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HomeMy WebLinkAbout14-4644 %preme Couft_of.Pennsylvania Court of Common Pleas For Prothonotary Use Only: Civil-'Cover.Sheet Docket No: / CUMBERLAND �l ��`,/ County IL-Ni�/ The information collected on this form is used solely,for court administration purposes. This form does not supplement or replace the filing and service of pleadings or other papers as required by Imi,or rules of court. Commencement of Action: S [:1 Complaint Rx Writ of Summons El Petition Transfer from Another Jurisdiction ❑ Declaration of Taking E C Lead Plaintiff's Name: Lead Dei'endani's Name: T Lynette Chism, Executrix of the Est of Mamie L. Chism, Golden Gate National Senior Care, LLC .Dollar Amount Requested: El within arbitration limits I Are money damages requested? l Yes 0 No O (check one) Ix outside arbitration limits N Is this a Class Action Suit? ❑Yes 0 No Is this an MDJAppeal? ❑ Yes 0 No A Name of Plaintiff/Appellant's Attorney: William P. Murray III, Esquire Check here if you have no attorney(are a Self-Represented (Pro Sel Litigant) Nature of the Case: Place an"X".to the left of the ONE case category that most accurately describes your PRIMARY CASE. If you are making more than one type of claim,check the one that you consider most important. TORT(do not include Mass Tort) CONTRACT (do not include Judgments) CIVIL APPEALS ❑ Intentional ❑ Buyer Plaintiff Administrative Agencies ❑ Malicious Prosecution ❑ Debt Collection:Credit Card ❑ Board of Assessment Motor Vehicle ❑ Debt Collection:Other ❑ Board of Elections Nuisance ❑ Dept.of Transportation Premises Liability 0 Statutory Appeal: Other S 0 Product Liability (does not include F1 Employment Dispute: tnass sort) El Slander/Libel/Defamation Discrimination C 0 Other: El Employment Dispute:Other F1 Zoning Board T El Other: I ❑ Other: O MASS TORT 0 Asbestos N ❑ Tobacco Toxic Tort-DES Toxic Tort-Implant REAL PROPERTY MISCELLANEOUS Toxic Waste Other: E] Ejectment ❑ Common Law/Statutory Arbitration B 0 Eminent Domain/Condenmat ion ❑ Declaratory Judgment El Ground Rent ❑ Mandamus Landlord/Tenant Dispute ❑ Non-Domestic Relations El Mortgage Foreclosure: Residential Restraining Order PROFESSIONAL LIABILITY ❑ Mortgage Foreclosure: Commercial ❑Quo Warranto Dental 0 Partition ❑Replevin Legal ❑ Quiet Title ❑Other: Medical ❑ Other: Ix Other Professional: Nursing Home Negligence Updated 1/1/2011 r WILKES &McHUGH, P.A. William P. Murray, III, Esquire THIS IS NOT AN ARBITRATION CASE; Attorney Identification No. 205016 AN ASSESSMENT OF DAMAGES IS Three Parkway REQUIRED; JURY TRIAL DEMANDED 1601 Cherry Street, Suite 1300 Philadelphia, PA 19102 Attorney for Plaintiff, Lynette Chism, Executrix Tel No. (215) 972-0811 of the Estate of Mamie L. Chism, deceased Email: wmurray@wilkesmchugh.com LYNETTE CHISM, Executrix COURT OF COMMON PLEAS of the Estate of : MAMIE L. CHISM, deceased CUMBERLAND COUNTY, PA 929 Highland Street : Steelton, PA 17113 : Plaintiff VS. NO. l GOLDEN GATE NATIONAL SENIOR CARE, LLC 7160 Dallas Parkway, Suite 400 : Plano, TX 75024 : and GGNSC CAMP HILL WEST SHORE,LP, D/B/A GOLDEN LIVINGCENTER— WEST SHORE 770 Poplar Church Road Camp Hill, PA 17011 and : GGNSC CAMP HILL WEST SHORE, GP, LLC: 7160 Dallas Parkway, Suite 400 : Plano, TX 75024 : c -� = - and `r' -�, rrj GGNSC EQUITY HOLDINGS, LLC 7160 Dallas Parkway, Suite 400 y� 4 Plano, TX 75024 { ::�c� and c-) =1t o � GGNSC HOLDINGS, LLC : > `_ � 7160 Dallas Parkway, Suite 400 Plano, TX 75024 f J and GGNSC ADMINISTRATIVE SERVICES, LLC : {� 7160 Dallas Parkway, Suite 400 �] Plano, TX 75024 a and 5 s GGNSC CLINICAL SERVICES, LLC 7160 Dallas Parkway, Suite 400 Plano, TX 75024 and : GPH CAMP HILL WEST SHORE, LP 1000 Fianna Way Fort Smith, AR 72919 and DENISE CURRY, RVP 503 Vilsack Rd. Glenshaw, PA 15116 Defendants. PRAECIPE FOR WRIT OF SUMMONS (Medical Professional Liability Action) TO THE PROTHONOTARY/CLERK OF SAID COURT: Issue Summons in the above case. Writ of Summons shall be issued and forwarded to Attorney/Sheriff. (Please Circle Choice) Dated: Signature ofZiam ey Print Name: P. Murray, III Esquire Address:Three Parkway 1601 Cherry Street, Suite 1300 Philadelphia, PA 19102 Telephone No.: 215-972-0811 Supreme Court ID No.: 205016 LIST OF ALL DEFENDANTS GOLDEN GATE NATIONAL SENIOR CARE,LLC 7160 Dallas Parkway, Suite 400 Plano, TX 75024 and GGNSC CAMP HILL WEST SHORE, LP, D/B/A GOLDEN LIVINGCENTER— WEST SHORE 770 Poplar Church Road Camp Hill, PA 17011 and GGNSC CAMP HILL WEST SHORE, GP,LLC 7160 Dallas Parkway, Suite 400 Plano, TX 75024 and GGNSC EQUITY HOLDINGS, LLC 7160 Dallas Parkway, Suite 400 Plano, TX 75024 and GGNSC HOLDINGS, LLC 7160 Dallas Parkway, Suite 400 Plano, TX 75024 and GGNSC ADMINISTRATIVE SERVICES, LLC 7160 Dallas Parkway,.Suite 400 Plano, TX 75024 and GGNSC CLINICAL SERVICES, LLC 7160 Dallas Parkway, Suite 400 Plano, TX 75024 and GPH CAMP HILL WEST SHORE, LP 1000 Fianna Way Fort Smith, AR 72919 and DENISE CURRY, RVP 503 Vilsack Rd. Glenshaw, PA 15116 WILKES &McHUGH, P.A. William P. Murray, III,Esquire THIS IS NOT AN ARBITRATION CASE; Attorney Identification No. 205016 AN ASSESSMENT OF DAMAGES IS Three Parkway REQUIRED; JURY TRIAL DEMANDED 1601 Cherry Street, Suite 1300 Philadelphia, PA 19102 Attorney for Plaintiff, Lynette Chism, Executrix Tel No. (215) 972-0811 of the Estate of Mamie L. Chism, deceased Email: wmurray@wilkesmchugh.com LYNETTE CHISM, Executrix COURT OF COMMON PLEAS of the Estate of MAMIE L. CHISM, deceased CUMBERLAND COUNTY,PA 929 Highland Street Steelton, PA 17113 Plaintiff ��LA1 U 1 VS. NO. GOLDEN GATE NATIONAL SENIOR CARE, LLC : 7160 Dallas Parkway, Suite 400 Plano, TX 75024 and GGNSC CAMP HILL WEST SHORE, LP, D/B/A GOLDEN LIVINGCENTER— WEST SHORE 770 Poplar Church Road Camp Hill, PA 17011 and GGNSC CAMP HILL WEST SHORE, GP, LLC: 7160 Dallas Parkway, Suite 400 Plano, TX 75024 and GGNSC EQUITY HOLDINGS, LLC 7160 Dallas Parkway, Suite 400 Plano, TX 75024 and GGNSC HOLDINGS, LLC 7160 Dallas Parkway, Suite 400 Plano, TX and 5024 c/)@ @ GGNSC ADMINISTRATIVE SERVICES, LLC : rte;@ c.', ,'' 7160 Dallas Parkway, Suite 400 a ` Plano, TX 75024 and Q Com, r. GGNSC CLINICAL SERVICES, LLC 7160 Dallas Parkway, Suite 400 Plano, TX 75024 and GPH CAMP HILL WEST SHORE, LP 1000 Fianna Way Fort Smith,AR 72919 and DENISE CURRY,RVP 503 Vilsack Rd. Glenshaw, PA 15116 Defendants. WRIT OF SUMMONS TO: DEFENDANT, GOLDEN GATE NATIONAL SENIOR CARE, LLC YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFFS HAVE COMMENCED AN ACTION AGAINST YOU. Prothonotary/Clerk, Civil Division Date: s 1 WILKES & McHUGH, P.A. William P. Murray, 1II, Esquire THIS IS NOT AN ARBITRATION CASE; Attorney Identification No. 205016 AN ASSESSMENT OF DAMAGES IS Three Parkway REQUIRED; JURY TRIAL DEMANDED 1601 Cherry Street, Suite 1300 Philadelphia, PA 19102 Attorney for Plaintiff, Lynette Chism, Executrix Tel No. (215) 972-0811 of the Estate of Mamie L. Chism, deceased Email: wmurray@wilkesmchugh.com LYNETTE CHISM, Executrix COURT OF COMMON PLEAS of the Estate of MAMIE L. CHISM, deceased CUMBERLAND COUNTY, PA 929 Highland Street Steelton, PA 17113 Plaintiff / ( l V V vs. NO. / GOLDEN GATE NATIONAL SENIOR CARE, LLC 7160 Dallas Parkway, Suite 400 Plano, TX 75024 and GGNSC CAMP HILL WEST SHORE, LP, D/B/A GOLDEN LIVINGCENTER— WEST SHORE 770 Poplar Church Road Camp Hill, PA 17011 and : GGNSC CAMP HILL WEST SHORE, GP, LLC: 7160 Dallas Parkway, Suite 400 Plano, TX 75024 and GGNSC EQUITY HOLDINGS, LLC 7160 Dallas Parkway, Suite 400 Plano, TX 75024 an a. rr7 co GGNSC HOLDINGS, LLC 7160 Dallas Parkway, Suite 400 @ ; Plano, TX 75024 ' C-17 @:. and : � Qj GGNSC ADMINISTRATIVE SERVICES, LLC 7160 Dallas Parkway, Suite 400 Q)�' Plano, TX 75024 and GGNSC CLINICAL SERVICES, LLC 7160 Dallas Parkway, Suite 400 Plano, TX 75024 and GPH CAMP HILL WEST SHORE, LP 1000 Fianna Way Fort Smith, AR 72919 and DENISE CURRY, RVP 503 Vilsack Rd. Glenshaw, PA 15116 Defendants. WRIT OF SUMMONS TO: DEFENDANT, GGNSC CAMP HILL WEST SHORE, LP, D/B/A GOLDEN LIVINGCENTER-WEST SHORE YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFFS HAVE COMMENCED AN ACTION AGAINST YOU. �J , �.1) DLC Q.�iL� Prothonotary/Clerk, Civil Division Date: (J I WILKES &McHUGH, P.A. William P. Murray, III, Esquire THIS IS NOT AN ARBITRATION CASE; Attorney Identification No. 205016 AN ASSESSMENT OF DAMAGES IS Three Parkway REQUIRED; JURY TRIAL DEMANDED 1601 Cherry Street, Suite 1300 Philadelphia, PA 19102 Attorney for Plaintiff, Lynette Chism, Executrix Tel No. (215) 972-0811 of the Estate of Mamie L. Chism, deceased Email: wmurray@wilkesmchugh.com LYNETTE CHISM, Executrix COURT OF COMMON PLEAS of the Estate of MAMIE L. CHISM, deceased CUMBERLAND COUNTY,PA 929 Highland Street Steelton, PA 17113 Plaintiff qbqq U� VS. NO. GOLDEN GATE NATIONAL SENIOR CARE, LLC 7160 Dallas Parkway, Suite 400 Plano, TX 75024 and GGNSC CAMP HILL WEST SHORE, LP, D/B/A GOLDEN LIVINGCENTER— WEST SHORE 770 Poplar Church Road Camp Hill, PA 17011 : and GGNSC CAMP HILL WEST SHORE, GP, LLC: 7160 Dallas Parkway, Suite 400 Plano, TX 75024 and GGNSC EQUITY HOLDINGS, LLC 7160 Dallas Parkway, Suite 400 Plano, TX 75024 (z: c and q, GGNSC HOLDINGS, LLC 7160 Dallas Parkway, Suite 400 Plano, TX 75024 r— and and --Zzd GGNSC ADMINISTRATIVE SERVICES, LLC 7160 Dallas Parkway, Suite 400 curl Plano, TX 75024 - and GGNSC CLINICAL SERVICES, LLC 7160 Dallas Parkway, Suite 400 Plano, TX 75024 and : GPH CAMP HILL WEST SHORE, LP 1000 Fianna Way Fort Smith, AR 72919 and DENISE CURRY, RVP 503 Vilsack Rd. : Glenshaw, PA 15116 Defendants. WRIT OF SUMMONS TO: DEFENDANT, GGNSC CAMP HILL WEST SHORE, GP LLC YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFFS HAVE COMMENCED AN ACTION AGAINST YOU. Prothonotary/Clerk, Civil Division Date: J r I WILKES &McHUGH,P.A. William P. Murray, 111, Esquire THIS IS NOT AN ARBITRATION CASE; Attorney Identification No. 205016 AN ASSESSMENT OF DAMAGES IS Three Parkway REQUIRED; JURY TRIAL DEMANDED 1601 Cherry Street, Suite 1300 Philadelphia, PA 19102 Attorney for Plaintiff, Lynette Chism, Executrix Tel No. (215) 972-0811 of the Estate of Mamie L. Chism, deceased Email: wmurray@wilkesmchugh.com LYNETTE CHISM, Executrix COURT OF COMMON PLEAS of the Estate of MAMIE L. CHISM, deceased CUMBERLAND COUNTY, PA 929 Highland Street Steelton, PA 17113 Plaintiff vs. NO. GOLDEN GATE NATIONAL SENIOR CARE, LLC 7160 Dallas Parkway, Suite 400 : Plano, TX 75024 and GGNSC CAMP HILL WEST SHORE, LP, D/B/A GOLDEN LIVINGCENTER— WEST SHORE 770 Poplar Church Road Camp Hill, PA 17011 and GGNSC CAMP HILL WEST SHORE, GP, LLC: 7160 Dallas Parkway, Suite 400 Plano, TX 75024 and GGNSC EQUITY HOLDINGS, LLC 7160 Dallas Parkway, Suite 400 : Plano, TX 75024 and y£, GGNSC HOLDINGS, LLC 7160 Dallas Parkway, Suite 400 ^ Plano, TX 75024C i and GGNSC ADMINISTRATIVE SERVICES, LLC 7160 Dallas Parkway, Suite 400 ' ci< Plano, TX 75024 and GGNSC CLINICAL SERVICES, LLC 7160 Dallas Parkway, Suite 400 : Plano, TX 75024 : and GPH CAMP HILL WEST SHORE, LP 1000 Fianna Way : Fort Smith, AR 72919 and : DENISE CURRY, RVP 503 Vilsack Rd. Glenshaw, PA 15116 : Defendants. WRIT OF SUMMONS TO: DEFENDANT, GGNSC EQUITY HOLDINGS, LLC YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFFS HAVE COMMENCED AN ACTION AGAINST YOU. lain DI) �� Prothonotary/Clerk, Civil Division Date: S / y: WILKES &McHUGH, P.A. William P. Murray, III, Esquire THIS IS NOT AN ARBITRATION CASE; Attorney Identification No. 205016 AN ASSESSMENT OF DAMAGES IS Three Parkway REQUIRED; JURY TRIAL DEMANDED 1601 Cherry Street, Suite 1300 Philadelphia, PA 19102 Attorney for Plaintiff, Lynette Chism, Executrix Tel No. (215) 972-0811 of the Estate of Mamie L. Chism, deceased Email: wmurray@wilkesmchugh.com LYNETTE CHISM, Executrix COURT OF COMMON PLEAS of the Estate of MAMIE L. CHISM, deceased CUMBERLAND COUNTY, PA 929 Highland Street Steelton, PA 17113 Plaintiffewz Vs. NO. GOLDEN GATE NATIONAL : SENIOR CARE, LLC 7160 Dallas Parkway, Suite 400 : Plano, TX 75024 and GGNSC CAMP HILL WEST SHORE, LP, D/B/A GOLDEN LIVINGCENTER— WEST SHORE 770 Poplar Church Road Camp Hill, PA 17011 and GGNSC CAMP HILL WEST SHORE, GP, LLC: 7160 Dallas Parkway, Suite 400 Plano, TX 75024 and GGNSC EQUITY HOLDINGS, LLC 7160 Dallas Parkway, Suite 400 Plano, TX 75024 and GGNSC HOLDINGS, LLC 7160 Dallas Parkway, Suite 400 �rr7 C. Plano, TX 75024 and GGNSC ADMINISTRATIVE SERVICES,LLC 7160 Dallas Parkway, Suite 400 Q �' Plano, TX 75024 and GGNSC CLINICAL SERVICES, LLC 7160 Dallas Parkway, Suite 400 Plano, TX 75024 ; and GPH CAMP HILL WEST SHORE,LP 1000 Fianna Way Fort Smith, AR 72919 and DENISE CURRY, RVP 503 Vilsack Rd. Glenshaw, PA 15116 Defendants. WRIT OF SUMMONS TO: DEFENDANT, GGNSC HOLDINGS, LLC YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFFS HAVE COMMENCED AN ACTION AGAINST YOU. Prothonotary/Clerk, Civil Division Date: 4 WILKES &McHUGH, P.A. William P. Murray, III,Esquire THIS IS NOT AN ARBITRATION CASE; Attorney Identification No. 205016 AN ASSESSMENT OF DAMAGES IS Three Parkway REQUIRED; JURY TRIAL DEMANDED 1601 Cherry Street, Suite 1300 Philadelphia, PA 19102 Attorney for Plaintiff, Lynette Chism, Executrix Tel No. (215) 972-0811 of the Estate of Mamie L. Chism, deceased Email: wmurray@wilkesmchugh.com LYNETTE CHISM, Executrix COURT OF COMMON PLEAS of the Estate of : MAMIE L. CHISM, deceased CUMBERLAND COUNTY, PA 929 Highland Street Steelton, PA 17113 Plaintiff : cj �l vs. NO. GOLDEN GATE NATIONAL : SENIOR CARE, LLC 7160 Dallas Parkway, Suite 400 Plano, TX 75024 : and GGNSC CAMP HILL WEST SHORE, LP, D/B/A GOLDEN LIVINGCENTER— WEST SHORE 770 Poplar Church Road : Camp Hill, PA 17011 and : GGNSC CAMP HILL WEST SHORE, GP, LLC: 7160 Dallas Parkway, Suite 400 Plano, TX 75024 and GGNSC EQUITY HOLDINGS, LLC 7160 Dallas Parkway, Suite 400 Plano, TX 75024 : and GGNSC HOLDINGS, LLC 7160 Dallas Parkway, Suite 400 Plano, TX 75024 and : GGNSC ADMINISTRATIVE SERVICES, LLC 7160 Dallas Parkway, Suite 400 Plano, TX 75024 and GGNSC CLINICAL SERVICES, LLC 7160 Dallas Parkway, Suite 400 ; Plano, TX 75024 and GPH CAMP HILL WEST SHORE, LP 1000 Fianna Way ; Fort Smith, AR 72919 ; and DENISE CURRY, RVP 503 Vilsack Rd. Glenshaw, PA 15116 Defendants. WRIT OF SUMMONS TO: DEFENDANT, GGNSC ADMINISTRATIVE SERVICES LLC YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFFS HAVE COMMENCED AN ACTION AGAINST YOU. Prothonotary/Clerk, Civil Division Date: S /Y WILKES &McHUGH,P.A. William P.Murray,III,Esquire THIS ISNOT AN ARBITRATION CASE; AN ASSESSMENT OF DAMAGES IS Attorney identification No. 205016 REQUIRED; JURY TRIAL DEMANDED Three Parkway 1601 Cherry Street, Suite 1300 Attorney for Plaintiff, Lynette Chism, Executrix Philadelphia, PA 19102 Tel No. (215) 972-0811 of the Estate of Mamie L. Chism, deceased Email: wmurray@wilkesmchugh.com LYNETTE CHISM,Executrix COURT OF COMMON PLEAS of the Estate of : CUMBERLAND COUNTY,PA MAMIE L. CHISM, deceased 929 Highland Street Steelton,PA 17113 ,. UtPlaintiff v NO. s. GOLDEN GATE NATIONAL SENIOR CARE,LLC 7160 Dallas Parkway, Suite 400 Plano,TX 75024 and GGNSC CAMP HILL WEST SHORE,LP, D/B/A GOLDEN LIVINGCENTER— WEST SHORE 770 Poplar Church Road Camp Hill,PA 17011 and GGNSC CAMP HILL WEST SHORE, GP,LLC: 7160 Dallas Parkway, Suite 400 Plano,TX 75024 and GGNSC EQUITY HOLDINGS,LLC 7160 Dallas Parkway, Suite 400 Plano, TX 75024 and GGNSC HOLDINGS,LLC 7160 Dallas Parkway, Suite 400 _ ,,; Plano, TX 75024 G'� 7 and GGNSC ADMINISTRATIVE SERVICES,LLC : � a 7160 Dallas Parkway, Suite 400 Plano, TX 75024 and GGNSC CLINICAL SERVICES,LLC 7160 Dallas Parkway, Suite 400 Plano, TX 75024 and GPH CAMP HILL WEST SHORE,LP 1000 Fianna Way Fort Smith, AR 72919 and DENISE CURRY,RVP 503 Vilsack Rd. Glenshaw, PA 15116 Defendants. WRIT OF SUMMONS TO: DEFENDANT GGNSC CLINICAL SERVICES LLC YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFFS HAVE COMMENCED AN ACTION AGAINST YOU. Prothonotary/Clerk, Civil Division � " ) Date: U WILKES &McHUGH,P.A. William P. Murray,III,Esquire THIS IS NOT AN ARBITRATION CASE; Attorney Identification No. 205016 REQUIRED JURY TENT ORIAL DEMANDED AMAGES IS Three Parkway 1601 Cherry Street, Suite 1300 Philadelphia, PA 19102 Attorney for Plaintiff, Lynette Chism, Executrix Phil Tel ade (215) 9729102 of the Estate of Mamie L. Chism, deceased No.Email: wmurray@wilkesmchugh.com LYNETTE CHISM, Executrix COURT OF COMMON PLEAS of the Estate of MAMIE L. CHISM, deceased CUMBERLAND COUNTY,PA 929 Highland Street Steelton, PA 17113 Plaintiff Lb(-1q V vs. ' NO. J _ GOLDEN GATE NATIONAL SENIOR CARE,LLC 7160 Dallas Parkway, Suite 400 Plano, TX 75024 and GGNSC CAMP HILL WEST SHORE,LP, D/B/A GOLDEN LIVINGCENTER— WEST SHORE 770 Poplar Church Road Camp Hill,PA 17011 and GGNSC CAMP HILL WEST SHORE, GP,LLC: 7160 Dallas Parkway, Suite 400 Plano, TX 75024 and GGNSC EQUITY HOLDINGS,LLC 7160 Dallas Parkway, Suite 400 Plano,TX 75024 and Cz� ^.> GGNSC HOLDINGS, LLC 7160 Dallas Parkway, Suite 400 Plano, TX 75024 and �� b GGNSC ADMINISTRATIVE SERVICES,LLC Q) 7160 Dallas Parkway, Suite 400 Plano, TX 75024 ©` and v ' GGNSC CLINICAL SERVICES,LLC 7160 Dallas Parkway, Suite 400 Plano, TX 75024 and GPH CAMP HILL WEST SHORE, LP 1000 Fianna Way Fort Smith, AR 72919 and DENISE CURRY,RVP 503 Vilsack Rd. ' Glenshaw,PA 15116 Defendants. WRIT OF SUMMONS TO: DEFENDANT GPH CAMP HILL WEST SHORE LP YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFFS HAVE COMMENCED AN ACTION AGAINST YOU. Prothonotary/Clerk, Civil Division Date: WILKES &McHUGH,P.A. THIS ISNOT AN ARBITRATION CASE; William P. Murray, III,Esquire AN ASSESSMENT OF DAMAGES IS Attorney Identification No. 205016 REQUIRED; JURY TRIAL DEMANDED Three Parkway 1601 Cherry Street, Suite 1300 Attorney for Plaintiff, Lynette Chism,Executrix Philadelphia, PA 19102 Tel No. (215) 972-0811 of the.Estate of Mamie L. Chism, deceased Email: wmurray@wilkesmchugh.com LYNETTE CHISM,Executrix COURT OF COMMON PLEAS of the Estate of : CUMBERLAND COUNTY,PA MAMIE L. CHISM, deceased 929 Highland Street Steelton,PA 17113 I Q 1 U t Plaintiff v NO. s. GOLDEN GATE NATIONAL SENIOR CARE,LLC 7160 Dallas Parkway, Suite 400 Plano, TX 75024 and GGNSC CAMP HILL WEST SHORE,LP, DB/A GOLDEN LIVINGCENTER— WEST SHORE 770 Poplar Church Road Camp Hill,PA 17011 and GGNSC CAMP HILL WEST SHORE, GP,LLC: 7160 Dallas Parkway, Suite 400 Plano, TX 75024 and GGNSC EQUITY HOLDINGS,LLC 7160 Dallas Parkway, Suite 400 Plano, TX 75024 and r� GGNSC HOLDINGS,LLC �? 7160 Dallas Parkway, Suite 400 Plano,TX 75024 and � •.�.., � err-.. GGNSC ADMINISTRATIVE SERVICES,LLC : a 7160 Dallas Parkway, Suite 400 ' Plano,TX 75024 ` CD C- and f GGNSC CLINICAL SERVICES,LLC 7160 Dallas Parkway, Suite 400 Plano, TX 75024 and GPH CAMP HILL WEST SHORE,LP : 1000 Fianna Way Fort Smith, AR 72919 and DENISE CURRY, RVP 503 Vilsack Rd. Glenshaw, PA 15116 Defendants. WRIT OF SUMMONS TO: DEFENDANT DENISE CURRY RVP YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFFS HAVE COMMENCED AN ACTION AGAINST YOU. Prothonotary/Clerk, Civil Division Date: J a Ronny R Anderson Sheriff Jody S Smith Chief Deputy Richard W Stewart Solicitor SHERIFF'S OFFICE OF CUMBERLAND COUNTYFiLco_OpFJcE OF THE PROTHO,NO TARP of Cumber"?e 2014 AUG 14 Pm 3: 07 CUMBERLAND COUNTY PENNSYLVANIA OFFICE OF TF!E SKRIFF Lynette Chism vs. GGNSC National Senior Care (et al.) Case Number 2014-4644 SHERIFF'S RETURN OF SERVICE 08/08/2014 11:51 AM - Deputy Dennis Fry, being duly sworn according to law, served the requested Writ of Summons and Plaintiffs Pre -Complaint Requests for Production of Documents by handing a true copy to a person representing themselves to be Jennifer Howell, Director of Nursing, who accepted as "Adult Person in Charge" for GGNSC Camp Hill West Shore, LP d/b/a Golden Living Center - West Shore at 770 Poplar Church Road, East Pennsboro, Camp Hill, PA 17011. SHERIFF COST: $44.95 SO ANSWERS, August 12, 2014 (c) CountySulte Sheriff, Toleosoft. Inc. RONNY R ANDERSON, SHERIFF WILKES & McHUGH, P.A. William P. Murray, III, Esquire Attorney Identification No. 205016 Three Parkway 1601 Cherry Street, Suite 1300 Philadelphia, PA 19102 Tel No. (215) 972-0811 Email: wmurray@wilkesmchugh.com THIS IS NOT AN ARBITRATION CASE; AN ASSESSMENT OF DAMAGES IS REQUIRED; JURY TRIAL DEMANDED Attorney for Plaintiff, Lynette Chism, Executrix of the Estate of Mamie L. Chism, deceased LYNETTE CHISM, Executrix of the Estate of of the Estate of MAMIE L. CHISM, deceased Plaintiff vs. : COURT OF COMMON PLEAS : CUMBERLAND COUNTY, Pi2r -r .72.2 c.f)' c-) ..-- : NO. 14-4644 GOLDEN GATE NATIONAL SENIOR CARE, : LLC; GGNSC CAMP HILL WEST SHORE, : LP, DIB/A GOLDEN LIVINGCENTER — WEST SHORE; GGNSC CAMP HILL WEST : SHORE, GP, LLC; GGNSC EQUITY HOLDINGS, LLC; GGNSC HOLDINGS, LLC; : GGNSC ADMINISTRATIVE SERVICES, LLC; : GGNSC CLINICAL SERVICES, LLC; GPH CAMP HILL WEST SHORE, LP; and DENISE CURRY, RVP Defendants. AFFIDAVIT OF SERVICE N) TO THE PROTHONOTARY: I hereby certify that I served Defendant, Golden Gate National Senior Care, LLC, 7160 Dallas Parkway, Suite 400, Plano, TX 75024 with a Writ of Summons previously filed August 5, 2014 with the Cumberland County Court of Common Pleas, in accordance with Pa.R.C.P. 404(2) via Certified Mail, which was received as evidenced by a copy of the signed Certified Mail Return Receipt attached hereto as Exhibit "A". I hereby certify that I served Defendant, GGNSC Camp Hill West Shore, LP, d/b/a Golden Living Center - West Shore, 770 Poplar Church Road, Camp Hill, PA 17011 with a Writ of Summons previously filed on August 5, 2014 with the Cumberland County Court of Common Pleas, in accordance with Pa.R.C.P. 404(2) via the Cumberland County Sheriffs Department, which was received as evidenced by a copy of the Order of Service attached hereto as Exhibit I hereby certify that I served Defendant, GGNSC Camp Hill West Shore, GP, LLC, 7160 Dallas Parkway, Suite 400, Plano, TX 75024 with a Writ of Summons previously filed August 5, 2014 with the Cumberland County Court of Common Pleas, in accordance with Pa.R.C.P. 404(2) via Certified Mail, which was received as evidenced by a copy of the signed Certified Mail Return Receipt attached hereto as Exhibit "C". I hereby certify that I served Defendant, GGNSC Equity Holdings, LLC, 7160 Dallas Parkway, Suite 400, Plano, TX 75024 with a Writ of Summons previously filed August 5, 2014 with the Cumberland County Court of Common Pleas, in accordance with Pa.R.C.P. 404(2) via Certified Mail, which was received as evidenced by a copy of the signed Certified Mail Return Receipt attached hereto as Exhibit "D". I hereby certify that I served Defendant, GGNSC Holdings, LLC, 7160 Dallas Parkway, Suite 400, Plano, TX 75024 with a Writ of Summons previously filed August 5, 2014 with the Cumberland County Court of Common Pleas, in accordance with Pa.R.C.P. 404(2) via Certified Mail, which was received as evidenced by a copy of the USPS Tracking record reflecting delivery on August 15, 2014 attached hereto as Exhibit "E". I hereby certify that I served Defendant, GGNSC Administrative Services, LLC, 7160 Dallas Parkway, Suite 400, Plano, TX 75024 with a Writ of Summons previously filed August 5, 2014 with the Cumberland County Court of Common Pleas, in accordance with Pa.R.C.P. 404(2) via Certified Mail, which was received as evidenced by a copy of the signed Certified Mail Return Receipt attached hereto as Exhibit "F". I hereby certify that I served Defendant, GGNSC Clinical Services, LLC, 7160 Dallas Parkway, Suite 400, Plano, TX 75024 with a Writ of Summons previously filed August 5, 2014 with the Cumberland County Court of Common Pleas, in accordance with Pa.R.C.P. 404(2) via Certified Mail, which was received as evidenced by a copy of the signed Certified Mail Return Receipt attached hereto as Exhibit "G". I hereby certify that I served Defendant, GPH Camp Hill West Shore, LP, 1000 Fianna Way, Fort Smith, AR 72919 with a Writ of Summons previously filed August 5, 2014 with the Cumberland County Court of Common Pleas, in accordance with Pa.R.C.P. 404(2) via Certified Mail, which was received as evidenced by a copy of the signed Certified Mail Return Receipt attached hereto as Exhibit "H". I hereby certify that I served Defendant, Denise Curry, RVP, 503 Vilsack Road, Glenshaw, PA 15116 with a Writ of Summons previously filed August 5, 2014 with the Cumberland County Court of Common Pleas, in accordance with Pa.R.C.P. 404(2) through her counsel Jacqueline M. Carolan, Esquire, which was received as evidenced by the signed Acceptance of Service attached hereto as Exhibit "I". Dated: September 10, 2014 Respectfully submitted, WILKES & McHUGH, P.A. Willi ay, III, Esquire CERTIFICATE OF SERVICE I, William P. Murray, III, Esquire, attorney for Plaintiff, attest and certify that a copy of Plaintiff s Affidavit of Service was served upon the following via First Class Mail on the date listed below: Jacqueline M. Carolan, Esquire FOX ROTHSCHILD LLP 2000 Market Street, 20th Floor Philadelphia, PA 19103 (Attorney for Defendants GGNSC Camp Hill West Shore, LP, d/b/a Golden Living Center - West Shore and Denise Curry, RVP) Date: September 10, 2014 WILKES & McHUGH, P.A. Willia May, III, Esquire Attor aintiff EXHIBIT "A' SENDER:.COMPL.ETr TH!S SECTION 'r '. Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. si Print your name and address on the reverse so that we can return the card to you. s Attach this card to the back of the mailpiece, or on the front if space permits. 