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HomeMy WebLinkAbout12-6981WII.,ICES & McHUGH, P.A. Ian T. Norris, Esquire Attorney Identification No. 207566 Three Parkway 1601 Cherry Street, Suite 1300 Philadelphia, PA 19102 Tel No. (215) 972-0811 Email: inorris@wilkesmchugh.com THIS IS NOT AN ARBITRATION CASE; AN ASSESSMENT OF DAMAGES IS REQUIRED; JURY TRIAL DEMANDED Attorney for Plaintiff, Donald Y. Frysinger, Jr., Executor of the Estate Donald Y. Frysinger, Sr. DONALD Y. FRYSINGER, JR., Executor of the Estate of DONALD Y. FRYSINGER, SR., Plaintiff, vs. MANORCARE OF CARLISLE PA, LLC D/B/A MANORCARE HEALTH SERVICES, CARLISLE and HCR MANORCARE, INC. and MANORCARE, INC. and HCR HEALTHCARE, LLC and HCR II HEALTHCARE, LLC and HCR III HEALTHCARE, LLC and HCR IV HEALTHCARE, LLC Defendants COURT OF COMMON PLEAS CUMBERLAND COnUNTYnnPAp DOCKET NO. I ~`~` ~ "1 b l ~v' f°"~ ,- t - ---~ c _s ~, c:~, -< x ~~ ! ~. .. • ~ ~e_F~ j.~ ~. NOTICE TO DEFEND You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint in Civil Action and Notice to Defend aze served, by entering a written appeazance 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 claim or relief requested by Plaintiffs. 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 OR KNOW A LAWYER, THEN YOU SHOULD GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. LAWYER REFERRAL SERVICE THE CUMBERLAND COUNTY BAR ASSOCIATION 32 South Bedford Street Carlisle, PA 17013 Local: (717) 249-3166 Toll Free: (800) 990-9108 Q~~~lv3.~s~d Q"~ Ckk~ ~ 3 X00 ~.~ a WII.,KES & McHIJGH, P.A. Ian T. Norris, Esquire Attorney Identification No. 207566 Three Parkway 1601 Cherry Street, Suite 1300 Philadelphia, PA 19102 Tel No. (215) 972-0811 Email: inorris@wilkesmchugh.com THIS IS NOT AN ARBITRATION CASE; AN ASSESSMENT OF DAMAGES IS REQUIRED; JURY TRIAL DEMANDED Attorney for Plaintiff, Donald Y. Frysinger, Jr., Executor of the Estate Donald Y. Frysinger, Sr. DONALD Y. FRYSINGER, JR., Executor of the Estate of DONALD Y. FRYSINGER, SR 5 Mountain Drive Carlisle, PA 17013 Plaintiff, vs. MANORCARE OF CARLISLE PA, LLC DB/A MANORCARE HEALTH SERVICES, CARLISLE 940 Walnut Bottom Road Carlisle, PA 17013 and HCR MANORCARE, INC. 333 N. Summit Street Toledo, OH 43604 and MANORCARE, INC. 333 N. Summit Street Toledo, OH 43604 and HCR HEALTHCARE, LLC 333 N. Summit Street Toledo, OH 43604 and HCR II HEALTHCARE, LLC 333 N. Summit Street Toledo, OH 43604 and HCR III HEALTHCARE, LLC 333 N. Summit Street Toledo, OH 43604 and HCR IV HEALTHCARE, LLC 333 N. Summit Street Toledo, OH 43604 COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA DOCKET NO. Defendants. COMPLAINT IN CIVIL ACTION (Medical Professional Liability Action) Plaintiff, Donald Y. Frysinger, Jr., Executor of the Estate of Donald Y. Frysinger, Sr., by and through counsel, Wilkes & McHugh, P.A., files the within Complaint in Civil Action as follows: I. PARTIES A. Plaintiff 1. Donald Y. Frysinger, Sr. was an adult individual and resident of ManorCaze Health Services -Cazlisle, located at 940 Walnut Bottom Road, Carlisle, Pennsylvania 17013, from November 28, 2010 through February 8, 2011. He died on April 11, 2011. 2. Donald Y. Frysinger, Jr. is the son of Donald Y. Frysinger, Sr., and an adult individual and citizen of the Commonwealth of Pennsylvania, residing at 5 Mountain Drive, Carlisle, PA 17013. 3. Donald Y. Frysinger, Jr. was appointed Executor of the Estate of Donald Y. Frysinger, Sr. on July 16, 2012, by the Register of Wills of Cumberland County. B. ManorCare of Carlisle PA, LLC, d/b/a ManorCare Health Services -Carlisle; HCR ManorCare, Inc.; ManorCare, Inc.; HCR Healthcare, LLC; HCR II Healthcare, LLC; HCR III Healthcare, LLC; and HCR IV Healthcare, LLC ("Defendants") 4. Defendant, ManorCaze of Cazlisle PA, LLC, d/b/a ManorCaze Health Services - Cazlisle, is a corporation, duly licensed, organized and existing under and by virtue of the laws of the State of Delaware, with offices and a place of business located at 940 Walnut Bottom Road, Cazlisle, Pennsylvania 17013. 5. Defendant, ManorCaze of Carlisle PA, LLC, d/b/a ManorCaze Health Services - Carlisle, is engaged in the business of owning, operating and/or managing nursing homes, including ManorCaze Health Services - Cazlisle, (hereinafter "the Facility"), providing 2 healthcare, medical services, nursing care, assisted living/personal care to the public in Carlisle, Cumberland County, Pennsylvania, and, was at all times material hereto, duly licensed to operate same in the Commonwealth of Pennsylvania, and was the employer, supervisor and/or partner of all other Defendants, noted herein, holding itself and its agents, employees, servants, contractors, subcontractors, staff and/or partners, and those persons granted privileges at the Facility, out to the public as competent and skillful long-term healthcaze providers and practitioners of medicine and which is personally and vicariously liable, among other things for the acts and omissions of themselves, their agents, employees, servants, contractors, subcontractors, staff and/or partners and all other Defendants, all of whom played a role in the Gaze of Donald Y. Frysinger, Sr. 6. Defendant, HCR Manor Caze, Inc., is a foreign corporation, duly licensed, organized and existing under and by virtue of the laws of the State of Ohio, with offices and a place of business located at 333 North Summit Street, Toledo, Ohio 43604. 7. Defendant, HCR Manor Caze, Inc., is engaged in the business of owning, operating and/or managing nursing homes, including ManorCaze Health Services - Cazlisle, (hereinafter "the Facility"), providing healthcare, medical services, nursing caze, assisted living/personal Gaze to the public in Cazlisle, Cumberland County, Pennsylvania, and, was at all times material hereto, duly licensed to operate same in the Commonwealth of Pennsylvania, and was the employer, supervisor and/or partner of all other Defendants, noted herein, holding itself and its agents, employees, servants, contractors, subcontractors, staff and/or partners, and those persons granted privileges at the Facility, out to the public as competent and skillful long-term healthcaze providers and practitioners of medicine and which is personally and vicariously liable, among other things for the acts and omissions of themselves, their agents, employees, servants, contractors, subcontractors, staff and/or partners and all other Defendants, all of whom played a 3 role in the care of Donald Y. Frysinger, Sr. 8. Defendant, Manor Caze, Inc., is a foreign corporation, duly licensed, organized and existing under and by virtue of the laws of the State of Ohio, with offices and a place of business located at 333 North Summit Street, Toledo, Ohio 43604. 9. Defendant, Manor Caze, Inc., is engaged in the business of owning, operating and/or managing nursing homes, including ManorCaze Health Services -Cazlisle, (hereinafter "the Facility"), providing healthcare, medical services, nursing caze, assisted living/personal Caze to the public in Carlisle, Cumberland County, Pennsylvania, and, was at all times material hereto, duly licensed to operate same in the Commonwealth of Pennsylvania, and was the employer, supervisor and/or partner of all other Defendants, noted herein, holding itself and its agents, employees, servants, contractors, subcontractors, staff and/or partners, and those persons granted privileges at the Facility, out to the public as competent and skillful long-term healthcare providers and practitioners of medicine and which is personally and vicariously liable, among other things for the acts and omissions of themselves, their agents, employees, servants, contractors, subcontractors, staff and/or partners and all other Defendants, all of whom played a role in the caze of Donald Y. Frysinger, Sr. 10. Defendant, HCR Healthcaze, LLC, is a foreign corporation, duly licensed, organized and existing under and by virtue of the laws of the State of Ohio, with offices and a place of business located at 333 North Summit Street, Toledo, Ohio 43604. 11. Defendant, HCR Healthcaze, LLC, is engaged in the business of owning, operating and/or managing nursing homes, including ManorCaze Health Services -Cazlisle, (hereinafter "the Facility"), providing healthcare, medical services, nursing caze, assisted living/personal caze to the public in Cazlisle, Cumberland County, Pennsylvania, and, was at all 4 times material hereto, duly licensed to operate same in the Commonwealth of Pennsylvania, and was the employer, supervisor and/or partner of all other Defendants, noted herein, holding itself and its agents, employees, servants, contractors, subcontractors, staff and/or partners, and those persons granted privileges at the Facility, out to the public as competent and skillful long-term healthcare providers and practitioners of medicine and which is personally and vicariously liable, among other things for the acts and omissions of themselves, their agents, employees, servants, contractors, subcontractors, staff and/or partners and all other Defendants, all of whom played a role in the caze of Donald Y. Frysinger, Sr. 12. Defendant, HCR II Healthcaze, LLC, is a foreign corporation, duly licensed, organized and existing under and by virtue of the laws of the State of Ohio, with offices and a place of business located at 333 North Summit Street, Toledo, Ohio 43604. 13. Defendant, HCR II Healthcaze, LLC, is engaged in the business of owning, operating and/or managing nursing homes, including ManorCaze Health Services -Carlisle, (hereinafter "the Facility"), providing healthcaze, medical services, nursing Gaze, assisted living/personal Gaze to the public in Cazlisle, Cumberland County, Pennsylvania, and, was at all times material hereto, duly licensed to operate same in the Commonwealth of Pennsylvania, and was the employer, supervisor and/or partner of all other Defendants, noted herein, holding itself and its agents, employees, servants, contractors, subcontractors, staff and/or partners, and those persons granted privileges at the Facility, out to the public as competent and skillful long-term healthcaze providers and practitioners of medicine and which is personally and vicariously liable, among other things for the acts and omissions of themselves, their agents, employees, servants, contractors, subcontractors, staff and/or partners and all other Defendants, all of whom played a role in the Gaze of Donald Y. Frysinger, Sr. 5 14. Defendant, HCR III Healthcaze, LLC, is a foreign corporation, duly licensed, organized and existing under and by virtue of the laws of the State of Ohio, with offices and a place of business located at 333 North Summit Street, Toledo, Ohio 43604. 15. Defendant, HCR III Healthcaze, LLC, is engaged in the business of owning, operating and/or managing nursing homes, including ManorCaze Health Services -Carlisle, (hereinafter "the Facility"), providing healthcare, medical services, nursing caze, assisted living/personal care to the public in Cazlisle, Cumberland County, Pennsylvania, and, was at all times material hereto, duly licensed to operate same in the Commonwealth of Pennsylvania, and was the employer, supervisor and/or partner of all other Defendants, noted herein, holding itself and its agents, employees, servants, contractors, subcontractors, staff and/or partners, and those persons granted privileges at the Facility, out to the public as competent and skillful long-term healthcaze providers and practitioners of medicine and which is personally and vicariously liable, among other things for the acts and omissions of themselves, their agents, employees, servants, contractors, subcontractors, staff and/or partners and all other Defendants, all of whom played a role in the care of Donald Y. Frysinger, Sr. 16. Defendant, HCR IV Healthcare, LLC, is a foreign corporation, duly licensed, organized and existing under and by virtue of the laws of the State of Ohio, with offices and a place of business located at 333 North Summit Street, Toledo, Ohio 43604. 17. Defendant, HCR IV Healthcaze, LLC, is engaged in the business of owning, operating and/or managing nursing homes, including ManorCare Health Services - Cazlisle, (hereinafter "the Facility"), providing healthcare, medical services, nursing caze, assisted living/personal Gaze to the public in Carlisle, Cumberland County, Pennsylvania, and, was at all times material hereto, duly licensed to operate same in the Commonwealth of Pennsylvania, and 6 was the employer, supervisor and/or partner of all other Defendants, noted herein, holding itself and its agents, employees, servants, contractors, subcontractors, staff and/or partners, and those persons granted privileges at the Facility, out to the public as competent and skillful long-term healthcare providers and practitioners of medicine and which is personally and vicariously liable, among other things for the acts and omissions of themselves, their agents, employees, servants, contractors, subcontractors, staff and/or partners and all other Defendants, all of whom played a role in the care of Donald Y. Frysinger, Sr. 18. Upon present information and belief, at all times material hereto, the Defendants individually and collectively, and/or through a joint venture, owned, operated, licensed and/or managed ManorCaze Health Services - Cazlisle, and aze individually and collectively engaged in the business of providing nursing caze and assisted living/personal care services to the general public akin to a hospital. II. JURISDICTION AND VENUE 19. Jurisdiction and venue aze proper in this Honorable Court in Cumberland County, Pennsylvania, insofar as Defendants regulazly conduct business in this county, the cause of action azose in this county and/or the action is being brought in any county which venue may be laid against any defendant. See Pa.R.C.P. 1006 and 2179. III. FACTUAL BACKGROUND A. Conduct of the Defendants 20. On November 28, 2010, Donald Y. Frysinger, Sr. was admitted to the caze of the Facility.1 1 Plaintiff is not bringing any claim pursuant to Pa. St. 62 P.S. § 1407(c), and nothing in this Complaint should be interpreted as an attempt to recover damages pursuant to that statute. 7 21. During the course of his residency, Donald Y. Frysinger, Sr. was incapable of independently providing for all of his daily care and personal needs without reliable assistance. In exchange for monies, he was admitted to Defendants' Facility to obtain such care and protection. 22. The Defendants, through advertising, promotional materials and information sheets, held out themselves and the Facility, as being able to provide skilled nursing and personal care to sick, elderly and frail individuals, including Donald Y. Frysinger, Sr. 23. At all times material hereto, the Defendants held themselves out as capable of being able to provide the requisite caze, including total health caze, to the sick, elderly, and frail individuals, like Donald Y. Frysinger, Sr., consisting of care planning and the provision of medication, medical care and treatment, therapy, nutrition, hydration, hygiene and all activities of daily living. 24. At the time of his admission, the Defendants, individually and/or through their agents, employees, servants, contractors, subcontractors, staff and representatives, assessed the needs of Donald Y. Frysinger, Sr., and promised that they would adequately caze for his needs. 