed medical professional with offices in Cumberland County, Pennsylvania. Plaintiff is asserting a professional liability claim against this Defendant. (--Defendant Rich") Defendant,Conner Rich Associates, is a licensed medical professional office, in Cumberland County, Pennsylvania. Plaintiff is asserting g a professional liability claim against Defendant. ("Defendant Associates") 1. This civil action for professional liability claim for medical malpractice,arises out of mediciliv-ne-lie . gent treatment received by Plaintiff.that occurred at all material times,at the hands of Defendant Rich at the offices of the Defendant Associates in Camp Hill. Pennsylvania. A jury trial is demanded. PARTIES 3. Defendant. Dr. James F- Rich-is licensed by the Pennsylvania Department of State. (MD03)030L),as a medical physician and suraeon to practice medicine in w C the Comi-nonNycalth of Pennsylvania.and regularly enpa-c5 in the practice of g t� medicine at 207 House Avenue Suite 101.Camp Hill.Pennsylvania. 4. Defendant,Conner Rich Associates,is,upon information and belief,partnership, or limited liability partnership,operating in Pennsylvania,' with its office located at 207 House Avenue„Suite 101,Camp Hill,Pennsylvania 17011. 5. Plaintiff is currently a resident of Pittsburgh,Pennsylvania.Plaintiff had been a patient of the foregoing Defendant(s)for a number of years,and at all material times relied upon and fully entrusted his care and welfare to said Defendant(s). FACTS 6. On or about October 12,2010,Plaintiff,accompanied by his son,Stephen,had an appointment with Defendant Rich at the offices of Defendant Associates. 7. Plaintiff had made the appointment complaining of,mler alia,constipation;as well as swelling in his feet,particularly,his left foot;as well as congestion and/or a coarse-type rattling in his chest. 8. All of the rudimentary procedures of examination were performed,including,but not limited to:height/weight;blood pressure;temperature;and,evaluating his lungslchest,via stethoscope. 9. In addition to laxatives,Plaintiff was prescribed a"water-pill'to reduce fluid,and nebulizer treatment.No additional tests ordered or performed. 10. On or about October 28,2010, Plaintiff,accompanied by his son, Stephen,had another appointment with Defendant Rich at the offices of Defendant Associates. 11.Plaintiff had complained of, hvleralra,chest pains and the inability to breathe; Plaintiff further informed Defendant Rich and staff that he was depressed and the Preceding treatment prescribed by Defendant(nebuiizer)had not been helping. Prior to filing this complaint,following a diligent search of the Department of State website,Plaintiff was unable to locate any registration of"Conner Rich Associates"under any form of company/corporate filing. 12.In addition to the rudimentary examination techniques as noted in¶7,and/or as commonly employed,an oximeter was used to determine the level of oxygen in the blood,and Plaintiff and his son recall that Plaintiff may need to be put on an oxygen treatment. 13.Additionally,a proformist treatment was rendered in the office,and inhalers were ordered,(Plaintiff recalls being given a few free samples as well)as well as an anti-depressant to be taken at home. 14.Upon information and belief,a follow-up appointment was also scheduled for approximately two weeks later. 15.No other tests were performed or ordered. 16.On or about November 2,2010,due to Plaintiff's worsening condition,once more Plaintiff was seen by Defendant Rich,at the offices of Defendant Associates. 17.Plaintiff,accompanied by his son,again complained of,inleralia,Plaintiff's inability to breathe,that in addition,now included sporadic episodes of disorientation,hallucination. 18.Again the rudimentary tests were performed,and the treatment recommended was Plaintiff needed to be on oxygen_No other tests were performed or ordered. 19.On or about November 4,2010,Plaintiff was exigently seen for what would be his last time, by Defendant Rich; Plaintiff's visit was prompted by his symptoms Progressively/markedly worsening. 