1. Article Addressed to: GAIE N41-1 -7 140 04444 S v..�g' 5tiT too +4n>J, X -75c4 9/11PLETE SIS SECTION ON DEUVERY' 0 Agent 0 Addressee C. Date of Delivery D. Is delivery address different from item 1? 0 Yes If YES, enter delivery address below: 0 No 3. Service Type Certified Mail 0 Registered 0 Insured Mail 0 Express Mail ❑ Retum Receipt for Merchandise o C.o.o. 4. Restricted Delivery? (Extra Fee) 0 Yes 2. Article Number (Transfer from service labeO 7013 .2630 0001 5832 8942 PS Form 3811, February 2004 Domestic Return Receipt 102595-02-M-1540 EXHIBIT "B" Ronny R Anderson Sheriff Jody S Smith Chief Deputy Richard W Stewart Solicitor SHERIFF'S OFFICE OF CUMBERLAND COUNTY �ap�tit+ of Lauutir+Y,rjlb OFFICE OF SNE SIiERIFF Lynette Chism vs. GGNSC National Senior Care (et al.) Case Number 2014-4644 SHERIFF'S RETURN OF SERVICE 08/08/2014 11:51 AM - Deputy Dennis Fry, being duly sworn according to law, served the requested Writ of Summons and Plaintiffs Pre -Complaint Requests for Production of Documents by handing a true copy to a person representing themselves to be Jennifer Howell, Director of Nursing, who accepted as "Adult Person in Charge" for GGNSC Camp Hill West Shore, LP d/b/a Golden Living Center - West Shore at 770 Poplar Church Road, East Pennsboro, Camp Hill, PA 17011. SHERIFF COST: $44.95 SO ANSWERS, August 12, 2014 • (c) CountySui:o Sheriff, Tcleesoft Inc. RONNY R ANDERSON, SHERIFF EijJBIT" SENDER: 061 THiS is Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. • Print your name and address on the reverse so that we can return the card to you. im Attach this card to the back of the mailpiece. or on the front if space permits. 1, Article Addressed to: GG 1.411.-1.— vs,6S-7— Sq- AZ 6Y0 , 140 •At --4S iciaeloA4.< 5,4 -Tit - /too PC44 /43 7-"Tcrc14 0 Agent 0 Addressee Cate of Delivery D. Is delivery address different from Item 1? 0 Yes If YES, enter delivery address below: 0 No 3. Servcce Type -)Er Certified Mall 0 Registered 0 Insured Mail 0 Express Mail 0 Return ReCelpt for Merchandise 0 C.O.D. 4. Restricted Delivery? (Extra Fee) 0 Yes 2. Article Number (Trarisfer from service label) PS Form 3811, February 2004 7013 2.630 0001 5832 8935 DOrnestic Return Receipt i 02595-02-M-1540 ; EXHIBIT "D" $ Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. a1 Print your name and address on the reverse so that we can return the card to you. Attach this card to the back of the mailpiece, or on the front if space permits. cle Addressed to: GUNSC a , 1-60DALLAS P4123(k. R <Sy, c 4UU PLAN.) ,-1-X 7 SO `COMPLETETMISSEbrion.OIV DEt 2. Article Number (Transfer from service label) PS Form 3811, February 2004 D. Is de ivery address different from item If YES, enter delivery address below: Service Type Certified Mall Q Registered Insured Mail Yes No [O Express Mall D Return Receipt for Merchandise C.O.D. 4. Restricted Delivery? (Extra Fee 7013 2630 0001 5832 8928 Domestic Return Receipt EXHIBIT "E" USPS.com® - USPS Tracking TM English Customer Service USPS Mobile OUSPSCO .' Quick Tools USPS TrackingTM Ship a Package Tracking Number: 70132630000158328911 Product & Tracking Information Postal Product: Features: Certified Mail+' Send Mail Manage Your Mail August 15, 2014, 12:33 pm Delivered PLANO, TX 75024 Your item was delivered at 12:33 pm on August i 5. 2014 in PLANO, TX 75024. August 15. 2014 , 10:45 am August 12. 2014 , 2:35 am August 11, 2014 .6:46 pm August 8, 2D14 , 10:21 pm August 8, 2014 , 9:16 pm Arrived at Unit Departed USPS Facility Anived at USPS Facility Departed USPS Facility Arrived at USPS Fadlity Track Another Package ' What's your tracking (or receipt) number? LEGAL Privacy Policy Terms of Use+ FOIA No FEAR Act EEC) Data usipsconir ON USPS.COM Government Seroleas + Buy Stamps A. Shop . Print a Label with Postage.. Customer Service Delivering Solutions to the Last toile Site Index C. opyright4f 2014 USPS. All Rights Reserved PLANO, TX 75025 COPPELL, TX 75099 COPPELL, TX 75099 PHILADELPHIA, PA 19176 PHILADELPHIA, PA 19176 Track It ON ABOUT.USPS.COM Abol6 USPS Home e Newsroom USPS Service .Atertc Forms S Publications Care.:S Pagel of1 Register r Sign In Search USPS.com UT Trade Packages Subr Shop Business Solutions Customer Service Have questions? We're here to help. Available Actions Text Updates Email Updates OTHER USPS SITES nosiness Customer Gateway Postal Inspectors • Inspector General+ Postal Explorer National Postal Museum r https://tool s.usps.com/go/Tra kConfirmAction.action?tRef=fuIIpage&tLc 1&text28777=... 8/21/2014 1HREL PARKWAY 161)1 CHERRY STREET SUITE 1300 PHILADELPHIA, PA 19102 WILKES & McHUGH, P.A. ATTORNEYS AT LAW August 8. 2014 VIA CERTIFIED MAIL NO.: 7013 2630 000! 5832 8911 RETURN RECEIPT REOLIESTED GGNSC Holdings, LLC 7160 Dallas Parkway, Suite 400 Plano, TX 75024 PHONE (215) 972-0811 FAX: (215) 972-0580 101,I.. FREE: (8w) 2.55-5070 Re: Lynette Chism, Executrix of the Estate of Mamie L. Chism;deceased vs. Golden Gate National Senior Care,L1...C, et al. Cumberland County Court of Common Pleas No. 14-4644 Civil. Dear Sir/Madam: Enclosed please find a timei-stamped copy of a Writ of Summons that was filed on. August 5, 2014, with the Cumberland County Court of Common Pleas. Please forward this legal document to your insurance company and/or attorney immediately. If you do not have a lawyer, go to or telephone the office set forth below. This office can provide you with information about hiring a lawyer. If you cannot afford to hire a lawyer, this office may be able to provide you with information. about agencies that may offer services to eligible persons ataredueed fee -or no fee: WPM/sp Enclosure CUMBERLAND COUNTY BAR ASSOCIATION Lawyer Referral and Information Service 32 S. Bedford Street Carlisle, PA 1.7013 Telephone: 717-249-3166 Fax: 717-249-2663 ceba@,curnherlandbar.com or EXHIBIT "F" SENDER dalWRITE THIS SECTION a Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. a Print your name and address on the reverse so that we can return the card to you. Attach this card to the back of the mailpiece, or on the front if space permits. 1. Article Addressed to: GG N.45C.--)46 evN h.i,s,,-yzan--tVE Q.v c -SS -7160 0,44446 PA ez-it‘-4< SL 4 op COVOLETE,,tHISSED770N ON DELIVERY. D. Is delivery address different from item 0 Yes If YES, enter delivery address below: 0 No 3. Service Type J Certified Mail O Registered 0 Insured Mail 0 Express Mail 0 Return Receipt tor Merchandise 0 C.O.D. 4. Restricted Delivery? (Extra Fee) 0 Yes 2. Article Number (rransfer from service labe9 7013 2630 0001 5832 8904 PS Form 3811, February 2004 Domestic Return Receipt 102595-02-M-1540 EXHIBIT "G" i.-SENDER:VOttilPLEIEtM.t.$ECTlrtW:e4' Complete items 1, 2, and 3. Aso complete item 4 if Restricted Delivery is desired. a Print your name and address on the reverse so that we can return the card to you. Attach this card to the back of the mailpiece, or on the front if space permits. 1. Article Addressed to: C.; hiS &AC -4 SG/tute-65 , 41.4.4 leA<Y64.< glOk 40o -75104 itOOPLM:77-040T0'14,6* 000 O Agent O Addressee C.Date of Delivery 2—! ci• , is delivery address different from item 1? 0 Yes If YES, enter deliver/ address below: 0 No 3. Service Type "}E'Certified Malle 0 Registered 0 Insured Mail O Priority Mail Express' 0 Return Receipt for Merchandise 0 Collect on Delivery 4. Restricted Delivery? (Extra Fee) 2, Article Nurnber (Transfer from service label) 7013 2630 0001 5832 8898 PS Form 3811, July 2013 Domestic Return Receipt 0 Yes SENDR COMPLETETHISSECTION .csimpLETE,TOS SEi5T1ON ON DELIVERY A .'AiT " 4). omplete items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. • Print your name and address on the reverse so that we can return the card to you. • Attach this card to the back of the mailpiece, or on the front if space permits. 1. Article Addressed to' (Alt weits(4-4) ,)00 15-:bcel )A /29E9 0 Agent 0 Addressee C. Date of Delivery 1/4 D. Islivery tiress diflerent frOinifferti'-1? 0 Yes e IPYES, enterplivery address bw\ 0 No C.41 3. S Tipe ftifie Mat Prio ress' o Registered -----0 ,Retum Receipt for Merchandise 0 Insured Mail 0 Collect on Delivery 4. Restricted Delivery? (Extra Fee) 2. Article Number 7012 3460 0003 7679 4445 (Transfer from service label) 0 Yes PS Form 3811, July 2013 ' I Domestic Retu Receipt EXHIBTT "I' WILKES & McHUGH, P.A. William P. Murray, III, Esquire Attorney Identification No. 205016 Three Parkway 1601 Cherry Street, Suite 1300 Philadelphia, PA 19102 Tel No. (215) 972-0811 Email: wmurray@wilkesmchugh.com THIS IS NOT AN ARBITRATION CASE; AN ASSESSMENT OF DAMAGES IS REQUIRED; JURY TRIAL DEMANDED Attorney for Plaintiff, Lynette Chism, Executrix of the Estate of Mamie L. Chism, deceased LYNETTE CHISM, Executrix of the Estate of : COURT OF COMMON PLEAS of the Estate of MAMIE L. CHISM, deceased : CUMBERLAND COUNTY, PA Plaintiff vs. : NO. 14-4644 GOLDEN GATE NATIONAL SENIOR CARE, : LLC; GGNSC CAMP HILL WEST SHORE, : LP, D/B/A GOLDEN LIVINGCENTER — WEST SHORE; GGNSC CAMP HILL WEST : SHORE, GP, LLC; GGNSC EQUITY HOLDINGS, LLC; GGNSC HOLDINGS, LLC; : GGNSC ADMINISTRATIVE SERVICES, LLC;: GGNSC CLINICAL SERVICES, LLC; GPH CAMP HILL WEST SHORE, LP; and DENISE CURRY, RVP Defendants. ACCEPTANCE OF SERVICE I, Jacqueline M. Carolan, Esquire, Attorney for Denise Curry, RVP, hereby accept service of the Writ of Summons as to Denise Curry, RVP, which was filed with the Cumberland County Court of Common Pleas on August 5,2014, and I certify that I am authorized to do so. Date: i9/.104- ne M. Carolan, Esquire Attorney for Defendant, Denise Curry, RVP FOX ROTHSCHILD LLP BY: Jacqueline M. Carolan IDENTIFICATION NO. 52576 ATTORNEYS FOR DEFENDANTS, 2000 MARKET STREET,TWENTIETH FLOOR Golden Gate National Senior Care, LLC; PHILADELPHIA, PA 19103-3222 GGNSC Camp Hill West Shore LP, d/b/a (215)299-2000 Golden Living Center—West Shore; GGNSC Camp Hill West Shore GP, LLC; GGNSC Equity Holdings, LLC; GGNSC Holdings, LLC; GGNSC Administrative Services, LLC; GGNSC Clinical Services, LLC; GPH Camp Hill West Shore LP; and Denise Curry, RVP LYNETTE CHISM, Executrix of the Estate of : COURT OF COMMON PLEAS OF MAMIE L. CHISM, deceased, : CUMBERLAND COUNTY, PA • Plaintiff, : NO. 14-4644 CIVIL • v. GOLDEN GATE NATIONAL SENIOR CARE, • LLC; GGNSC CAMP HILL WEST SHORE, LP • d/b/a Golden Living Center— WEST SHORE; • GGNSC CAMP HILL WEST SHORE GP, LLC; • GGNSC EQUITY HOLDINGS, LLC; r-T' GGNSC HOLDINGS, LLC; • GGNSC ADMINISTRATIVE SERVICES, • cso LLC; GGNSC CLINICAL SERVICES, LLC; : _ GPH CAMP HILL WEST SHORE, LP; and • DENISE CURRY, RVP, • Defendants. • ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance on behalf of defendants Golden Gate National Senior Care, LLC; GGNSC Camp Hill West Shore LP, d/b/a Golden Living Center—West Shore; GGNSC Camp Hill West Shore GP, LLC; GGNSC Equity Holdings, LLC; GGNSC Holdings, LLC; GGNSC Administrative Services, LLC; GGNSC Clinical Services, LLC; GGNSC Holdings, LLC; GPH Camp Hill West Shore LP; and Denise Curry, RVP, in the above-captioned matter. h114 . � acq ine M. Carolan, Esquire FOX ROTHSCHILD LLP 2000 Market Street, 20th Floor Philadelphia, PA 19103 215-299-2000 Attorneys for Defendants, Golden Gate National Senior Care, LLC; GGNSC Camp Hill West Shore LP, d/b/a Golden Living Center—West Shore; GGNSC Camp Hill West Shore GP, LLC; GGNSC Equity Holdings, LLC; GGNSC Holdings, LLC; GGNSC Administrative Services, LLC; GGNSC Clinical Services, LLC; GPH Camp Hill West Shore, LP; and Denise Curry, RVP Dated: September 30, 2104 2 CERTIFICATE OF SERVICE I, Jacqueline M. Carolan, hereby certify that a true and correct copy of the foregoing Entry of Appearance was served via U.S. First Class Mail upon the following: William P. Murray, III, Esquire Wilkes & McHugh, P.A. Three Parkway 1601 Cherry Street, Suite 1300 Philadelphia, PA 19102 Attorneys or Plaintiff 54„ d Jac eline M. Carolan Dated: September 30, 2014 WILKES & McHUGH, P.A. By: Andrei Govorov, Esquire Attorney Identification No. 209365 1601 Cherry Street, Suite 1300 Philadelphia, Pennsylvania 19102 215-972-0811 215-972-0580 (fax) Email: agovorov@wilkesmchugh.com THIS IS NOT AN ABRITRATION CASE. ASSESSMENT OF DAMAGES IS REQUIRED; JURY TRIAL DEMANDED. Counsel for Plaintiff, Lynette Chism, Executrix for the Estate of Mamie L. Chism, deceased IN THE COURT OF .COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA LYNETTE CHISM, as Executrix for The Estate of MAMIE L. CHISM, deceased Plaintiff, -vs- GOLDEN GATE NATIONAL SENIOR CARE, LLC; GGNSC CAMP HILL WEST SHORE, LP d/b/a GOLDEN LIVING CENTER — WEST SHORE; GGNSC CAMP HILL WEST SHORE, GP, LLC; GGNSC EQUITY HOLDINGS, LLC; GGNSC HOLDINGS, LLC; GGNSC ADMINISTRATIVE SERVICES, LLC; GGNSC CLINICAL SERVICES, LLC; GPH CAMP HILL WEST SHORE, LP; and DENISE CURRY, RVP Defendants. CIVIL DIVISION NO.: 14-4644 CERTIFICATE OF MERIT AS TO DEFENDANT DENISE CURRY, RVP 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 f 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. Dated: /Z/Z Andrei Govorov, Esquire Attorney for Plaintiff CERTIFICATE OF SERVICE I, Andrei Govorov, attorney for Plaintiff, hereby certify that a true and correct copy of foregoing Certificate of Merit was served via first class mail upon defense counsel for defendant on this date: Jacqueline M. Carolan, Esquire Fox Rothschild LLP 2000 Market Street, 12th Floor Philadelphia, PA 19103 (Attorney for Defendants) Date: / Z/2 4//# By: Wilkes & McHugh, P.A. Andrei Govorov, Esquire Attorney for Plaintiff WILKES & McHUGH, P.A. THIS IS NOT AN ABRITRATION By: Andrei Govorov, Esquire CASE. ASSESSMENT OF DAMAGES Attorney Identification No. 209365 IS REQUIRED; JURY TRIAL DEMANDED. 1601 Cherry Street, Suite 1300 Philadelphia, Pennsylvania 19102 215-972-0811 Counsel for Plaintiff, Lynette Chism, 215-972-0580 (fax) Executrix for the Estate of Mamie L. Chism, Email: agovorov@wilkesmchugh.com deceased IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA LYNETTE CHISM, as Executrix for The Estate of MAMIE L. CHISM, deceased Plaintiff, -vs- GOLDEN GATE NATIONAL SENIOR CARE, LLC; GGNSC CAMP HILL WEST SHORE, LP d/b/a GOLDEN LIVING CENTER — WEST SHORE; GGNSC CAMP HILL WEST SHORE, GP, LLC; GGNSC EQUITY HOLDINGS, LLC; GGNSC HOLDINGS, LLC; GGNSC ADMINISTRATIVE SERVICES, LLC; GGNSC CLINICAL SERVICES, LLC; GPH CAMP HILL WEST SHORE, LP; and DENISE CURRY, RVP Defendants. CIVIL DIVISION NO.: 14-4644 CERTIFICATE OF MERIT AS TO DEFENDANT GOLDEN GATE NATIONAL SENIOR CARE, 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. Andrei Govorov, Esquire Attorney for Plaintiff CERTIFICATE OF SERVICE I, Andrei Govorov, attorney for Plaintiff, hereby certify that a true and correct copy of foregoing Certificate of Merit was served via first class mail upon defense counsel for defendant on this date: Jacqueline M. Carolan, Esquire Fox Rothschild LLP 2000 Market Street, 12th Floor Philadelphia, PA 19103 (Attorney for Defendants) By: Wilkes & McHugh, P.A. Andrei Govorov, Esquire Attorney for Plaintiff WILKES & McHUGH, P.A. By: Andrei Govorov, Esquire Attorney Identification No. 209365 1601 Cherry Street, Suite 1300 Philadelphia, Pennsylvania 19102 215-972-0811 215-972-0580 (fax) Email: agovorov@wilkesmchugh.com THIS IS NOT AN ABRITRATION CASE. ASSESSMENT OF DAMAGES IS REQUIRED; JURY TRIAL DEMANDED. Counsel for Plaintiff, Lynette Chism, Executrix for the Estate of Mamie L. Chism, deceased IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA LYNETTE CHISM, as Executrix for The Estate of MAMIE L. CHISM, deceased Plaintiff, -vs- GOLDEN GATE NATIONAL SENIOR CARE, LLC; GGNSC CAMP HILL WEST SHORE, LP d/b/a GOLDEN LIVING CENTER — WEST SHORE; GGNSC CAMP HILL WEST SHORE, GP, LLC; GGNSC EQUITY HOLDINGS, LLC; GGNSC HOLDINGS, LLC; GGNSC ADMINISTRATIVE SERVICES, LLC; GGNSC CLINICAL SERVICES, LLC; GPH CAMP HILL WEST SHORE, LP; and DENISE CURRY, RVP Defendants. CIVIL DIVISION NO.: 14-4644 CERTIFICATE OF MERIT AS TO DEFENDANT GGNSC CAMP HILL WEST SHORE, LP d/b/a GOLDEN LIVING CENTER — WEST SHORE 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. Dated: / Z 2 r/ Andrei Govorov, Esquire Attorney for Plaintiff CERTIFICATE OF SERVICE I, Andrei Govorov, attorney for Plaintiff, hereby certify that a true and correct copy of foregoing Certificate of Merit was served via first class mail upon defense counsel for defendant on this date: Date: /Z Jacqueline M. Carolan, Esquire Fox Rothschild LLP 2000 Market Street, 12th Floor Philadelphia, PA 19103 (Attorney for Defendants) By: Wilkes & McHugh, P.A. Andrei Govorov, Esquire Attorney for Plaintiff WILKES & McHUGH, P.A. By: Andrei Govorov, Esquire Attorney Identification No. 209365 1601 Cherry Street, Suite 1300 Philadelphia, Pennsylvania 19102 215-972-0811 215-972-0580 (fax) Email: agovorov@wilkesmchugh.com THIS IS NOT AN ABRITRATION CASE. ASSESSMENT OF DAMAGES IS REQUIRED; JURY TRIAL DEMANDED. Counsel for Plaintiff, Lynette Chism, Executrix for the Estate of Mamie L. Chism, deceased IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA LYNETTE CHISM, as Executrix for The Estate of MAMIE L. CHISM, deceased Plaintiff, -VS- GOLDEN GATE NATIONAL SENIOR CARE, LLC; GGNSC CAMP HILL WEST SHORE, LP d/b/a GOLDEN LIVING CENTER - WEST SHORE; GGNSC CAMP HILL WEST SHORE, GP, LLC; GGNSC EQUITY HOLDINGS, LLC; GGNSC HOLDINGS, LLC; GGNSC ADMINISTRATIVE SERVICES, LLC; GGNSC CLINICAL SERVICES, LLC; GPH CAMP HILL WEST SHORE, LP; and DENISE CURRY, RVP Defendants. CIVIL DIVISION NO.: 14-4644 c> %ID CERTIFICATE OF MERIT AS TO DEFENDANT GGNSC CAMP HILL WEST SHORE, GP, 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 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. Dated: /z 2 104/ Andrei Govorov, Esquire Attorney for Plaintiff CERTIFICATE OF SERVICE I, Andrei Govorov, attorney for Plaintiff, hereby certify that a true and correct copy of foregoing Certificate of Merit was served via first class mail upon defense counsel for defendant on this date: Jacqueline M. Carolan, Esquire Fox Rothschild LLP 2000 Market Street, 12th Floor Philadelphia, PA 19103 (Attorney for Defendants) Wilkes & McHugh, P.A. Date: /2- By: By: Andrei Govorov, Esquire Attorney for Plaintiff WILKES & McHUGH, P.A. THIS IS NOT AN ABRITRATION By: Andrei.Govorov, Esquire CASE. ASSESSMENT OF DAMAGES Attorney Identification No. 209365 IS REQUIRED; JURY TRIAL DEMANDED. 1601 Cherry. Street, Suite 1300 Philadelphia, Pennsylvania 19102 215-972-0811 Counsel for Plaintiff, Lynette Chism, 215-972-0580 (fax) Executrix for the Estate of Mamie L. Chism, Email: agovorov@wilkesmchugh.com deceased IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA LYNETTE CHISM; as Executrix for The Estate of MAMIE L. CHISM, deceased Plaintiff, -vs- GOLDEN GATE NATIONAL SENIOR CARE, LLC; GGNSC CAMP HILL WEST SHORE, LP d/b/a GOLDEN LIVING CENTER - WEST SHORE; GGNSC CAMP HILL WEST SHORE, GP, LLC; GGNSC EQUITY HOLDINGS, LLC; GGNSC HOLDINGS, LLC; GGNSC ADMINISTRATIVE SERVICES, LLC; GGNSC CLINICAL SERVICES, LLC; GPH CAMP HILL WEST SHORE, LP; and DENISE CURRY, RVP Defendants. CIVIL DIVISION NO.: 14-4644 f -s7 ii -r y -. • rr►r' d '1-1— rnc1) O r✓�- <1. • co CERTIFICATE OF MERIT AS TO DEFENDANT GGNSC EQUITY HOLDINGS, LLC x an appropriate licensed professional has supplied a written statement to the undersigned that there is a basisto 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. Andrei Govorov, Esquire Attorney for Plaintiff r., CERTIFICATE OF SERVICE I, Andrei Govorov, attorney for Plaintiff, hereby certify that a true and correct copy of foregoing Certificate of Merit was served via first class mail upon defense counsel for defendant on this date: Jacqueline M. Carolan, Esquire Fox Rothschild LLP 2000 Market Street, 12th Floor Philadelphia, PA 19103 (Attorney for Defendants) Wilkes & McHugh, P.A. Date: / 2 2 % / By: Andrei Govorov, Esquire Attorney for Plaintiff WILKES & McHUGH, P.A. By: Andrei Govorov, Esquire Attorney Identification No. 209365 1601 Cherry Street, Suite 1300 Philadelphia, Pennsylvania 19102 215-972-0811 215-972-0580 (fax) Email: agovorov@wilkesmchugh.com THIS IS NOT AN ABRITRATION CASE. ASSESSMENT OF DAMAGES IS REQUIRED; JURY TRIAL DEMANDED. Counsel for Plaintiff, Lynette Chism, Executrix for the Estate of Mamie L. Chism, deceased IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA LYNETTE CHISM, as Executrix for The Estate of MAMIE L. CHISM, deceased Plaintiff, -vs- GOLDEN GATE NATIONAL SENIOR CARE, LLC; GGNSC CAMP HILL WEST SHORE, LP d/b/a GOLDEN LIVING CENTER — WEST SHORE; GGNSC CAMP HILL WEST SHORE, GP, LLC GGNSC EQUITY HOLDINGS, LLC; GGNSC HOLDINGS, LLC; GGNSC ADMINISTRATIVE SERVICES, LLC; GGNSC CLINICAL SERVICES, LLC; GPH CAMP HILL WEST SHORE, LP; and DENISE CURRY, RVP Defendants. CIVIL DIVISION NO.: 14-4644 CERTIFICATE OF MERIT AS TO DEFENDANT GGNSC HOLDINGS, LLC 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. Dated: /2. Andrei Govorov, Esquire Attorney for Plaintiff CERTIFICATE OF SERVICE I, Andrei Govorov, attorney for Plaintiff, hereby certify that a true and correct copy of foregoing Certificate of Merit was served via first class mail upon defense counsel for defendant on this date: Jacqueline M. Carolan, Esquire Fox Rothschild LLP 2000 Market Street, 12th Floor Philadelphia, PA 19103 (Attorney for Defendants) Date: X2/2 4, By: Wilkes & McHugh, P.A. Andrei Govorov, Esquire Attorney for Plaintiff WILKES & McHUGH, P.A. THIS IS NOT AN ABRITRATION By: Andrei Govorov, Esquire CASE. ASSESSMENT OF DAMAGES Attorney Identification No. 209365 IS REQUIRED; JURY TRIAL DEMANDED. 1601 Cherry Street, Suite 1300 Philadelphia, Pennsylvania 19102 215-972-0811 Counsel for Plaintiff, Lynette Chism, 215-972-0580 (fax) Executrix for the Estate of Mamie L. Chism, Email: agovorov@wilkesmchugh.com deceased IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA LYNETTE CHISM, as Executrix for The Estate of MAMIE L. CHISM, deceased Plaintiff, -vs- GOLDEN GATE NATIONAL SENIOR CARE, LLC; GGNSC CAMP HILL WEST SHORE, LP d/b/a GOLDEN LIVING CENTER — WEST SHORE; GGNSC CAMP HILL WEST SHORE, GP, LLC; GGNSC EQUITY HOLDINGS, LLC; GGNSC HOLDINGS, LLC; GGNSC ADMINISTRATIVE SERVICES, LLC; GGNSC CLINICAL SERVICES, LLC; GPH CAMP HILL WEST SHORE, LP; and DENISE CURRY, RVP Defendants. CIVIL DIVISION NO.: 14-4644 EZ :6 14V 6Z 330 hip? CERTIFICATE OF MERIT AS TO DEFENDANT GGNSC ADMINISTRATIVE SERVICES, 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. Andrei Govorov, Esquire Attorney for Plaintiff CERTIFICATE OF SERVICE I, Andrei Govorov, attorney for Plaintiff, hereby certify that a true and correct copy of foregoing Certificate of Merit was served via first class mail upon defense counsel for defendant on this date: Date: h20 %O//� Jacqueline M. Carolan, Esquire Fox Rothschild LLP 2000 Market Street, 12th Floor Philadelphia, PA 19103 (Attorney for Defendants) By: Wilkes & McHugh, P.A. Andrei Govorov, Esquire Attorney for Plaintiff WILKES & McHUGH, P.A. By: Andrei Govorov, Esquire Attorney Identification No. 209365 1601 Cherry Street, Suite 1300 Philadelphia, Pennsylvania 19102 215-972-0811 215-972-0580 (fax) Email: agovorov@wilkesmchugh.com THIS IS NOT AN ABRITRATION CASE. ASSESSMENT OF DAMAGES IS REQUIRED; JURY TRIAL DEMANDED. Counsel for Plaintiff, Lynette Chism, Executrix for the Estate of Mamie L. Chism, deceased IN THE COURT OF COMMON PLEAS. OF CUMBERLAND COUNTY PENNSYLVANIA LYNETTE CHISM, as Executrix for The Estate of MAMIE L. CHISM, deceased Plaintiff, -vs- GOLDEN GATE NATIONAL SENIOR CARE, LLC; GGNSC CAMP HILL WEST SHORE, LP d/b/a GOLDEN LIVING CENTER — WEST SHORE; GGNSC CAMP HILL WEST SHORE, GP, LLC; GGNSC EQUITY HOLDINGS, LLC; GGNSC HOLDINGS, LLC; GGNSC ADMINISTRATIVE SERVICES, LLC; GGNSC CLINICAL SERVICES, LLC; GPH CAMP HILL WEST SHORE, LP; and DENISE CURRY, RVP Defendants. CIVIL DIVISION NO.: 14-4644 m CERTIFICATE OF MERIT AS TO DEFENDANT GGNSC CLINICAL SERVICES, 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. Dated: /2 2f Andrei Govorov, Esquire Attorney for Plaintiff CERTIFICATE OF SERVICE I, Andrei Govorov, attorney.. for Plaintiff, hereby certify that a true and correct copy of foregoing Certificate of Merit was served via first class mail upon defense counsel for defendant on this date: Jacqueline M. Carolan, Esquire Fox Rothschild LLP 2000 Market Street, 12th Floor Philadelphia, PA 19103 (Attorney for Defendants) Wilkes. & McHugh, P.A. Andrei Govorov,, Esquire Attorney for Plaintiff ^ki WILKES & McHUGH, P.A. By: Andrei Govorov, Esquire Attorney Identification No. 209365 1601 Cherry Street, Suite 1300 Philadelphia, Pennsylvania 19102 215-972-0811 215-972-0580 (fax) Email: agovorov@wilkesmchugh.com THIS IS NOT AN ABRITRATION CASE. ASSESSMENT OF DAMAGES IS REQUIRED; JURY TRIAL DEMANDED. Counsel for Plaintiff, Lynette Chism, Executrix for the Estate of Mamie L. Chism, deceased IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA LYNETTE CHISM, as Executrix for The Estate of MAMIE L. CHISM, deceased Plaintiff, -vs- GOLDEN GATE NATIONAL SENIOR CARE, LLC; GGNSC CAMP HILL WEST SHORE, LP d/b/a GOLDEN LIVING CENTER — WEST SHORE; GGNSC CAMP HILL WEST SHORE, GP, LLC; GGNSC EQUITY HOLDINGS, LLC; GGNSC HOLDINGS, LLC; GGNSC ADMINISTRATIVE SERVICES, LLC; GGNSC CLINICAL SERVICES, LLC; GPH CAMP HILL WEST SHORE, LP; and DENISE CURRY, RVP Defendants. CIVIL DIVISION NO.: 14-4644 c-) CERTIFICATE OF MERIT AS TO DEFENDANT GPH CAMP HILL WEST SHORE, LP C . 