25. Defendants exercised complete and total control over the health caze of all residents of the Facility, such as Donald Y. Frysinger, Sr. 26. Upon information and belief, at all times hereto, Defendants were a vertically integrated corporation that was controlled by the same boazd of directors, who were responsible for the operation, planning, management, and quality control of the Facility. 27. At all times material hereto, the control exercised by Defendants included, inter alias budgeting, mazketing, human resource management, training, supervision of staff, staffing, and the creation and implementation of all policy and procedural manuals used by the Facility. 8 28. Defendants also exercised control over reimbursement, quality care assessment and compliance, licensure, certification, and all financial, tax, and accounting issues. 29. Defendants, by and through their board of directors and corporate officers, utilized survey results and quality indicators to monitor the care being provided at their personal care homes/residential health care/skilled nursing facilities, including the Facility. 30. Defendants exercised ultimate authority over all budgets and had final approval over the allocation of resources to their Facility. 31. As a part of their duties and responsibilities, Defendants had an obligation to establish policies and procedures that addressed the needs of the residents of the Facility, such as Donald Y. Frysinger, Sr., with respect to the recognition and/or treatment of medical and/or nursing conditions, such as those experienced by Donald Y. Frysinger, Sr., so as to ensure that timely and appropriate care would be provided for such conditions whether within the Facility, or obtained from other medical providers. 32. Defendants, acting through their administrators, various boards, committees, and individuals, were responsible for the standard of professional practice by members of their staff at the Facility, and to oversee their conduct in the matters set forth herein. 33. Defendants had an obligation to employ competent, qualified and trained staff so as to ensure that proper treatment was rendered to individuals having medical and nursing problems, such as those presented by Donald Y. Frysinger, Sr., as set forth herein. 34. As a part of their duties and responsibilities, Defendants had an obligation to maintain and manage the Facility with adequate staff and sufficient resources to ensure the timely recognition and appropriate treatment of medical conditions suffered by residents, such as Donald Y. Frysinger, Sr., whether within the Facility, or obtained from other medical care 9 providers. 35. Defendants made a conscious decision to operate and/or manage the Facility so as to maximize profits and/or excess revenues at the expense of the care required to be provided to its residents, including Donald Y. Frysinger, Sr. 36. In their effort to maximize profits and/or excess revenues, Defendants negligently, intentionally and/or recklessly mismanaged and/or reduced staffing levels below the level necessary to provide adequate Gaze and supervision to the residents, which demonstrated a failure to comply with the applicable regulations and standazds for personal caze homes/skilled nursing facilities. 37. Defendants recklessly and/or negligently disregazded the consequences of their actions, and/or negligently caused staffing levels at the Facility to be set at a level such that the personnel on duty could not and did not meet Donald Y. Frysinger, Sr.'s needs. 38. Over the past several years, and at all times material hereto, Defendants intentionally increased the number of sick, elderly and frail residents with greater health problems requiring more complex medical and custodial caze. 39. Defendants knew that this increase in the acuity caze levels of the resident population would substantially increase the need for staff, services, and supplies necessary for the new resident population. 40. Defendants knew, or should have known, that the acuity needs of the residents in their Facility increased and, therefore, the resources necessary increased, including raising the amount of staffing required to meet the needs of the residents. 41. Defendants failed to provide resources necessary, including sufficiently trained staff, to meet the needs of the residents, including Donald Y. Frysinger, Sr. 10 42. Defendants knowingly established staffing levels that created recklessly high resident to staff ratios, including high resident to nurse ratios. 43. Defendants knowingly disregazded patient acuity levels while making staffing decisions; and, also knowingly disregazded the minimum time required by the staff to perform essential day-to-day functions and treatment. 44. The acts and omissions of Defendants were motivated by a desire to increase profits and/or excess revenues of the Facility, by knowingly, recklessly, and with total disregazd for the health and safety of the residents, reducing expenditures for needed staffing, training, supervision, and Gaze to levels that would inevitably lead to severe injuries, such as those suffered by Donald Y. Frysinger, Sr. 45. The actions of Defendants were designed to increase reimbursement by governmental programs. 46. Defendants' financial motives were evidenced by the fact that Donald Y. Frysinger, Sr. was not transferred to the appropriate medical facility and/or facility with the appropriate level of health caze when Defendants knew, or should have known, that they could not meet needs of Donald Y. Frysinger, Sr. 47. The aforementioned acts directly caused injury to Donald Y. Frysinger, Sr. and were known by Defendants. 48. Defendants knowingly sacrificed the quality of care received by all residents, including Donald Y. Frysinger, Sr., by failing to manage, care, monitor, document, chart, prevent, diagnose and/or treat the injuries and illnesses suffered by Donald Y. Frysinger, Sr., as described herein, which included skin integrity issues including uncontrolled psoriasis, worsening lesions, skin tear, and rashes, C. Difficile, UTI, weight loss, poor hygiene, and severe 11 pain. 49. At the time and place of the incidents herein described, the Facility whereupon the incidents occurred was individually, collectively, and/or through a joint venture, owned, possessed, controlled, managed, operated and maintained under the exclusive control of Defendants. 50. At all times material hereto, Defendants were operating personally or through their agents, servants, workers, employees, contractors, subcontractors, staff, and/or principals, who acted with actual, appazent and/or ostensible authority, and all of whom were acting within the course and scope of their employment and under the direct and exclusive control of Defendants herein. 51. The aforementioned incidents were caused solely and exclusively by the negligence, cazelessness, and recklessness of Defendants, their agents, servants, contractors, subcontractors, staff and/or employees and was due in no part to any act or omission to act on the part of Donald Y. Frysinger, Sr. 52. Defendants, their agents, servants, contractors, subcontractors, staff and/or employees are/were, at all times material hereto, licensed professionals/professional corporations and/or businesses and the Plaintiff is asserting professional liability claims against Defendants, their agents, servants, contractors, subcontractors, staff and/or employees. 53. In addition to all other claims and demands for damages set forth herein, Plaintiff is asserting claims for ordinary negligence, custodial neglect and corporate negligence against the Defendants herein, as each of the entities named as Defendants herein are directly and vicariously liable for their independent acts of negligence, for their acts of general negligence, and for their acts of general corporate negligence. 12 D. Injuries of Donald Y. Frysinger, Sr. at the Facility 54. At the time of his admission to the Facility on November 28, 2010, Donald Y. Frysinger, Sr. had a past medical history including Hypertension; cellulitis; muscle weakness; coronary artery disease; chronic obstructive pulmonary disease (COPD); congestive heart failure (CHF); psoriasis; difficulty walking and upper end humerus fracture. 55. Upon admission to the Facility, Donald Y. Frysinger, Sr. was dependent upon the staff for his mental, physical and medical needs, requiring assistance with activities of daily living, and had various illnesses and conditions that required evaluation and treatment. 56. Defendants knew or should have known that Donald Y. Frysinger, Sr. was at risk for skin integrity issues including uncontrolled psoriasis, worsening lesions, skin teaz, and rashes, C. Difficile, UTI, weight loss, poor hygiene, and severe pain. 57. The Defendants deprived Donald Y. Frysinger, Sr. of adequate caze, treatment, food, water and medicine and caused him to suffer numerous illnesses and injuries, which upon information and belief, included skin integrity issues including uncontrolled psoriasis, worsening lesions, skin teaz, and rashes, C. Difficile, UTI, weight loss, poor hygiene, and severe pain. 58. The severity of the negligence inflicted upon Donald Y. Frysinger, Sr., by the Defendants accelerated the deterioration of his health and physical condition, and resulted in physical and emotional injuries that caused him severe pain, suffering and mental anguish, together with unnecessary hospitalizations. 59. These injuries, as well as the conduct specified herein, caused Donald Y. Frysinger, Sr. to suffer a loss of personal dignity, together with degradation, anguish, emotional trauma, pain and suffering. 13 60. During his admission, Donald Y. Frysinger, Sr. required assistance in care with his activities of daily living. 61. Upon admission to the Facility on November 28, 2010, for continued physical therapy after a hospitalization for generalized weakness and inability to ambulate, Donald Y. Frysinger, Sr. had diagnoses of right lower extremity cellulitis with bilateral leg edema, right humerus fractures, chronic psoriasis, and controlled hypertension. He was alert and oriented times 3, he scored 14 on BIMS, and was able to make his needs known. He was at risk for falls; he told the admitting nurse that he "falls out of bed at home". A wheelchair propelled by staff was his primary mode of ambulation; he required assistance with transfers, toileting and ADLs due to immobile right arm. He was mostly continent of bladder and bowel. He was five feet, ten inches tall and weighed 209.8 pounds. 62. The admission skin assessment noted a 5x2 cm bruise to Donald Y. Frysinger, Sr.'s left forearm. His right arm was immobilized in a sling, with edema and bruising on his entire right hand and arm. Thick, red, flaky Psoriasis covered the majority of his body. He had two open psoriatic lesions between his buttocks and other areas that were cracked open or scabbed over. He had no toenails and a deep scab on 4th toe of his right foot, skin emollient cream was ordered applied to his feet and legs daily as well as Xenaderm to the open lesions between his buttocks. His left calf had a 3x7 cm open cellulitic area that was weeping. He complained of pain when he moved rating it at about "5". Percocet was given every 6 hours as needed. 63. On November 29, 2010, Donald Y. Frysinger, Sr.'s labs were significant for low Albumin (2.5) and total protein (5.3). 14 64. On November 30, 2010, Donald Y. Frysinger, Sr. began skilled PT for gait training, therapeutic exercises, therapeutic activity and neuromuscular re-education, and skilled OT for self-care/ADCs, therapeutic exercises, therapeutic activities, wheelchair management and community reintegration. Ultram was started 3 times daily for pain management. 65. On December 3, 2010, the open wound to Donald Y. Frysinger, Sr.'s left posterior lower leg measured 7x 11.2x0.1 cm, with positive granulation, moderate amounts of drainage and no infection. The area was a result of edema and cellulitis. Pedal pulses were positive but weak. His left upper heel had an intact 0.4x0.4 cm area of eschar, and his lower heel had an intact 2x0.5 cm area of eschar. 66. On December 3, 2010, Donald Y. Frysinger, Sr. returned from therapy complaining of gas discomfort and diarrhea. He told staff that he routinely takes Kaopectate at home; an order was obtained for Simethicone daily. 67. On December 4, 2010, Donald Y. Frysinger, Sr. pushed over his bedside table to alert staff to come to his room. He was sitting stiffly on the side of his bed and appeared confused, he complained that his throat was thick and he could not breathe. His breath sounds were diminished but 02 saturations were 94%. He was given his Albuterol puffer, took two puffs and said he felt better. MD was notified and orders were received to increase Flovent to twice daily. 68. Later that day Donald Y. Frysinger, Sr. bumped his left arm on the bathroom doorknob sustaining a 2x2.5 cm skin tear with 5 cm bruising. 69. By December 5, 2010, the two open psoriatic lesions between Donald Y. Frysinger, Sr.'s buttocks were noted to be discolored with peeling edges, orders were received to clean and continue to apply Xenaderm at every shift. 15 70. On December 6, 2010, Donald Y. Frysinger, Sr.'s pre-Albumin was low at 8.0. 71. On December 7, 2010, Donald Y. Frysinger, Sr.'s psoriatic rash on his right foot and leg was debrided, the doctor ordered bacitracin twice daily. 72. On that same day, Donald Y. Frysinger, Sr. complained that he thought he was having seizures. He stated, "I am seeing my tray move and sometimes I am up in the corner of the room looking down on my bed." Nursing explained that it seemed more like hallucinations that could be caused by pain medications. Nurse practitioner gave orders to discontinue Ultram and Percocet, start Tylenol and assess to determine if it was easing his pain. 73. On December 8, 2010, a urinalysis with culture and sensitivity was obtained due to Donald Y. Frysinger, Sr.'s hallucinations and mental status changes. The urinalysis was positive for slightly elevated WBC and 1+ bacterium. The culture grew Pseudomonas aeruginosa and other gram negative growth. A 7 day course of Macrobid and 14 day course of Florastor probiotic (c-diff prophylactic) was started for UTI. 74. On December 8, 2010, Donald Y. Frysinger, Sr.'s left posterior lower leg had granulated into 2 areas. The lateral area measured 5.8x4x0.1 cm, and the medial area measured 3x1x0.1 cm. Open psoriatic lesions to buttocks were assessed; orders were received to discontinue Xenaderm in favor of Calazime lotion at every shift and as needed. 75. By December 11, 2010, Donald Y. Frysinger, Sr. was alert and oriented times 3 with less confusion. 76. On December 12, 2010, Donald Y. Frysinger, Sr. had a productive cough and nasal congestion. Orders were received for Mucinex twice daily for one week. The psoriatic lesions in his buttocks were bleeding and macerated; orders were received to apply Tegaderm 16 foam after cleaning. He was noted with frequent incontinent loose stools; stool was obtained for culture. 77. On December 13, 2010, a 1 x0.1 cm psoriatic slit was discovered on Donald Y. Frysinger, Sr.'s sacrum during incontinent care. The wet to dry dressing to left leg was discontinued in favor of Bacitracin ointment and the psoriatic rash to right leg and heel were to have Bacitracin applied and covered with dry dressing daily for 1 week. He was started on Imodium three times daily, a 21-day course of Flagyl and ordered to continue Florastor for an additional 4 weeks for symptoms of C. di~cile. PT was instructed to resume ambulation with him. 78. On December 14, 2010, the lab called with positive C. difficile culture. Donald Y. Frysinger, Sr. began to suffer incontinence due to frequent loose stools. 