20. Defendant Rich and staff were informed that Plaintiff, infer alia,was becoming regularly disoriented,hallucinating; Plaintiff had significant trouble breathing, coughing;couldn't eat;and,(despite laxatives)constipated. 21.Almost all of the normal rudimentary tests were once more performed,plus a check on oxygen levels in his blood,except,Plaintiffs temperature was not taken; nor,were any other tests performed or ordered. 22.Just as in previous visits,and despite the fact that this was(again)an emergency visit, no tests were ordered; including,but not limited to,a chest x-ray,blood work,or any other relevant test as would be considered proper and reasonable given the circumstances;nor,were any other instructions given for Plaintiff's care,other to await the delivery of oxygen. 23.The fact is,the fundamental diagnosis and ultimate treatment to be rendered was that Plaintiff was to be put on oxygen,as soon as possible. 24.Upon check-out at the front desk with nursing staff,Defendant Rich reiterated that oxygen needed to be ordered for Plaintiff. 25.The front desk nurse/staff,given that it was now approximately 4:30 pm or slightly later in the day,stated to the effect that,it was too late to order oxygen now,but the order would be put in first thing in the morning. 26. Plaintiff accompanied by his son,thereafter departed and went home. 27.At approximately 8:00 pm that evening,it was apparent Plaintiff became,inter alia,delirious and/or hallucinating,with additionally noting an inability to stand or otherwise use his legs,unassisted. 28.Plaintiff's son immediately contacted Defendant Rich's office and was directed to the emergency after hours call,to which, Plaintiffs son pled to the operator the urgency of the situation and need to speak to the [Defendant]doctor. 29. Shortly thereafter,Defendant Rich returned the call,and after Plaintiffs son explained the dire situation;Defendant Rich calmly insisted that Plaintiff merely needed to be on oxygen,which[presumably]was being ordered in the morning, and that,in the meantime,Plaintiff simply needed to sleep. 30. Defendant Rich,having stated the foregoing,and with particularity,Plaintiffs need to sleep while awaiting delivery of the yet to be ordered oxygen,then asked Plaintiff s son if he had any"tranquilizers";stating further,Plaintiff's son needed to give his father[Plaintiff]a tranquilizer,cause Plaintiff just needed to sleep until the oxygen came. 31. Plaintiff's son informed Defendant Rich that he did not have any tranquilizers,to which,Defendant Rich inquired(in the alternative)whether Plaintiffs son had any sedatives;again,Plaintiff's son said there were none. 32. The entire premise proffered by Defendant Rich revolved solely around Plaintiff's need to sleep until oxygen was delivered,presumably the next morning;no other instructions or concerns were addressed by Defendant Rich at this time. 33.Neither,Plaintiff or his son had either tranquilizers or even sedatives;however,in the interim,Plaintiff did fall asleep,albeit briefly,and Plaintiffs son,reasonably relying thereupon,and/or trusting in Defendant Rich's insistence that Plaintiff simply needed to sleep,relaxed his vigilance while awaiting the order for oxygen; the same oxygen that the front desk staff,clearly within Defendant Rich's ear- shod,just hours earlier, insisted could not be ordered until morning. 34.At about 10:30 pm this same night,Plaintiff awoke totally confused,prompting Plaintiffs son again contacted Defendant's office,which was again forwarded to the emergency call center,the call was then directed to Defendant Rich's partner, Dr.Conner. 35. Dr. Conner returned Plaintiffs son's call,and as Plaintiff's son was telling Dr. Conner the situation,when Plaintiffs son mentioned that Defendant Rich had told him to give his[Plaintiff]father a tranquilizer,the phone suddenly and eerily went silent for what seemed an inordinate amount of titre. Plaintiff's son wondered if Dr.Conner was even on the line anymore. 