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. Dated: /2/2 Andrei Govorov, Esquire Attorney for Plaintiff CERTIFICATE OF SERVICE I, Andrei Govorov, attorney for Plaintiff, hereby certify that a true and correct copy of foregoing Certificate of Merit was served via first class mail upon defense counsel for defendant on this date: Jacqueline M. Carolan, Esquire Fox Rothschild LLP 2000 Market Street, 12th Floor Philadelphia, PA 19103 (Attorney for Defendants) Wilkes & McHugh, P.A. Date: /a 2V4 By: Andrei Govorov, Esquire Attorney for Plaintiff /J WILKES & McHUGH, P.A. THIS IS NOT AN ABRITRATION By: Andrei Govorov, Esquire CASE. ASSESSMENT OF DAMAGES Attorney Identification No. 209365 IS REQUIRED; JURY TRIAL DEMANDED. 1601 Cherry Street, Suite 1300 Philadelphia, Pennsylvania 19102 215-972-0811 Counsel for Plaintiff, Lynette Chism, 215-972-0580 (fax) Executrix for the Estate of Mamie L. Chism, Email: agovorov@wilkesmchugh.com deceased IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA LYNETTE CHISM, as Executrix for The Estate of MAMIE L. CHISM, deceased Plaintiff, -VS GOLDEN GATE NATIONAL SENIOR CARE, LLC; GGNSC CAMP HILL WEST SHORE, LP d/b/a GOLDEN LIVING CENTER — WEST SHORE; GGNSC CAMP HILL WEST SHORE, GP, LLC; GGNSC EQUITY HOLDINGS, LLC; GGNSC HOLDINGS, LLC; GGNSC ADMINISTRATIVE SERVICES, LLC; GGNSC CLINICAL SERVICES, LLC; GPH CAMP HILL WEST SHORE, LP; and DENISE CURRY, RVP Defendants. CIVIL DIVISION NO.: 14-4644 COMPLAINT IN CIVIL ACTION JURY TRIAL DEMANDED C-) r-.. f: ' z- rn rn 7 r--- .-2 c7) - Li) r N.) C, , -4 N 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 are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any claim or relief requested by Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE 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 1Carlisle, Pennsylvania 17013 Telephone: 717-249-3166 I Fax: 717-249-2663 2 WILKES & McHUGH, P.A. By: Andrei Govorov, Esquire Attorney Identification No. 209365 1601 Cherry Street, Suite 1300 Philadelphia, Pennsylvania 19102 215-972-0811 215-972-0580 (fax) Email: agovorov@wilkesmchugh.com THIS IS NOT AN ABRITRATION CASE. ASSESSMENT OF DAMAGES IS REQUIRED; JURY TRIAL DEMANDED. Counsel for Plaintiff, Lynette Chism, Executrix for the Estate of Mamie L. Chism, deceased IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA LYNETTE CHISM, as Executrix for The Estate of MAMIE L. CHISM, deceased 929 Highland Street Steelton, Pennsylvania 17113 Plaintiff, -vs- GOLDEN GATE NATIONAL SENIOR CARE, LLC 7160 Dallas Parkway, Suite 400 Plano, Texas 75024 and GGNSC CAMP HILL WEST SHORE, LP d/b/a GOLDEN LIVING CENTER — WEST SHORE 770 Poplar Church Road Camp Hill, Pennsylvania 17011 and GGNSC CAMP HILL WEST SHORE, GP, LLC 7160 Dallas Parkway, Suite 400 Plano, Texas 75024 and GGNSC EQUITY HOLDINGS, LLC 7160 Dallas Parkway, Suite 400 Plano, Texas 75024 and GGNSC HOLDINGS, LLC 7160 Dallas Parkway, Suite 400 Plano, Texas 75024 and CIVIL DIVISION NO.: 14-4644 GGNSC ADMINISTRATIVE SERVICES, LLC 7160 Dallas Parkway, Suite 400 Plano, Texas 75024 and GGNSC CLINICAL SERVICES, LLC 7160 Dallas Parkway, Suite 400 Plano, Texas 75024 and GPH CAMP HILL WEST SHORE, LP 1000 Fianna Way Fort Smith, Arkansas 72919 and DENISE CURRY, RVP 503 Vilsack Road Glenshaw, Pennsylvania 15116 Defendants. COMPLAINT IN CIVIL ACTION (The Complaint Includes a Medical Professional Liability Action) Plaintiff, Lynette Chism, Executrix for The Estate of Mamie L. Chism, deceased, by and through undersigned counsel, Wilkes & McHugh, P.A., files the instant Complaint in Civil Action, and in support thereof avers the following: I. PARTIES A. Plaintiff 1. Mamie L. Chism, an adult individual, was a resident at the skilled nursing facility commonly known as Golden Living Center - Westshore (hereinafter "the Facility") for a period of time that ended on July 18, 2013. 2. Lynette Chism, daughter of Mamie L. Chism, is an adult individual and citizen of the Commonwealth of Pennsylvania, residing at 929 Highland Street, Steelton, Pennsylvania 17113. 2 3. Lynette Chism was appointed Executrix for the Estate of Mamie L. Chism, deceased, on July 31, 2014 by the Register of Wills of Dauphin County. 4. This action was commenced by Writ of Summons, filed on August 5, 2014. B. Defendants, Golden Gate National Senior Care, LLC; GGNSC Camp Hill West Shore, LP d/b/a Golden Living Center — West Shore; GGNSC Camp Hill West Shore, GP, LLC; GGNSC Equity Holdings, LLC; GGNSC Holdings, LLC; GGNSC Administrative Services, LLC; GGNSC Clinical Services, LLC; GPH Camp Hill West Shore, LP; and Denise Curry, RVP 5. Defendant, Golden Gate National Senior Care, LLC, is a corporation, duly licensed, organized and existing under and by virtue of the laws of Delaware, with offices and a place of business located at 7160 Dallas Parkway, Suite 400, Plano, Texas 75024. 6. Defendant, Golden Gate National Senior Care, LLC, is engaged in the business of owning, operating and/or managing nursing homes, including Golden Living Center - Westshore, providing healthcare, medical services, therapy, rehabilitation, skilled nursing care, and custodial care to the public in 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 healthcare providers and practitioners of medicine; and which is personally, directly and vicariously liable, among other things for the acts and omissions of itself, its agents, employees, servants, contractors, subcontractors, staff and/or partners and all other Defendants, all of whom played a role in the care provided to Mamie L. Chism and in the operation of the Facility. 7. Defendant, GGNSC Camp Hill West Shore, LP d/b/a Golden Living Center — West Shore, is a corporation, duly licensed, organized and existing under and by virtue of the 3 t laws of Pennsylvania, with offices and a place of business located at 770 Poplar Church Road, Camp Hill, Pennsylvania 17011. 8. Defendant, GGNSC Camp Hill West Shore, LP d/b/a Golden Living Center — West Shore, is engaged in the business of owning, operating and/or managing nursing homes, including Golden Living Center - Westshore, providing healthcare, medical services, therapy, rehabilitation, skilled nursing care, and custodial care to the public in 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 healthcare providers and practitioners of medicine; and which is personally, directly and vicariously liable, among other things for the acts and omissions of itself, its agents, employees, servants, contractors, subcontractors, staff and/or partners and all other Defendants, all of whom played a role in the care provided to Mamie L. Chism and in the operation of the Facility. 9. Defendant, GGNSC Camp Hill West Shore, GP, LLC, is a corporation, duly licensed, organized and existing under and by virtue of the laws of Delaware, with offices and a place of business located at 7160 Dallas Parkway, Suite 400, Plano, Texas 75024. 10. Defendant, GGNSC Camp Hill West Shore, GP, LLC, is engaged in the business of owning, operating and/or managing nursing homes, including Golden Living Center - Westshore, providing healthcare, medical services, therapy, rehabilitation, skilled nursing care, and custodial care to the public in Cumberland County, Pennsylvania; and was at all times material hereto, duly licensed to operate same in the Commonwealth of Pennsylvania; and was 4 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 healthcare providers and practitioners of medicine; and which is personally, directly and vicariously liable, among other things for the acts and omissions of itself, its agents, employees, servants, contractors, subcontractors, staff and/or partners and all other Defendants, all of whom played a role in the care provided to Mamie L. Chism and in the operation of the Facility. 11. Defendant, GGNSC Equity Holdings, LLC, is a corporation, duly licensed, organized and existing under and by virtue of the laws of Delaware, with offices and a place of business located at 7160 Dallas Parkway, Suite 400, Plano, Texas 75024. 12. Defendant, GGNSC Equity Holdings, LLC, is engaged in the business of owning, operating and/or managing nursing homes, including Golden Living Center - Westshore, providing healthcare, medical services, therapy, rehabilitation, skilled nursing care, and custodial care to the public in 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 healthcare providers and practitioners of medicine; and which ispersonally, directly and vicariously liable, among other things for the acts and omissions of itself, its agents, employees, servants, contractors, subcontractors, staff and/or partners and all other Defendants, all of whom played a role in the care provided to Mamie L. Chism and in the operation of the Facility. 5 13. Defendant, GGNSC Holdings, LLC, is a corporation, duly licensed, organized and existing under and by virtue of the laws of Delaware, with offices and a place of business located at 7160 Dallas Parkway, Suite 400, Plano, Texas 75024. 14. Defendant, GGNSC Holdings, LLC, is engaged in the business of owning, operating and/or managing nursing homes, including Golden Living Center - Westshore, providing healthcare, medical services, therapy, rehabilitation, skilled nursing care, and custodial care to the public in 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 healthcare providers and practitioners of medicine; and which is personally, directly and vicariously liable, among other things for the acts and omissions of itself, its agents, employees, servants, contractors, subcontractors, staff and/or partners and all other Defendants, all of whom played a role in the care provided to Mamie L. Chism and in the operation of the Facility. 15. Defendant, GGNSC Administrative Services, LLC, is a corporation, duly licensed, organized and existing under and by virtue of the laws of Delaware, with offices and a place of business located at 7160 Dallas Parkway, Suite 400, Plano, Texas 75024. 16. Defendant, GGNSC Administrative Services, LLC, is engaged in the business of owning, operating and/or managing nursing homes, including Golden Living Center - Westshore, providing healthcare, medical services, therapy, rehabilitation, skilled nursing care, and custodial care to the public in Cumberland County, Pennsylvania; and was at all times material hereto, duly licensed to operate same in the Commonwealth of Pennsylvania; and was the employer, 6 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 healthcare providers and practitioners of medicine; and which is personally, directly and vicariously liable, among other things for the acts and omissions of itself, its agents, employees, servants, contractors, subcontractors, staff and/or partners and all other Defendants, all of whom played a role in the care provided to Mamie L. Chism and in the operation of the Facility. 17. Defendant, GGNSC Clinical Services, LLC, is a corporation, duly licensed, organized and existing under and by virtue of the laws of Delaware, with offices and a place of business located at 7160 Dallas Parkway, Suite 400, Plano, Texas 75024. 18. Defendant, GGNSC Clinical Services, LLC, is engaged in the business of owning, operating and/or managing nursing homes, including Golden Living Center - Westshore, providing healthcare, medical services, therapy, rehabilitation, skilled nursing care, and custodial care to the public in 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 healthcare providers and practitioners of medicine; and which is personally, directly and vicariously liable, among other things for the acts and omissions of itself, its agents, employees, servants, contractors, subcontractors, staff and/or partners and all other Defendants, all of whom played a role in the care provided to Mamie L. Chism and in the operation of the Facility. 7 19. Defendant, GPH Camp Hill West Shore, LP, is a corporation, duly licensed, organized and existing under and by virtue of the laws of Delaware, with offices and a place of business located at 1000 Fianna Way, Fort Smith, Arkansas 72919. 20. Defendant, GPH Camp Hill West Shore, LP, is engaged in the business of owning, operating and/or managing nursing homes, including Golden Living Center - Westshore, providing healthcare, medical services, therapy, rehabilitation, skilled nursing care, and custodial care to the public in 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 healthcare providers and practitioners of medicine; and which is personally, directly and vicariously liable, among other things for the acts and omissions of itself, its agents, employees, servants, contractors, subcontractors, staff and/or partners and all other Defendants, all of whom played a role in the care provided to Mamie L. Chism and in the operation of the Facility. 21. Defendant, Denise Curry, is an individual, who resides at 503 Vilsack Road, Glenshaw, Pennsylvania 15116. Upon information and belief at all relevant times herein, Denise Curry was the co -Defendants' Regional Vice President and in that role she managed and controlled the operations of dozens of the Defendants' nursing facilities, including Golden Living Center - Westshore, during Mamie L. Chism's residency. 22. At all times material hereto, Defendants individually and collectively owed duties, some of which were non -delegable, to the residents of the Facility, including to Mamie L. 8 Chism, such duties being conferred by statute, existing at common law, and/or being voluntarily assumed by each Defendant. 23. At all times material hereto, Defendants individually and collectively, and/or through a joint venture, owned, operated, managed and controlled the Facility, and are individually and collectively engaged in the business of providing healthcare, medical services, therapy, rehabilitation, skilled nursing care, and custodial care services to the general public. II. JURISDICTION AND VENUE 24. Jurisdiction and venue are proper in this Honorable Court in so far as Defendants regularly conduct business in Cumberland County, Pennsylvania and this cause of action arose, at least in part, in this county and/or this action is being brought in any county in which venue may be laid against any Defendant. See Pa. R.C.P. 1006(a.1) and 2179. III. FACTUAL BACKGROUND A. Conduct of the Defendants 25. Prior to her death on July 18, 2013, Mamie L. Chism was a resident of the Defendants' facility.' 26. Mamie L. Chism was incapable of independently providing for all of her daily care and personal needs without reliable assistance. In exchange for financial consideration, she was admitted to Defendants' Facility to obtain such care and protection. 27. The Defendants, through advertising, marketing campaigns, promotional materials and information sheets, held out themselves and the Facility as being able to provide medical, skilled nursing, rehabilitation, therapy and custodial care services to elderly and frail individuals, including Mamie L. Chism. Plaintiff is not bringing any claims pursuant to 62 P.S. § 1407(c) and nothing in the Complaint in Civil Action should be interpreted as an attempt to recover damages pursuant to that Statute. 9 28. Defendants assumed responsibility for Mamie L. Chism's total healthcare, including the provision of nutrition, hydration, activities of daily living, medical, skilled nursing, rehabilitation, and therapy. 29. Defendants further assumed responsibility to provide Mamie L. Chism with ordinary custodial and hygiene services. 30. Defendants exercised complete and total control over the healthcare of all residents of the Facility, including Mamie L. Chism. 31. Defendants were vertically integrated organizations that were controlled by their respective members, managers and/or boards of directors, who were responsible for the operation, planning, management and quality control of the Facility. 32. The control exercised over the Facility by the Defendants included, inter alia: cash management; cost control; setting staffing levels; budgeting; marketing; maintaining and increasing census; supervision of the Facility administrator and director of nursing; supervision and oversight of the staff; development and implementation of nursing staff in -services; development and implementation of all pertinent policy and procedures; monitoring customer satisfaction; performing mock surveys; risk management; corporate and regulatory compliance; quality of care assessment; licensure and certification; controlling accounts payable and receivable; development and implementation of reimbursement strategies; retaining contract management, physician, therapy and dietary services; dictating census and payor source quotas for admissions to the facility; and employing the Facility -level, regional and corporate staff who together operated the Facility. 33. Defendants, by and through their respective members, managers, board of directors and corporate officers, utilized survey results and various other reports, including 10 quality indicators, to monitor the care being provided at their nursing homes, including the Facility. 34. Defendants exercised ultimate authority over all budgets and had final approval over the allocation of resources for staffing, supplies, and operations of their nursing homes including the Facility. 35. 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, including Mamie L. Chism, with respect to the recognition and/or treatment of medical conditions, such as those experienced by Mamie L. Chism, so as to ensure that timely and appropriate care was provided for such conditions whether within the Facility, or obtained from other medical providers. 36. Defendants, acting through their administrators, members, managers, board of directors and corporate officers, were responsible for supervising the standard of professional practice by the members of their staff at the Facility, including regarding the conduct at issue herein. 37. Defendants had an obligation to employ competent, qualified and trained staff so as to ensure that proper care, treatment and services were rendered to individuals having medical, nursing and/or custodial needs, such as those presented by Mamie L. Chism as set forth herein. 38. 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 the medical, nursing and/or custodial needs of the residents, such as Mamie L. Chism, whether within the Facility, or obtained from other medical care providers. 11 39. Defendants made a conscious decision to operate and/or manage the Facility so as to maximize profits at the expense of the care required to be provided to their residents, including Mamie L. Chism. 40. In their efforts to maximize profits, Defendants negligently, intentionally and/or recklessly mismanaged and/or reduced staffing levels below the level necessary to provide adequate care to the residents. 41. Despite their knowledge of the likelihood of harm due to insufficient staffing levels, and despite complaints from staff members about insufficient staffing levels, Defendants recklessly and/or negligently disregarded 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 the needs of the Facility's residents, including Mamie L. Chism. 42. Defendants intentionally increased the number of sick, elderly and frail residents with greater health problems requiring more complex medical care. 43. Defendants knew that this increase in the acuity care levels of the resident population would substantially increase the need for staff, services, and supplies necessary for the new resident population. 44. Defendants knew, or should have known, that the acuity needs of the residents in their nursing homes increased and, therefore, the required resources also increased, including the need for additional nursing staff in order to meet the needs of the residents, including Mamie L. Chism. 45. Defendants failed to provide the resources necessary, including sufficient staff, to meet the needs of the residents, including Mamie L. Chism. 46. Defendants knowingly established staffing levels that created recklessly high 12 resident to staff ratios, including high resident to nurse ratios and high resident to nurse aide ratios. 47. Defendants knowingly disregarded patient acuity levels while making staffing decisions, and also knowingly disregarded the minimum time required by the staff to perform essential day-to-day functions and treatments. 48. The acts and omissions of the Defendants were motivated by a desire to increase the profits of the nursing homes they own, including the Facility, by knowingly, recklessly, and with total disregard for the health and safety of the residents, reducing expenditures for needed staffing, training, supervision, and care to levels that would inevitably lead to severe injuries, such as those suffered by Mamie L. Chism. 49. The actions of the Defendants were designed to increase reimbursements by governmental programs, which, upon information and belief, are the primary source of income for the Facility. 50. The aforementioned acts directly caused injury to Mamie L. Chism and were known by the Defendants. 51. Defendants knowingly sacrificed the quality of care received by all residents, including Mamie L. Chism, by failing to manage, care, monitor, document, chart, prevent, diagnose and/or treat the injuries and illnesses suffered by Mamie L. Chism, as described herein, which included hypovolemia, a delay in obtaining medical treatment leading to a cardiovascular accident, a urinary tract infection positive for Beta Hemolytic Group B, dehydration, abuse from other residents, poor hygiene, severe pain, and ultimately death. 52. At the time and place of the incidents hereinafter described, the Facility whereupon the incidents occurred was individually, collectively, and/or through a joint venture, 13 owned, possessed, controlled, managed; operated and maintained under the exclusive control of the Defendants. 53. At all times material hereto, the Defendants were operating personally or through their agents, servants, workers, employees, contractors, subcontractors, staff, and/or principals, who acted with actual, apparent 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 the Defendants. 54. The aforementioned incidents were caused solely and exclusively by reason of the negligence, carelessness and recklessness of the Defendants, their agents, servants, contractors, subcontractors, staff and/or employees and was due in no part to any act or failure to act on the part of Mamie L. Chism. 55. 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 them. 56. 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. B. Injuries to Mamie L. Chism at the Facility 57. Plaintiff is not seeking damages for the portions of Mamie L. Chism's residency that fall outside of the applicable statute of limitations, as ultimately construed by this Court. However, Plaintiff asserts that, pursuant to Pa.R.E. §404(b), evidence of prior injuries and 14 negligence of the Defendants which pre -dates the applicable damages period are still relevant for determining Defendants' knowledge, notice, habit, routine, pattern, practice, and absence of mistake. 58. Upon admission to the Facility and during the relevant time period, Mamie L. Chism was dependent upon the staff for her physical, mental, psycho -social, medical, nursing and custodial needs, requiring total assistance with activities of daily living, and she had various illnesses and conditions that required evaluation and treatment. 59. Mamie L. Chism was at risk for future illnesses and injuries, including, falls, infections, dehydration, and severe pain. 60. Defendants engaged in a pattern of care replete with harmful and injurious commissions, omissions and neglect as described herein. 61. Defendants deprived Mamie L. Chism of adequate care, treatment, food, water and medicine and caused her to suffer numerous illnesses and injuries, which included hypovolemia, a delay in obtaining medical treatment leading to a cardiovascular accident, a urinary tract infection positive for Beta Hemolytic Group B, dehydration, abuse from other residents, poor hygiene, severe pain, and ultimately death. 62. The severity of the negligence inflicted upon Mamie L. Chism by the Defendants, accelerated the deterioration of her health and physical condition, and resulted in physical and emotional injuries that caused her severe pain, suffering and mental anguish, together with unnecessary hospitalizations, and death. 63. These injuries, as well as the conduct specified herein, caused Mamie L. Chism to suffer a loss of personal dignity, together with degradation, anguish and emotional trauma. 64. On January 30, 2013, Ms. Chism was noted to have contracted a urinary tract 15 infection positive for Beta Hemolytic Group B. 65. On February 19, 2013, Ms. Chism and her new roommate were in a physical altercation. An LPN found Ms. Chism's wrist being held by her roommate. Ms. Chism was fighting back by scratching roommate's right forearm. 