79. On December 17, 2010, Donald Y. Frysinger, Sr.'s right inner leg had an intact blood blister that occurred during debridement of his psoriasis. The lesion to his right inner buttock measured 3x2x0.1 cm, the lesion to his left inner buttock measured 4x3x0.1 cm and the sacral area measured 1 x0.2x0.1 cm. Tegaderm foam was discontinued due to increased irritation, Calazime cream was started. 80. On December 20, 2010, Donald Y. Frysinger, Sr. was noted with dark tea colored urine, but he was asymptomatic. Macrobid had been completed on December 17, 2010. A urinalysis with culture and sensitivity was obtained. It tested positive for leukocytes and protein but culture was contaminated. No new order was received. He refused supper stating he had too much gas. 17 81. On December 22, 2010, Donald Y. Frysinger, Sr.'s monthly doctor exam revealed that his lungs were greatly diminished with inspiratory and expiratory wheezes consistent with COPD, without rates or rhonchi. He weighed 208.2 pounds, a loss of 1.6 pounds. 82. On December 24, 2010, Donald Y. Frysinger, Sr. requested a doctor visit; he complained he was still hallucinating occasionally seeing rats and bugs in his room. He had not been given Ultram or Percocet for some time thinking that was the cause of his hallucinations. A repeat urinalysis with culture and sensitivity was ordered, straight catheter was attempted but not successful until December 28, 2010. He had an open psoriatic lesion to left inner buttock measuring 6x4x0.1 cm, a right inner buttock lesion measuring Sx3x0.1 cm and sacral azea 1x0.4x0.1 cm. His wound beds were beefy red with scant serosanguinous drainage. 83. On December 27, 2010, Donald Y. Frysinger, Sr. requested a doctor visit. He reported feeling down and requested something to help him feel more motivated. Lexapro 10 mg daily was ordered. 84. On December 30, 2010, Donald Y. Frysinger, Sr. had bright red hematuria and dazk yellow/brown colored urine. A 7 day course of Macrobid and a 14 day course of Florastor were started on December 31, 2010, due to UTI with MRSA isolated. 85. On January 6, 2011, Donald Y. Frysinger, Sr. requested a doctor visit due to possible right hand contracture. Orders were given to continue PT and OT working with his right hand, OT notes that he was reluctant to use his right arm to complete any tasks. He weighed 205.6 pounds, a loss of 2.6 pounds. 86. On January 7, 2011, Donald Y. Frysinger, Sr. had open psoriatic lesions to his bilateral buttocks. The left lesion measured Sx4x0.1 cm, the right lesion measured 4x2x0.1 cm, and both areas were pink with serosanguinous drainage. Calazime lotion was continued. 18 87. By January 11, 2011, the wounds on Donald Y. Frysinger, Sr.'s sacral area had re-opened measuring 1.Sx0.5x0.1 cm. Nystatin and Lotramin cream to his abdominal folds was discontinued. 88. On January 12, 2011, Dr. Pinker applied an Unna Boot to Donald Y. Frysinger, Sr.'s right leg. Orders were received to keep it clean, dry, and intact. Bacitracin was discontinued. The boot was changed weekly at Dr. Pinker's office. 89. On January 19, 2011, a repeat specimen was obtained to recheck Donald Y. Frysinger, Sr.'s stool for C. dificile. 90. On January 21, 2011, Donald Y. Frysinger, Sr.'s stool specimen tested positive for C. difficile. A 10 day course of Vancomycin was started. 91. On January 25, 2011, Calazime was discontinued to buttocks in favor of Polymem covered with Opsite, changed daily and as needed. 92. On January 27, 2011, after a doctor visit new orders were received to apply skin emollient (A&D) to Donald Y. Frysinger, Sr.'s feet and legs daily for dry skin, and Lotrisone cream twice daily to Tinea-like underarm rash. 93. On February 1, 2011, a bright rash on right side of Donald Y. Frysinger, Sr.'s back was discovered. Orders were received to apply Elocon 0.1 % twice daily. His left buttock psoriatic lesion measured Sx4.2x0.1 cm, and his right buttock psoriatic lesion measured 3.Sx2x0.lcm. Both lesions were pink with non-serosanguinous drainage, and Polymem dressing was continued. On this day he weighed 190.4 pounds, a loss of 15.2 pounds in less than one month. 94. On February 8, 2011, Donald Y. Frysinger, Sr. was discharged to Chapel Pointe Retirement Center. He thereafter died from pneumonia secondary to COPD on April 11, 2011. 19 95. The Facility accepted Donald Y. Frysinger, Sr. as a resident fully awaze of his medical history and understood the level of nursing caze required to prevent the occurrence of his serious injuries. 96. Donald Y. Frysinger, Sr.'s chart includes and evidences missing and incomplete documentation, including Activities of Daily Living sheets, medication administration records, treatment administration records, and controlled medication utilization record. 97. The severity of the negligence inflicted upon Donald Y. Frysinger, Sr. by the Defendants consisted of mismanagement, improper/under-budgeting, understaffing of the Facility and lack of training of the Facility employees, failure to provide adequate and appropriate health care; engaging in incomplete, inconsistent and fraudulent documentation; failure to develop an appropriate therapeutic care plan; failure to provide proper medication; and failure to provide sufficient food and water to preclude skin integrity issues including uncontrolled psoriasis, worsening lesions, skin tear, and rashes, C. Difficile, UTI, weight loss, poor hygiene, and severe pain; and failure to ensure that the highest level of physical, mental and psychosocial functioning was attained. 98. As a result of the negligence, carelessness and recklessness of the Defendants herein described, Donald Y. Frysinger, Sr. was caused to suffer serious and permanent injuries as described herein, to, in and about his body and possible aggravation and/or activation of any pre- existing conditions, illnesses, ailments, or diseases he had, and/or accelerated the deterioration of his health, physical and mental condition, and more particulazly, skin integrity issues including uncontrolled psoriasis, worsening lesions, skin tear, and rashes, C. Difficile, UTI, weight loss, poor hygiene, and severe pain, and other body pain and damage, and anxiety reaction and injury 20 to his nerves and nervous system, some or all of which were permanent, together with other medical complications. COUNT ONE Donald Y. Frysinger, Jr., Executor of the Estate of Donald Y. Frysinger, Sr. v. ManorCare of Carlisle PA, LLC, d/b/a ManorCare Health Services -Carlisle; HCR ManorCare, Inc.; ManorCare, Inc.; HCR Healthcare, LLC; HCR II Healthcare, LLC; HCR III Healthcare, LLC; and HCR IV Healthcare, LLC 99. Plaintiff hereby incorporates by reference the preceding paragraphs as though the same were fully set forth at length herein. 100. At all times material hereto, Defendants were acting through their agents, servants and employees, who were in turn acting within the course and scope of their employment under the direct supervision and control of the Defendants. 101. At all times material hereto, Defendants had the ultimate responsibility of ensuring that the rights of the residents, including Donald Y. Frysinger, Sr., were protected. 102. At all times material hereto, Defendants owed anon-delegable duty to provide adequate and appropriate custodial care and supervision to Donald Y. Frysinger, Sr., and other residents, such as reasonable caregivers would provide under similar circumstances. 103. At all times material hereto, Defendants owed anon-delegable duty to Donald Y. Frysinger, Sr., and other residents to hire, train, and supervise employees, so as to deliver healthcare and services to residents in a safe and reasonable manner. 104. At all times material hereto, Defendants, by and through their agents, employees, and/or servants, owed a duty of care to Donald Y. Frysinger, Sr. to exercise the appropriate skill and care of licensed physicians, nurses, directors of nursing, and/or nursing home administrators. 21 105. At all times material hereto, Defendants owed a duty and responsibility to furnish Donald Y. Frysinger, Sr. with appropriate and competent nursing and/or total healthcare. 106. Despite being made aware of the types and frequency of injuries, illnesses, and/or infections, many of which were preventable, sustained by the residents of the Facility, including those suffered by Donald Y. Frysinger, Sr., Defendants failed to take steps to prevent the occurrence of said injuries, illnesses, and/or infections. 107. Defendants knew, or should have known, of the aforementioned problems that were occurring with the care of Donald Y. Frysinger, Sr., as they were placed on actual and/or constructive notice of said problems. 108. Defendants, as the corporate owners, board members and/or managers of the Facility, breached their duty and were, therefore, negligent, careless and reckless in their obligations to Donald Y. Frysinger, Sr. 109. The corporate conduct of Defendants was independent of the negligent conduct of the employees of the Facility, and was outrageous, willful, and wanton, and exhibited a reckless indifference to the health and well-being of the residents, including Donald Y. Frysinger, Sr. 110. At all times material hereto, Defendants owed and failed to fulfill the following duties to Donald Y. Frysinger, Sr.: use reasonable care in the maintenance of safe and adequate facilities and equipment; select and retain only competent staff; oversee and supervise all persons who practiced nursing and/or skilled healthcare within the Facility; and, formulate, adopt, and enforce rules, procedures and policies to ensure quality care and healthcare for all residents. 111. At all times material hereto, the breach of duties, negligence, carelessness and recklessness of Defendants individually and/or acting by and through their officers, board members, physicians, physicians' assistants, nurses, certified nurses' aides and office staff who 22 examined, treated and/or communicated the condition of Donald Y. Frysinger, Sr., and through the administrative personnel responsible for hiring, retaining and/or dismissing staff, staff supervision and policy-making and enforcement, as well as any agents, servants, employees, contractors, subcontractors and/or consultants of Defendants, consisted of the following acts and omissions in the care and treatment of Donald Y. Frysinger, Sr.: a. failure to hire appropriately trained staff and/or train, select and retain competent staff who failed to prevent dehydration and malnutrition, failed to prevent and engaged in incomplete, inconsistent and fraudulent documentation, failed to provide appropriate treatment and services to prevent skin integrity issues including uncontrolled psoriasis, worsening lesions, skin tear, and rashes, C. Difficile, UTI, weight loss, poor hygiene, and severe pain, and failed to provide adequate assessments of Donald Y. Frysinger, Sr. following a change in condition; b. knowingly allowing and/or encouraging unskilled and untrained individuals to care for Donald Y. Frysinger, Sr. who failed to provide adequate nutrition and fluids, failed to prevent and engaged in incomplete, inconsistent and fraudulent documentation, failed to provide appropriate treatment and services and to prevent skin integrity issues including uncontrolled psoriasis, worsening lesions, skin tear, and rashes, C. Difficile, UTI, weight loss, poor hygiene, and severe pain, and failed to provide adequate assessments of Donald Y. Frysinger, Sr. following a change in condition; c. failure to prevent and engage in incomplete, inconsistent and/or fraudulent documentation by failing to consistently complete Activities of Daily Living sheets, failing to document administration of medications, failing to consistently document Treatment Record, and failing to properly complete Medication Administration Records; d. failure to provide adequate pain management; e. failure to ensure that Donald Y. Frysinger, Sr. did not develop serious and permanent injuries to, in and about his body and possible aggravation and/or activation of any pre-existing conditions, illnesses, ailments, or diseases he had, and/or accelerated the deterioration of his health, physical and mental condition, and more particularly, when he experienced skin integrity issues including uncontrolled psoriasis, worsening lesions, skin tear, and rashes, C. Difficile, UTI, weight loss, poor hygiene, and severe pain, when the Defendants knew or should have known that he was at risk for the same; f. failure to respond in a timely manner with appropriate medical care when Donald Y. Frysinger, Sr. was injured, including when he experienced skin integrity issues 23 including uncontrolled psoriasis, worsening lesions, skin tear, and rashes, C. Difficile, UTI, weight loss, poor hygiene, and severe pain, when Defendants knew or should have known that he was at risk for the same; g. failure to provide adequate and appropriate health care by failing to keep Donald Y. Frysinger, Sr. free from infection, failing to respond to a change in condition in a timely manner, failing to provide an adequate assessment following a change in condition, failing to provide adequate hygiene, failing to provide adequate nutrition impacting wound healing ability, failing to provide adequate hydration, failing to provide appropriate treatment and services to prevent skin integrity issues including uncontrolled psoriasis, worsening lesions, skin tear, and rashes, C. Difficile, UTI, weight loss, poor hygiene, and severe pain, and failing to administer ordered medications and treatments; h. failure to ensure complete, consistent documentation and avoid fraudulent documentation by failing to update MDS with significant changes in conditions, and failing to provide complete and consistent documentation; i. failure to develop an appropriate therapeutic care plan by failing to develop a comprehensive care plan and revise it to reflect current conditions, and failing to provide social services such as physical therapy, occupational therapy and speech therapy in order to attain the highest practicable physical, mental, and social well- being; failure to ensure that each resident received and that the Facility provided the necessary care and services to attain or maintain the highest practicable physical, mental and psychosocial well-being, in accordance with the comprehensive assessment and plan of care; k. failure to ensure that the Facility used the results of the assessment to develop, review and revise the resident's comprehensive plan of care, developing a comprehensive care plan for each resident that included measurable objectives and timetables to meet a resident's medical, nursing, and mental and psychosocial needs that are identified in the comprehensive assessment, describing the services that are to be furnished to attain or maintain the resident's highest practicable physical, mental, and psychosocial well-being; 1. failure to ensure that the Facility had sufficient nursing staff to provide nursing and related services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident, as determined by the resident assessments and individual plans of care, providing services by sufficient number of each of the required types of personnel on atwenty-four-hour basis to provide nursing care to all residents in accordance with resident care plans; m. failure to administer