36.Prompted to respond,while avoiding the issue Defendant Rich's advice to administer a tranquilizer,Dr.Conner otherwise offered nothing contrary to the advice given by Defendant Rich regarding oxygen,sleep. 37.Indeed,Plaintiff had once again fallen asleep„remaining so for the remainder of the night. 38. On or about the morning of November 5,2010,Plaintiffs son called the offices of Defendant Rich,Defendant Associates,to inquire as to how soon the oxygen would be coming. 39. Fully expecting to be given an approximate of when delivery might occur, Plaintiff's son was astonished when the staff person for Defendant Associates informed Plaintiff's son that the oxygen had not even been ordered yet, 40_ Approximately a couple hours later(or less)Plaintiff's son again called Defendant Associates,seeking to speak directly to Defendant Rich and was informed Defendant Rich was not available. 41. Plaintiffs son, in light of Plaintiff s deteriorating condition and what clearly appeared to be an inexplicable delay in delivery,once again inquired just how soon oxygen would arrive,was met with a somewhat hostile(totally unprofessional)reply by staff,claiming there were[unexplained]"complications" and basically,to the effect,Plaintiff would get his oxygen when he gets it. 42. Plaintiffs son was now livid;not only from the fact that the oxygen hadn't even been ordered yet,but by the callous indifference of Defendant's staff with regard to Plaintiffs needs;needs that were squarely premised on a diagnosis/plan submitted by Defendant Rich as"the"answer to Plaintiff's condition. 43. Subsequently,Plaintiff now in a state of total delirium;not knowing who,or where he was,and unable to move,Plaintiffs son called for an ambulance. 44.An ambulance arrived early evening and after performing their perfunctory tasks and temporarily stabilizing Plaintiff, whisked Plain6ffaway to the hospital. 45.Thereafter,oxygen was delivered,albeit,clearly belatedly,and Plaintiff's son, briefly spoke to the Apria attendee who delivered the oxygen about the preceding events and inquired what took so long to get the oxygen there. 46.The attendee replied,in effect,that he had just received the order only an hour or so previously;and further remarked,that it was ridiculous to say that the oxygen could not have been ordered[and delivered]the night before. 47.The attendee went further stating in effect that oxygen can be ordered 24/7 and that,"if someone needs oxygen and it is after hours,what do you think we tell them,sorry hold your breath until we reopen?" 48. Following this eye-opener,Plaintiff's son subsequently rushed to the hospital where he found Plaintiff,in emergency care,totally unaware of where he was or why he was there. 49. Plaintiff was diagnosed,Mlerolrrr,with double pneumonia,congestive heart failure,bleeding from the stomach,low oxygen count in his blood,and other maladies. Plaintiffs son was told by a hospital physician,had Plaintiff delayed even a few more hours incoming,in all likelihood,he would not have survived. 50.Plaintiffs son,-was also told,had he administered a U=quilizer as advised by Defendant Rich,that too,would have probably killed him. 51.Following Plaintiff's[initial]release,Plaintiff endured a slow,albeit,incomplete recovery and was regularly visited by various therapists as part of his rehabilitation. 52.Despite the additional care now Ming given,nonetheless,Plaintiff suffered a relapse that on or about December 22,2010 immediately required Plaintiff to i once more be hospitalized for pneumonia and other related conditions;Plaintiff remained in the hospital for a week over Christmas, 53.Prior to Plaintiff suffering double pneumonia as diagnosed by hospital physicians/staff following his November 5,2010 emergency admission,Plaintiff, at no time prior thereto,ever suffered from pneumoniaZ. 54.On or about November 2,2012,Plaintiff commenced an action,by way of Writ of Summon(s)and subsequently caused said writ to be served against the Defendants. Z Plaintiff s health remains compromised,and his susceptibility to pneumonia heightened,as on or about August 2012 plaintiff was hospitalized yet a third time for pneumonia. 