66. On March 21, 2013, Ms. Chism was in a physical altercation with a male resident, who slapped her lightly on the right side of her face. 67. On June 18, 2013, at 6:15 a.m., Ms. Chism was noted with increased confusion, slurred speech, and slight drooping of the mouth on her left side. She was noted to be experiencing mild hypovolemia with lab results of: BUN 42H, Creatine 2.2H, and potassium 5.5H. 68. On June 19, 2013, at 6:09 a.m. Ms. Chism continued to express confusion. By 12:35 p.m., she was noted to be listless, have unclear speech, and glazed eyes. Additionally, dependent edema to her bilateral lower extremities was noted. Her pulse was noted to be 78, blood pressure 147/85, and oxygen saturation 94% on room air. Ms. Chism was transferred to the emergency room for evaluation and treatment. 69. Ms. Chism was admitted to the emergency room with a diagnosis of cardiovascular accident. 70. On June 20, 2013, Ms. Chism was readmitted to the Facility after a 23 hour observation at the hospital. She was lethargic, responded to touch, but would then fall back to sleep. 71. Ms. Chism passed away on July 18, 2013. 72. Defendants accepted Mamie L. Chism as a resident fully aware of her medical history and understood the level of nursing care she required. 16 73. Mamie L. Chism's chart includes and evidences missing and incomplete documentation. 74. The severity of the negligence inflicted upon Mamie L. Chism by the Defendants' mismanagement, improper/under-budgeting, understaffing of the Facility and lack of training or supervision of the Facility's employees, failure to provide adequate and appropriate health care; engaging in incomplete, inconsistent and fraudulent documentation; failure to develop an appropriate care plan; failure to ensure the highest level of physical, mental and psychosocial functioning was attained; failure to provide proper medication; and failure to provide sufficient food and water, causing Mamie L. Chism to suffer hypovolemia, a delay in obtaining medical treatment leading to a cardiovascular accident, a urinary tract infection positive for Beta Hemolytic Group B, dehydration, abuse from other residents, poor hygiene, severe pain, and ultimately death. 75. As a result of the negligence, carelessness and recklessness of the Defendants herein described, Mamie L. Chism was caused to suffer serious and permanent injuries as described herein, to, in and about her body and possible aggravation and/or activation of any pre- existing conditions, illnesses, ailments, or diseases she had, and/or the accelerated deterioration of her health, physical and mental condition, and a loss of the ordinary pleasures of life, a loss of dignity, humiliation, and more particularly, hypovolemia, a delay in obtaining medical treatment leading to a cardiovascular accident, a urinary tract infection positive for Beta Hemolytic Group B, dehydration, abuse from other residents, poor hygiene, severe pain, and ultimately death, along with other body pain and damage, as well as anxiety, reaction and injury to her nerves and nervous system, some or all of which were permanent, together with other medical complications. 17 IV. COUNT ONE Lynette Chism, Executrix for The Estate of Mamie L. Chism, deceased v. Golden Gate National Senior Care, LLC; GGNSC Camp Hill West Shore, LP d/b/a Golden Living Center — West Shore; GGNSC Camp Hill West Shore, GP, LLC; GGNSC Equity Holdings, LLC; GGNSC Holdings, LLC; GGNSC Administrative Services, LLC; GGNSC Clinical Services, LLC; GPH Camp Hill West Shore, LP; and Denise Curry, RVP 76. Plaintiff incorporates herein by reference the preceding paragraphs as though the same were more fully set forth at length herein. 77. Upon accepting Mamie L. Chism as a resident at the Facility, Defendants individually and jointly assumed direct, non -delegable duties to Mamie L. Chism to provide her with adequate and appropriate healthcare, as well as basic custodial and hygiene services, as set forth herein. 78. If Defendants were unable or unwilling to meet the needs of Mamie L. Chism, they had an affirmative duty and legal obligation to discharge Mamie L. Chism from the Facility. 79. Defendants had the ultimate responsibility of ensuring that the rights of the residents, including Mamie L. Chism, were protected. 80. Defendants owed a non -delegable duty to provide adequate and appropriate medical, skilled nursing, rehabilitation, therapy and custodial care services and supervision to Mamie L. Chism and other residents, such as reasonable caregivers would provide under similar circumstances. 81. Defendants each owed a non -delegable duty to the Facility's residents, including Mamie L. Chism, to hire, train, and supervise their employees so as to ensure that the Facility was operated and services were provided to Defendants' residents in a safe and reasonable manner. 82. Defendants, by and through their agents, employees, and/or servants each owed a 18 duty of care to Mamie L. Chism to exercise the appropriate skill and care of licensed physicians, nurses, nurse aides, directors of nursing, and/or nursing home administrators. 83. Defendants each owed a duty and responsibility to furnish Mamie L. Chism with appropriate and competent medical, skilled nursing, rehabilitation, therapy and custodial care services. 84. Defendants each owed and failed to fulfill the following duties to Mamie L. Chism: the duty to use reasonable care in the maintenance of safe and adequate facilities and equipment; to select, train and retain only competent staff; to oversee and supervise all persons who practiced nursing, medical and/or skilled healthcare within the Facility; to staff the facility with personnel sufficient both in number and in training to provide the care and services required by the Facility's residents; to ensure that the Facility's residents were treated with dignity and respect; to maintain sufficient funding, staffing and resources for the Facility so that its residents were provided with the care and services they required; to formulate, adopt, and enforce rules, procedures and policies to ensure quality care and healthcare for all residents, and to update the same as required by the applicable standards of care; to take adequate measures to rectify known problems in the delivery of hygiene and custodial services as well as in the delivery of medical, skilled nursing, rehabilitation, and therapy care; to warn residents, their family and/or representatives of the Defendants' inability to provide adequate care and services when Defendants knew or should have known of their deficiencies in providing such care and services; to refuse admission to residents to whom they knew or should have known they could not provide reasonable care and services; to not admit more residents than to whom Defendants could safely provide adequate care and services; to keep the Facility's residents free from physical and mental abuse and neglect; to provide a safe, decent and clean living environment for 19 the Facility's residents; and to assist the residents in retaining and exercising all of the Constitutional, civil and legal rights to which they are entitled as citizens of the United States and of the Commonwealth of Pennsylvania. 85. In addition to the direct acts and omissions of the corporate Defendants, the Defendants also acted 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. 86. Defendants each authored, produced and/or received frequent reportsdetailing the number and types of injuries, illnesses, and infections sustained by Mamie L. Chism and the residents in the Facility. 87. 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 Mamie L. Chism, Defendants failed to take steps to prevent the occurrence of said injuries, illnesses, and/or infections. 88. The Defendants knew, or should have known, of the aforementioned problems that were occurring with the care of Mamie L. Chism, as they were placed on actual and/or constructive notice of said problems, through Defendants' own reports and through governmental/state surveys. 89. Defendants, as the corporate members, managers, owners, and/or directors of the Facility, breached their duties and were, therefore, negligent, careless and reckless in their obligations to Mamie L. Chism. 90. The corporate conduct of the Defendants was independent of the negligent conduct of the employees of the Facility, and was outrageous, willful, and wanton, and exhibited 20 a reckless indifference to the health and well-being of the residents, including Mamie L. Chism. 91. The breaches of duties, general negligence, professional negligence, corporate negligence, carelessness and recklessness of the Defendants, individually, vicariously and/or acting by and through their officers, directors, members, managers, physicians, physicians' assistants, nurses, nurses aides, regional and corporate staff who examined, treated and/or communicated the condition of Mamie L. Chism, 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 the Defendants were exhibited in the following acts and omissions in the care and treatment of Mamie L. Chism: a. failure to hire, utilize, train and retain sufficient staff to meet the residents' needs, including those of Mamie L. Chism, which caused Mamie L. Chism to suffer hypovolemia, a delay in obtaining medical treatment leading to a cardiovascular accident, a urinary tract infection positive for Beta Hemolytic Group B, dehydration, abuse from other residents, poor hygiene, severe pain, and ultimately death; b. failure to provide adequate hygiene to prevent infection, to keep Mamie L. Chism clean and to preserve her dignity; c. failure to develop, implement and administer to Mamie L. Chism appropriate infection control policies, procedures and techniques; d. failure to ensure that Mamie L. Chism did not needlessly suffer from preventable and treatable pain; e. failure to ensure that Mamie L. Chism received her physician -ordered medications in accordance with her physicians' orders; f. failure to ensure that Mamie L. Chism received her physician -ordered treatments in accordance with her physicians' orders; g. failure to timely and appropriately notify Mamie L. Chism's physician(s) and consulting specialists when she experienced significant changes in her condition, contributing to Mamie L. Chism's injuries and illnesses, including hypovolemia, a delay in obtaining medical treatment leading to a cardiovascular accident, a 21 urinary tract infection positive for Beta Hemolytic Group B, dehydration, abuse from other residents, poor hygiene, severe pain, and ultimately death; h. failure to obtain new or modified physician orders when Mamie L. Chism's changes in condition required the same; failure to timely and appropriately notify Mamie L. Chism's family and personal representatives when she experienced significant changes in her condition, contributing to Mamie L. Chism's injuries and illnesses, including hypovolemia, a delay in obtaining medical treatment leading to a cardiovascular accident, a urinary tract infection positive for Beta Hemolytic Group B, dehydration, abuse from other residents, poor hygiene, severe pain, and ultimately death; j. failure to provide adequate and appropriate nutrition and hydration to prevent Mamie L. Chism from suffering from weight loss and malnutrition; k. failure to accurately and consistently document Mamie L. Chism's needs and the care and services provided to her in response to such needs; 1. failure to prevent fraudulent documentation and allowing the Defendants' staff to chart that they provided care to Mamie L. Chism on non-existent days, on days when the charting staff member was not actually at work, and/or on days when Mamie L. Chism was not even in Defendants' Facility; m. failure to ensure that Mamie L. Chism did not develop serious and permanent injuries to, in and about her body and possible aggravation and/or activation of any pre-existing conditions, illnesses, ailments, or diseases she had, and/or accelerated the deterioration of her health, physical and mental condition, and more particularly, when she suffered hypovolemia, a delay in obtaining medical treatment leading to a cardiovascular accident, a urinary tract infection positive for Beta Hemolytic Group B, dehydration, abuse from other residents, poor hygiene, severe pain, and ultimately death; n. failure to respond in a timely manner with appropriate medical, nursing and custodial care when Mamie L. Chism was injured, including when she experienced hypovolemia, a delay in obtaining medical treatment leading to a cardiovascular accident, a urinary tract infection positive for Beta Hemolytic Group B, dehydration, abuse from other residents, poor hygiene, severe pain, and ultimately death, when Defendants knew or should have known that Mamie L. Chism was at risk for the same; o. failure to ensure that each resident, including Mamie L. Chism, 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; 22 P. q. failure to ensure that the Defendants used the results of its assessments to develop, review and revise Mamie L. Chism's comprehensive plan of care, failure to develop, implement and administer to Mamie L. Chism an appropriate, comprehensive and individualized care plan that included measurable objectives and timetables to meet her medical, nursing, custodial, mental and psychosocial needs that are identified in the comprehensive assessment, describing the services that were to be furnished to attain or maintain her highest practicable physical, mental, and psychosocial well-being, causing Mamie L. Chism to suffer hypovolemia, a delay in obtaining medical treatment leading to a cardiovascular accident, a urinary tract infection positive for Beta Hemolytic Group B, dehydration, abuse from other residents, poor hygiene, severe pain, and ultimately death; r. failure to ensure that the Facility had sufficient nursing staff to provide nursing and custodial care and services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident, including Mamie L. Chism, as determined by the residents' assessments and individual plans of care, and the failure to provide services by sufficient number of each of the required types of personnel on a twenty-four hour basis to provide nursing care to all residents, including Mamie L. Chism, in accordance with the residents' care plans; s. 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, mental, and psychosocial well-being of each resident; t. 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; u. failure to oversee and supervise all persons who practiced nursing and/or skilled healthcare in the Facility who failed to provide adequate and appropriate health care to prevent Mamie L. Chism from suffering from hypovolemia, a delay in obtaining medical treatment leading to a cardiovascular accident, a urinary tract infection positive for Beta Hemolytic Group B, dehydration, abuse from other residents, poor hygiene, severe pain, and ultimately death; v. failure to formulate, adopt and enforce adequate rules, procedures and policies to prevent Mamie L. Chism from suffering hypovolemia, a delay in obtaining medical treatment leading to a cardiovascular accident, a urinary tract infection positive for Beta Hemolytic Group B, dehydration, abuse from other residents, poor hygiene, severe pain, and ultimately death; w. failure to refer Mamie L. Chism to the necessary medical specialists in a timely manner who would have properly diagnosed and/or treated her condition; 23 x. failure to provide Mamie L. Chism with the necessary care and services to allow her to attain or maintain the highest practicable physical, mental and psychological well-being; y. failure to implement a budget that properly funded the Facility and allowed the Facility to provide adequate and appropriate healthcare to Mamie L. Chism, including adequate staff and supplies; z. grossly understaffing the Facility; aa. failure to take appropriate steps to remedy continuing problems at the Facility that Defendants knew were occurring with Mamie L. Chism's care, 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 care; bb. failure to maintain compliance with the governmental regulations to which Defendants' delivery of care is compared as part of the annual and complaint state survey process performed by the Pennsylvania Department of Health; and, cc. in committing the acts and omissions herein, acting in a grossly negligent manner, with reckless indifference to the rights and safety of Mamie L. Chism. 92. Upon information and belief, Defendants' owners, officers, directors, partners, members and managers were made aware of governmental/state survey results and placed on notice of the status of their nursing homes, including the Facility. 93. Upon information and belief, the Defendants, including their owners, officers, directors, partners, members, managers and employees, knew that they had been cited by governmental units regarding Golden Living Center - Westshore on October 21, 2010 for failure to implement its abuse prevention policies, failure to ensure that call bells were accessible, failure to ensure that residents received the appropriate treatment and services; on January 12, 2011 for failure to notify residents' legal representative of an incident which resulted in an injury, failure to follow their reporting policies for injuries of unknown source; on January 20, 2011 for failure to provide a safe environment; on February 1, 2011 for failure to provide adequate 24 supervision and oversight in a manner that ensured the safety of the residents in the facility; on March 3, 2011 for failure to ensure that residents were free from any significant medication errors; on May 27, 2011 for failure to ensure that clinical records were complete and accurate; on September 29, 2011 for failure to provide timely and necessary care and services, failure to ensure that residents received adequate supervision to prevent accidents and that the environment remained as free from accident hazards as possible, failure to accurately complete the assessment; on March 30, 2012 for failure to coordinate the necessary care and services in a timely manner; on October 26, 2012 for failure to provide a sanitary environment for the residents, staff, and the public, failure to maintain an effective pest control program to ensure the facility is free of pests, failure to notify the physician of changes in condition, failure to update the care plan to reflect the needs and interventions for residents, failure to follow physicians orders, failure to maintain accurate clinical records; on December 28, 2012 for failure to provide adequate notice prior to a room change, failure to implement physician recommendations in timely manner; on April 2, 2013 for failure to notify the physician of a resident's change in condition, failure to assess and implement interventions in response to a change in condition, failure to accurately and completely document a change in status; and on May 15, 2013 for failure to provide adequate supervision to prevent accidents, failure to maintain an Infection Control Program designed to provide a sanitary environment, failure to maintain accurate clinical records in accordance with accepted professional standards, failure to maintain an effective pest control program, failure to maintain a sanitary environment for residents, staff and the public, failure to fully inform in advance about care and treatments that may affect the resident's well- being, failure to promote care for residents that enhances their dignity, failure to develop a comprehensive care plan. 25 94. As a direct and proximate result of the Defendants' acts and omissions, and their breach of the duty of care, negligence, carelessness and recklessness, Mamie L. Chism suffered (a) severe permanent physical injuries resulting in pain, suffering, disfigurement and death, (b) mental anguish, embarrassment, humiliation, degradation, emotional distress, and loss of personal dignity, (c) loss of capacity for enjoyment of life, and (d) expense of otherwise unnecessary hospitalizations and medical care. 95. In causing the aforementioned injuries, the Defendants knew, or should have known, that Mamie L. Chism would suffer such harm. 96. At all times pertinent hereto, there was in full force and effect 18 Pa.C.S.A. §2713 "Neglect of Care Dependent Person," which set forth penal consequences for neglect of a care - dependent person. 97. 18 Pa.C.S.A. §2713 "Neglect of Care 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. 98. At all times pertinent hereto, Mamie L. Chism was a care dependent resident of the Defendants' Facility, Golden Living Center - Westshore, 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. 99. 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 Mamie L. Chism sustained. 26 100. The Defendants, in accepting the responsibility for caring for Mamie L. Chism as aforesaid, were negligent "per se" and violated 18 Pa.C.S.A. §2713 "Neglect of Care Dependent Person" in that they: a. failed to provide treatment, care, goods and services necessary to preserve the health, safety or welfare of Mamie L. Chism for whom they were responsible to provide care as specifically set forth in this Complaint; 101. 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 care -dependent person. 102. 35 P.S. §10225.102, expresses the policy of the Commonwealth of Pennsylvania that: ...older adults who lack the capacity to protect themselves and are 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 welfare. 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. 103. At all times pertinent hereto, Mamie L. Chism was an older person who was a resident of Defendants' Facility, Golden Living Center - Westshore, 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 Plaintiff to adopt 35 P.S. §10225.101, et seq. as the standard of care for measuring the Defendants' conduct. 104. Additionally, the Pennsylvania Older Adults Protective Services Act is directed, at least in part, to obviate the specific kind of harm which Mamie L. Chism sustained. 27 105. In addition to the aforesaid negligence, which said negligence is specifically incorporated herein, the Defendants, in accepting the responsibility for caring for Mamie L. Chism as aforesaid, were negligent "per se" and violated 35 P.S. §10225.101, et seq. in that they had reasonable cause to suspect that Mamie L. Chism was the victim of abuse or neglect and failed to report said abuse and neglect to the appropriate agency and law enforcement officials. 106. As a direct result of the aforesaid negligence "per se" of the Defendants, Mamie L. Chism was caused to sustain serious personal injuries and damages as aforesaid. 107. The conduct of the Defendants was intentional, outrageous, willful and wanton, and exhibited a reckless indifference to the health and well-being of Mamie L. Chism. 108. The conduct of the Defendants was such that an award of punitive damages is justified. WHEREFORE, Plaintiff, Lynette Chism, Executrix for the Estate of Mamie L. Chism, deceased, respectfully requests that judgment be entered in her favor, and against 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 relief that this Honorable Court deems appropriate given the circumstances. A jury trial is demanded. V. COUNT TWO Lynette Chism, Executrix for The Estate of Mamie L. Chism, deceased v. Golden Gate National Senior Care, LLC; GGNSC Camp Hill West Shore, LP d/b/a Golden Living Center — West Shore; GGNSC Camp Hill West Shore, GP, LLC; GGNSC Equity Holdings, LLC; GGNSC Holdings, LLC; GGNSC Administrative Services, LLC; GGNSC Clinical Services, LLC; GPH Camp Hill West Shore, LP; and Denise Curry, RVP 109. Plaintiff hereby incorporates by reference the preceding paragraphs as though the same were more fully set forth at length herein. 110. Plaintiff, Lynette Chism, brings this action on behalf of the decedent's estate 28 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. 111. The following persons are entitled to share under this cause of action in the estate of said decedent, Mamie L. Chism: Lynette Chism, daughter; Dennis Chism, son; Adolph Chism, son, Charles Venable, son, Rosemary V. Banks, daughter, Leroy Venable, son, Barbara Ann (Venable) Mazo, daughter, and Frederick Barns, son. 112. Plaintiff's decedent, Mamie L. Chism, did not bring any action during her lifetime, nor has any other action been commenced on behalf of Plaintiff's decedent, Mamie L. Chism, against the Defendants herein. 113. Plaintiff, Lynette Chism, claims damages for the conscious pain and suffering including mental and physical pain, suffering and inconvenience, loss of life's pleasures and aggravation of pre-existing medical conditions, and expense of otherwise unnecessary hospitalizations undergone by Mamie L. Chism, up to and including the time of her death, which was caused by the Defendants' breach of duties, negligence, carelessness and recklessness. 