the Facility in a manner that enabled it to use its resources effectively and efficiently to attain or maintain the highest practicable physical, 24 mental, and psychooocial well-being of each resident; n. failure to develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of the resident's property; o. failure to ensure that the services provided or arranged by the Facility were provided by qualified persons in accordance with each resident's written plan of care; p. failure to oversee and supervise all persons who practiced nursing and/or skilled healthcare in the Facility who failed to prevent skin integrity issues including uncontrolled psoriasis, worsening lesions, skin tear, and rashes, C. Difficile, UTI, weight loss, poor hygiene, and severe pain; q. failure to formulate, adopt and enforce adequate rules, procedures and policies to ensure quality healthcare for residents by failing to: provide adequate and appropriate health care to prevent skin integrity issues including uncontrolled psoriasis, worsening lesions, skin tear, and rashes, C. Difficile, UTI, weight loss, poor hygiene, and severe pain, and provide complete and consistent documentation, provide appropriate treatment, services and adequate assessments following change in condition to prevent skin integrity issues including uncontrolled psoriasis, worsening lesions, skin tear, and rashes, C. Difficile, UTI, weight loss, poor hygiene, and severe pain; r. failure to undertake and/or implement the instructions provided by physicians and notify the physicians of change in the condition of Donald Y. Frysinger, Sr.; s. failure to refer Donald Y. Frysinger, Sr. to the necessary medical specialists in a timely manner who would have properly diagnosed and/or treated Donald Y. Frysinger, Sr.'s condition due to failure to notify treating physicians and follow up on physicians instructions; t. failure to provide Donald Y. Frysinger, Sr. with the necessary care and services to allow him to attain or maintain the highest practicable physical, mental and psychological well-being; u. failure to provide Donald Y. Frysinger, Sr. with appropriate medication for pain management; v. failure to assist Donald Y. Frysinger, Sr. in his personal hygiene; w. failure to ensure that the Facility was properly funded; x. failure to implement a budget that would allow the Facility to provide adequate and appropriate healthcare to Donald Y. Frysinger, Sr. including adequate staff 25 and supplies; y. grossly understaffing the Facility; z. failure to take appropriate steps to remedy continuing problems at the Facility that Defendants knew were occurring with Donald Y. Frysinger, Sr.'s caze, which included the need to increase the number of employees, hiring skilled and/or trained employees, adequately training the current employees, monitoring the conduct of the employees, and/or changing the current policies and procedures to improve resident caze; aa. failure to evaluate the quality of resident Gaze and efficiency of services, identify strengths and weaknesses, set in place measures for improvements where necessary, and, evaluate progress and institute appropriate follow-up activities; bb. failure to maintain open lines of communication with the governing body, department heads, Facility staff and its residents to ensure that resources were properly allocated and that resident care was maintained at a high level; cc. failure to maintain compliance with governmental regulations; dd. failure to implement personnel policies and procedures that define job responsibilities, accountability and the performance appraisal process and emphasize the importance of the health caze team in the delivery of quality resident care; ee. failure to coordinate training programs to improve employee skills and to enhance employee performance; ff. failure to develop a budget with an objective of the delivery of quality care; and, gg. acting in a grossly negligent manner, with reckless indifference to the rights and safety of Donald Y. Frysinger, Sr. 112. Upon information and belief, the corporate officers of the Defendants were made aware of the governmental/state survey results and placed on notice of the issues with resident caze at their Facility. 113. Upon information and belief, the Defendants were aware that there were numerous problems at the Facility, and that they had been cited by the Pennsylvania Department of Health for failures at the Facility. 26 114. Upon information and belief, the Defendants were aware that they had been cited by governmental units regarding additional failures at the Facility on: 12/18/2008 for failing to implement a written plan of care; on 11/23/2009 for failing to provide timely and necessary care and services to residents, failing to provide a safe and sanitary environment to prevent the spread of infection; on 12/10/2010 for failing to place a call bell within reach of a resident, failing to maintain equipment and environment in clean, orderly and sanitary manner, failing to provide the necessary care and services to maintain the highest practicable physical well-being, failing to administer medication in accordance with the physician's order failing to maintain accurate clinical records, failing to administer the appropriate treatment and services to maintain normal bladder function, failing to develop a comprehensive care plan, failing to complete an accurate Minimum Data Set, and failing to consistently record an up to date list of resident names on the label of over-the-counter medications; on 7/25/2011 for failing to ensure that staff provided adequate supervision, failing to implement its policies and procedures for abuse, neglect and misappropriation of property; on 11/17/2011 for failing to provide a safe and sanitary environment and failing to prevent the development and transmission of disease and infection, and failing to develop or revise care plans, failing to complete assessments that accurately reflected the resident's bladder status; on 11/29/2011 for failing to ensure residents were free of a significant medication errors, and failing to notify the Department of Health of medication errors; and on 2/9/2012 for failing to maintain an infection control program designed to prevent the spread of infection, and failing to provide a safe, sanitary and comfortable environment and to help prevent the development and transmission of disease and infection. 27 115. Upon information and belief, the corporate officers of the Defendants had been made aware in the past that the Facility had been cited for the failures mentioned in the preceding paragraph. 116. Defendants knew that the violations described in the paragraphs above were not isolated events and were, at times, described as repeat deficiencies, which placed them on notice of failures to provide proper care and treatment to residents, including Donald Y. Frysinger, Sr. 117. As a direct and proximate result of the Defendants' acts and/or omissions, and their breach of their duty of care, negligence, carelessness and recklessness, Donald Y. Frysinger, Sr. suffered (a) severe permanent physical injuries resulting in severe pain, suffering, and disfigurement (b) mental anguish, embarrassment, humiliation, degradation, emotional distress, and loss of personal dignity, (c) loss of capacity for enjoyment of life, (d) expense of otherwise unnecessary hospitalizations, medical expenses and residency at the Facility, and (e) aggravation of his pre-existing medical conditions. 118. In causing the aforementioned injuries, Defendants knew, or should have known, that Donald Y. Frysinger, Sr., would suffer such harm. 119. The conduct of Defendants was intentional, outrageous, willful and wanton, and exhibited a reckless indifference to the health and well-being of Donald Y. Frysinger, Sr. 120. The conduct of Defendants was such that an award of punitive damages is justified. WHEREFORE, Plaintiff, Donald Y. Frysinger, Jr., Executor of the Estate of Donald Y. Frysinger, Sr., respectfully requests that judgment be entered in his favor, and against the Defendants, in an amount in excess of the compulsory arbitration limits and/or Fifty Thousand Dollars ($50,000.00), whichever is greater, together with punitive damages, costs, and any other 28 relief that this Honorable Court deems appropriate given the circumstances. A jury trial is demanded. COUNT TWO NEGLIGENCE PER SE FOR VIOLATIONS OF NEGLECT OF ACARE-DEPENDENT PERSON, 18 Pa.C.S.A. § 2713 Donald Y. Frysinger, Jr., Executor of the Estate of Donald Y. Frysinger, Sr. v. ManorCare of Carlisle PA, LLC, d/b/a ManorCare Health Services -Carlisle; HCR ManorCare, Inc.; ManorCare, Inc.; HCR Healthcare, LLC; HCR II Healthcare, LLC; HCR III Healthcare, LLC; and HCR IV Healthcare, LLC 121. Plaintiff incorporates herein by reference the preceding pazagraphs as though the same were more fully set forth at length herein. 122. At all times pertinent hereto, there was in full force and effect 18 Pa.C.S.A. § 2713 "Neglect of Caze Dependent Person," which set forth penal consequences for neglect of a care-dependent person. 123. 18 Pa.C.S.A. § 2713 "Neglect of Caze Dependent Person" expresses the fundamental public policy of the Commonwealth of Pennsylvania that elders, like children, are not to be abused or neglected, particularly in health care facilities or by persons holding themselves out as trained professionals, and that if such abuse or neglect causes injury, either physical or mental, then such conduct is actionable. 124. At all times pertinent hereto, Donald Y. Frysinger, Sr. was a care dependent resident of the Defendants' Facility, and thus fell within the class of persons 18 Pa.C.S.A. § 2713 "Neglect of Care Dependent Person" was intended to protect, thus entitling Plaintiff to adopt 18 Pa.C.S.A. § 2713 "Neglect of Care Dependent Person" as the standard of care for measuring the Defendants' conduct. 29 125. Additionally, 18 Pa.C.S.A. § 2713 "Neglect of Care Dependent Person" is directed, at least in part, to obviate the specific kind of harm which Donald Y. Frysinger, Sr. sustained. 126. The Defendants, in accepting the responsibility for caring for Donald Y. Frysinger, Sr. as aforesaid, were negligent "per se" and violated 18 Pa.C.S.A. § 2713 "Neglect of Caze Dependent Person" in that they: a. failed to provide treatment, care, goods and services necessary to preserve the health, safety or welfaze of Donald Y. Frysinger, Sr. for whom they were responsible to provide caze as specifically set forth in this Complaint; 127. As a direct result of the aforesaid negligence "per se" of the Defendants, Donald Y. Frysinger, Sr. was caused to sustain serious personal injuries and damages as aforesaid. 128. The conduct of the Defendants, and each of them, as specifically set forth in this Complaint, was outrageous, inconsistent with and intolerable given the norms of modern society and as such, Plaintiff requests punitive damages in addition to all other damages as aforesaid. WHEREFORE, Plaintiff, Donald Y. Frysinger, Jr., Executor of the Estate of D Donald Y. Frysinger, Sr., respectfully requests that judgment be entered in his favor, and against the Defendants, in an amount in excess of the compulsory azbitration limits and/or Fifty Thousand Dollars ($50,000.00), whichever is greater, together with punitive damages, costs, and any other relief that this Honorable Court deems appropriate given the circumstances. A jury trial is demanded. 30 COUNT THREE NEGLIGENCE PER SE FOR VIOLATIONS OF THE PENNSYLVANIA OLDER ADULTS PROTECTIVE SERVICES ACT, 35 P.S. § 10225.101, et seq. Donald Y. Frysinger, Jr., Ezecutor of the Estate of Donald Y. Frysinger, Sr. v. ManorCare of Carlisle PA, LLC, d/b/a ManorCare Health Services -Carlisle; HCR ManorCare, Inc.; ManorCare, Inc.; HCR Healthcare, LLC; HCR II Healthcare, LLC; HCR III Healthcare, LLC; and HCR IV Healthcare, LLC 129. Plaintiff incorporates herein by reference the preceding pazagraphs as through the same were more fully set forth at length herein. 130. At all times pertinent hereto, there was in full force and effect 35 P.S. § 10225.101, et seq., "Pennsylvania Older Adults Protective Services Act," which sets forth civil penalties, administrative penalties and other consequences for abuse of a caze-dependent person. 131. 35 P.S. § 10225.102, expresses the policy of the Commonwealth of Pennsylvania that: ...older adults who lack the capacity to protect themselves and aze at imminent risk of abuse, neglect, exploitation or abandonment shall have access to and be provided with services necessary to protect their health, safety and welfaze. It is not the purpose of this act to place restrictions upon the personal liberty of incapacitated older adults, but this act should be liberally construed to assure the availability of protective services to all older adults in need of them. Such services shall safeguard the rights of incapacitated older adults while protecting them from abuse, neglect, exploitation and abandonment. It is the intent of the General Assembly to provide for the detection and reduction, correction or elimination of abuse, neglect, exploitation and abandonment, and to establish a program of protective services for older adults in need of them. 132. At all times pertinent hereto, Donald Y. Frysinger, Sr. was an older person who was a resident of Defendants' Facility who lacked the capacity to protect herself and thus fell within the class of persons 35 P.S. § 10225.101, et seq. was intended to protect, thus entitling 31 Plaintiff to adopt 35 P.S. § 10225.101, et seq. as the standard of care for measuring the Defendants' conduct. 133. Additionally, the Pennsylvania Older Adults Protective Services Act is directed, at least in part, to obviate the specific kind of harm which Donald Y. Frysinger, Sr. sustained. 134. In addition to the aforesaid negligence, which said negligence is specifically incorporated herein, the Defendants, in accepting the responsibility for caring for Donald Y. Frysinger, Sr. as aforesaid, were negligent "per se" and violated 35 P.S. § 10225.101, et seq. in that they had reasonable cause to suspect that Donald Y. Frysinger, Sr. was the victim of abuse or neglect and failed to report said abuse and neglect to the appropriate agency and law enforcement officials. 135. As a direct result of the aforesaid negligence "per se" of the Defendants, Donald Y. Frysinger, Sr. was caused to sustain serious personal injuries and damages as aforesaid. 136. The conduct of Defendants, and each of them, as specifically set forth in this Complaint, was outrageous, inconsistent with and intolerable given the norms of modern society and as such, Plaintiff requests punitive damages in addition to all other damages as aforesaid. WHEREFORE, Plaintiff, Donald Y. Frysinger, Jr., Executor of the Estate of Donald Y. Frysinger, Sr., respectfully requests that judgment be entered in his favor, and against the Defendants, in an amount in excess of the compulsory arbitration limits and/or Fifty Thousand Dollazs ($50,000.00), whichever is greater, together with punitive damages, costs, and any other relief that this Honorable Court deems appropriate given the circumstances. A jury trial is demanded. 32 COUNT FOUR Donald Y. Frysinger, Jr., Executor of the Estate of Donald Y. Frysinger, Sr. v. ManorCare of Carlisle PA, LLC, d/b/a ManorCare Health Services -Carlisle; HCR ManorCare, Inc.; ManorCare, Inc.; HCR Healthcare, LLC; HCR II Healthcare, LLC; HCR III Healthcare, LLC; and HCR IV Healthcare, LLC 137. Plaintiff hereby incorporates by reference the preceding pazagraphs as though the same were fully set forth at length herein. 