55. On or about January 29,2013 Defendant's counsel put in the mail a stamped praecipe for entry of Non Pros. 56.On or about February 14,2413,Plaintiff,in an attempt to amicably resolve Plaintiff's grievance,caused to be delivered a letter of settlement offer unto Defendant's counsel_ 57. In the settlement offer,Plaintiff sought fifteen thousand($15,000.00)dollars, together with outstanding medical bills Plaintiff remains encumbered with;the offer expired on March 1,2013. 58.This complaint now follows. COUNTI (Negligence—Medical Malpractice) (Defendant Rich) 59.Plaintiff'hereby incorporates each and every of the preceding paragraphs as if all are fully set forth at length,herein. 60.Defendant Rich and Plaintiff held a long-established,ongoing,Doctor-Patient relationship. 61. Plaintiff exclusively relied upon his doctor,Defendant Rich,entrusting Defendant Rich with Plaintiff's care and general health;submitting to examinations,routine and otherwise;accepting the diagnosis provided,including,as to the instant matter,Defendant Rich's 62.Conversely,Defendant Rich owed Plaintiff to exercise at all times,and particularly the material times in question,a duty to exercise the required professional degree and skill as another reasonable and prudent doctor would use in the same or similar circumstances. 63. Defendant Rich,at the material times relative hereto,failed to exercise his duty, as a differential diagnosis would ultimately find,thus deviating from,and/or falling below the acceptable standard of medical care during material visits by Plaintiff at the offices of Defendant Associates. 64. Defendant Rich failed imler aliu to: a. recognize the urgency of the actual medical condition;erroneously relying upon a pre-conceived diagnosis,without consideration of,or benefit from, additional tests ordered or performed,that would have either confirmed or eliminated,via a more complete and/or comprehensive diagnosis,the actual cause(s)of Plaintiff's condition, b. consider the importance of potential medical problems as may otherwise be disclosed on an initial differential diagnosis list; c. improperly conducted and/or interpreted rudimentary tests performed,to the exclusion of more comprehensive tests,thus causing,as self-limited diagnostically,the irreparable failure to narrow down the actual possibilities; d. timely provide the diagnostic medication,that being,oxygen,for which Defendant Rich primarily relied upon and so prescribed as the premier import of his plan,thus inordinately delaying Plaintiff s response thereto, whilst reinforcing,absent its timely application,conclusions contrary to Plaintiffs actual condition and imminently urgent needs;and, e. supervise staff properly/promptly in providing the diagnostic medication presumed and ordered by Defendant Rich,particularly where Defendant knew or should have known that the inordinate delay was not only unnecessary,but wholly contrary to that expressed by Defendant's staff. 65.In the alternative,the dilatorily indifferent approach to Plaintiffs care,(assuming aque,ido,Defendant Rich's diagnosis was correct—a position not adopted herein),significantly underscores the fact that Plaintiff's condition was never timely afforded the seriousness for which Plaintiffs condition in actuality represented. 66. Accordingly,with respect to all of the foregoing;Defendant Rich's negligence, is/was the proximate cause of all of Plaintiffs harm and injuries. 67.Prior to Defendant Rich's negligent care,Plaintiff enjoyed life's pleasure and an active state of affairs,that,as a direct and proximate result of Defendant Rich's negligence,has been irreparably lost. 68.Moreover,with respect to the foregoing,Defendant Rich's failure to recognize and properly diagnose Plaintiff's condition,caused Defendant Rich,during an emergency after-hours call,to precipitously,albeit egregiously,prescribe verbally,that PIaintiff to be administered a"tranquilizer";the effects of which, with a reasonable degree of certainty,would have unequivocally caused Plaintiff, additional undue harm and injury,beyond that which was already being suffered by Plaintiff,as to include the distinct probability of death of Plaintiff. 