114. Plaintiff, Lynette Chism, claims damages for the fright and mental suffering attributable to the peril leading to the physical manifestation of mental injuries, physical injuries, hypovolemia, a delay in obtaining medical treatment leading to a cardiovascular accident, a urinary tract infection positive for Beta Hemolytic Group B, dehydration, abuse from other residents, poor hygiene, severe pain, and ultimately death occurring to Mamie L. Chism, which was caused by the Defendants' breaches of duties, negligence, carelessness and recklessness. 115. In causing the aforementioned injuries, the Defendants knew, or should have known, that Mamie L. Chism would suffer such harm. 116. The conduct of the Defendants was intentional, outrageous, willful and wanton 29 and exhibited a reckless indifference to the health and well-being of Mamie L. Chism. 117. The conduct of the Defendants was such that an award of punitive damages is justified. WHEREFORE, Plaintiff, Lynette Chism, Executrix for the Estate of Mamie L. Chism, deceased, respectfully requests that judgment be entered in her favor, and against 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 relief that this Honorable Court deems appropriate given the circumstances. A jury trial is demanded. VI. COUNT THREE Lynette Chism, Executrix for The Estate of Mamie L. Chism, deceased v. Golden Gate National Senior Care, LLC; GGNSC Camp Hill West Shore, LP d/b/a Golden Living Center — West Shore; GGNSC Camp Hill West Shore, GP, LLC; GGNSC Equity Holdings, LLC; GGNSC Holdings, LLC; GGNSC Administrative Services, LLC; GGNSC Clinical Services, LLC; GPH Camp Hill West Shore, LP; and Denise Curry, RVP 118. Plaintiff hereby incorporates by reference the preceding paragraphs as though the same were fully set forth at length herein. 119. Plaintiff, Lynette Chism, bring this action on behalf of the decedent's estate under and by virtue of the Pennsylvania Judiciary Act 42 Pa.C.S. 8301, known as the Wrongful Death Statute, to recover all damages legally appropriate thereunder. 120. The following persons are entitled to share under this cause of action in the estate of said decedent, Mamie L. Chism: Lynette Chism, daughter; Barbara Ann (Venable) Mazo, daughter; Frederick Barns, son; Charles S. Venable, son; Rose Banks, daughter; LeRoy Venable, son; Dennis Chism, son, and Ralph Chism, son. 121. Plaintiffs decedent, Mamie L. Chism, did not bring any action during her lifetime, nor has any other action been commenced on behalf of Mamie L. Chism, deceased, 30 against the Defendants herein. 122. Plaintiff, Lynette Chism, claims damages for the pecuniary loss suffered by the decedent's survivors by reason of the death of Mamie L. Chism, deceased, as well as for the reimbursement of hospital, nursing, medical, and funeral expenses, and expenses of administration and other expenses incurred in connection therewith. 123. As a result of the death of Mamie L. Chism, deceased, the survivors, as aforesaid, have been deprived of the companionship, comfort, aid, assistance and society that she would have received from said Mamie L. Chism, deceased, for the remainder of her natural life. WHEREFORE, Plaintiff, Lynette Chism, Executrix for the Estate of Mamie L. Chism, deceased, respectfully requests that judgment be entered in her favor, and against 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 relief that this Honorable Court deems appropriate given the circumstances. A jury trial is demanded. Respectfully Submitted, Dated: 20Z/ BY: Andrei Govorov, Esquire Attorney for Plaintiff, Lynette Chism, Executrix for the Estate of Mamie L. Chism, deceased WILKES & McHUGH, P.A. 31 VERIFICATION The undersigned, having read the attached pleading, verifies that the within pleading is based on information furnished to counsel, which information has been gathered by counsel in the course of this lawsuit. The language of the pleading is that of counsel and not of signer. Signer verifies that signer has read the within pleading and that it is true and correct to the best of signer's knowledge, information and belief. To the extent that the contents of the pleading 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. DATE: December 15, 2014 Lynette Chism, as Executrix for the Estate of Mamie L. Chism, deceased CERTIFICATE OF SERVICE I, Andrei Govorov, attorney for Plaintiff, hereby certify that a true and correct copy of foregoing Complaint in Civil Action and Notice of Defend was served via first class mail upon defense counsel for defendant on this date: Jacqueline M. Carolan, Esquire Fox Rothschild LLP 2000 Market Street, 12th Floor Philadelphia, PA 19103 (Attorney for Defendants) Wilkes & McHugh, P.A. Andrei Govorov, Esquire Attorney for Plaintiff FOX ROTHSCHILD LLP BY: Jacqueline M. Carolan Eric E. Reed Scott C. Oberlander IDENTIFICATION NO(S). 52576, 204692, 311750 2000 MARKET STREET, TWENTIETH FLOOR PHILADELPHIA, PA 19103-3222 LYNETTE CHISM, as Executrix for the Estate of MAMIE L. CHISM, deceased, Plaintiff, v. GOLDEN GATE NATIONAL SENIOR CARE, LLC; GGNSC CAMP HILL WEST SHORE, LP d/b/a GOLDEN LIVING CENTER — WEST SHORE; GGNSC CAMP HILL WEST SHORE GP, LLC; GGNSC EQUITY HOLDINGS, LLC; GGNSC HOLDINGS, LLC; GGNSC ADMINISTRATIVE SERVICES, LLC; GGNSC CLINICAL SERVICES, LLC; GPH CAMP HILL WEST SHORE, LP; and DENISE CURRY, RVP, Defendants. TO: LYNETTE CHISM do Andrei Govorov, Esquire Wilkes & McHugh, P.A. 1601 Cherry Street, Suite 1300 Philadelphia, PA 19102 I "Li) • Attorneys for Defendants 2i1!5 41.!'li 6 Pi; 2: 56 : COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PA : CIVIL ACTION : NO. 14-4644 NOTICE TO PLEAD YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED PRELIMINARY OBJECTIONS WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. Dated: January 15, 2015 ocr— JACQUELINE M. CAROLAN, ESQUIRE ERIC E. REED, ESQUIRE SCOTT C. OBERLANDER, ESQUIRE 2000 Market Street, 20th Floor Philadelphia, PA 19103 (215) 299-2863 Attorneys for Defendants 2 FOX ROTHSCHILD LLP BY: Jacqueline M. Carolan Eric E. Reed Scott C. Oberlander IDENTIFICATION NO(S). 52576, 204692, 311750 2000 MARKET STREET, TWENTIETH FLOOR PHILADELPHIA, PA 19103-3222 Attorneys for Defendants LYNETTE CHISM, as Executrix for the Estate of : COURT OF COMMON PLEAS OF MAMIE L. CHISM, deceased, : CUMBERLAND COUNTY, PA Plaintiff, : CIVIL ACTION v. : NO. 14-4644 GOLDEN GATE NATIONAL SENIOR CARE, LLC; GGNSC CAMP HILL WEST SHORE, LP d/b/a GOLDEN LIVING CENTER — WEST SHORE; GGNSC CAMP HILL WEST SHORE GP, LLC; GGNSC EQUITY HOLDINGS, LLC; GGNSC HOLDINGS, LLC; GGNSC ADMINISTRATIVE SERVICES, LLC; GGNSC CLINICAL SERVICES, LLC; GPH CAMP HILL WEST SHORE, LP; and DENISE CURRY, RVP, Defendants. DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT Defendants' state the following for their Preliminary Objections to the Complaint of Plaintiff, Lynette Chism, as Executrix for the Estate of Mamie L. Chism, deceased (collectively, "Plaintiff'): 1. Plaintiff commenced this lawsuit by Writ of Summons on or about August 5, 2014. 2. Plaintiff then filed a Complaint on December 24, 2014. See Complaint, a true and correct copy of which is attached hereto as Exhibit "A". The Complaint was served on Defendants on December 29, 2014. ' Defendants are Golden Gate National Senior Care, LLC; GGNSC Camp Hill West Shore, LP d/b/a Golden Living Center — West Shore; GGNSC Camp Hill West Shore GP, LLC; GGNSC Equity Holdings, LLC; GGNSC Holdings, LLC; GGNSC Administrative Services, LLC; GGNSC Clinical Services, LLC; GPH Camp Hill West Shore, LP; and Denise Curry, RVP. 3. Plaintiffs Complaint alleges claims sounding in professional negligence (Count I); Pennsylvania's Survival Statute, 42 Pa.C.S. § 8302 (to assert that Mamie L. Chism's eight children are entitled to share under the cause of action) (Count II); and Pennsylvania's Wrongful Death Statute, 42 Pa.C.S. § 8301 (also asserting that Mamie L. Chism's eight children are entitled to share under the cause of action) (Count III). 4. Plaintiff, through Lynette Chism2, alleges that Mamie L. Chism suffered various injuries while a resident at the Golden Living Center — West Shore Facility (the "Facility"). 5. Mamie L. Chism was a resident at the Facility from August 27, 2010 until her death on July 18, 2013. See id. at ¶ 1; Alternative Dispute Resolution Agreement, a true and correct copy of which is attached as Exhibit "B." Preliminary Objection in the Nature of a Motion to Compel Mediation and/or Arbitration Pursuant to Pa.R.C.P. 1028(A)(6) 6. Defendants incorporate by reference the statements contained in the preceding paragraphs as though fully set forth herein. 7. Preliminary objections may be properly based on "pendency of a prior action or agreement for alternative dispute resolution." See Pa.R.C.P. 1028(a)(6). 8. Upon Mamie L. Chism's admission to the Facility on August 27, 2010, her son, Ralph Chism, entered into a valid Alternative Dispute Resolution Agreement (hereinafter referred to as the "ADR Agreement") with the Facility. See Exhibit "B". Under the ADR Agreement, Plaintiff agreed to submit the present matter to mediation and/or arbitration. See id. 9. The ADR Agreement explicitly states that its terms would be governed by and interpreted under the Federal Arbitration Act, 9 U.S.C. §§ 1-16 ("FAA"). See id. Pennsylvania Law Favors Arbitration Agreements 2 Lynette Chism is Mamie L. Chism's daughter and Executrix for Mamie L. Chism's Estate. See Exhibit "A" at in 2-3. 2 10. The FAA establishes "a liberal policy of requiring arbitration agreements." See Moses H Cone Mem'l Hosp. v. Mercury Const. Corp., 460 U.S. 1, 24 (1983). A written agreement to arbitrate "shall be valid, irrevocable, and enforceable" per the FAA "save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. § 2. 11. The United States Supreme Court mandated that both state and federal courts must enforce the FAA with respect to all arbitration agreements covered by that statute and enforce the bargain of the parties to arbitrate. Marmet Health Care Center, Inc. v. Brown, 132 S.Ct. 1201 (2012) (internal citation omitted). 12. The FAA includes no exception for personal injury or wrongful death claims. Id. To the contrary, in Marmet, the Supreme Court invalidated schemes that operate against the enforcement of pre -dispute arbitration agreements in the nursing home context. 13. Pennsylvania's policy toward arbitration is consistent with federal policy. It is well- settled that Pennsylvania courts favor settlement of disputes through arbitration because it serves to promote the swift and orderly disposition of claims. Midomo Co., Inc. v. Presbyterian Hous. Dev. Co., 739 A.2d 188, 190 (Pa. Super. 1999); Hazleton Area School Dist. v. Bosak, 671 A.2d 277, 282 (Pa. Cmwlth. 1996). 14. Consistent with the FAA, Pennsylvania law requires enforcement of arbitration provisions as written, "permitting such provisions to be set aside only for generally recognized contract defenses such as duress, illegality, fraud, and unconscionability." Gaffer Ins. Co., Ltd. v. Discover Reinsurance Co., 936 A.2d 1109, 1114 (Pa. Super. 2007) (internal citation omitted). 15. Where a party to a civil action seeks to compel arbitration, a court must first determine if a valid agreement to arbitrate exists between the parties. Warwick Township Water and 3 Sewer Auth. v. Boucher & James, Inc., 851 A.2d 953, 955 (Pa. Super. 2004), app. den., 583 Pa. 696, 879 A.2d 783 (2005). 16. Generally, arbitration agreements can be set aside only for recognized contractual defenses such as duress, illegality, fraud and unconscionability. Lytle v. CitiFinancial Servs., Inc., 810 A.2d 643, 656 (Pa. Super. 2002). 17. In. cases such as this where a valid alternative dispute resolution agreement exists, any further review of the agreement by the court is limited to determining whether the dispute at issue falls within the scope of the agreement Nationwide Ins. Enterprise v. Moustakidis, 830 A.2d 1288, 1291 (Pa. Super. 2003). 18. The scope of the ADR Agreement in this case is determined by the intentions of the parties, which is ascertained by the words set forth in the agreement. Id. 19. Where parties in a nursing home negligence case have entered into a valid arbitration agreement that is not void due to frustration of purpose, unconscionability, public policy, or lack of valid consideration, the parties should be compelled to arbitrate their claims. Cramer v. Manor Care of Lancaster, No. CI -11-08592 (CCP Lancaster, February 21, 2012), a true and correct copy of which is attached hereto as Exhibit "C". 20. Courts such as this Court routinely reject arguments that pre -dispute arbitration agreements in the nursing home context are void for frustration of purpose, unconscionability, public policy, or lack of valid consideration. See Fleagle v. Manor Care of Camp Hill PA, LLC d/b/a Manorcare Health Servs., et al., No. 12-0828 (CCP Cumberland Nov. 22, 2013) (rejecting the plaintiff's arguments that the signed arbitration agreement should not be enforced and submitting the case to arbitration, pursuant to the valid alternative dispute resolution agreement), a true and correct copy of which is attached hereto as Exhibit "D"; Cormany v. HCR Manorcare, LLC, et al., No. 13- 4 5381 (CCP Cumberland May 22, 2014) (same), a true and correct copy of which is attached hereto as Exhibit "E". The ADR Agreement is Valid and Enforceable and Precludes this Matter from being Adjudicated Before this Court 21. Ralph Chism, acting as Mamie L. Chism's agent, entered into a valid ADR Agreement on Mamie L. Chism behalf upon her admission to the Facility. See Exhibit "B". 22. Ralph Chism had apparent authority to transact Mamie L. Chism's business and manage her property and affairs, as if Mamie L. Chism were present. See Chighizola v. Beverly Enterprises Inc., 79 Pa. D. & C. 4th 416 (2006) (finding that a daughter had apparent authority to execute an arbitration agreement on her mother's behalf upon her mother's admission to a nursing care facility), a true and correct copy of which is attached hereto as Exhibit "F". 23. In accordance with the terms of the ADR Agreement, Ralph Chism, on behalf of Mamie L. Chism, agreed that any dispute arising out of or in any way relating to the ADR Agreement or to Mamie L. Chism's stay at the Facility, which would constitute a legally cognizable cause of action in a court of law, "shall be resolved exclusively by an ADR process that shall include mediation and, where mediation is not successful, binding arbitration." See Exhibit "B" (emphasis added). 24. In addition, the ADR Agreement provides, in capital and bolded letters, that "THE PARTIES UNDERSTAND, ACKNOWLEDGE, AND AGREE THAT THEY ARE SELECTING A METHOD OF RESOLVING DISPUTES WITHOUT RESORTING TO LAWSUITS OR THE COURTS, AND THAT BY ENTERING INTO THIS AGREEMENT, THEY ARE GIVING UP THEIR CONSTITUTIONAL RIGHT TO HAVE THEIR DISPUTES DECIDED IN A COURT OF LAW BY A JUDGE OR JURY...." Id. 25. By signing the ADR Agreement, Ralph Chism agreed that the Agreement to mediate and/or arbitrate includes, but is not limited to, any claim for "negligence; gross negligence; malpractice; and any alleged departure from any applicable federal, state, or local medical, health care, consumer or safety standards...." Id. 26. The ADR Agreement also sets forth the parties' further agreement that the "speed, efficiency, and cost-effectiveness of the ADR process, together with their mutual undertaking to engage in that process, constitute good and sufficient consideration for the acceptance and enforcement..." of the Agreement. Id. 27. The ADR Agreement also provides: The Resident understands that he or she has the right to seek advice of legal counsel concerning this Agreement; that his or her signing of this Agreement is not a condition of admission to or residence in the Facility; that he or she may revoke this Agreement by sending written notice to the Facility within thirty (30) days of signing it; and that this Agreement, if not revoked within that time frame, shall remain in effect for all care and services rendered to the Resident at or by the Facility regardless of whether the Resident is subsequently discharged and readmitted to the Facility without renewing, ratifying, or acknowledging this Agreement. Id. 28. The Agreement also explicitly states that its terms would be "governed by and interpreted under the Federal Arbitration Act ("FAA"), 9 U.S.C. Sections 1-16." Id. 29. By signing the ADR Agreement, Ralph Chism, as agent for Mamie L. Chism, acknowledged that he understood its contents and accepted its terms, and that his signing of the Agreement was not a precondition to Mamie L. Chism's admission into the Facility. Id. Further, Ralph Chism acknowledged his understanding of his right to seek legal advice concerning the ADR Agreement and his right to rescind the ADR Agreement within thirty (30) days. Id. 6 30. Ralph Chism executed the ADR Agreement during the process of Mamie L. Chism's admission into the Facility as a resident Ralph Chism expressly represented that he understood the Agreement as follows: By my signature, I acknowledge that I have read this Agreement or had it read to me, that I understand what I am signing, and that I accept its terms. [Id.] 31. The ADR Agreement is comprised solely of a four-page document, and it is clearly and unambiguously titled "ALTERNATIVE DISPUTE RESOLUTION AGREEMENT (THIS AGREEMENT IS NOT A CONDITION OF ADMISSION TO OR CONTINUED RESIDENCE IN THE FACILITY)." Id. Similarly, Ralph Chism was informed that he had the right to seek advice of legal counsel concerning the ADR Agreement prior to, and after, signing the document. 32. This Court has decided this exact issue in prior nursing home negligence cases, ordering matters to be submitted to alternative dispute resolution because the parties entered into valid ADR Agreements that were not void due to frustration of purpose, unconscionability, public policy, or lack of valid consideration. See Fleagle, Exhibit "D", Cormany, Exhibit "E". 33. In Cormany and Fleagle, just as in this case, the plaintiffs' agents signed ADR Agreements when the plaintiffs were admitted to the facility. The plaintiffs asserted to this Court that the agreements were unenforceable, void, unconscionable, and/or contracts of adhesion, and that plaintiffs' representatives did not have legal authority to bind the residents to the ADR Agreements. After noting how Pennsylvania favors the settlement of disputes by arbitration, the Court rejected each of the plaintiffs' arguments that the ADR Agreements were invalid and ordered the cases to alternative dispute resolution. Id. 7 34. The situation here is virtually identical to Cormany and Fleagle, as Ralph Chism had authority to sign the ADR Agreement, the ADR Agreement did not require additional consideration, the ADR Agreement did not create a perpetual term, the ADR Agreement was not unconscionable, and the ADR Agreement was a knowing, voluntary waiver of Plaintiff's right to a jury trial. 35. As in Cormany and Fleagle, the current dispute relating to the care provided to Mamie L. Chism by the Facility falls squarely within the subject matter to be arbitrated under the ADR Agreement. Therefore, this case must be submitted to mediation, and then arbitration if necessary. WHEREFORE, Defendants respectfully request that the Court sustain their Preliminary Objection and order this matter to mediation, and then arbitration if necessary, in accordance with the parties' ADR Agreement. Preliminary Objection in the Nature of a Demurrer 36. Defendants incorporate by reference the statements contained in the preceding paragraphs as though fully set forth herein. 37. Pennsylvania Rule of Civil Procedure 1028(a)(4) permits the filing of preliminary objections in the nature of demurrers for the legal insufficiency of a pleading. 38. In the event that this Honorable Court is not inclined to compel an alternative dispute resolution process in accordance with the valid ADR Agreement entered into by Ralph Chism and the Facility -- though Defendants respectfully submit that this Court should compel such process — Plaintiff's claim for punitive damages should be stricken as a matter of law. Plaintiff's Claims for Punitive Damages Should be Stricken as a Matter of Law 43. In Paragraphs 108 and 117 of the Complaint, and in Plaintiff's claims for relief, Plaintiff asserts that punitive damages are warranted. See Exhibit "A". 8 44. Plaintiff, however, fails to set forth any facts which would support a claim for punitive damages. 45. Pennsylvania law is clear that punitive damages are only recoverable against a Defendant for "conduct that is outrageous...because of the defendant's evil motive or reckless indifference to the rights of others." SHV Coal, Inc. v. Continental Grain Co., 587 A.2d 702 (Pa. 1991). 46. "Punitive damages may not be awarded for misconduct which constitutes ordinary negligence such as inadvertence, mistake and errors of judgment." McDaniel v. Merck, 533 A.2d 436, 444 (Pa. Super. 1997). 47. Likewise, punitive damages are not available for conduct that rises to the level of gross negligence. Slappo v. J's Dev. Assocs., 791 A.2d 409, 417 (Pa. Super 2002). 48. To be entitled to punitive damages, a plaintiff must demonstrate, through specific facts, that a defendant's conduct was "malicious, wanton, reckless or oppressive." Chambers v. Montgomery, 192 A.2d 355, 358 (Pa. 1963). 49. Also, to impose punitive damages against healthcare providers arising out of the actions of its agents, a plaintiff must offer facts to show that the defendants "knew of and allowed" the conduct of its agents that justified the awarding of punitive damages. See 40 P.S. § 1303.505(c), the Medical Care Availability and Reduction of Error Act ("M -Care Act"). 50. In the instant case, Plaintiff has failed to plead any actual facts against Defendants which would indicate that Defendants acted with the intent or the state of mind necessary for Plaintiff to maintain a claim for punitive damages, either under Pennsylvania common law or. pursuant to the guidelines set forth in the aforementioned M -Care Act. 51. As such, Plaintiff's claim for punitive damages should be dismissed, with prejudice. Plaintiffs Claim for Punitive Damages Specifically with Respect to Count III Should be Stricken as a Matter of Law 52. Should the Court deny Defendants' Preliminary Objection to Plaintiff's claims for punitive damages as to the entire cause of action, in the alternative, Plaintiff's claim for punitive damages under Pennsylvania's Wrongful Death Act, 42 Pa.C.S. § 8301 ("the Wrongful Death Act"), must be stricken under Pennsylvania law. 53. In Plaintiff's claim for relief at Count III, where she brings an action under the Wrongful Death Act, Plaintiff asserts a claim for punitive damages. 54. The Wrongful Death Act permits statutory benefits to recover for the pecuniary loss suffered as a result of the decedent's death. Kiser v. Schulte, 648 A.2d 1, 4 (Pa. 1994). 55. In Pennsylvania, however, punitive damages are not permitted in a wrongful death action. Harvey v. Hassinger, 461 A.2d 814, 815 (Pa. Super. 1983). 56. Therefore, should this Court overrule Defendants' Preliminary Objections with respect to punitive damages for the entire Complaint, Plaintiff's claim for punitive damages brought in her wrongful death action must be stricken. WHEREFORE, Defendants respectfully request that the Court sustain their Preliminary Objections and dismiss Plaintiff's claim for punitive damages from this case and award costs and other relief as the Court deems just and fair. PRELIMINARY OBJECTION FOR INSUFFICIENT SPECIFICITY OF THE PLEADINGS AND FAILURE TO CONFORM TO RULE OF COURT 58. Defendants incorporate by reference the statements contained in the preceding paragraphs as though fully set forth herein. 59. Preliminary objections may be properly based upon the "failure of a pleading to conform to law or rule of court ...." Pa.R.C.P. 1028(a)(2). 10 60. One such rule to which a pleading must conform is Pennsylvania Rule of Civil Procedure 1019(a), which requires Plaintiff to plead all material facts upon which a cause of action is based in a concise and summary form. Pa.R.C.P. 1019(a). 61. Similarly, preliminary objections may also be based upon the insufficient specificity of a pleading pursuant to Pa.R.C.P. 1028(a)(3). 62. To comport with the Pennsylvania Rules of Civil Procedure in Pennsylvania law, a Complaint must sufficiently define issues and give notice to a defendant of what the plaintiff intends to prove at trial so that the defendant may, in turn, prepare a defense by meeting such proof with its own evidence. See Estate of Swift v. Ne. Hosp. of Phila., 690 A.2d 719 (Pa. Super. 1997) (noting that the complaint must summarize the essential facts to support the claim); Sevin v. Kelshaw, 611 A.2d 1232 (Pa. Super. 1992) (noting that Pennsylvania is a fact pleading jurisdiction and the complaint must summarize those facts essential to support a claim); Laursen v. Gen. Hosp. of Monroe Cnty., 393 A.2d 761, 766 (Pa. Super. 1978), rev'd on other grounds, 431 A.2d 237 (Pa. 1981); Baker v. Rangos, 324 A.2d 498, 506 (Pa. Super. 1974). 63. In addition to failing to properly apprise an opposing party about which claim(s) the party will be called upon to defend against at trial, generalized pleadings can also serve to thwart the statute of limitations by permitting a plaintiff to assert new causes of action or legal theories at any juncture in the litigation process. See e.g., Conner v. Allegheny Gen. Hosp., 461 A.2d 600 (Pa. 1983). 