138. Plaintiff brings this action on behalf of the decedent's estate under and by virtue of the Pennsylvania Judiciary Act, 42 Pa.C.S. 8302, known as the Survival Statute, to recover all damages legally appropriate thereunder. 139. The following persons aze entitled to share under this cause of action in the estate of said Decedent: Donald Y. Frysinger, Jr. (son) and Donna Lee Seith (daughter). 140. Plaintiff claims damages for the pain, suffering and inconvenience endured by Plaintiff s decedent, Donald Y. Frysinger, Sr., up to and including the time of his death, which was caused by the Defendants' breach of duties, negligence, cazelessness and recklessness. 141. Plaintiff claims damages for the fright and mental suffering attributable to the peril leading to the death of Plaintiff s decedent, Donald Y. Frysinger, Sr., which was caused by the Defendants' breach of duties, negligence, carelessness and recklessness. WHEREFORE, Plaintiff, Donald Y. Frysinger, Jr., Executor of the Estate of Donald Y. Frysinger, Sr., respectfully requests that judgment be entered in his favor, and against the Defendants, in an amount in excess of the compulsory azbitration limits and/or Fifty Thousand Dollars ($50,000.00), whichever is greater, together with punitive damages, costs, and any other relief that this Honorable Court deems appropriate given the circumstances. A jury trial is demanded. 33 Respectfully submitted, te: I ~~~ Da By: WILKES & McHUGH, P.A. Yuan T. Norri~ Esquire Attorney f Plaintiff 34 VERIFICATION The undersigned, having read the attached Complaint, verifies that the within Complaint is based on information furnished to counsel, which information has been gathered by counsel in the course of this lawsuit. The language of the Complaint is that of counsel and not the signer. Signer verifies that signer has read the within Complaint 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 Complaint are not that of signer, signer has relied upon counsel in taking this Verification. This Verification is made subject to the penalties Pa.C.S. Section 4904, relating to unsworn falsification of authorities. Dated: ~ ~ •~ ' 1z Donald Y. Frysinger, Jr., xecutor of the Estate of Donald Y. Frysinger, Sr. Ian T. Norris, Esquire Attorney Identification No. 207566 Three Parkway 1601 Cherry Street, Suite 1300 Philadelphia, PA 19102 Tel No. (215) 972-0811 Email: inorris@wilkesmchugh.com THIS IS NOT AN ARBITRATION CASE; AN ASSESSMENT OF DAMAGES IS REQUIRED; JURY TRIAL DEMANDED Attorney for Plaintiff, Donald Y. Frysinger, Jr., Executor of the Estate Donald Y. Frysinger, Sr. DONALD Y. FRYSINGER, JR., Executor of the Estate of DONALD Y. FRYSINGER, SR., Plaintiff, COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA l - r' ~ji,v l' DOCKET NO. ~ ~- VJ `'~ vs. MANORCARE OF CARLISLE PA, LLC D/B/A MANORCARE HEALTH SERVICES, CARLISLE and HCR MANORCARE, INC. and MANORCARE, INC. and HCR HEALTHCARE, LLC and HCR II HEALTHCARE, LLC and HCR III HEALTHCARE, LLC and HCR IV HEALTHCARE, LLC Defendants. • - r z , -~a r~ - .~ ' ~ ~ _ -- ~ .~- __~.~ t--- ~, ,_. ~: ~ ~~.~ ~ ' , }_~ cr CERTIFICATE OF MERIT AS TO DEFENDANT, MANORCARE OF CARLISLE PA. LLC DB/A MANORCARE HEALTH SERVICES, CARLISLE x an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by this defendant in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm; AND/OR x the claim that this defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standazd and an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by the other licensed professionals in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm; OR expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim against this defendant. Date: // / an T. orris, quire Attorney f laintiff -2- CERTIFICATE OF SERVICE I, Ian T. Norris, Esquire of Wilkes & McHugh, P.A., Attorneys for Plaintiff, hereby state that a true and correct copy of the attached Certificate of Merit was served simultaneously with the service of Plaintiffls Complaint via the Sheriff of Cumberland County upon the following: MANORCARE OF CARLISLE PA, LLC DB/A MANORCARE HEALTH SERVICES, CARLISLE 940 Walnut Bottom Road Carlisle, PA 17013 Wilkes & McHugh, PEA. Date: / / By: Ian T. Norri squire Attorney r Plaintiff -3- Ian T. Norris, Esquire Attorney Identification No. 207566 Three Parkway 1601 Cherry Street, Suite 1300 Philadelphia, PA 19102 Tel No. (215) 972-0811 Email: inorris@wilkesmchugh.com DONALD Y. FRYSINGER, JR., Executor of the Estate of DONALD Y. FRYSINGER, SR., Plaintiff, vs. MANORCARE OF CARLISLE PA, LLC D/B/A MANORCARE HEALTH SERVICES, CARLISLE and HCR MANORCARE, INC. and MANORCARE, INC. and HCR HEALTHCARE, LLC and HCR II HEALTHCARE, LLC and HCR III HEALTHCARE, LLC and HCR IV HEALTHCARE, LLC Defendants. THIS IS NOT AN ARBITRATION CASE; AN ASSESSMENT OF DAMAGES IS REQUIRED; JURY TRIAL DEMANDED Attorney for Plaintiff, Donald Y. Frysinger, Jr., Executor of the Estate Donald Y. Frysinger, Sr. COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA ~J~1 DOCKET NO. 1 ~- ~~ ~ ~ { • {~ F~~ .... . ~` ~'-- .:~ --~i F__ ,; ~~ • ~ ~ c , ~ ,~ -= ~ ~ ~ • - c~a .- CERTIFICATE OF MERIT AS TO DEFENDANT, HCR MANORCARE, INC. x an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by this defendant in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm; AND/OR x the claim that this defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard and an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by the other licensed professionals in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm; OR expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim against this defendant. Date: Attorney~6r Plaintiff -2- CERTIFICATE OF SERVICE I, Ian T. Norris, Esquire of Wilkes & McHugh, P.A., Attorneys for Plaintiff, hereby state that a true and correct copy of the attached Certificate of Merit was served simultaneously with the service of Plaintiff s Complaint via U.S. First Class Certified Mail upon the following: HCR MANORCARE, INC. 333 N. Summit Street Toledo, OH 43604 Wilkes & McHugh, Date: ~ By: Attorney -3- Ian T. Norris, Esquire THIS IS NOT AN ARBITRATION CASE; Attorney Identification No. 207566 AN ASSESSMENT OF DAMAGES IS Three Parkway REQUIRED; JURY TRIAL DEMANDED 1601 Cherry Street, Suite 1300 Philadelphia, PA 19102 Attorney for Plaintiff, Donald Y. Frysinger, Jr., Tel No. (215) 972-0811 Executor of the Estate Donald Y. Frysinger, Sr. Email: inorris@wilkesmchugh.com DONALD Y. FRYSINGER, JR., Executor of COURT OF COMMON PLEAS the Estate of DONALD Y. FRYSINGER, SR., CUMBERLAND COUNTY, PA Plaintiff, ` DOCKET NO. . lp~ 8 ~ ~~ ~ l ~~ vs. MANORCARE OF CARLISLE PA, LLC D/B/A MANORCARE HEALTH SERVICES, CARLISLE and HCR MANORCARE, INC. ` ' :~:_; and -,.r :~~; ~~ ..~ MANORCARE, INC. "~°~ `=`' ~= , r and ° ~ ' ` - -- - r-~ ''' HCR HEALTHCARE, LLC "' ~ ~" ""`' " and -- HCR II HEALTHCARE, LLC ~ ~ `'yw" ~ -r and ~ c-~ ,`; HCR III HEALTHCARE, LLC =~ `~ --~ ~`' ~~ c.r and HCR IV HEALTHCARE, LLC ~ Defendants. . CERTIFICATE OF MERIT AS TO DEFENDANT, MANORCARE, INC x an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the Gaze, skill or knowledge exercised or exhibited by this defendant in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the hazm; AND/OR x the claim that this defendant deviated from an acceptable professional standazd is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standazd and an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by the other licensed professionals in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm; OR expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim against this defendant. Date: -2- CERTIFICATE OF SERVICE I, Ian T. Norris, Esquire of Wilkes & McHugh, P.A., Attorneys for Plaintiff, hereby state that a true and correct copy of the attached Certificate of Merit was served simultaneously with the service of Plaintiffs Complaint via U.S. First Class Certified Mail upon the following: MANORCARE, INC. 333 N. Summit Street Toledo, OH 43604 Wilkes & McHugh. P.A. Date: By: Ian T. No 's, Esquire Attorn for Plaintiff -3- Ian T. Norris, Esquire Attorney Identification No. 207566 Three Parkway 1601 Cherry Street, Suite 1300 Philadelphia, PA 19102 Tel No. (215) 972-0811 Email: inorris@wilkesmchugh.com THIS IS NOT AN ARBITRATION CASE; AN ASSESSMENT OF DAMAGES IS REQUIRED; JURY TRIAL DEMANDED Attorney for Plaintiff, Donald Y. Frysinger, Jr., Executor of the Estate Donald Y. Frysinger, Sr. DONALD Y. FRYSINGER, JR., Executor of the Estate of DONALD Y. FRYSINGER, SR., Plaintiff, vs. MANORCARE OF CARLISLE PA, LLC DB/A MANORCARE HEALTH SERVICES, CARLISLE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA ^ q$c ~:~~ I DOCKET NO. ~ p' ! " and HCR MANORCARE, INC. . and - ,. MANORCARE, INC. ~ r.,., ~ ~ '-~ • and .., ..: HCR HEALTHCARE, LLC ~ ~ c.:a ~ ~ ~`-` and ,~~ r_. r-~ , HCR II HEALTHCARE, LLC --~ ~'' v-z ,::~ ~;' and ~ c. `-' r.~, HCR III HEALTHCARE, LLC .: ~ ~~ and .;~ ~ ~ ~ ~, HCR IV HEALTHCARE, LLC '" --i cr; ~' : ~. Defendants. --, ~~ : -~ CERTIFICATE OF MERIT AS TO DEFENDANT. HCR HEALTHCARE. LLC. x an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the Gaze, skill or knowledge exercised or exhibited by this defendant in the treatment, practi ce or work that is the subject of the complaint, fell outside acceptable professional standazds and that such conduct was a cause in bringing about the hazm; AND/OR x the claim that this defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard and an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by the other licensed professionals in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm; OR expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim against this defendant. Date: ~ `~'' -2- CERTIFICATE OF SERVICE I, Ian T. Norris, Esquire of Wilkes & McHugh, P.A., Attorneys for Plaintiff, hereby state that a true and correct copy of the attached Certificate of Merit was served simultaneously with the service of Plaintiffs Complaint via U.S. First Class Certified Mail upon the following: HCR Healthcare, LLC. 333 N. Summit Street Toledo, OH 43604 Wilkes & McHuah„ P.A. Date: ~) ~~" gy; t an T. No ' ,Esquire Attorne or Plaintiff -3- Ian T. Norris, Esquire Attorney Identification No. 207566 Three Parkway 1601 Cherry Street, Suite 1300 Philadelphia, PA 19102 Tel No. (215) 972-0811 Email: inorris@wilkesmchugh.com DONALD Y. FRYSINGER, JR., Executor of the Estate of DONALD Y. FRYSINGER, SR, Plaintiff, THIS IS NOT AN ARBITRATION CASE; AN ASSESSMENT OF DAMAGES IS REQUIlZED; JURY TRIAL DEMANDED Attorney for Plaintiff, Donald Y. Frysinger, Jr., Executor of the Estate Donald Y. Frysinger, Sr. COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA • '• ~ ( Cl V 1 DOCKET NO. ' a lc vs. MANORCARE OF CARLISLE PA, LLC D/B/A MANORCARE HEALTH SERVICES, CARLISLE and HCR MANORCARE, INC. and MANORCARE, INC. and HCR HEALTHCARE, LLC and HCR II HEALTHCARE, LLC and HCR III HEALTHCARE, LLC and HCR IV HEALTHCARE, LLC Defendants. . _ % -~ _ ~ .~ ,y _ . ~n ~ -- - ~' k;~ ~"`a • ~ l ~1 ~_J 7 ~e t... ~ ~_' ~ ~ -r ~~ G~ ~. ~- ~~ ~ • -~ ~ ~ ~ CERTIFICATE OF MERIT AS TO DEFENDANT, HCR II HEALTHCARE, LLC. x an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by this defendant in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm; AND/OR x the claim that this defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard and an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by the other licensed professionals in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm; OR expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim against this defendant. Date: -2- CERTIFICATE OF SERVICE I, Ian T. Norris, Esquire of Wilkes & McHugh, P.A., Attorneys for Plaintiff, hereby state that a true and correct copy of the attached Certificate of Merit was served simultaneously with the service of Plaintiff s Complaint via U.S. First Class Certified Mail upon the following: HCR II Healthcare, LLC. 333 N. Summit Street Toledo, OH 43604 Wilkes & McHueh._P.A. Date: By: an T. o ' ,Esquire Attornev or Plaintiff -3- Ian T. Norris, Esquire THIS IS NOT AN ARBITRATION CASE; Attorney Identification No. 207566 AN ASSESSMENT OF DAMAGES IS Three Parkway REQUIRED; JURY TRIAL DEMANDED 1601 Cherry Street, Suite 1300 Philadelphia, PA 19102 Attorney for Plaintiff, Donald Y. Frysinger, Jr., Tel No. (215) 972-0811 Executor of the Estate Donald Y. Frysinger, Sr. Email: inorris@wilkesmchugh.com DONALD Y. FRYSWGER, JR., Executor of COURT OF COMMON PLEAS the Estate of DONALD Y. FRYSINGER, SR., CUMBERLAND COUNTY, PA Plaintiff, , ^ DOCKET NO. d` - QI ~ ~ ~ ~ ~ ~ vs. MANORCARE OF CARLISLE PA, LLC . D/B/A MANORCARE HEALTH SERVICES, CARLISLE . ; ,~., and - _- HCR MANORCARE, INC. r . -t ~-~~ ~- - and -- MANORCARE, INC. ~`~ ~ " -..._ --~ > ~ 7' ' ° ~' rn and HCR HEALTHCARE, LLC -~. ~ r =~ -. _ ---, < ~ - : ~~ ~, and : ~ .; HCR II HEALTHCARE, LLC ;N} r ~ { =~ r;---' and --~ ~,~; '~~' . ~~~ HCR III HEALTHCARE, LLC . :~~ and HCR IV HEALTHCARE, LLC , Defendants. CERTIFICATE OF MERIT AS TO DEFENDANT, HCR III HEALTHCARE, LLC x an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by this defendant in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm; AND/OR x the claim that this defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard and an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by the other licensed professionals in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm; OR a expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim against this defendant. Date: ~~ Attorney ~rf Plaintiff -2- CERTIFICATE OF SERVICE I, Ian T. Norris, Esquire of Wilkes & McHugh, P.A., Attorneys for Plaintiff, hereby state that a true and correct copy of the attached Certificate of Merit was served simultaneously with the service of Plaintiff s Complaint via U.S. First Class Certified Mail upon the following: HCR III Healthcare, LLC. 333 N. Summit Street Toledo, OH 43604 Date: ~~ Wilkes & McHugh, P.A. By: an o ' ,Esquire Attorne or Plaintiff -3- Ian T. Norris, Esquire Attorney Identification No. 207566 Three Parkway 1601 Cherry Street, Suite 1300 Philadelphia, PA 19102 Tel No. (215) 972-0811 Email: inorris@wilkesmchugh.com DONALD Y. FRYSINGER, JR., Executor of the Estate of DONALD Y. FRYSINGER, SR., Plaintiff, vs. MANORCARE OF CARLISLE PA, LLC D/B/A MANORCARE HEALTH SERVICES, CARLISLE and HCR MANORCARE, INC. and MANORCARE, INC. and HCR HEALTHCARE, LLC and HCR II HEALTHCARE, LLC and HCR III HEALTHCARE, LLC and HCR IV HEALTHCARE, LLC Defendants. THIS IS NOT AN ARBITRATION CASE; AN ASSESSMENT OF DAMAGES IS REQUIRED; JURY TRIAL DEMANDED Attorney for Plaintiff, Donald Y. Frysinger, Jr., Executor of the Estate Donald Y. Frysinger, Sr. COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA DOCKET NO. 1~_ lpq~ I G~ ~~ • r..~ ~, .