69. But for, Plaintiffs son not having tranquilizers to administer to his father [Plaintiffl as advised/advocated by Defendant Rich,Plaintiff would not merely suffer diminished health that remains ongoing, but would,undoubtedly,be dead as a result of following Defendant Rich's advice. 70.As a direct result of Defendant Rich's negligence in the first instance,Plaintiff has and yet continues to be,subject to undue pain and suffering. 71.As a direct result of Defendant Rich's negligence in the first instance,Plaintiff has been and yet continues to be subject to medical bills that are not covered by his insurance carrier. 72.As a direct result of Defendant Rich's negligence in the first instance,Plaintiff has lost the ability to enjoy life's pleasures and be active in his state of affairs,as he was prior to harm and injury incurred at the hands of Defendant. WHEREFORE,Plaintiff claims damages against Defendant Rich in excess of seventy-five thousand{$75,400.00}dollars,plus any and all costs associated herewith, including,but not limited to,any outstanding medical bills,as well as future medical bills arising from Defendant's negligence,together with the full costs of bringing this action, all of the foregoing of which is an amount certain,as fully determined at time of trial by jury;and,for any and all additional relief this Court may deem just and proper. COUNT II (Negligence—Medical Malpractice) (Defendant Associates) 73.Plaintiff hereby incorporates each and every of the preceding paragraphs as if all are fully set forth at length,herein. 74.Defendant Rich is,upon information and belief,a partner in and/or principal of Defendant Associates. 75.Pursuant to his primary diagnosis,that is,Plaintiff simply needed to be on oxygen,despite being delegated to his front office staff to so order and have delivered,that duty was recklessly disregarded by said staff. 76.This disregard was tacitly acknowledged,and therefore implied,in silent acquiescence,when,in the first instance,Defendant Rick as a partner and/or Principal of Defendant Associates,having directed his front office staff to order oxygen,thereafter allowed said staff within his hearing,to tell plaintiff that, because of the late hour(Approx.4:30pm),oxygen could not be ordered until the next day. 77.Defendant Rich,as a partner and/or principal in Defendant Associates,knew or should have clearly known this statement by his staff;for whom,he has a duty,at all times to supervise,was patently false. 78.Moreover,in finiherance of his duty to supervise staff,and knowing that his staff had failed to order the diagnostic medication as directed,had a duty on the very next day to ensure such order was placed. 79.Plaintiff and son,having relied on a false statement made in the presence of Defendant Rich on the afternoon of November 4,2010,went home that evening 80.The fact is,the primary diagnosis proffered by Defendant Rich was mistaken;yet Defendant Rich,as a partner and/or principal of Defendant Associates,in relying thereupon,exacerbated Plaintiff's plight by allowing staff to posit falsehoods; and further,thereafter continued to delay the ordering of the oxygen for which Defendant Rich's diagnosis/plan was solely premised upon. 81. This delay, unreasonable by any standard,thus caused additional harm and detriment in determining the true source of Plaintiffs suffering. 