64. In light of Conner, Pennsylvania law is clear that, whenever a defendant is faced with non-specific allegations of negligence, a defendant must preliminarily object to allegations or risk the plaintiff later introducing new theories of liability "amplifying" the non-specific averments set forth in the original complaint. 11 Plaintiffs Nonspecific Allegations of Negligence Should be Stricken from the Complaint or, Alternatively, Plaintiff should be Required to Amend the Complaint so as to Sufficiently Apprise Defendants of the Precise Allegations Against Them 65. In this case, the allegations set forth in paragraphs 40, 42, 43, 46, 47, 49, and 91 (s), (t), (z), and (bb) of Plaintiff's Complaint fail to apprise Defendants of the precise allegations being leveled against them related specifically to Plaintiff as required by Pennsylvania Rules of Civil Procedure 1019 and 1028. These allegations are general in nature and/or are repetitive of the specific allegations raised in the Complaint. 66. Further, paragraphs 35, 37-39, 41, 44, 45, 48, 79, 81, 87, 90, and 91 (r) of the Complaint allege that certain of Defendants made business and other decisions that interfered with the care provided to residents "such as" or "including" Plaintiff and negligently disregarded the health and safety of the residents. 67. Plaintiff, however, does not explain how Mamie L. Chism's care was specifically affected by these corporate actions, the specific regulations that were allegedly violated, or the specific facts supporting Plaintiff's assertion that the business decisions that certain of Defendants made affected Mamie L. Chism. 68. In this case, Plaintiff's references to nondescript "residents" and use of phrases "including," "including but not limited to," and "such as," fail to provide Defendants with sufficient notice of the precise claims being leveled against them and the precise subject matter of those claims. 69. Instead, each of the pleadings listed above impermissibly permits Plaintiff to present other currently unstated averments in support of her claims at any juncture in the litigation process. 70. While pleadings must not strictly adhere to formalistic goals, Pennsylvania law continues to require that plaintiffs fully apprise defendants of the full nature and extent of plaintiffs' 12 claims. Cicero v. Cominski, 25 D. & C. 4th 422, 424 (C.P. Luzerne 1995) (quoting Laursen v. Gen. Hosp. of Monroe Cnty., 393 A.2d 751 (Pa. Super. 1978)). 71. As properly recognized under Pennsylvania law, pleadings serve the function of defining issues and giving notice to the opposing party of the issues they plan to present at trial so the opposition may, in turn, prepare to meet such proof with its own evidence. Cicero, 25 D. & C. 4th at 424. 72. In this case, the open-ended and non-specific averments set forth in Plaintiff's Complaint fail to provide Defendants with sufficient notice of all the facts they will be required to address at trial. Moreover, the general nature of the averments is sufficiently open-ended and impermissibly permits Plaintiff to later alter and/or expand her theories of liability against Defendants. WHEREFORE, Defendants respectfully request that the Court sustain their Preliminary Objections and that paragraphs 35, 37-49, 79, 81, 87, 90, and 91 (r), (s), (t), (z), and (bb) of Plaintiffs Complaint be stricken or, alternatively, that Plaintiff be required to amend the Complaint so as to clearly articulate the facts upon which her claims are based. 13 Conclusion/Relief Sought For the foregoing reasons, Defendants respectfully request that this Court sustain their Preliminary Objections. Dated: January 15, 2015 Respectfully submitted, FOX ROTHSCHILD LLP JACQUELINE M. CAROLAN, ESQUIRE ERIC E. REED, ESQUIRE SCOTT C. OBERLANDER, ESQUIRE 2000 Market Street, 20th Floor Philadelphia, PA 19103 (215) 299-2863 Attorneys for. Defendants 14 FOX ROTHSCHILD LLP BY: Jacqueline M. Carolan Eric E. Reed Scott C. Oberlander IDENTIFICATION NO(S). 52576, 204692, 311750 2000 MARKET STREET, TWENTIETH FLOOR PHILADELPHIA, PA 19103-3222 Attorneys for Defendants LYNETTE CHISM, as Executrix for the Estate of : COURT OF COMMON PLEAS OF MAMIE L. CHISM, deceased, : CUMBERLAND COUNTY, PA Plaintiff, : CIVIL ACTION v. : NO. 14-4644 GOLDEN GATE NATIONAL SENIOR CARE, LLC; GGNSC CAMP HILL WEST SHORE, LP d/b/a GOLDEN LIVING CENTER — WEST SHORE; GGNSC CAMP HILL WEST SHORE GP, LLC; GGNSC EQUITY HOLDINGS, LLC; GGNSC HOLDINGS, LLC; GGNSC ADMINISTRATIVE SERVICES, LLC; GGNSC CLINICAL SERVICES, LLC; GPH CAMP HILL WEST SHORE, LP; and DENISE CURRY, RVP, Defendants. MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT I. MATTER BEFORE THE COURT Defendants' file the within brief in support of Defendants' Preliminary Objections to the Complaint of Plaintiff, Lynette Chism, as Executrix for the Estate of Mamie L. Chism, deceased (collectively, "Plaintiff'). 'Defendants are Golden Gate National Senior Care, LLC; GGNSC Camp Hill West Shore, LP d/b/a Golden Living Center — West Shore; GGNSC Camp Hill West Shore GP, LLC; GGNSC Equity Holdings, LLC; GGNSC Holdings, LLC; GGNSC Administrative Services, LLC; GGNSC Clinical Services, LLC; GPH Camp Hill West Shore, LP; and Denise Curry, RVP (collectively, "Defendants"). II. HISTORY OF THE CASE Plaintiff commenced this lawsuit by serving a Writ of Summons on Defendants on August 5, 2014, followed by filing a Complaint on December 24, 2014. See Complaint, a true and correct copy of which is attached hereto as Exhibit "A". The Complaint was served on Defendants on December 29, 2014. Plaintiff's Complaint alleges claims sounding in professional negligence (Count I); Pennsylvania's Survival Statute, 42 Pa.C.S. § 8302 (to assert that Mamie L. Chism's eight children are entitled to share under the cause of action) (Count II); and Pennsylvania's Wrongful Death Statute, 42 Pa.C.S. § 8301 (also asserting that Mamie L. Chism's eight children are entitled to share under the cause of action) (Count III). Plaintiff, through Lynette Chism2, alleges that Mamie L. Chism suffered various injuries while a resident at the Golden Living Center — West Shore Facility (the "Facility"). Mamie L. Chism was a resident at the Facility from August 27, 2010 until her death on July 18, 2013. See id at ¶ 1; Alternative Dispute Resolution Agreement, a true and correct copy of which is attached as Exhibit "B." Plaintiff's Complaint is not appropriately before this Court because upon Mamie L. Chism's admission to the Facility on August 27, 2010, her son, Ralph Chism, entered into a valid Alternative Dispute Resolution Agreement (hereinafter referred to as the "ADR Agreement") with the Facility. See Exhibit "B". Under the ADR Agreement, Plaintiff agreed to submit the present matter to mediation and/or arbitration. See id. The ADR Agreement explicitly precludes Plaintiff from adjudicating the present claims before this Court, instead requiring the claims to be submitted to mediation and/or arbitration. 2 Lynette Chism is Mamie L. Chism's daughter and Executrix for Mamie L. Chism's Estate. See Exhibit "A" at ¶¶ 2-3. 2 If the Court is inclined to permit the present matter to proceed rather than submit it to mediation and/or arbitration, Plaintiff's claim for punitive damages against Defendants fails as a matter of law because Plaintiff, inter alia, fails to plead any facts which indicate that Defendants possess the requisite mens rea for the imposition of punitive damages. Additionally, portions of Plaintiffs Complaint contain allegations that fail to sufficiently apprise Defendants of the particular facts giving rise to Plaintiffs claims. Accordingly, Defendants respectfully request that this Court sustain their Preliminary Objections. III. QUESTIONS PRESENTED 1. Should this Honorable Court dismiss Plaintiff's Complaint and direct Plaintiff to submit all claims against Defendants to mediation and, if unsuccessful, then to arbitration, in accordance with the terms of the Alternative Dispute Resolution Agreement? Suggested Answer: Yes 2. If this Honorable Court deems that alternative dispute resolution is not appropriate, should it dismiss Plaintiffs claim for punitive damages because Plaintiff failed to plead sufficient facts to establish outrageous, willful, wanton, or reckless conduct? Suggested Answer: Yes 3. If this Honorable Court deems that alternative dispute resolution is not appropriate, should it dismiss Plaintiffs allegations for lack of factual specificity because the Complaint contains nonspecific allegations that do not sufficiently apprise Defendants of the allegations against them? Suggested Answer: Yes 3 IV. ARGUMENT A. Preliminary Objection in the Nature of a Motion to Compel Alternative Dispute Resolution Pursuant to Pa.R.C.P. 1028(a)(6) Pa.R.C.P. 1028(a)(6) allows for the filing of a preliminary objection based on the "pendency of a prior action or agreement for alternative dispute resolution." Under the authority of Pa.R.C.P. 1028(a)(6) this Court should: (1) stay the case because there is an agreement for alternative dispute resolution; and (2) order the submission of these proceedings to mediation and/or arbitration as required by the ADR Agreement Ralph Chism entered into. 1. Pennsylvania Favors Arbitration Agreements The FAA establishes "a liberal policy of requiring arbitration agreements." See Moses H. Cone Mem? Hosp. v. Mercury Const. Corp. 460 U.S. 1, 24 (1983). Section 2 of the FAA "embodies a clear federal policy of requiring arbitration unless the agreement to arbitrate is not part of a contract evidencing interstate commerce or is revocable 'upon such grounds as exist at law or in equity for the revocation of any contract."' Perry v. Thomas, 482 U.S. 483, 489 (1987) (quoting 9 U.S.C. § 2). In a unanimous decision, the United States Supreme Court mandated that both state and federal courts must enforce the FAA with respect to all arbitration agreements covered by that statute, and must enforce the bargain of the parties to arbitrate. See Marmet Health Care Center, Inc. v. Brown, 132 S.Ct. 1201 (February 21, 2012) (citation omitted). In Marmet, which was litigation involving three negligence suits against nursing homes in West Virginia where each agreement included an arbitration requirement, the Supreme Court addressed the West Virginia court's conclusion that the FAA does not preempt the state's public policy against pre -dispute arbitration agreements that apply to claims of personal injury or wrongful death against nursing homes. In its per curiam decision, the Supreme Court determined that the state court's 4 interpretation of the FAA was both incorrect and inconsistent with clear instruction in the precedent of the Supreme Court, and that the FAA includes no exception for personal-injury or wrongful -death claims. Consequently, the Court held that "West Virginia's prohibition against predispute arbitration agreements to arbitrate personal-injury or wrongful -death claims against nursing homes is a categorical rule prohibiting arbitration of a particular type of claim, and that rule is contrary to the terms and coverage of the FAA." Id. at 1203-04. Pennsylvania's policy toward arbitration is consistent with federal policy. It is well- settled that Pennsylvania courts favor settlement of disputes through arbitration because it serves to promote the swift and orderly disposition of claims. Midomo Co., Inc. v. Presbyterian Hous. Dev. Co., 739 A.2d 188, 190 (Pa. Super. 1999); Hazleton Area School Dist. v. Bosak, 671 A.2d 277, 282 (Pa. Cmwlth. 1996). Consistent with the FAA, Pennsylvania law requires enforcement of arbitration provisions as written, "permitting such provisions to be set aside only for generally recognized contract defenses such as duress, illegality, fraud, and unconscionability." Gaffer Ins. Co., Ltd. v. Discover Reinsurance Co., 936 A.2d 1109, 1114 (Pa. Super. 2007)(citation omitted). Thus, when parties agree to arbitration in a clear and unmistakable manner, every reasonable effort should be made to favor such agreements. Williams v. Gruntal & Co., 669 A.2d 387 (Pa. Super. 1995), app. den., 681 A.2d 179 (Pa. 1996). Where a party to a civil action seeks to compel arbitration, a court must first determine if a valid agreement to arbitrate exists between the parties. Warwick Twp. Water and Sewer Auth. v. Boucher & James, Inc., 851 A.2d 953 (Pa. Super. 2004), app. den., 583 Pa. 696, 879 A.2d 783 (2005). Arbitration agreements are to be found valid where there is a "clear, express and unequivocal intent of the parties as manifested by the writing itself." See Midomo, 739 A.2d at 190. Contracts that provide for arbitration are to be construed as valid, enforceable and 5 irrevocable, except upon grounds of existing law or inequity for the revocation of any other type of contract Koken v. Reliance Ins. Co., 846 A.2d 778, 781 (Pa. Cmwlth. 2004); see also Foster v. Philadelphia Mfrs., 592 A.2d 131, 133 (Pa. Cmwlth. 1991). Generally, arbitration agreements can be set aside only for recognized contractual defenses such as duress, illegality, fraud and unconscionability. Lytle v. CitiFinancial Servs., Inc., 810 A.2d 643, 656 (Pa. Super. 2002). In cases such as this where a valid arbitration agreement exists, any further review of the agreement by the court is limited to determining whether the dispute at issue falls within the scope of the agreement Nationwide Ins. Enterprise v. Moustakidis, 830 A.2d 1288, 1291 (Pa. Super. 2003). The scope of an arbitration agreement is determined by the intentions of the parties, which is ascertained by the words set forth in the agreement Id. Under such an analysis, the arbitration of particular grievances can only be denied where it can be said with positive assurance that the dispute in question falls outside the scope of the arbitration agreement Lytle, 810 A.2d at 656; Lincoln Univ. of Commonwealth Sys. of Higher Educ. v. Lincoln Univ. Chapter of American Ass 'n. of Univ. Professors, 354 A.2d 576, 580-82 (Pa. 1976). Thus, where parties in a nursing home negligence case have entered into a valid arbitration agreement that is not void due to frustration of purpose, unconscionability, public policy, or lack of valid consideration, the parties should be compelled to arbitrate their claims. See Cramer v. Manor Care of Lancaster, No. CI -11-08592 (CCP Lancaster, February 21, 2012), a true and correct copy of which is attached hereto as Exhibit "C". Courts such as this Court routinely reject arguments that pre -dispute arbitration agreements in the nursing home context are void for frustration of purpose, unconscionability, public policy, or lack of valid consideration. See Fleagle v. Manor Care of Camp Hill PA, LLC d/b/a Manorcare Health Servs., et al., No. 12-0828 (CCP Cumberland Nov. 22, 2013) (rejecting 6 the plaintiff's arguments that the signed arbitration agreement should not be enforced and submitting the case to arbitration, pursuant to the valid arbitration agreement), a true and correct copy of which is attached hereto as Exhibit "D"; Cormany v. HCR Manorcare, LLC, et al., No. 13-5381 (CCP Cumberland, May 22, 2014) (same), a true and correct copy of which is attached hereto as Exhibit "E". 2. The ADR Agreement is Valid and Enforceable and Requires Plaintiff to Submit the Dispute to Mediation and Arbitration Upon Mamie L. Chism's admission to the Facility, Ralph Chism, acting as Mamie L. Chism's agent, entered into a valid ADR Agreement with the Facility on her behalf. See Exhibit "B". In accordance with the terms of the ADR Agreement, Ralph Chism agreed that any disputes arising out of or in any way relating to the ADR Agreement or to Mamie L. Chism's stay at the Facility, which would constitute a legally cognizable cause of action in a court of law, "shall be resolved exclusively by an ADR process that shall include mediation and, where mediation is not successful, binding arbitration." See Exhibit "B" (emphasis added). In addition, the ADR Agreement provides that the parties "understand, acknowledge, and agree that they are selecting a method of resolving disputes without resorting to lawsuits or the courts, and that by entering into this Agreement, they are giving up their constitutional right to have their disputes decided in a court of law by a judge or jury...." Id. By signing the ADR Agreement, Ralph Chism agreed that the Agreement to mediate and/or arbitrate includes, but is not limited to, any claim for "... negligence; gross negligence; malpractice; and any alleged departure from any applicable federal, state, or local medical, health care, consumer or safety standards..." Id. The ADR Agreement also sets forth the parties' further agreement that the "speed, efficiency, and cost-effectiveness of the ADR process, together with their mutual 7 undertaking to engage in that process, constitute good and sufficient consideration for the acceptance and enforcement..." of the Agreement. Id. The ADR Agreement also provides: The Resident understands that he or she has the right to seek advice of legal counsel concerning this Agreement; that'his or her signing of this Agreement is not a condition of admission to or residence in the Facility; that he or she may revoke this Agreement by sending written notice to the Facility within thirty (30) days of signing it; and that this Agreement, if not revoked within that time frame, shall remain in effect for all care and services rendered to the Resident at or by the Facility regardless of whether the Resident is subsequently discharged and readmitted to the Facility without renewing, ratifying, or acknowledging this Agreement. Id. The Agreement also explicitly stated that its terms would be "governed by and interpreted under the Federal Arbitration Act ("FAA"), 9 U.S.C. Sections 1-16." Id By signing the ADR Agreement, Ralph Chism, as agent for Mamie L. Chism, acknowledged that he understood its contents, that he accepted its terms, and that his signing of the Agreement was not a precondition to Mamie L. Chism's admission into the Facility. Id. Further, Ralph Chism acknowledged her understanding of his right to rescind the ADR Agreement within thirty (30) days. Id Ralph Chism executed the ADR Agreement, among many other documents, during the process of Mamie L. Chism being admitted into the Facility as a resident She expressly represented that she understood the Agreement as follows: By my signature, I acknowledge that I have read this Agreement or had it read to me, that I understand what I am signing, and that I accept .its terms. Id The ADR Agreement is comprised solely of a four-page document, and it was clearly and unambiguously titled "ALTERNATIVE DISPUTE RESOLUTION AGREEMENT (THIS AGREEMENT IS NOT A CONDITION OF ADMISSION TO OR CONTINUED 8 RESIDENCE IN THE FACILITY)." Id. Similarly, Ralph Chism was informed that he had the right to seek advice of legal counsel concerning the ADR Agreement prior to, and after, signing the documents. In November 2013, this Court ordered Fleagle to be submitted to alternative dispute resolution. See Fleagle, Exhibit "D". There, the ADR Agreement at issue was valid because as the signatory had authority to bind the plaintiff to alternative dispute resolution and all formation and enforceability defenses to contract asserted by the plaintiff lacked merit. Id. Additionally, in May 2014, this Court decided the exact issue at hand here in a nursing home negligence case in Cormany, ordering the case to be submitted to arbitration because the parties entered into a valid Arbitration Agreement that was not void due to frustration of purpose, unconscionability, public policy, or lack of valid consideration. See Cormany, Exhibit "E". In Cormany and Fleagle, just as in this case, the plaintiffs' representatives signed ADR Agreements when the individuals were admitted to the facility. The ADR Agreements were voluntary, yet the plaintiffs asserted to this Court that they were unenforceable, void, unconscionable, and/or contracts of adhesion, and that plaintiffs' representatives did not have legal authority to bind the residents to the agreements. After noting how Pennsylvania favors the settlement of disputes by arbitration, the Court in both opinions rejected the plaintiffs' arguments that the ADR Agreements were invalid. The ADR Agreements were not additional requirements of admission and therefore not void under federal or state law. Additionally, they did not create perpetual terms, but instead bound the parties to the agreements during the plaintiffs' residencies and after the statute of limitations for any claim resulting from them expired. The ADR Agreements were also not unconscionable, as the plaintiffs were not forced into residence at the facilities and had 30 days to review them under the "Right to Change Your Mind" clause. 9 Finally, the plaintiffs' arguments that there were no knowing and voluntary waivers of their rights to a jury trial had no merit, as the agreements stated, in bold and capital letters, that the parties were doing just that. Here, the ADR Agreement meets the same conditions as the agreements did in Cormany and Fleagle: a. As Mamie L. Chism's Agent, Ralph Chism had Authority to Sign the ADR Agreement and all Other Documents. First, Ralph Chism had apparent authority to sign the ADR Agreement on behalf of his mother when he entered the Facility. The Monroe County Court of Common Pleas addressed a situation factually similar to this case in Chighizola v. Beverly Enterprises Inc., 79 Pa. D. & C. 4th 416 (2006), a true and correct copy of which is attached hereto as Exhibit "F". Chighizola involved an arbitration agreement and other documents executed in connection with a resident's admission into a nursing home. The resident's daughter signed the documents on behalf of her mother, who resided at the facility. Citing the daughter's consistent execution of the admission documents as agent for her mother and the absence of any subsequent rescission of the documents, the court found that the daughter had apparent authority to act on her mother's behalf, and granted the motion to compel arbitration. Id. at 422. The court found that plaintiff held her daughter out as having the authority to sign the admission forms as well as the trust fund authorization, and the plaintiff did not contest the daughter's authority to have done so. Id. at 422. The court determined that one can "reasonably infer that the decedent appears to have given her agent the apparent authority to sign the arbitration because of the similarities of how and when the documents were signed." Id. If the court were to allow the plaintiff to, in hindsight, "narrowly pick which documents the agent did not have authority to authorize", the plaintiff would unjustly benefit for litigation purposes. Id. 10 Plaintiff will presumably heavily rely on the decision of Walton v. Robert Wood Johnson, No. 1677 EDA 2012 (Pa. Super. May 7, 2013) to argue that Ralph Chism did not have authority to bind her son to the ADR Agreement. In that case, the Superior Court affirmed the trial court's finding that the mother of an adult patient lacked apparent authority to execute an arbitration agreement on her daughter's behalf (the daughter was comatose at admission). The facts of Walton are manifestly different from the facts of the present matter. In Walton, the mother executed the arbitration agreement and other documents weeks after her adult daughter's admission, the mother denied receiving any explanation of, or even reading, the arbitration agreement, and the daughter openly contested her mother's authority to act on her behalf. As the court correctly set forth in Walton, "[t]he creation of an agency relationship requires no special formalities." Id. (citing Lincoln Avenue Industrial Park v. Norley, 677 A.2d 1219 (Pa. Super. 1996)). "In establishing agency, one need not furnish direct proof of specific authority, provided it can be inferred from the facts that at least an implied intention to create the relationship of principal and agent existed." Most importantly, the Walton court distinguished Chighizola, supra, on the basis that the authority granted in Chighizola was express, in that the decedent expressly granted her daughter the authority to sign the admission forms as well as Trust Fund Authorization forms. Again, there was no power of attorney present in Chighizola. The court determined that it was reasonable to infer that the decedent appeared to have given her agent the apparent authority to sign the arbitration agreement because of the similarities of how and when the documents were signed. The facts in Chighizola are incredibly akin to the facts of the current case, much more so than are the facts in Walton. Moreover, in Walton, the plaintiff expressly contested her mother's authority to make legal decisions on her behalf and brought the lawsuit on her own behalf. 