~ ;; : F-" ha .. -~;,. .,;~ ;., ~ ~r>fV CERTIFICATE OF MERIT AS TO DEFENDANT. HCR IV HEALTHCARE. LLC. x an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the Gaze, skill or knowledge exercised or exhibited by this defendant in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standazds and that such conduct was a cause in bringing about the harm; AND/OR x the claim that this defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standazd and an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by the other licensed professionals in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm; OR expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim against this defendant. Date: -2- CERTIFICATE OF SERVICE I, Ian T. Norris, Esquire of Wilkes & McHugh, P.A., Attorneys for Plaintiff, hereby state that a true and correct copy of the attached Certificate of Merit was served simultaneously with the service of Plaintiffls Complaint via U.S. First Class Certified Mail upon the following: HCR IV Healthcaze, LLC. 333 N. Summit Street Toledo, OH 43604 Date: __1/f,~ Wilkes & McHugh, P.A. By: Ian T. No ' ,Esquire Attorn or Plaintiff -3- SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson ~ ; ~_, ~ Sheriff ~ `~-' ` Jody S Smith te',. ~ ~ ~ ~= _~~ Chief Deputy r , ;.,~ ~ r ~ ~~ :--- cn rv ~~~ ~~ Richard WStewart -~=~`~' ~ `=~ Solicitor -G~ - ~ ~ ~ `; ,~- ~; ~ ~ c~, -T~ ~r C ._ -~ ~~ , r, J `.. Donaly Y Frysinger Executor of the Estate of Donald Y. Frysinder, Sr. Case Number vs. Manor Care of Carlisle PA LLC (et al.) 2012-6981 SHERIFF'S RETURN OF SERVICE 11/21/2012 11:52 AM -Deputy William Cline, being duly sworn according to law, served the requested Complaint & Notice by handing a true copy to a person representing themselves to be Holly Dorsey, HR Manager, who accepted as "Adult Person in Charge" for Manor Care of Carlisle PA LLC at 940 Walnut Bottom Road, South Middleton Township, Carlisle, PA 17015. L M CLINE, DEPUTY SHERIFF COST: $34.00 November 26, 2012 SO ANSWERS, ~~ RON ~ R ANDERSON, SHERIFF ~~ BURNS WHITE LLC BY: William J. Mundy Identification No. 57679 BY: John M. Skrocki Identification No. 49071 By: Sean P.~ O'Mahoney, Esquire Identification No. 314690 100 Four Falls, Suite 515 1001 Conshohocken State Road West Conshohocken, PA 19428 484.Sfi7.5700 DONALD Y. FRYSINGER, JR., Executor of the Estate of DONALD Y. FRYSINGER, SR, Plaintiff Attorney for Defendants, Manor Care of Carlisle PA, LLC d/b/a ManorCare Health Services, Carlisle, HCR Manorcare, lnc., Manorcare, Inc., HCR Healthcare, LLC, HCR II Healthcare, LLC, HCR III Healthcare, LLC and HCR IV Healthcare, LLC COURT OF COMMON PLEAS OF CARLISLE COUNTY, PENNSYLVANIA v. MANOR CARE OF CARLISLE PA, LLC D/B/A MANORCARE HEALTH SERVICES CARLISLE; HCR MANOR CARE, INC.; MANORCARE, INC.; HCR HEALTHCARE, LLC; HCR II HEALTHCARE, LLC; HCR III HEALTHCARE, LLC; AND HCR IV HEALTHCARE, LLC Defendants No. CI-12-6981 ENTRY OF APPEARANCE TO THE PROTHONOTARY: c.>~ ,,_ _~~a ~ = ; ; -- ~ ~v w, ~ . na t- ,_, . _ Kindly enter our appearance as counsel on behalf of all Defendants in the above- captioned matter. BURNS WHITE LLC <~~ BY: Date: November 2g, 2012 WILLIAM J. MUN ,ESQUIRE JOHN M. SKROCKI, ESQUIRE SEAN P. O'MAHONEY, ESQUIRE Attorney for Defendants, Manor Care of Carlisle PA, LLC d/b/a ManorCare Health Services, Carlisle, HCR Manorcare, Inc., Manorcare, Inc., HCR Healthcare, LLC, HCR II Healthcare, LLC, HCR III Healthcare, LLC and HCR IV Healthcare, LLC .,~ CERTIFICATE OF SERVICE I, Sean P. O'Mahoney, Esquire, hereby certify that a true and correct copy of the foregoing Entry of Appearance has been served by United States First Class Mail, postage prepaid, on this date to counsel of record as follows: Ian T. Norris, Esquire Wilkes & McHugh, P.A. Three Parkway 1601 Cherry Street, Suite 1300 Philadelphia, PA 19102 Date: ~ j -,~--~j j ~ ___.__ Sean P. O'Mahoney quire DONALD Y. FRYSINGER, JR., IN THE COURT OF COMMON PLEAS OF Executor of the Estate of CUMBERLAND COUNTY, PENNSYLVANIA DONALD Y. FRYSINGER, SR., Plaintiff . V. CIVIL ACTION—LAW MANORCARE OF CARLISLE, PA, LLC, DB/A MANORCARE : c-) HEALTH SERVICES-CARLISLE: 7 _0 _. and ,_�,. ''^r- HCR MANORCARE, INC., ,r-- ' ©° and MANOR CARE, INC., o-n and HCR HEALTHCARE, LLC, x' cn ' and - co HCR II HEALTHCARE, LLC, and HCR III HEALTHCARE, LLC, and : HCR IV HEALTHCARE, LLC, Defendants NO. 12-6981 CIVIL TERM IN RE: PLAINTIFF'S MOTION TO COMPEL DISCOVERY REGARDING ARBITRATION ORDER OF COURT AND NOW, this 14`x' day of March, 2013, upon consideration of Plaintiff's Motion To Compel Discovery Regarding Arbitration, a Rule is hereby issued upon Defendants to show cause why the relief requested should not be granted. RULE RETURNABLE within 20 days of service. BY THE COURT, &"��/vt' Christyl L. Peck, J. j/Ian T. Norris, Esq. Three Parkway 1601 Cherry Street Suite 1300 Philadelphia, PA 19102 Attorney for Plaintiff William J. Mundy, Esq. /John M. Skrocki, Esq. Sean P. O'Mahoney, Esq. 100 Four Falls, Suite S 15 1001 Conshohocken State Road West Conshohocken, PA 19428 Attorneys for Defendants 'le-d 31V-13 AVI- T" BURNS WHITE LLC All N: 26 BY: William J. Mundy A L"D C t4ly ou Identification No. 57679 Attorneys for Defendants,Qbi-�-"46i4sle PA,LLC BY: John M. Skrocki d/b/a ManorCare Health Services,Carlisle,HCR Identification No. 49071 Manorcare,Inc.,Manorcare,Inc.,HCR Healthcare,LLC, BY: David P. McGinley HCR 11 Healthcare,LLC,HCR III Healthcare,LLC and Identification No. 207570 HCR IV Healthcare,LLC 100 Four Falls, Suite 515 1001 Conshohocken State Road West Conshohocken,PA 19428 484.567.5700 : COURT OF COMMON PLEAS DONALD Y. FRYSINGER, JR., : CUMBERLAND COUNTY, Executor of the Estate of : PENNSYLVANIA DONALD Y. FRYSINGER, SR, Plaintiff V. MANOR CARE OF CARLISLE PA, LLC D/B/A MANORCARE HEALTH DOCKET No. 2012-6981 SERVICES CARLISLE; HCR MANOR CARE, INC.; MANORCARE, INC.; HCR HEALTHCARE, LLC; HCR II HEALTHCARE, LLC; HCR III HEALTHCARE, LLC;AND HCR IV HEALTHCARE, LLC Defendants, RESPONSE OF THE MAN, OR CARE DEFENDANTS TO PLAINTIFF'S MOTION TO COMPEL DISCOVERY REGARDING ARBITRATION And now, comes the Manor Care Defendants, Manor Care of Carlisle PA, LLC, d/b/a Manorcare Health Services-Carlisle, HCR Manorcare, Inc, Manor Care, Inc., HCR Healthcare, LLC, HCR II Healthcare, LLC, HCR III Healthcare, LLC, and HCR IV Healthcare, LLC, ("Manor Care"), by and through their undersigned counsel, Bums White LLC, and responds to Plaintiffs Motion to Compel as follows: 2 h The Plaintiffs motion seeks to compel information and documents which are entirely irrelevant to the issue before the court. The relevant inquiry is whether Donald Frysinger Jr., who signed all the Manor care admission paperwork for his father, including the Arbitration Agreement, had the authority to do so, and whether there is any merit to the claims of duress, or competency, raised in this and every other Wilkes and McHugh challenge to arbitration agreements. In this particular case, Donald Frysinger Jr. held a long-standing Power of Attorney executed by his father, at the time he signed the instant arbitration agreement. Any argument that he did not have authority to act on his father's behalf flies in the face of that evidence. The Manor Care Defendants further respond to the instant motion as follows: I. It is admitted that Donald Y. Frysinger, Sr.resided at Manor Care—Carlisle from November 28, 2414 through February 8, 2011. It is denied that he was neglected or abused,or that he suffered any injuries caused by negligence, abuse or neglect. To the contrary,Mr. Frysinger was an 87 year old who was rapidly declining in health before he arrived at Manor Care Carlisle. He had a history of chronic infection, severe psoriatic lesions, a recent fall/fracture and a hospitalization. He suffered from hallucinations, and his nutritional status was in advanced decline. Following his Manor Care admission,he lived at another nursing home for two more months, and then died from pneumonia. There is no wrongful death claim. 2. Plaintiff's claims of abuse and neglect are specifically denied. 3. Admitted. 4. Admitted. 3 5. Denied as stated. It is admitted that the Defendants provided substantive responses and objections. The objections are well-founded, and are re-asserted here. 6. It is admitted that the Plaintiff sent a letter asking Defendants to withdraw their objections. 7. The Defendants respectfully submit that they have provided appropriate responses to Plaintiff's Interrogatories and Requests for Production of Documents. 8. No corresponding averment. 9. No corresponding averment. 10. No corresponding averment. 11. The Defendants submit that their objections to Plaintiff's Interrogatories 14 through 17 are legally well-founded. Plaintiff seeks the identification of suits filed in unrelated and unidentified collections actions,yet provides no justification,nor even a basic theory of why this extraneous information would have any bearing on the issues in this matter. Interrogatory 24 seeks the identity of the person who is"tasked' with training admissions people regarding the arbitration agreement. Again,no explanation for how this information is discoverable is provided. 12. No corresponding averment. 13. Once again,no justification for the discovery requested is asserted. 14-15. Contrary to Plaintiff's contention,the information sought is outside the reasonable scope of discovery relevant to the contract defenses raised by the Frysinger Estate in this matter. Pa. R.Civ. P. 4011(c). Plaintiff s"cake and eat it too"reference is presumably an attempt to fashion an estoppel argument. As best as the Defense can construe it,Plaintiff avers that the Defendants should be 4 somehow estopped from asserting their right to arbitration in this matter based on the scenario that somewhere, at some other time,there might possibly have been a situation where the facility, or other Manor Care facilities,undertook a collections action without utilizing arbitration,where a signed arbitration agreement existed. If such a scenario ever occurred, (and the undersigned is not aware of such a situation having ever arisen),the search for it would involve extensive public docket searches, a search that would involve considerable time and resources, and a search equally available to the Plaintiff's firm. Even if such a scenario were to be found, such an unrelated event would have no bearing on the events at issue here. The only issue in dispute here is the interaction between Donald Frysinger,Jr.,and the Manor Care Admissions Coordinator,Karen Scott. The depositions of Ms. Scott and Mr. Frysinger are scheduled for April 10. These are the persons who participated in obtaining the Arbitration Agreement at issue, and they are each subject to questions on the topics relevant to the individual contract defenses raised by the Plaintiff. The statewide debt collection information sought by Plaintiff in this motion(and the exact same motion filed in the Yohn v Manor Care Carlisle case, also now pending before this Court)has nothing to do with the individual contract defenses raised by Frysinger in this action. Other similar motions to compel filed by the Wilkes and McHugh firm have been denied. (See Attachment A,Transcript of Oral Argument at 8-9, Marsicano v. Northern Health Facilities, Inc. et al., (July 19,2012) (No. 698 of 2012)(J. Burke)and Attachment B, Order, Marsicano v. Northern Health Facilities, Inc. et al., (July 20, 2012) (No. 698 of 2012)(J. Burke)). 5 16-17. The information sought in this Interrogatory is not reasonably calculated to lead to the discovery of admissible evidence. The Wilkes and McHugh firm has now taken the depositions of scores of admissions people, some Manor Care employees, and admissions people from other companies. The admissions folks are typically asked about their training and experience in presenting admissions paperwork generally, and how they present the arbitration agreement,in particular. Karen Scott,who facilitated the admissions paperwork in this and the Kohn admissions,will respond to deposition questions on April 10. it is anticipated that she will be asked about her training and experience in this regard. This is more than sufficient. Plaintiff has not made any showing as to why this inquiry,in and of itself,would not suffice. Again, discovery beyond that interaction is irrelevant and will not lead to the discovery of admissible evidence. (Marsicano v. Northern Health Facilities, Inc. et al.,(July 19,2012)(No. 698 of 2012) (J. Burke) See Transcript and Order, Attachments A and B). 18-19. Plaintiff incorporates a boilerplate, general citation to the Pa. Rules as to scope of discovery,without specific citation,or an application of the rule to this case. 20-27. There are no corresponding averments. 28. Please refer to the above responses. 29. Plaintiff does not identify any prejudice,or any unfair prejudice, and has otherwise asserted an unreasonably broad,burdensome, and irrelevant discovery request. Conversely,the Defendants would be unfairly prejudiced in the event such discovery were required. 30. Plaintiff has not established any basis to insist that the Court `must' enter the requested order. It is respectfully requested that the Court deny the instant Motion. 6 WHEREFORE,the Manor Care Defendants request that the Court deny the instant Motion in the form of the Order attached hereto. Respectfully submitted, Burns White LLC By: John M. Skrocki squi e David P. McGinley, Esquire 100 Four Falls, Suite 515 1001 Conshohocken State Road West Conshohocken,PA 19428 (484) 567-5700 Dated: f �p'� � `� e3 Attorney for Defendants 7 CERTIFICATE OF SERVICE 1, David P. McGinley,Esquire,hereby certify that on this date, a true and correct copy of the foregoing Response of the Manor Care Defendants to Plaintiffs Motion to Compel Discovery Regarding Arbitration was served by United State First Class Mail,postage prepaid, to the following counsel: Ian T.Norris, Esquire Wilkes& McHugh, P.A. 1601 Cherry Street, Suite 1300 Philadelphia, PA 19102 Date: 971d,613 avid P. McGinley squire 8 Attachment A IN THE COURT OF COMMON PLEAS OF LUZERNE COUNTY, PENNSYLVANIA CIVIL ACTION - LAW JAMES J. MARSICANO, Administrator NO. 2012 - 00698 of the Estate of AGNES M. MARSICANO, Deceased, Plaintiff VS . NORTHERN HEALTH FACILITIES, INC. , D/B/A MOUNTAIN CITY NURSING AND REHABILITATION CENTER, MCNH, LLC f/k/a MOUNTAIN CITY NURSING, LLC, EXTENDICARE HEALTH FACILITIES, INC. , et al . ------------------------------------------------------ TRANSCRIPT OF PROCEEDINGS CASE MANAGEMENT PRETRIAL BEFORE : THE HONORABLE THOMAS F. BURKE, JR. , P. J. Luzerne County Courthouse Wilkes-Barre, Pennsylvania 18711 Courtroom No. 7 Thursday, July 19, 2012 APPEARANCES : On behalf of RUBEN J. KRISZTAL, ESQUIRE Plaintiff : Wilkes & McHugh, P.A. Three Parkway 1601 Cherry Street, Suite 1300 Philadelphia, PA 19102 On behalf of DAVID M. McGEADY, RN, ESQUIRE Defendants : 100 Four Falls, Suite 515 1001 Conshohocken State Road West Conshohocken, PA 19428 COPY 2 4 1 MR. KRISZTAL: Your Honor, my name is Ruben I But we're trying to move it along from that 2 Krisztal with the firm of Wilkes &McHugh on behalf 2 perspective. And what we have done by agreement, 3 of the Plaintiff. 3 because there are multiple cases, it is not my 4 MR. McGEADY: And my name is David McGeady 4 Intention to depose that admission person in three 5 with the law firm of Bums White, and I represent 6 different cases. So I set up her deposition once 6 all of the Defendants. I'm Mr. Mundy's associate. 6 for those three cases. I stay up for one day on 7 THE COURT: Okay. Mr. McGeady, your firm 7 those three cases, as well as the person most 8 filed preliminary objections, among other grounds, 8 knowledgeable. 9 seeking to have this controversy shifted into 9 And David set up--I have not been able to 10 alternative dispute arbitration. 10 give him the date on Mr. Marsicano yet, but it 11 MR. McGEADY: Yes. 11 would be during that week in the middle of August. 12 THE COURT: And there are other grounds for 12 THE COURT: Does this case fall within the 13 preliminary objection with regard to lack of 13 three cases you've alluded to that Mr. McGeady's 14 specificity and other issues. But the challenge 14 firm has? This is one of the three? 