82. But for,Plaintiff's true condition may have been determined far sooner,thus mitigating in equal degree,the otherwise wholly unnecessary need of additional harm and injury incurred by Plaintiff. WHEREFORE,Plaintiff claims damages against Defendant Associates in excess of seventy-five thousand($75,000.00)dollars,plus any and all costs associated herewith, including,but not limited to,any outstanding medical bills,as well as future medical bills arising from Defendant's negligence,together with the full costs of bringing this action, all of the foregoing of which is an amount certain,as fully determined at time of trial by jury;and,for any and all additional relief this Court may deem just and proper. WHEREFORE, in consideration of all the foregoing,Plaintiff respectfully requests all manner,measure and means of recovery consistent therewith;and,for any additional relief that this Court may deem just and proper. Respectfully Submitted, Phillip L. Conklin 22 Mairdale Avenue Pittsburgh,Pa. 15214 (717)460-5450 RespectMy Submitted, Phillip L.Conklin 22 Mairdale Avenue Pittsburgh,Pa. 15214 (717)460-5450 i COURT OF COMMON PLEAS OF CUMBERLAND COUNTY. PENNTSYLVANIA Phillip L. Conklin Plaintiff NO. CIVIL ACTION — v. MEDICAL PROFESSIONAL LIABILITY ACTION James F. Rich,and, Conner Rich Associates Defendants JURY TRIAL DEMANDED VERIFICATION I.Phillip L.Conklin,plaintiff in the above-captioned matter,do hereby verify this day of March.that the foregoing statements in my Complaint for Medical Professional Liability,are true and correct to the best of my knowledge, information and belief. I understand any false statements are subject to penalty of perjury, pursuant to 18 Pa.C.S.A. 4904,relating to unworn falsification to authorities. Phillip L. Conklin 22 Mairdale Avenue Pittsburgh,Pa. 13214 (717)460- 450 COURT OF COMMON PLEAS OF CUMBERLAND COUNTY.PENNSYLVANIA Phillip L. Conklin Plaintiff : NO. CIVIL ACTION — V. MEDICAL PROFESSIONAL LIABILITY ACTION ,lames F. Rich,and, Conner Rich Associates Defendants jURY TRIAL DEMANDED CERTIFCATE OF SERVICE I. Phillip L. Conklin,plaintiff above,do hereby certify that a true and correct copy of my Complaint in Medical Professional Liability was served by first class, U.S. Mail,postage pre-paid upon the parties as indicated below: Michael D. Pipa. Esquire c/o Stevens&Lee 17 North Second Street, 16`'Fl. Harrisburg,Pa. 17101 (attorneys for Defendants) Phillip L. Conklin 22 Mairdale Avenue Pittsburgh,Pa. 15214 (7l 7)460-5450 COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Phillip L. Conklin CIVIL ACTION—LAW Plaintiff NO. 12-6720 V. PETITION TO OPEN NON PROS James F. Rich, and, Conner Rich Associates : PROFESSIONAL MALPRACTICE Defendants JURY TRIAL DEMANDED CERTIFCATE OF SERVICE I, Phillip . Conklin �s—r� ` t p ,petitioner above, do hereby certify this�'"day of Mach 2013 that a true and correct copy of my Petition to Open Non Pros was served upon the Office of the Court Administrator by hand delivery, and by first class, U.S. Mail, postage pre-paid upon the parties as indicated below: Michael D. Pipa, Esquire c/o Stevens & Lee 17 North Second Street, 16th Fl. Harrisburg, Pa. 17101 (attorneys for Defendants) Phillip L. Conklin 22 Mairdale Avenue Pittsburgh, Pa. 15214 (717)460-5450 PHILLIP L. CONKLIN, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. JAMES F. RICH, AND CONNER RICH ASSOCIATES, DEFENDANTS NO. 12-6720 CIVIL ORDER OF COURT AND NOW, this Td day of April, 2013, upon consideration of the Plaintiff's Petition for Relief of Judgment of Non Pros, IT IS HEREBY ORDERED AND DIRECTED that: 1. A Rule is issued upon the Defendants to show cause why the relief requested should not be granted; 2. The Defendant will file an answer on or before April 24, 2013; 3. If no answer to the Rule to Show cause is filed by the required date, the relief requested by Petitioner shall be granted upon the Court's receipt of a Motion requesting Rule be made Absolute. If the Defendants file an answer to this Rule to Show Cause, the Court will determine if further Order or hearing is necessary. 