11 "In establishing agency, one need not furnish direct proof of specific authority, provided it can be inferred from the facts that at least an implied intention to create the relationship of principal and agent existed." Commonwealth v. Maker, 716 A.2d 619, 623 (Pa. Super. 1998). Here, unlike in Walton, the facts demonstrate an implied intention for Ralph Chism to act as Mamie L. Chism's agent when she was admitted to the Facility. As additional evidence that Ralph Chism had authority to sign the ADR Agreement, Defendants attach to this brief numerous additional documents Ralph Chism signed upon Mamie L. Chism's admission to the Facility. See Admission Documents, true and correct copies of which are attached hereto as Exhibit "G". The various admission documents demonstrate how Ralph Chism, as Mamie L. Chism's son, was the individual primarily responsible for ensuring that Mamie L. Chism would be properly admitted and begin to receive the benefits of Defendants' services. Ultimately, it is evident that Ralph Chism was authorized to act and properly acted on Mamie L. Chism's behalf as her agent, and among numerous admission documents, he executed a valid ADR Agreement covering the subject matter of this case upon Mamie L. Chism's admission to the Facility. There is thus no evidence that Ralph Chism did not have authority to enter into agreements on behalf of his mother. b. The ADR Agreement did not Require Additional Consideration The ADR Agreement explicitly states at the top, "THIS AGREEMENT IS NOT A CONDITION OF ADMISSION TO OR CONTINUED RESIDENCE IN THE FACILITY," so any argument that the Agreement required additional consideration would be without merit. c. The ADR Agreement did not Create a Perpetual Term 12 Like in Cormany and Fleagle, the ADR Agreement here did not create a perpetual term, but instead bound the parties to the Agreement during Mamie L. Chism's residency and after the statute of limitations for any claim resulting from it expired. Any argument Plaintiff may have that the ADR Agreement created a perpetual term would be invalid. d. The ADR Agreement was not Unconscionable Alternative dispute resolution agreements that have been found by Pennsylvania courts to be unconscionable, and therefore unenforceable, have primarily been found so because the terms of the agreements were unreasonably favorable to the drafter, or because the party seeking to void the agreement had no meaningful choice other than to enter into the agreement, Lytle, supra, 810 A.2d 643. Such is not the case here. Ralph Chism and the Facility entered into the ADR Agreement for their mutual benefit, i.e., to resolve disputes in a streamlined process that is more prompt, cost-effective and economical than resolving disputes through the court system. Because both parties benefit from the Agreement, there is sufficient bargained for consideration to establish the existence of a contract. See Eighth North -Val., Inc. v. William L. Parkinson, D.D.S., P. C., Pension Trust, 773 A.2d 1248, 1253 (Pa. Super. 2001). Moreover, the ADR Agreement signed by Ralph Chism is in no way unreasonably favorable to the Facility. It provides for arbitration to be conducted by a single arbitrator and administered by JAMS pursuant to its Rules and Procedures (specifically, the JAMS Streamlined Rules and Procedures for matters under $250,000 and the JAMS Comprehensive Rules and Procedures for matters over that amount). The rules provide for substantial discovery through a streamlined process consistent with the time and cost-saving purposes of alternative dispute resolution. However, should a party find the discovery allowed under the JAMS rules too 13 limiting, the rules allow the arbitrator to grant more depositions or information exchanges as necessary. The ADR Agreement also allows the parties to agree to another substantially similar method of administering ADR, including an administrator other than JAMS as allowed under Section 5 of the FAA. This Court has already rejected a plaintiff's challenge of the JAMS rules as being unfair. See Fleagle, Exhibit "D" at pp. 10-11. Additionally, all terms set forth in the Agreement, such as the requirement to arbitrate disputes in accordance with the Federal Arbitration Act, applied equally to Mamie L. Chism and the Facility. The terms of the Agreement further provide that arbitration take place in either the federal district where the Facility is located or in the hometown of the Resident. It also afforded Plaintiff the ability to pursue means other than the litigation process to address issues of concern regarding Mamie L. Chism's residency by enabling Plaintiff to file grievances or complaints with the Facility or government agencies, such as the Pennsylvania Department of Health. Further, because Mamie L. Chism's admission to the Facility was not conditioned on Ralph Chism signing the ADR Agreement, Ralph Chism did indeed have a meaningful choice when entering into the Agreement. In Fleagle, the Court determined that the ADR Agreement at issue was neither unconscionable nor impracticable, as the plaintiff was not "forced" into residence at the facility and had 30 days to review the ADR Agreement and decide whether or not to be bound by it. See Fleagle, Exhibit "D" at pp. 8-9. Such is also the case here. Ralph Chism had the option of consulting with legal counsel prior to, and following, his execution of the Agreement and was permitted to rescind the Agreement within thirty (30) days after signing the documents. At no point during or after the admissions process did Ralph Chism ever ask any questions about what 14 he read or signed. Thus, the ADR Agreement is clearly applicable to this dispute, and Plaintiff's claim should be submitted to alternative dispute resolution3. e. The ADR Agreement was a Knowing, Voluntary Waiver of Plaintiff's Right to a Jury Trial Finally, like in Cormany and Fleagle, the ADR Agreement here was a knowing, voluntary waiver of Plaintiff's right to a jury trial. The following paragraph is written in bold, capital letters on the first page of the ADR Agreement: THE PARTIES UNDERSTAND, ACKNOWLEDGE, AND AGREE THAT THEY ARE SELECTING A METHOD OF RESOLVING DISPUTES WITHOUT RESORTING TO LAWSUITS OR THE COURTS, AND THAT BY ENTERING INTO THIS AGREEMENT, THEY ARE GIVING UP THEIR CONSTITUTIONAL RIGHT TO HAVE THEIR DISPUTES DECIDED IN A COURT OF LAW BY A JUDGE OR JURY, THE OPPORTUNITY TO PRESENT THEIR CLAIMS AS A CLASS ACTION AND/OR TO APPEAL ANY DECISION OR AWARD OF DAMAGES RESULTING FROM THE ADR PROCESS EXCEPT AS PROVIDED HEREIN. See Exhibit "B". Ralph Chism entered into a valid knowing and voluntary waiver of Plaintiff's right to a jury trial when he signed the ADR Agreement upon Mamie L. Chism's admission to the Facility. He even had an opportunity to change his mind for 30 days by revoking the agreement. See Exhibit "B" at Section IX. The Court must not permit Plaintiff to have "buyer's remorse" three years later and attempt to void the valid ADR Agreement, as the Agreement was intended to cover disputes just like the one at hand. In sum, the ADR Agreement unambiguously requires that all disputes arising out of, or relating in any way to, the ADR Agreement, the Admissions Agreement, or Mamie L. Chism's 3 In accordance with the ADR Agreement provisions, counsel for Defendants notified Plaintiffs counsel that the case was inappropriately filed in Cumberland County Court and requested that Plaintiffs counsel withdraw the case and submit to arbitration. See correspondence dated January 6, 2015, a true and correct copy of which is attached hereto as Exhibit "H". 15 stay at the Facility be resolved exclusively by mediation and, if unsuccessful, then by binding arbitration, and not through a lawsuit. See Exhibit "B." The current dispute relating to the care provided to Mamie L. Chism by the Facility falls squarely within the subject matter to be arbitrated under the ADR Agreement, which, like in Cormany and Fleagle, is a valid agreement. Therefore, this case must be submitted to alternative dispute resolution. B. Preliminary Objections In The Nature Of Demurrer If the Court does not determine that the ADR Agreement forces this case to be submitted to mediation, and then arbitration if necessary, Plaintiff's requests for punitive damages in her Complaint are legally insufficient. Preliminary objections must be granted if a plaintiff does not plead sufficient allegations to support legal contentions in a Complaint. A court is "precluded from considering any conclusions of law or inferences which are not supported by the factual allegations contained in the Complaint." Hart v. O'Malley, 647 A.2d 542, 553 (Pa. Super. 1994). A plaintiff, therefore, cannot maintain a cause of action by merely stating "conclusions of law, ... argumentative allegations, and expressions of opinion." Neill v. Eberly, 620 A.2d 673, 675 (Pa. Commw. Ct. 1983). Pennsylvania Rule of Civil Procedure 1028(a)(4) permits the filing of preliminary objections in the nature of demurrers for the legal insufficiency of a pleading. A demurrer is an assertion that a Complaint does not set forth a cause of action upon which relief may be granted. Cost v. Cost, 677 A.2d 1250, 1252 (Pa. Super. 1996). The question presented by a demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. McMahon v. Shea, 688 A.2d 1179, 1181 (Pa. 1997). A court should sustain preliminary objections in the nature of a demurrer where the Complaint is insufficient to establish the pleader's right to relief. Willet v. Pa. Med. Catastrophe Loss Fund, 702 A.2d 850, 853 (Pa. 1997). Thus, a demurrer should be sustained in cases that are free from doubt and where it appears with certainty that the 16 law permits no recovery under the allegations made. Pa. Pharmacists Ass 'n v. Com., Dept. of Pub. Welfare, 733 A.2d 666, 670 n. 3 (Pa. Commw. Ct. 1999). Notably, in ruling upon a • demurrer, the Court need not accept as true conclusions of law, unwarranted inferences, argumentative allegations or expressions of opinion. Luke v. Cataldi, 830 A.2d 655, 657 n. 4 (Pa. Commw. Ct. 2003). 1. Plaintiff's Claim for Punitive Damages Against Defendants Should be Stricken as a Matter of Law Pennsylvania law is well-settled that punitive damages may be awarded only where "a person's actions are of such an outrageous nature as to demonstrate intentional, willful, wanton, or reckless conduct and are awarded to punish that person for such conduct." SHV Coal Inc. v. Cont'l Grain Co., 587 A.2d 702 (Pa. 1991) (citations omitted). Punitive damages will not be awarded where the defendant's conduct amounts only to ordinary negligence or gross negligence. Id. (emphasis added). The Pennsylvania Supreme Court has adopted § 908(2) of the Restatement (Second) of Torts which provides, in pertinent part, that "punitive damages may be awarded for conduct that is outrageous, because of defendants' evil motive or his reckless indifference to the rights of others." Feld v. Merriam, 485 A.2d 742, 748 (Pa. 1984). An essential fact needed to plead a claim for punitive damages is that the defendants' conduct must have been outrageous. Outrageous conduct is an "act done with a bad motive or a reckless indifference to the interests of others. Focht v. Rabada, 268 A.2d 157 (Pa. Super. 1970) citing comment (b) to §908 of the Restatement (Second) of Torts. Such conduct must be: "so outrageous in character, and so extreme in degree as to go beyond all bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and leave him to explain "outrageous!" Restatement (Second) of Torts § 46, comment (d). 17 To plead a claim of punitive damages, a plaintiff must plead facts that are outrageous and show evil motive or reckless indifference to the rights of others. McDaniel v. Merck, Sharp & Dohme, 533 A.2d 436, (Pa. Super. 1987) appeal denied, 551 A.2d 215 (Pa. 1988) (emphasis added). Reckless indifference has been defined as requiring that "the actor has intentionally done an act of an unreasonable character, in disregard of a risk known to him or so obvious that he must be taken to have been aware of it, and so great to make it highly probable that harm would follow." Evans v. Philadelphia Transp. Co., 212 A.2d 440 (Pa. 1965). Pennsylvania courts are clear that punitive damages are only useful to deter outrageous conduct, and such a purpose cannot apply where the actor is not conscious of the risk alleged. Martin v. Owens-Corning Fiberglas Corp., 494 A.2d 1088 (Pa. 1985). To constitute wanton conduct, a state of mind is required in which the tortfeasor realizes the danger to the plaintiff and disregards it to such a degree that "there is at least a willingness to inflict injury, a conscious indifference to the perpetration of the wrong." Lewis v. Miller, 543 A.2d 590, 592 (Pa. Super. 1988); Stubbs v. Frazer, 454 A.2d 119, 120 (Pa. Super. 1982). For a party's conduct to constitute reckless indifference to the rights of others, it has been found that the actor must know, "or has reason to know, of facts which create a high degree of risk of physical harm to another, and deliberately proceeds to act, or fails to act, in conscious disregard of, or indifference to, that risk." SHV Coal, Inc., 587 A.2d at 704. Punitive damages are designed to punish and deter outrageous conduct. McClellan v. Men's Health Maint. Org. of PA, 604 A.2d 1051, 1053 (Pa. Super. 1992). A court may not award punitive damages merely because a tort has been alleged or committed. McClellan, 604 A.2d at 1061, citing Delahanty v. First Pennsylvania Bank, N.A., 464 A.2d 1243, 1263 (Pa. Super. 1993). 18 Thus, to successfully plead a claim for punitive damages in Pennsylvania, defendants cannot detail alleged conduct that is merely negligent, tortuous or wrongful. Punitive damages may not be awarded for acts which would constitute ordinary negligence, such as a mistake, inadvertence, or errors in judgment. McDaniel, 533 A.2d at 447. Pennsylvania courts have stated that even gross negligence by the defendant is insufficient to permit recovery of punitive damages. Harvey v. Hassinger, 461 A.2d 814, 817 (Pa. Super. 1983). As the Court in Martin stated, "[p]unitive damages are appropriate to punish and deter only extreme behavior and, even in the rare circumstances in which they are justified, are subject to strict judicial controls." Martin, 494 A.2d at 1096. Moreover, the M -Care Act governs the award of punitive damages in healthcare related cases and provides: Punitive damages shall not be awarded against a healthcare provider who is only vicariously liable for the actions of its agents that cause the injury unless it can be shown by a preponderance of the evidence that the party knew of and allowed the conduct of its agent that result in the award of punitive damages. 40 P.S § 1303.503(c). Here, without a factual showing that a Defendants actually "knew of and allowed" conduct alleged in a Plaintiff's Complaint, the M -Care Act does not allow Plaintiff to recover punitive damages. Finally, to the extent that Plaintiff is asserting a claim for punitive damages based on the alleged financial motivations of Defendants, such allegations are also insufficient as a matter of law. See Phillips v. Cricket Lighters, 883 A.2d 439, 445 (Pa. 2005) (rejecting the argument that punitive damages were warranted where a company consciously chose not to install a safety device on its product because of financial considerations). Plaintiff's claim for punitive damages should be stricken on the basis that Plaintiff fails to allege facts that could even potentially support a claim for punitive damages. The Complaint 19 does not allege actual conduct that is intentional, willful, wanton or reckless4. Rather, Plaintiff avers facts that even with a broad interpretation amount to inadvertence, mistake, errors of judgment, ordinary negligence, or at most, gross negligence. As stated above, claims for negligence, including claims for gross negligence, cannot support a claim for punitive damages. Accordingly, Plaintiff's claim for punitive damages must be stricken from the Complaint, as Plaintiff cannot sustain such a claim under common law, or as required under the M -CARE Act. 4. Plaintiff's Claim For Punitive Damages Specifically with Respect to Count III Should Be Stricken As A Matter Of Law Should the Court deny Defendants' Preliminary Objection to Plaintiffs claims for punitive damages as to the entire cause of action, in the alternative, Plaintiff's claim for punitive damages under the Wrongful Death Statute must be stricken under Pennsylvania law. in Plaintiffs claim for relief at Count III, where she brings an action under the Wrongful Death Statute, Plaintiff asserts a claim for punitive damages. The Wrongful Death Act permits statutory benefits to recover for the pecuniary loss suffered as a result of the decedent's death. Kiser v. Schulte, 648 A.2d 1, 4 (Pa. 1994). In Pennsylvania, however, punitive damages are not permitted in a wrongful death action. Harvey v. Hassinger, 461 A.2d 814, 815 (Pa. Super. 1983). Therefore, should this Court overrule Defendants' Preliminary Objections with respect to punitive damages for the entire Complaint, Plaintiffs claim for punitive damages brought in her wrongful death action must be stricken. 4 While Plaintiff alleges in the Complaint that Defendants acted recklessly and/or intentionally, Plaintiff has failed to allege any facts that support these conclusory statements. 20 C. Preliminary Objection for Lack of Factual Specificity Again, Defendants respectfully submit that this Court should compel mediation and/or arbitration of the current matter in accordance with the valid ADR Agreement. However, if this Court should not choose to do so, Plaintiff's nonspecific allegations of negligence should be stricken from the Complaint or, alternatively, Plaintiff should be required to amend the Complaint so as to sufficiently apprise the Defendants of the precise allegations against them. Pennsylvania Rule of Civil Procedure 1028(a)(3) provides that a party may file preliminary objections on the grounds of "insufficient specificity in a pleading." See Pa.R.C.P. 1028(a)(3). Pennsylvania Rule of Civil Procedure 1019(a) requires a Complaint to set forth the material facts on which a cause of action or defense is based in a concise and summary form. See Pa.R.C.P. 1019(a). The purpose of this rule is to require the pleader to disclose the "material facts" sufficient to enable the adverse party to prepare its case. Landau v. W. Pennsylvania Nat'l Bank, 282 A.2d 335, 339 (Pa. 1971). A specific Complaint is required so that a defendant's right and ability to answer will not be impaired by a plaintiff's vagueness in stating grounds of the suit. Local No. 163 v. Watkins, 207 A.2d 776, 778 (Pa. 1965). The question presented on a preliminary objection for insufficient specificity of a pleading is "whether the Complaint is sufficiently clear to enable the defendant to prepare his defense" or whether the pleading "informs the defendant with accuracy and completeness of the specific basis on which recovery is sought so that he may know without question upon what grounds to make his defense." McNeil v. Jordan, 814 A.2d 234, 237-38 (Pa. Super. 2002), appeal granted, 837 A.2d 1178 (Pa. 2003). To comport with the Pennsylvania Rules of Civil Procedure and Pennsylvania law, a Complaint must sufficiently define issues and give notice to a defendant of what the plaintiff intends to prove at trial so that the defendant may, in turn, prepare a defense by meeting such 21 proof with his own evidence. See Estate of Swift v. Ne. Hosp. of Phila., 690 A.2d 719 (Pa. Super. 1997), app. den., 701 A.2d 577 (Pa. 1997) (noting that the Complaint must summarize the essential facts to support the claim); Sevin v. Kelshaw, 611 A.2d 1232 (Pa. Super. 1992) (noting that Pennsylvania is a fact pleading jurisdiction and thus the Complaint must summarize those facts essential to support a claim); Laursen v. Gen. l Hosp. of Monroe Cnty., 393 A.2d 761, 766 (Pa. Super. 1978), rev'd. on other grounds, 431 A.2d 237 (Pa. 1981); Baker v. Rangos, 324 A.2d 498, 506 (Pa. Super. 1974). In addition to failing to properly apprise an opposing party of that which the party will be called upon to defend against at trial, generalized pleadings can also serve to thwart the statute of limitations by permitting a plaintiff to assert new causes of action or legal theories at any juncture in the litigation process. Thus, non-specific boilerplate pleadings present a very real risk of harm to a defendant in the nature of surprise and the attendant inability to adequately prepare a defense. In Connor v. Allegheny Gen. Hosp., 461 A.2d 600 (Pa. 1983), for example, the trial court denied appellants' motion to amend their Complaint by adding a specific averment of negligence not previously set forth in their original Complaint. The trial court thereafter granted appellee's motion for summary judgment on the ground that appellants were unable to offer expert testimony to prove the allegations of negligence in their original Complaint. The Pennsylvania Superior Court affirmed the trial court's decision by holding that the proposed amendment was barred by the statute of limitations because it sought to add new allegations of negligence by proceeding on a different theory of liability. On appeal, the Pennsylvania Supreme Court reversed both the Superior Court and the trial court by finding that the proposed amendment did not advance a new cause of action but, 22 instead, merely amplified the non-specific and vague allegation of negligence in the original Complaint asserting that the defendant was negligent "[i]n otherwise failing to use due care and caution under the circumstances." The court further found that the appellee essentially waived any claim of prejudice regarding appellants' late "amplification" of the original Complaint by virtue of its failure to preliminarily object to the original averment of negligence being amplified. Specifically, the court opined: If appellee did not know how it `otherwise fail[ed] to use due care and caution under the circumstances,' it could have filed a preliminary objection in the nature of a request for a more specific pleading or it could have moved to strike that portion of appellants' Complaint .... In this case, however, appellee apparently understood this allegation ... well enough to simply deny it in its answer. Thus, appellee cannot now claim that it was prejudiced by the late amplification of this allegation .. . Connor, 461 A.2d at 602, n.3. In light of Connor, Pennsylvania law is clear that whenever a defendant is faced with non-specific allegations of negligence, the defendant must preliminarily object to the allegations or risk the Plaintiff later introducing new theories of liability "amplifying" the nonspecific averments set forth in the original Complaint. 1. Plaintiff's Nonspecific Allegations of Negligence Should be Stricken from the Complaint or, Alternatively, Plaintiff should be Required to Amend the Complaint so as to Sufficiently Apprise Defendants of the Precise Allegations Against Them In this case, the allegations set forth in paragraphs 40, 42, 43, 46, 47, 49, and 91 (s), (t), (z), and (bb) of Plaintiff's Complaint fail to apprise Defendants of the precise allegations being leveled against them related specifically to Plaintiff as required by Pennsylvania Rules of Civil Procedure 1019 and 1028. These allegations are general in nature and are also repetitive of the specific allegations raised in the Complaint. Plaintiff does not explain how Mamie L. Chism's care was specifically affected by these corporate actions, the specific regulations that were 23 allegedly violated, or the specific facts supporting Plaintiff s assertion that the business decisions that certain of Defendants made affected Mamie L. Chism. Further, paragraphs 35, 37-39, 41, 44, 45, 48, 79, 81, 87, 90, and 91 (r) of the Complaint allege that certain of Defendants made business and other decisions that interfered with the care provided to residents "such as" or "including" Mamie L. Chism and negligently disregarded the health and safety of the residents. As such, Plaintiffs Complaint fails to apprise Defendants of the precise allegations being leveled against them as required by Pennsylvania Rules of Civil Procedure 1019 and 1028. On their face, Plaintiff's broad -brushed averments set forth in the above identified paragraphs, without more, fail to provide Defendants with any indication of the facts upon which Plaintiff bases his claims. Additionally these allegations do not relate specifically to Plaintiff. For example, the allegations contain references to conduct that affected all residents and/or "all residents, including Mamie L. Chism" or "each resident." Such allegations do not specifically relate to Mamie L. Chism and do not inform Defendants of the basis for any claim against them that caused harm to Mamie L. Chism. When addressing broad -brushed, non-specific averments like those set forth in Plaintiff s Complaint, the courts of this Commonwealth have routinely sustained preliminary objections striking such allegations. For example, in Rogers v. Soldiers and Sailors Meat. Hosp., 16 Pa. D. & C. 4th (CCP Tioga 1991), the Tioga Court of Common Pleas sustained a defendant hospital's preliminary objections by striking averments that the hospital violated "its duty to provide adequate patient care, including but not limited to diagnosis, evaluation, testing and treatment of decedent ...", and failure "to give the decedent sufficient information so that she could act on her symptomatology and establish an earlier diagnosis." Id. at 574. In support of its decision, 24 the trial court properly concluded that the allegations were impermissibly vague for failing to allege the specific manner by which the hospital was negligent. The court went on to note that a "Complaint must apprise the defendant of the nature and extent of the plaintiff's Complaint so that the defendant has notice of what the plaintiff intends to prove at trial and may prepare to meet such proof with his own evidence." Id. at 575. Similarly, the Court of Common Pleas of Northampton County in Lichty v. Kucharczuk, 5 Pa. D.