16 with respect to jurisdiction Is foundational to Is MR. KRISZTAL: Yes,Your Honor. And I'm sorry 16 what would happen going forward. 16 for interjecting, but I thought that that would 17 So while the Court has just concluded a very 17 help. 18 busy trial term, I recognize that this matter could 18 THE COURT: You don't have to be sorry. I 19 have been scheduled sooner to at least identify 19 applaud the efforts of counsel to be upfront on 20 what the format would be with regard to discovery, 20 this. 21 submission of briefs and, ultimately, argument on 21 Mr. McGeady, do you have any response? 22 the issue of the arbitration enforceability. At 22 MR. McGEADY: Your Honor, I really don't have 23 any rate, the focus today is to explore those 23 anything to add. I mean, our position is clear 24 areas. 24 from the preliminary objections. There was an 25 So I'll hear first from the objector, and then 25 arbitration agreement. We believe the arbitration 3 5 1 we'll hear from Plaintiffs counsel. 1 agreement is valid and enforceable on its face. It 2 MR. KRISZTAL: Your Honor, may I Interject, 2 was signed by Mr. Marsicano as well as Mrs. 3 even though you requested to hear from him first? 3 Marsicano at the time of admission to the facility. 4 THE COURT: Yes. 4 And, therefore, that's our position. 5 MR. KRISZTAL: For Your Honor's benefit, there 5 That being said, we understand that the 6 are seven cases against this facility, and we 6 Plaintiff objects, as they have in the other two 7 represent seven different Plaintiffs. There are 7 cases that we have,to enforcement of the 8 four cases, including this one, that there's an 8 arbitration agreement. And they raise various 9 issue of arbitration. Mr. McGeady has three of 9 grounds of defenses to enforcement of the 10 them; there's another gentleman by the name of Joe 10 agreement; and that they believe that there is 11 Fishbeln who has a fourth one. 11 some discovery that needs to be taken. 12 The way we have proceeded on those, for Your 12 I'm not going to, you know, object to that per 13 Honor's benefit, the Court has granted anywhere 13 se. And by the same token, I would request an 14 from 60 to 90 days to complete the discovery on the 14 opportunity to depose their clients just on the 15 arbitration issue. Mr. McGeady and I have spoken 15 issue of arbitration. 16 regarding this case as well as the other two that 1 16 1 will, however, raise one issue-- and I'm 17 have with him, and we have already set aside dates 17 not sure if this is something that we can deal with 18 in August for the deposition of the Plaintiff that 18 here today or not because it is somewhat outside 19 he wants to take, as well as the deposition of the 19 the scope of the preliminary objections. 20 admission person. And I have also sent notice of 20 But I believe that presenting the person from 21 deposition of the person most knowledgeable 21 the admissions office who presented the admission 22 regarding the training received by the admission 22 agreement to the resident, Mr. and Mrs. Marsicano, 23 person. 23 as an option to be signed, Is clearly reasonably 24 So I don't know if that would help you at all 24 calculated to lead to discoverable evidence on this 25 in analyzing as to where we are with this matter. 25 issue. I believe that, and I have objected. 6 8 1 And I've discussed this with Ruben. To the I blind person and whether or not the person read it 2 person most knowledgeable about training of 2 or not is procedurally or substantively 3 facility staff regarding the arbitration agreement, 3 unconscionable, whether it's fraudulent or duress. 4 1 see that as being outside the scope of this 4 The case law on the enforcement of arbitration 5 controversy. Because with respect to training or 5 agreements is very clear. And this goes all the 6 documents that relate to training, that really has 6 way up to the United States Supreme Court. The 7 nothing to do with what occurred in the room when 7 only defenses available for invalidation of an 8 the agreement was presented to these folks as an 8 arbitration agreement are the traditional contract 9 option that they could elect or not elect. 9 defenses. 10 And the case law on this subject is pretty 10 This Court does not need to know about 11 clear that the court's inquiry is limited to 11 training to evaluate whether or not those defenses 12 whether or not a valid agreement exists. So 12 are available. It can look at the arm's length 13 without looking at the arm's length transaction 13 transaction that occurred and make an independent 14 between the parties and the agreement itself, I see 14 evaluation of that. The training that's done by 15 anything outside of that as--certainly this issue 15 this facility and whatever, you know, other entity 16 as being outside the scope. And I will likely 16 was involved with that training isn't going to 17 object to presenting anyone other than the 17 establish the standard of this Court, the legal 18 individual who was present at the time the 18 standard, for evaluating whether the manner in 19 agreement was made. 19 which the agreement is presented constitutes fraud, 20 THE COURT: And for the Plaintiff. 20 duress, unconscionability or any other contract 21 MR. KRISZTAL: Judge, we believe the training 21 defense that would be available at common law. 22 is extremely relevant because of the fact that she 22 THE COURT: Okay. I've considered the 23 is told what to do, what she must do,what are the 23 submissions, and I will circumscribe the fact 24 things that she Is to follow. But yet,when we 24 discovery to an examination of the Defendant's 25 asked that question In this other case, which is 25 representative or representatives, plural, who 7 9 1 not involved with Mr. McGeady, defense counsel I participated in the arrangements to have the 2 instructed the witness not to answer any questions 2 arbitration agreement entered into and executed. 3 as to what training she received, when she received 3 MR. McGEADY: By way of clarification,Your 4 it, what was she told that she's to do, who gave 4 Honor,you mean the people who were present when 5 her the training. And this is paramount on this 5 the agreement was presented and signed? 6 case. Did she do what she's supposed to do? 6 THE COURT: Well, that clearly would be 7 In this other case, if I may, there, for 7 encompassed. What I don't know is whether there 8 instance, a gentleman who's blind. And she 8 may have been one or more other nursing home 9 admitted that she didn't read anything to him, not 9 employees who engaged in a preliminary discussion 10 a single page, not a single paragraph. And she 10 with regard to this agreement ultimately being 11 just went through her normal spiel. And when 1 11 considered and entered into. 12 said,Tell me about training you received about 12 MR, McGEADY: A preliminary discussion with 13 your normal spiel, she was instructed not to 13 the family or with the presenting staff member? 14 answer. 14 THE COURT: With the family, yes, with both Is We believe it goes directly to the document 15 the decedent and her husband, presumably. 16 itself, did she follow what she was told to do 16 MR. McGEADY: All right. 17 specifically by her employer and who told her that. 17 THE COURT: And I think the 60 to 90 days 18 For us not even to be able to find out who trained 18 window is reasonable with regard to completion of 19 her as to what, and what was she told and did you 19 discovery. And beyond that, I believe it would be 20 follow it here, is critical that it does not go 20 appropriate to have a briefing schedule, 21 solely to the issue of what happened on that day. 21 MR. KRISZTAL: Your Honor, may I ask a 22 MR. McGEADY: Using Mr. Krisztal's example, we 22 question for clarification? 23 don't need to know about--the Court doesn't need 23 THE COURT: Yes. 24 to know about training to evaluate the issue of 24 MR. KRISZTAL: Are you saying that I am not 25 whether or not presenting a written agreement to a 25 even allowed to ask the witness the training that I I 10 12 1 she received and whether or not she followed the 1 fashion potentially involving one or more judges. 2 training? Because we know,based on the other 2 Once a civil case is certified as trial-ready, it 3 deposition,that for purposes of that deposition, 3 is then put into a randomizer where,along with at 4 she was not allowed to answer any of those 4 least five or six other cases, it randomly gets 5 questions. Therefore, I was not allowed to ask 5 assigned to a particular judge for trial. 6 her, well, based on the training that you received, 6 What I can tell you is that generally 7 why did you not do X,Y, Z,with this resident. 7 speaking,the docket is moving in the right 8 THE COURT: I will circumscribe that subject 8 direction insofar as in January of this year is the 9 matter. I will not allow inquiry along those 9 first time we've had a full complement of ten 10 lines. In other words, her training is outside the 10 judges ever in this court. And for about three 11 scope of discovery that the Court will allow. 11 years, we were operating with, in some instances, 12 So discovery shall be completed on or before 12 as few as six and, generally, more like seven 13 October 19th, 2012. 13 judges, with some assistance from senior judges. 14 MR. KRISZTAL: On the issue of arbitration? 14 But the docket was very strained. Is THE COURT: Yes. And Defendant's brief shall 16 Generally speaking,when a case gets assigned 16 be due on or before November 16th, 2012; 16 to a trial judge, those matters come to trial 17 Plaintiff's brief on or before November 30th, 2012. 17 within a year or less. And as of recently, again, 18 And the Court will schedule argument for December 18 the docket is moving in the right direction where 19 11th, 2012,at 9:30 a.m. 19 the case inventory is being reduced as opposed to a 20 MR. KRISZTAL: Your Honor,if I may be able to 20 backlog developing. So that's where we stand. 21 check one thing. I am currently attached in 21 MR. McGEADY: So we have to complete discovery. 22 Scranton to commence a jury trial December 3rd. 22 MR. KRISZTAL: Like we do in other counties. 23 That matter may be resolved, but I have to let you 23 THE COURT: Okay. And that's it. 24 know now that I have a 2-week attachment December 24 MR. McGEADY: Okay. Thank you,Your Honor. 25 3rd. We can leave it as it is; it's very probable 25 (Proceedings concluded.) 11 1 that that other matter will be resolved. But 1 2 thought to advise you of that ahead of time. 3 THE COURT: You inform the Court,and as it 4 gets closer, if we have to adjust the date for 6 argument, we can do that. 6 MR. KRISZTAL: Correct. 7 THE COURT: Now, I will issue an order on this 8 within the next two days. 9 MR. KRISZTAL: May I ask another question? 10 THE COURT: Yes. 11 MR. KRISZTAL: Is it possible, knowing how 12 everybody's docket is,to obtain now a potential 13 trial date for the civil matter in the event that 14 they are not successful with the arbitration. 15 Since today in July, you may have dates available 16 later in 2013, but comes December when this matter 17 is argued, if you find in favor of the Plaintiff, 18 that then we may have to wait till sometime the 19 middle of 2014. 20 THE COURT: If I were in the Plaintiffs 21 shoes, I would be asking the same question. The 22 answer is: I cannot do that. Our procedure in 23 Luzerne County with respect to the scheduling of 24 civil trials is that prior to certification of 25 trial ready, the case is handled in a random 13 1 C E R T I F I C A T E 2 3 1 HEREBY CERTIFY that the proceedings and 4 evidence are contained fully and accurately in the notes of 5 testimony taken by me in the proceedings of the above 6 cause, and that this is a true and correct transcript 7 thereof. 8 9 DATE: 10 11 Angela C. Sallemi, RMR, CRR 12 Official Court Reporter 13 14 15 16 17 18 19 The foregoing record of the proceedings of 20 the above cause is hereby approved and directed to be 21 filed. 22 23 DATE: 24 25 Thomas F. Burke, Jr. , P.J. COPY Attachment B c . w ` IN THE COURT OF COMMON PLEAS OF LUZERNE COUNTY JAMES J. MARSICANO, Administrator of NO. 698 OF 2012 the Estate of AGNES M. MARSICANO, Deceased, CIVIL ACTON Plaintiff VS. NORTHERN HEALTH FACILITIES, INC., , ETC., ET AL., N Defendants ORDER AND NOW, this AAV day July, 2012, after a hearing/conference before the Court, it is hereby ORDERED and DECREED, as follows: 1. Fact discovery with respect to Defendants' Preliminary Objection pursuant to Pa.R.C.P. 1028(a)(6) shall be completed on or before October 19, 2012. 2. Except upon cause shown, the parameters of discovery shall be limited to inquiry relating to the role of Cheri Kolasensky and any other employee(s) of the Defendants who participated in obtaining a certain Aftemative Dispute Resolution Agreement entered into by and between James J. Marsicano, Plaintiffs decedent, Agnes M. Marsicano, and Defendants on January 26, 2010. 3. Defendants' Brief shall be due as of November 16, 2012. 4. Plaintiffs Brief shall be due as of November 30, 2012. M 5. Argument before the Court is set for December 11, 2012 at 9:30 a.m. in the assigned courtroom, 3'd floor, Luzeme County Court House, 200 North River Street, Wilkes-Barre, PA. 6. The Court retains jurisdiction with respect to all Preliminary Objections pending before the Court. 7. The Prothonotary is directed to enter this Order of record and to mail a copy of this Order to all counsel of record pursuant to Pa.R.C.P. No. 236. BY THE COURT: P.J. THOMAS F. BURKE, JR. Ruben J. Krisztal, Esquire Wilkes& McHugh, P.A. Three Parkway 1601 Chevy Street, Suite 1300 Philadelphia, PA 19102 William J. Mundy, Esquire David M. McGeady, Esquire Bums White 100 Four Falls, Suite 515 1001 Conshohocken State Road West Conshohocken, PA 19428 2 BURNS WHITE LLC BY: William J. Mundy Identification No. 57679 Attorneys for Defendants,Manor Care of Carlisle PA, LLC BY: John M. Skrocki d/b/a ManorCare Health Services,Carlisle,HCR Identification No. 49071 Manorcare,Inc.,Manorcare,Inc.,HCR Healthcare,LLC, BY: Sean P. O'Mahoney HCR II Healthcare,LLC,HCR III Healthcare,LLC and Identification No. 314690 HCR IV Healthcare,LLC 100 Four Falls, Suite 515 1001 Conshohocken State Road West Conshohocken, PA 19428 484.567.5700 : COURT OF COMMON PLEAS OF DONALD Y. FRYSINGER, JR., : CUMBERLAND COUNTY, Executor of the Estate of PENNSYLVANIA DONALD Y. FRYSINGER, SR, Plaintiff • M t„— V. I � MANOR CARE OF CARLISLE PA, LLC {S D/B/A MANORCARE HEALTH No. CI-12-6981 o Z: 1 SERVICES CARLISLE; HCR MANOR p c ? x CARE, INC.; MANORCARE, INC.; HCR HEALTHCARE, LLC; , HCR II HEALTHCARE, LLC; HCR III HEALTHCARE, LLC; AND , HCR IV HEALTHCARE, LLC Defendants, OBJECTIONS TO NOTICE OF INTENT TO SERVE SUBPOENA ON "NATIONAL_RESEARCH COMPANY" DATED MAY 15,2013 Defendants, Defendants, Manor Care of Carlisle PA, LLC d/b/a ManorCare Health Services, Carlisle, HCR Manorcare, Inc., Manorcare, Inc., HCR Healthcare, LLC, HCR II Healthcare, LLC, HCR III Healthcare, LLC and HCR IV Healthcare, LLC, by and through their counsel, Burns White, LLC, hereby object to the Notice of Intent to Serve Subpoena on the entity identified as "National Research Company" for the following reasons: 1. The intended subpoena for"copies of any and all `customer satisfaction surveys' and or any other documents involving the results of`customer satisfaction' or other surveys, questionnaires, feedback requests, etc. related to the nursing home commonly known as Manor Care Health Services—Carlisle, located at 940 Walnut Bottom Road, Carlisle, PA 17013 and covering the period of November 28, 2009 through and including August 8, 2011" (a copy of which is attached as Exhibit"A") is, as stated, overbroad, not sufficiently-defined, and would violate the rights of the defendant because the requested information and documentation involves self-critical analysis information, and is in the nature of information protected under the Pennsylvania Peer Review Protection Act, and the federal "Quality Assurance Privilege". 