4. The Prothonotary is directed to forward said Answer to this Court. By the Court, M. L. Ebert, Jr., J. u a /Phillip L. Conklin Plaintiff r r/ Michael D. Pipa, Esquire Attorney for Defendants _ bas 1 / 4'�r FILED-t�l i=iu,� I ;E DROTHONr Ti t 2013 APR 24 Ail to: 02 CUMBERLAND COUNTY PENNSYLVANIA IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY,PENNSYLVANIA PHILIP L. CONKLIN, Docket No. 12-6720 Plaintiff CIVIL ACTION—LAW V. JURY TRIAL DEMANDED JAMES F. RICH, M.D. and CONNER RICH ASSOCIATES Defendants. DEFENDANTS' ANSWER TO PLAINTIFF'S PETITION TO OPEN JUDGMENT OF NON PROS Defendants, James F. Rich, M.D. and Conner Rich Associates (hereinafter collectively "Defendants")through their counsel, Stevens & Lee, and respectfully submit this Answer to Plaintiff's Petition to Open Judgment of Non Pros. 1. It is admitted that Petitioner filed an untimely Complaint on March 4, 2013 after Judgment of Non Pros had been entered against him. 2. Admitted in part and denied in part. It is admitted that a Judgment of Non Pros was entered against the Plaintiff. It is further admitted that Defendants also filed Preliminary Objections to strike Plaintiff's Complaint on the basis that it was untimely and violative of Pa. R. Civ. P. 1037(a). In the alternative, Defendants filed Preliminary Judgment of Non Pros was entered against the Plaintiff for failure to file a timely Complaint pursuant to Pa. R. Civ. P. 1037(a)and 237.1(a). The recent amendments to Pa. R. Civ. 3051 govern relief from Judgment of Non Pros for Inactivity and therefore have no effect on this matter. Rather,this matter is governed by Pa. R. Civ. P. 237.3. Objections to strike Count II for legal insufficiency and insufficient specificity. After reasonable investigation, Defendants are without sufficient knowledge about when Petitioner received Defendants' Preliminary Objections and Petitioner's averment is therefore denied. 3. Denied. After reasonable investigation, Defendants are without sufficient knowledge to determine the truth of the averments in this paragraph and therefore they are denied. 4. Denied. After reasonable investigation, Defendants are without sufficient knowledge to determine the truth of whether Plaintiff received a copy of the Judgment of Non Pros from the Prothonotary and therefore these allegations are denied. By way of further response, if Plaintiff has not received notice of the Judgment of Non Pros from the Prothonotary, this is likely because Plaintiff failed to fulfill his duty to provide the Court with a current address. Indeed, Pursuant to Pa. R. Civ. P. 205.1, Plaintiff endorsed P.O. Box 54, Rossville, PA 17358 as the address for service in the manner provided by 440(a) and the Court is under no obligation to send the Rule 236 notice to any other address. 5. Admitted. It is admitted that Plaintiff correctly states Pa. R. Civ. P. 236. 6. Denied. It is specifically denied that the Petition to Open Judgment of Non Pros is timely. The Petition to Open Judgment of Non Pros was filed 20 days after the Judgment of Non Pros was entered. The "10-day rule" of Pa. R. Civ. P. 237.3(b) is therefore of no benefit. See Pa. R. Civ. P. 237.3, Explanatory Comment No. 6; see also Schultz v. Erie Insurance Exchange, 505 Pa. 90, 477 A.2d 471 (Pa. 1984). Furthermore, Plaintiff does not have a reasonable explanation or legitimate excuse for the delay.z Cf. 2 A request to open a judgment of non pros is by way of grace and not of right. Its grant or refusal is peculiarly a matter for the lower court's discretion. An appellate court may not reverse Cino v. Hopewell Township Government, 715 A.2d 1242, 1243 (Pa. Cmwlth. 1998) (a plaintiff's need to obtain health care is not a sufficiently compelling excuse for his failure to timely file a complaint). 7. Denied. After reasonable investigation, Defendants are without sufficient knowledge to determine the truth of the averments in this paragraph and therefore they are denied. By way of further response, Petitioner took it upon himself to proceed in this medical professional liability action pro se and any difficulties Petitioner has encountered are the fault of his own. Furthermore,pro se Petitioners are not excused from following the Pennsylvania Rules of Civil Procedure. Id. 8. Denied. After reasonable investigation, Defendants are without sufficient knowledge to determine the truth of the averments in this paragraph and therefore they are denied. By way of further response, Petitioner's car trouble is not a justifiable excuse for failing to file a timely Complaint. Id. It is unlikely that Petitioner's reasons for delay would be considered