42 U.S.C. § 1395. 2. The intended subpoena, as stated, is far-beyond the time-frames at issue in this case, i.e.,the period of Noveber 28, 2010—February 8, 2011. The subpoena request covers a period of over 20 months while the period of time at issue in this case is only . two months. 3. The intended subpoena violates the privacy rights of residents/patients of the healthcare facility because the information requested references and incorporates protected health care information of those individuals who participated in the survey. The nature of the health care services provided, and the inquiry into the satisfaction of the resident/patient of those services necessarily implicate the rights of those persons under HIPPA. The survey process undertaken by National Research Company is subject to the protections of federal law, and the HIPPA rights of survey participants are intended to be kept private. 4. The information generated pursuant to a `customer satisfaction survey' is proprietary, and intended for use as a means of measuring and improving the quality of care. Disclosure of such information in litigation,to be used against a health care provider, would have a chilling effect on that process, and be a disincentive for continued use of such quality improvement measures. WHEREFORE, the Defendants respectfully object to the issuance of a Subpoena in the form attached to the Notice of Intent. Respectfully submitted, BURNS WHITE, LLC By: Sean P. O'Mahoney, Esquir —S 3 Attorneys for Defendants Dated: CERTIFICATE OF SERVICE I, Sean P. O'Mahoney, Esquire, hereby certify that a true and correct copy of the Objection to Subpoena has been served on counsel named below via U.S. First Class Mail postage prepaid: Ian T. Norris, Esquire Wilkes & McHugh, P.A. 1601 Cherry Street, Suite 1300 Philadelphia, PA 19102 Sean P. O'Mahoney Dated: ,... �: � - .. .. - .. I' i � .�. � .. ._._._, _,...,_ _... _. ... .. ..._- -.__ � J WILKES & McHUGH, P.A. ATTORNEYS AT LAW THREE PARKWAY PHONE: (21.5)972-0811 1601 CHERRY STREET FAX: (215)972-0580 SU ITE 1300 TOLL FREE: (800)255-5070 PHILADELPHIA,PA 19102 May 15, 2013 VIA FACSIMILE & I" CLASS MAIL John M. Skrocki, Esquire BURNS WHITE LLC 100 Four Falls. Suite 515 1001 Conshohocken State Rd West Conshohocken, PA 19428 Re: Donald Y. Frysinger,Jr., Executor of the Estate of Donald Y. Frysinger, Sr. v. Manorcare of Carlisle PA, LLC d/b/a Manorcare Health Services, Carlisle, et al. CCP Cumberland County, No. 2012-6981 Dear Counsel: Enclosed please find Plaintiffs Notice of Intent to Serve Subpoena to Produce Pursuant to Rule 4009.22, with a copy of the subpoena to be served on National Research Company. Thank you for your cooperation. Very truly yours, an T. Norris ITN/abf Enclosure e Ian T.Norris, Esquire THIS 1S NOT AN ARBITRATION CASE; Attorney Identification No. 207566 AN ASSESSMENT OF DAMAGES IS Three Parkway REQUIRED; JURY TRIAL DEMANDED 1601 Cherry Street, Suite 1300 Philadelphia, PA 19102 Attorney for Plaintiff, Donald Y. Frysinger, Jr., Tel No. (215)972-0811 Executor of the Estate Donald Y. Frysinger, Sr. Email: inorris @wilkesmchugh.com DONALD Y. FRYSINGER,JR., Executor of COURT OF COMMON PLEAS the Estate of DONALD Y. FRYSINGER,SR., CUMBERLAND COUNTY, PA Plaintiff; DOCKET NO.2012-6981 vs. MANORCARE OF CARLISLE PA,LLC d/b/a MANORCARE HEALTH SERVICES,CARLISLE; HCR MANORCARE, INC.; MANORCARE, INC.; HCR HEALTHCARE, LLC; HCR 11 HEALTHCARE, LLC; HCR III HEALTHCARE, LLC; and HCR IV HEALTHCARE, LLC Defendants. PLAINTIFF'S NOTICE OF INTENT TO SERVE SUBPOENA TO PRODUCE PURSUANT TO RULE 4009.22 Plaintiff, Donald Y. Frysinger, Jr., Executor of the Estate of Donald Y. Frysinger, Sr., deceased, intends to serve a subpoena identical to the one that is attached to this notice. You have twenty (20) days from the date listed below in which to file of record and serve upon the undersigned an objection to the subpoena. If no objection is made, the subpoena may be served. Wilkes & McHugh, Dated: May 15, 2013 an T. Norris, E uire Attorney for aintiff CERTIFICATE OF SERVICE I, Ian T. Norris, Esquire, attorney for Plaintiff, attest and certify that a copy of the foregoing Notice of Intent to Serve Subpoena was served on this date, via First Class Mail, upon the following: John M. Skrocki, Esquire Sean P. O'Mahoney, Esquire BURNS WHITE LLC 100 Four Falls, Suite 515 1001 Conshohocken State Rd West Conshohocken, PA 19428 WILKES & McHUGH, P.A. Dated:' May 15, 2013 n T. orris, E uire Attorney for aintiff COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND ESTATE OF DONALD Y. FRYSINGER, SR., Plaintiff File No. 12-6981 VS. MANORCARE HEALTH SERVICES-CARLISLE.ET Al., Defendant SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: NATIONAL RESEARCH COMPANY (Name of Person or Entity) Within twenty (20)days after service of this subpoena,you are ordered by the court to produce the following documents or things: Please produce copies of any and all"Customer Satisfaction Surveys"and/or any other documents involving the results of"Customer Satisfaction"or other surveys,questionnaires,feedback requests,etc. related to the nursing home commonly known as MANORCARE HEALTH SERVICES-CARLISLE,located at 940 Walnut Bottom Road, Carlisle.PA 17013 and covering the lime period of November 28,2009 through and including August 8,2011. at Wilkes& McHugh, P.A.,Three Parkway, 1601 Cherry Street,Suite 1300,Philadelphia, PA 19102 (Address) You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the things sought. If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service, the party serving this subpoena may seek a court order compelling you to comply with it. THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON: NAME: 1>tt T.Norris,Esquire ADDRESS: Three Parkway 1601 Cherry Street,Suac 1300 Philadelphia,PA 19102 TELEPHONE: 215-972.0811 SUPREME COURT ID#2o736e ATTORNEY FOR: Plaintiff BY THE COURT: Prothonotary,Civil Division Date: /� Seal "f the ourt Deputy WILKES&McHUGH,P.A. THIS IS NOT AN ARBITRATION Ian T.Norris,Esquire CASE;AN ASSESSMENT OF Attorney Identification No. 207566 DAMAGES IS REQUIRED; JURY Three Parkway TRIAL DEMANDED 1601 Cherry Street, Suite 1300 Philadelphia,PA 19102 Attorney for Plaintiff,Mary J. Churlick, Tel No. (215)972-0811 Executrix of the Estate Mary J.Yohn, Email: inorris @wilkesmchugh.com deceased DONALD Y.FRYSINGER,JR.,Executor of COURT OF COMMON PLEAS the Estate of DONALD Y.FRYSINGER,SR., CUMBERLAND COUNTY,PA DOCKET NO.2012-6981 r�. Plaintiff, c—, i vs. G MANORCARE 0,F CARLISL;:PA,LLC � ��' �� DB/A MANORCARE HEALTH SERVICES, �� fso i=.. CO CARLISLE,et al. _4Z. :; Defendants. PRAECIPE FOR ORAL ARGUMENT tci TO THE PROTHONOTARY : Kindly submit the following matter to an assigned Judge for oral argument: Interlocutory matter-Defendants' Arbitration Related Preliminary Objections Counsel for Plaintiff: Ian T. Norris, Esquire Wilkes &McHugh, PA Three Parkway 1601 Cherry Street, Suite 1300 Philadelphia, PA 19102 Counsel for Defendant: John M. Skrocki, Esquire Burns White LLC 100 Four Falls, Suite 515 1001 Conshohocken State Road West Conshohocken, PA 19428 Date of Argument: August 9,20139,2013 Respectfully submitted, Date: �' �' �� By: _ an T.Norris, squire Attorney for laintiffs Attorney No: 207566. �� CERTIFICATE OF SERVICE I, Ian T. Norris, attorney for Plaintiff, attest and certify that a copy of the foregoing Argument Praecipe was served on this date, as indicated, upon the following: John M. Skrocki, Esquire Burns White, LLC 100 Four Falls, Suite 515 1001 Conshohocken State Road West Conshohocken, PA 19428 (Attorney for Defendants) WILKES & McHUGH,P.A. Date: e t By: an T. Norris, Es ire Attorney for Pl intiff PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT CAPTION OF CASE (entire caption must be stated in full) DONALD Y. FRYSINGER, JR., COURT OF COMMON PLEAS OF Executor of the Estate of CARLISLE COUNTY, PENNSYLVANIA DONALD Y. FRYSINGER, SR, V. No. CI-12-6981 MANOR CARE OF CARLISLE PA,LLC , DB/A MANORCARE HEALTH SERVICES rim; _ -:- CARLISLE; HCR MANOR CARE, INC.; MANORCARE, INC.; Jury Trial Demanded HCR HEALTHCARE, LLC; HCR II HEALTHCARE, LLC; -- HCR III HEALTHCARE, LLC;AND HCR IV =C:) c,3 HEALTHCARE, LLC 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT 2. Identify counsel who will argue case: (a) for plaintiff: Ian T.Norris,Esquire address: Wilkes & McHugh,PA Three Parkway 1601 Cherry Street, Suite 1300 Philadelphia,PA 19102 (b) for defendant: Sean P. O'Mahoney,Esquire address: Burns White LLC 100 Four Falls,Suite 515 1001 Conshohocken State Road West Conshohocken,PA 19428 3. 1 will notify all parties in writing within two days that this case has been listed for argument. (continued on page 2) Cm,} CL# 359 ' Pl* a9 0059 $ 4. Argument Court Date: August 9,2013 Dated: �[ ��-3 Signature Sean P. O'Mahoney, Esquire BURNS WHITE LLC Attorney for Defendants,Manor Care of Carlisle PA,LLC d/b/a ManorCare Health Services, Carlisle,HCR Manorcare,Inc.,Manorcare,Inc., HCR Healthcare,LLC,HCR II Healthcare,LLC, HCR III Healthcare, LLC and HCR IV Healthcare,LLC INSTRUCTIONS: 1. Original and two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary)after the case is relisted. CERTIFICATE OF SERVICE I, Sean P. O'Mahoney, Esquire, hereby certify that the foregoing Praecipe for Argument of ManorCare Defendants' Preliminary Objections to Plaintiffs' Complaint scheduling argument for August 9, 2013, has been served upon the person(s)and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, First-Class, postage prepaid, addressed as follows: Ian T. Norris, Esquire Wilkes & McHugh, P.A. Three Parkway 1601 Cherry Street, Suite 1300 Philadelphia, PA 19102 (Counsel for Plaintifj) BURNS WHITE LLC Date: 6�, fCC 3 Sean P. O'Mahoney WILKES&McHUGH, P.A. THIS IS NOT AN ARBITRATION William P.Murray, Ill, Esquire CASE; AN ASSESSMENT OF Attorney Identification No. 205016 DAMAGES IS REQUIRED; JURY Three Parkway TRIAL DEMANDED 1601 Cherry Street, Suite 1300 Philadelphia, PA 19102 Attorney for Plaintiff, Donald Y. Tel No. (215)972-0811 Frysinger, Jr., Executor of the Estate of Email: wmurray@wilkesmchugh.com Donald Y. Frysinger, Sr. DONALD Y. FRYSINGER,JR., Executor of • COURT OF COMMON PLEAS the Estate of DONALD Y. FRYSINGER,SR., • CUMBERLAND COUNTY, PA • DOCKET NO. 2012-6981 • Plaintiff, • vs. • • • MANORCARE OF CARLISLE PA,LLC • D/B/A MANORCARE HEALTH SERVICES, • CARLISLE,et al. • Defendants. ENTRY OF APPEARANCE TO THE PROTHONOTARY : Kindly enter my appearance on behalf of plaintiff, Donald Y. Frysinger, Jr., Executor of the Estate of Donald Y. Frysinger, Sr, in the above captioned matter. WILKES & McHUGH, P.A. Date: ///ie,./ By: William '. • rray, III Attorne for 'aintiffs. w - rn rn -n cp CAD •"" Crl CERTIFICATE OF SERVICE I, William P. Murray, III, attorney for Plaintiff, attest and certify that a copy of the foregoing Entry of Appearance was served on this date, as indicated, upon the following: John M. Skrocki, Esquire Burns White, LLC 100 Four Falls, Suite 515 1001 Conshohocken State Road West Conshohocken, PA 19428 (Attorney for Defendants) WILKES & McHUGH, P.A. Date: /1/14/1.7 By: Willia ay, III, Esquire Attorne or P aintiff DONALD Y. FRYSINGER, JR., : IN THE COURT OF COMMON PLEAS OF Executor of the Estate of : CUMBERLAND COUNTY, PENNSYLVANIA DONALD Y. FRYSINGER, SR., : Plaintiff . • v. : CIVIL ACTION—LAW r MANORCARE OF CARLISLE : r°t t..., PA, LLC, D/B/A MANORCARE : r c� ";� HEALTH SERVICES-CARLISLE;: -<> N HCR MANORCARE, INC., x.,• -` MANOR CARE, INC., • =c �' HCR HEALTHCARE, LLC, : { HCR II HEALTHCARE, LLC, • = HCR III HEALTHCARE, LLC, : HCR IV HEALTHCARE, LLC, : Defendants : NO. 12-6981 CIVIL TERM IN RE: PRELIMINARY OBJECTION OF DEFENDANTS TO PLAINTIFF'S COMPLAINT BEFORE EBERT, GUIDO, and PECK, JJ. ORDER OF COURT AND NOW, this 21st day of November, 2013, upon consideration of the Preliminary Objection of Defendants to Plaintiffs Complaint and Plaintiff's response thereto, is hereby ordered and directed as follows: Defendants' Preliminary Objection is SUSTAINED; and Plaintiff and Defendants are directed to proceed to arbitration pursuant to the terms of the Arbitration Agreement. BY THE COURT, 26p �� (ChristPeck, J. Ian T. Norris, Esq. Three Parkway 1601 Cherry Street Suite 1300 Philadelphia, PA 19102 Attorney for Plaintiff an P. O'Mahoney, Esq. 100 Four Falls, Suite 515 1001 Conshohocken State Road West Conshohocken, PA 19428 Attorney for Defendants • � fat,tict //p.a./i3 /-1/) r WILKES&McHUGH,P.A. THIS IS NOT AN ARBITRATION Three Parkway CASE;AN ASSESSMENT OF 1601 Cherry Street, Suite 1300 DAMAGES IS REQUIRED; JURY Philadelphia,PA 19102 TRIAL DEMANDED Tel No. (215)972-0811 Attorneys for Plaintiff,Donald Y. Frysinger,Jr., Executor of the Estate of Donald Y. Frysinger, Sr. DONALD Y.FRYSINGER,JR.,Executor of COURT OF COMMON PLEAS the Estate of DONALD Y.FRYSINGER,SR., CUMBERLAND COUNTY,PA DOCKET NO.2012-6981 Plaintiff, VS. MANORCARE OF CARLISLE PA,LLC D/B/A MANORCARE HEALTH SERVICES, CARLISLE,et al. Defendants. WITHDRAW OF APPEARANCE TO THE PROTHONOTARY : Kindly withdraw my appearance on behalf of plaintiff, Donald Y. Frysinger, Jr., Executor of the Estate of Donald Y. Frysinger, Sr, in the above captioned matter. Date:—//-':P70-/'5 By: En'T. orri squire CD -�_- � �C: CERTIFICATE OF SERVICE I, William P. Murray, III, Esquire, attorney for Plaintiff, hereby attest and certify that a copy of the foregoing Withdraw of Appearance was served on this date, via 1St class U.S. Mail, upon the following: John M. Skrocki, Esquire Burns White,LLC 100 Four Falls, Suite 515 1001 Conshohocken State Road West Conshohocken, PA 19428 (Attorney for Defendants) WILKES & McHUGH,P.A. Date: (� �� 1 By: Willi P. y, III, Esquire Attor ey for Pla tiff WILKES&McHUGH,P.A. THIS IS NOT AN ARBITRATION Erica C.Wilson,Esquire CASE; AN ASSESSMENT OF Attorney Identification No. 92995 DAMAGES IS REQUIRED; JURY Three Parkway TRIAL DEMANDED 1601 Cherry Street, Suite 1300 Philadelphia, PA 19102 Attorney for Plaintiff, Donald Y. Tel No. (215)972-0811 Frysinger,Jr., Executor of the Estate of Email: ewilson @wilkesmchugh.com Donald Y. Frysinger, Sr. DONALD Y.FRYSINGER,JR.,Executor of COURT OF COMMON PLEAS the Estate of DONALD Y. FRYSINGER,SR., CUMBERLAND COUNTY;PA , • DOCKET NO.2012 6981 Plaintiff, `G rn c vs. 1.7-1 _r ry MANORCARE OF CARLISLE PA,LLC �.� ® `='*1 D/B/A MANORCARE HEALTH SERVICES, <c - z , CARLISLE,et al. : Defendants. ;a rya . — c..,..: ENTRY OF APPEARANCE co TO THE PROTHONOTARY : Kindly enter my appearance on behalf of plaintiff, Donald Y. Frysinger, Jr., Executor of the Estate of Donald Y. Frysinger, Sr, in the above captioned matter. WILKES & McHUGH, P.A. Date: By:_Li Erica C. Wilson, Esquire Attorney for Plaintiffs CERTIFICATE OF SERVICE I, Erica C. Wilson, attorney for Plaintiff, attest and certify that a copy of the foregoing Entry of Appearance was served on this date, as indicated, upon the following: John M. Skrocki, Esquire Burns White, LLC 100 Four Falls, Suite 515 1001 Conshohocken State Road West Conshohocken, PA 19428 (Attorney for Defendants) WILKES & McHUGH, P.A. Date: I ' I By: Oabeg . Erica C. Wilson, Esquire Attorney for Plaintiff