legitimate if he were represented by counsel. Id. Moreover, if the Petition to Open Judgment of Non Pros is granted, the Defendants will ultimately "pay for" Petitioner's failure to follow the Pennsylvania Rules of Civil Procedure and will have incurred attorney's fees and costs in the process of properly following those Rules and appropriately obtaining a Judgment of Non Pros. 9. Denied. After reasonable investigation, Defendants are without sufficient knowledge to determine the truth of the averments in this paragraph and therefore they the lower court's ruling unless an abuse of discretion is clearly evident. See Kennedy v. Board of Supervisors of Warminster Township,364 A.2d 442, 444-445 (Pa. Super. 1976)(citations omitted). are denied. By way of further response, the fact that Petitioner failed to simply check the courthouse hours of operation is not a justifiable excuse for failing to file a timely Complaint. Id. 10. Denied. After reasonable investigation, Defendants are without sufficient knowledge to determine the truth of the averments in this paragraph and therefore they are denied. By way of further response, Petitioner commenced this medical professional liability action in the Cumberland County Court of Common Pleas without counsel and assumed the burden to become familiar with the Cumberland County local rules and hours of operation. 11. Admitted. By way of further response, Petitioner failed to file a response to Defendants' Preliminary Objections. 12. Admitted. It is admitted that Petitioner correctly stated Pa. R. Civ. P. 1028(b). 13, Denied. The averments of this paragraph contain legal conclusions to which no response is required and are therefore denied. By way of further response, Defendants filed Preliminary Objections to strike Petitioner's untimely Complaint and to, in effect, "finalize" the end of this litigation. 14. Denied. The averments of this paragraph contain legal conclusions to which no response is required and are therefore denied. 15. Denied. The averments of this paragraph contain legal conclusions to which no response is required and are therefore denied. It is specifically denied that Count I of Plaintiff's Complaint represents a valid claim for this Court to Open a Judgment of non pros. It is also specifically denied that Defendants' decision not to file i- Preliminary Objections to Count I constituted a"tacit acknowledgement" that Count I states a valid claim. Technical compliance with the pleading rules in no way equates to a valid claim. 16. Denied. After reasonable investigation, Defendants are without sufficient knowledge to determine the truth of the averments in this paragraph and therefore they are denied. By way of further response, it is specifically denied that Petitioner has a valid cause of action or will be able to construct a prima facie case that Defendants deviated from the applicable medical standard of care or that any deviation resulted in harm to Petitioner. 17. Denied. After reasonable investigation, Defendants are without sufficient knowledge to determine the truth of the averments in this paragraph and therefore they are denied. 18. Denied. It is specifically denied that it would be in the interest of justice to open the Judgment of Non Pros. M WHEREFORE, Defendants respectfully request that this Honorable Court deny Plaintiff's Motion to Open Judgment of Non Pros. Respectfully submitted: Dated: April 23, 2013 STEVENS & LEE, P..C. _— By: r 7 Michael D. Pipa, E ire Attorney ID No. 5 624 Collin T. Keyser, Esquire Attorney ID No. 307505 17 North Second Street, 16th Floor Harrisburg, PA 17101 (717) 255-7376 (610) 371-7743 ctk @stevenslee.com sjm @stevenslee.com Attorneys for Defendants CERTIFICATE OF SERVICE I, Collin T. Keyser, certify that a true and correct copy of the foregoing Answer to Plaintiff's Petition to Open Judgment of Non Pros was served by first class mail, postage prepaid, upon the following: Philip L. Conklin P.O. Box 54 Rossville, PA 17358 Pro Se Philip L. Conklin 22 Mairdale Avenue Pittsburgh, PA 15214 Pro Se Date: April 23, 2013