&C. 4th 120 (CCP Northampton 1989), sustained preliminary objections to pleadings conspicuously similar to those presently at issue. In that case, the plaintiff alleged, in part, that the defendant physicians were negligent by: (a) failing to adhere to the standard of medical care within the community; (b) failing to adhere to the standard of practice of obstetricians and gynecologists; (n) failing to possess and employ adequate knowledge of neural tube defects; (o) failing to communicate; (p) failing to possess and employ adequate knowledge of ultrasound testing; (s) failing to promptly and properly recognize, diagnose and treat the condition of Linda Lichty and/or Jenine Lichty; (t) failing to properly and promptly respond to the needs of Linda Lichty and/or Jenine Lichty; (v) failing to provide proper and prompt medical, gynecological and obstetrical advice, care and treatment to Linda Lichty and Jenine Lichty; (w) failing to exercise proper skill, diligence and care under the circumstances.. . Id. at 125. In sustaining the defendants' preliminary objections, the court in Lichty concluded that the plaintiff's averments were too generalized, and in so holding, relied on Connor by stating, "[t]he Connor case makes clear that a defendant seeking protection from amendments representing a significant change in theory after the statute of limitations must purge the Complaint of the generalized averments as in the instant case." Id. at 126.5 As in 5 Moreover, in Sola v. Chao, 49 Pa. D.&C. 4`h 444 (CCP Montour 2000), the trial court struck the averment that "[defendant failed] to perform the excision of the pilonidal cyst in accordance with medically accepted standards for general surgeons" because it was too general. In addition, in Flurer v. Pocono Med. Ctr., 15 Pa. D.&C. 4th 645 (CCP Monroe 1992), the court struck several averments, including "failing to adhere to the standard of medical care in the community," "failing to adhere to the standard of practice within the defendants' specialties," and "failing to exercise proper skill, diligence and care under the circumstances." See also Nelle v. Hershey Med. Ctr., 11 Pa. D.&C. 4th 307 (CCP Dauphin 1991). 25 Rogers and Lichty, the general and conclusory allegations of negligence set forth here in Plaintiff s Complaint simply fail to adhere to the standard of specificity required under Pennsylvania law and, therefore, should either be stricken from the Complaint or, alternatively, pled with sufficient specificity so as to inform Defendants of the nature of the claims against them. While pleadings must not strictly adhere to formalistic goals, Pennsylvania law continues to require that plaintiffs fully apprise the defendant of the full nature and extent of the plaintiffs' claims. Cicero v. Cominski, 25 D.&C. 4th 422 (C. P. Luzerne 1995) (quoting Laursen v. General Hosp. of Monroe County, 393 A.2d 761 (Pa. Super. 1978)). In Cicero, the Court of Common Pleas of Luzerne County sustained the defendant's preliminary objections to strike the language currently used by Plaintiff in his Complaint. Specifically, the court found that the language "including, but not limited to" failed to apprise the Defendants of all the material facts upon which the plaintiffs cause of action was based. Cicero, supra, 25 D.&C. 4th 422. As a result, the pleadings presented the potential to permit the plaintiff to pursue facts at trial which were not previously pled in the Complaint, and for which defendant would have had no prior notice. Id. In rendering its determination, the court relied upon the interpretation of Rule 1019 set forth by the Pennsylvania Superior Court in Laursen v. Gen. Hosp. of Monroe County, 393 A.2d 761 (Pa. Super. 1978): "While Pennsylvania pleadings are no longer controlled by formalistic rules, it is still important that the Complaint apprise a defendant of the nature and extent of the plaintiffs claim ...." As in Cicero, Plaintiff's references in this case to non-descript residents and use of the phrases "including," "including but not limited to," and "such as" fail to provide the Defendants with sufficient notice of the precise claims being leveled against them or the precise subject 26 matter of those claims. Instead, each of the pleadings impermissibly permits Plaintiff to present other currently unstated averments in support of her claims. As properly recognized under Pennsylvania law, pleadings serve the function of defining issues and giving notice to the opposing party of the issues they plan to prove at trial so the opposition may, in turn, prepare to meet such proof with its own evidence. Cicero, 25 D. & C. 4th at 424. Here, the aforementioned averments set forth in Plaintiffs Complaint fail to provide Defendants with sufficient notice of all the facts they will be required to address at trial and are sufficiently open-ended to impermissibly permit Plaintiff to alter and/or expand his theories of liability. For the foregoing reasons, the Defendants respectfully request that paragraphs 35, 37-49, 79, 81, 87, 90, and 91 (r), (s), (t), (z), and (bb) be stricken from Plaintiffs Complaint or, alternatively, that Plaintiff be required to amend the Complaint so as to clearly articulate the facts upon which her claims are based. V. Conclusion For the foregoing reasons, Defendants respectfully request that this Court sustain their preliminary objections. Respectfully submitted, FOX ROTHSCHILD LLP. JACQUELINE M. CAROLAN, ESQUIRE ERIC E. REED, ESQUIRE SCOTT C. OBERLANDER, ESQUIRE 2000 Market Street, 20th Floor Philadelphia, PA 19103 (215) 299-2863 Dated: January 15, 2015 Attorneys for the Defendants 27 FOX ROTHSCHILD LLP BY: Jacqueline M. Carolan Eric E. Reed Scott C. Oberlander IDENTIFICATION NO(S). 52576, 204692, 311750 2000 MARKET STREET, TWENTIETH FLOOR PHILADELPHIA, PA 19103-3222 LYNETTE CHISM, as Executrix for the Estate of MAMIE L. CHISM, deceased, Plaintiff, v. GOLDEN GATE NATIONAL SENIOR CARE, LLC; GGNSC CAMP HILL WEST SHORE, LP d/b/a GOLDEN LIVING CENTER — WEST SHORE; GGNSC CAMP HILL WEST SHORE GP, LLC; GGNSC EQUITY HOLDINGS, LLC; GGNSC HOLDINGS, LLC; GGNSC ADMINISTRATIVE SERVICES, LLC; GGNSC CLINICAL SERVICES, LLC; GPH CAMP HILL WEST SHORE, LP; and DENISE CURRY, RVP, Defendants. Attorneys for Defendants : COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PA : CIVIL ACTION : NO. 14-4644 • • • • • • • • • • CERTIFICATE OF SERVICE On this 15th day of January, 2015, I, Scott C. Oberlander, hereby certify that I served a true and correct copy of the foregoing Preliminary Objections and accompanying Memorandum of Law in support thereof via first class mail upon: Andrei Govorov, Esquire Wilkes & McHugh, P.A. 1601 Cherry Street, Suite 1300 Philadelphia, PA 19102 Attorney for Plaintiff (J" Scott C. Oberlander, Esquire WILKES & McHUGH, P.A. By: Andrei Govorov, Esquire Attorney Identification No. 209365 1601 Cherry Street, Suite 1300 Philadelphia, Pennsylvania 19102 215-972-0811 215-972-0580 (fax) Email: agovorov@wilkesmchugh.com THIS IS NOT AN ABRITRATION CASE. ASSESSMENT OF DAMAGES IS REQUIRED; JURY TRIAL DEMANDED. Counsel for Plaintiff, Lynette Chism, Executrix for the Estate of Mamie L. Chism, deceased IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA LYNETTE CHISM, as Executrix for The Estate of MAMIE L. CHISM, deceased Plaintiff, -vs- GOLDEN GATE NATIONAL SENIOR CARE, LLC; GGNSC CAMP HILL WEST SHORE, LP d/b/a GOLDEN LIVING CENTER — WEST SHORE; GGNSC CAMP HILL WEST SHORE, GP, LLC; GGNSC EQUITY HOLDINGS, LLC; GGNSC HOLDINGS, LLC; GGNSC ADMINISTRATIVE SERVICES, LLC; GGNSC CLINICAL SERVICES, LLC; GPH CAMP HILL WEST SHORE, LP; and DENISE CURRY, RVP Defendants. CIVIL DIVISION NO.: 14-4644 COMPLAINT IN CIVIL ACTION JURY TRIAL DEMANDED 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 are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be' entered against you. by the Court without further notice for any money claimed in the Complaint or for any claim or relief requested by Plaintiff. You may lose money or property or other rights important to you: YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE 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 I Carlisle,,Pennsylvania 17013 Telephone: 717-249-3166 I Fax: 717-249-2663 3. Lynette Chism was appointed Executrix for the Estate of Mamie L. Chism, deceased, on July 31, 2014 by the Register of Wills of Dauphin County. 4. This action was commenced by Writ of Summons, filed on August 5, 2014. B. Defendants, Golden Gate National Senior Care, LLC; GGNSC Camp Hill West Shore, LP d/b/a Golden Living Center — West Shore; GGNSC Camp Hill West Shore, GP, LLC; GGNSC Equity Holdings, LLC; GGNSC Holdings, LLC; GGNSC Administrative Services, LLC; GGNSC Clinical Services, LLC; GPH Camp Hill West Shore, LP; and Denise Curry, RVP 5. Defendant, Golden Gate National Senior Care, LLC, is a corporation, duly licensed, organized and existing under and by virtue of the laws of Delaware, with offices and a place of business located at 7160 Dallas Parkway, Suite 400, Plano, Texas 75024. 6. Defendant, Golden. Gate National Senior Care, LLC, is engaged in the business of owning, operating and/or managing'nursing homes, including Golden Living Center - Westshore, providing healthcare, medical services, therapy, rehabilitation, skilled nursing care, and custodial care to the public in 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 healthcare providers and practitioners of medicine; and which is personally, directly and vicariously liable, among other things for the acts and omissions of itself, its agents, employees, servants, contractors, subcontractors, staff and/or partners and all other Defendants, all of whom played a role in the care provided to Mamie L. Chism and in the operation of the Facility. 7. Defendant, GGNSC Camp Hill West Shore, LP d/b/a Golden Living Center — West Shore, is a corporation, duly licensed, organized and existing under and by virtue of the 3 laws of Pennsylvania, with offices and a place of business located at 770 Poplar Church Road, Camp Hill, Pennsylvania 17011. 8. Defendant, GGNSC Camp Hill West Shore, LP d/b/a Golden Living Center — West Shore, is engaged in the business of owning, operating and/or managing nursing homes, including Golden Living Center - Westshore, providing healthcare, medical services, therapy, rehabilitation, skilled nursing care, and custodial care to the public in 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 healthcare providers and practitioners of medicine; and which is personally, directly and vicariously liable, among other things for the acts and omissions of itself, its agents, employees, servants, contractors, subcontractors, staff and/or partners and all other Defendants, all of whom played a role in the care provided to Mamie L. Chism and in the operation of the Facility. 9. Defendant, GGNSC Camp Hill West Shore, GP, LLC, is a corporation, duly licensed, organized and existing under and by virtue of the laws of Delaware, with offices and a place of business located at 7160 Dallas Parkway, Suite 400, Plano, Texas 75024. 10. Defendant, GGNSC Camp Hill West Shore, GP, LLC, is engaged in the business of owning, operating and/or managing nursing homes, including Golden Living Center - Westshore, providing healthcare, medical services, therapy, rehabilitation, skilled nursing care, and custodial care to the public in Cumberland County, Pennsylvania; and was at all times material hereto, duly licensed to operate same in the Commonwealth of Pennsylvania; and was 4 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 healthcare providers and practitioners of medicine; and which is personally, directly and vicariously liable, among other things for the acts and omissions of itself, its agents, employees, servants, contractors, subcontractors, staff and/or partners and all other Defendants, all of whom played a role in the care provided to Mamie L. Chism;and in the operation of the Facility. 11. Defendant, GGNSC Equity Holdings, LLC, is a corporation, duly licensed, organized and existing under and by virtue of the laws of Delaware, with offices and a place of business located at 7160 Dallas Parkway, Suite 400, Plano, Texas 75024. 12. Defendant, GGNSC Equity Holdings, LLC, is engaged in the business of owning, operating and/or managing nursing homes, including Golden Living Center - Westshore, providing healthcare, medical services, therapy, rehabilitation, skilled nursing care, and custodial care to the public in 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 healthcare providers and practitioners of medicine; and which is personally, directly and vicariously liable, among other things for the acts and omissions of itself, its agents, employees, servants, contractors, subcontractors, staff and/or partners and all other Defendants, all of whom played a role in the care provided to Mamie L. Chis m and in the operation of the Facility. 5 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 healthcare providers and practitioners of medicine; and which is personally, directly and vicariously liable, among other things for the acts and omissions of itself, its agents, employees, servants, contractors, subcontractors, staff and/or partners and all other Defendants, all of whom played a role in the care provided to Mamie L. Chism and in the operation of the Facility. 17. Defendant, GGNSC Clinical Services, LLC, is a corporation, duly licensed, organized and existing under and by virtue of the laws of Delaware, with offices and a place of business located at 7160 Dallas Parkway, Suite 400, Plano, Texas 75024. 18. Defendant, GGNSC Clinical Services, LLC, is engaged in the business of owning, operating and/or managing nursing homes, including Golden Living Center - Westshore, providing healthcare, medical services, therapy, rehabilitation, skilled nursing care, and custodial care to the public in 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 healthcare providers and practitioners of medicine; and which is personally, directly and vicariously liable, among other things for the acts and omissions of itself, its agents, employees, servants, contractors, subcontractors, staff and/or partners and all other Defendants, all of whom played a role in the care provided to Mamie L. Chism and in the operation of the Facility. 7 19. Defendant, GPH Camp Hill West Shore, LP, is a corporation, duly licensed, organized and existing under and by virtue of the laws of Delaware, with offices and a place of business located at 1000 Fianna Way, Fort Smith, Arkansas 72919. 20. Defendant, GPH Camp Hill West Shore, LP, is engaged in the business of owning, operating and/or managing nursing homes, including Golden Living Center - Westshore, providing healthcare, medical services, therapy, rehabilitation, skilled nursing care, and custodial care to the public in 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 healthcare providers and practitioners of medicine; and which is personally, directly and vicariously liable, among other things for the acts and omissions of itself, its agents, employees, servants, contractors, subcontractors, staff and/or partners and all other Defendants, all of whom played a role in the care provided to Mamie L. Chism and in the operation of the Facility. 21. Defendant, Denise Curry, is an individual, who resides at 503 Vilsack Road, Glenshaw, Pennsylvania 15116. Upon information and belief at all relevant times herein, Denise Curry was the co -Defendants' Regional Vice President and in that role she managed and controlled the operations of dozens of the Defendants' nursing facilities, including Golden Living Center - Westshore, during Mamie L. Chism's residency. 22. At all times material hereto, Defendants individually and collectively owed duties, some of which were non -delegable, to the residents of the Facility, including to Mamie L. Chism, such duties being conferred by statute, existing at common law, and/or being voluntarily assumed by each Defendant. 23. At all times material hereto, Defendants individually and collectively, and/or through a joint venture, owned, operated, managed and controlled the Facility, and are individually and collectively engaged in the business of providing healthcare, medical services, therapy, rehabilitation, skilled nursing care, and custodial care services to the general public. IL JURISDICTION AND VENUE 24. Jurisdiction and venue are proper in this Honorable Court in so far as Defendants regularly conduct business in Cumberland County, Pennsylvania and this cause of action arose, at least in part, in this county and/or this action is being brought in any county in which venue may be laid against any Defendant. See Pa. R.C.P. 1006(a.1) and 2179. III. FACTUAL BACKGROUND A. Conduct of the Defendants 25. Prior to her death on July 18, 2013, Mamie L. Chism was a resident of the Defendants' facility.' 26. Mamie L. Chism was incapable of independently providing for all of her daily care and personal needs without reliable assistance. In exchange for financial consideration, she was admitted to Defendants' Facility to obtain such care and protection. 27. The Defendants, through advertising, marketing campaigns, promotional materials and information sheets, held out themselves and the Facility as being able to provide medical, skilled nursing, rehabilitation, therapy and custodial care services to elderly and frail individuals, including Mamie L. Chism. Plaintiff is not bringing any claims pursuant to 62 P.S. §1407(c) and nothing in the Complaint in Civil Action should be interpreted as an attempt to recover damages pursuant to that Statute. 9 28. Defendants assumed responsibility for Mamie L. Chism's total healthcare, including the provision of nutrition, hydration, activities of daily living, medical, skilled nursing, rehabilitation, and therapy. 29. Defendants further assumed responsibility to provide Mamie L. Chism with ordinary custodial and hygiene services. 30. Defendants exercised complete and total control over the healthcare of all residents of the Facility, including Mamie L. Chism. 31. Defendants were vertically integrated organizations that were controlled by their respective members, managers and/or boards of directors, who were responsible for the operation, planning, management and quality control of the Facility. 32. The control exercised over the Facility by the Defendants included, inter alia: cash management; cost control; setting staffing levels; budgeting; marketing; maintaining and increasing census; supervision of the Facility administrator and director of nursing; supervision and oversight of the staff; development and implementation of nursing staff in -services; development and implementation of all pertinent policy and procedures; monitoring customer satisfaction; performing mock surveys; risk management; corporate and regulatory compliance; quality of care assessment; licensure and certification; controlling accounts payable and receivable; development and implementation of reimbursement strategies; retaining contract management, physician, therapy and dietary services; dictating census and payor source quotas for admissions to the facility; and employing the Facility -level, regional and corporate staff who together operated the Facility. 33. Defendants, by and through their respective members, managers, board of directors and corporate officers, utilized survey results and various other reports, including 10 quality indicators, to monitor the care being provided at their nursing homes, including the Facility. 34. Defendants exercised ultimate authority over all budgets and had final approval over the allocation of resources for staffing, supplies, and operations of their nursing homes including the Facility. 35. 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, including Mamie L. Chism, with respect to the recognition and/or treatment of medical conditions, such as those experienced by Mamie L. Chism, so as to ensure that timely and appropriate care was provided for such conditions whether within the Facility, or obtained from other medical providers. 36. Defendants, acting through their administrators, members, managers, board of directors and corporate officers, were responsible for supervising the standard of professional practice by the members of their staff at the Facility, including regarding the conduct at issue herein. 37. Defendants had an obligation to employ competent, qualified and trained staff so as to ensure that proper care, treatment and services were rendered to individuals having medical, nursing and/or custodial needs, such as those presented by Mamie L. Chism as set forth herein. 38. 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 the medical, nursing and/or custodial needs of the residents, such as Mamie L. Chism, whether within the Facility, or obtained from other medical care providers. 11 39. Defendants made a conscious decision to operate and/or manage the Facility so as to maximize profits at the expense of the care required to be provided to their residents, including Mamie L. Chism. 40. In their efforts to maximize profits, Defendants negligently, intentionally and/or recklessly mismanaged and/or reduced staffing levels below the level necessary to provide adequate care to the residents. 41. Despite their knowledge of the likelihood of harm due to insufficient staffing levels, and despite complaints from staff members about insufficient staffing levels, Defendants recklessly and/or negligently disregarded 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 the needs of the Facility's residents, including Mamie. L. Chism. 42. Defendants intentionally increased the number of sick, elderly and frail residents with greater health problems requiring more complex medical care. 43. Defendants knew that this increase in the acuity care levels of the resident population would substantially increase the need for staff, services, and supplies necessary for the new resident population. 44. Defendants knew, or should have known, that the acuity needs of the residents in their nursing homes increased and, therefore, the required resources also increased, including the need for additional nursing staff in order to meet the needs of the residents, including Mamie L. Chism. 45. Defendants failed to provide the resources necessary, including sufficient staff, to meet the needs of the residents, including Mamie L. Chism. 46. Defendants knowingly established staffing levels that created recklessly high 12 resident to staff ratios, including high resident to nurse ratios and high resident to nurse aide ratios. 47. Defendants knowingly disregarded patient acuity levels while making staffing decisions, and also knowingly disregarded the minimum time required by the staff to perform essential clay -to -day functions and treatments. 48. The acts and omissions of the Defendants were motivated by a desire to increase the profits of the nursing homes they own, including the Facility, by knowingly, recklessly, and with total disregard for the health and safety of the residents, reducing expenditures for needed staffing, training, supervision, and care to levels that would inevitably lead to severe injuries, such as those suffered by Mamie L. Chism. 49. The actions of the Defendants were designed to increase reimbursements by governmental programs, which, upon information and belief, are the primary source of income for the Facility. 50. The aforementioned acts directly caused injury to Mamie L. Chism and were known by the Defendants. 51. Defendants knowingly sacrificed the quality of care received by all residents, including Mamie L. Chism, by failing to manage, care, monitor, document, chart, prevent, diagnose and/or treat the injuries and illnesses suffered by Mamie L. Chism, as described herein, which included hypovolemia, a delay in obtaining medical treatment leading to a cardiovascular accident, a urinary tract infection positive for Beta Hemolytic Group B, dehydration, abuse from other residents, poor hygiene, severe pain, and ultimately death. 52. At the time and place of the incidents hereinafter described, the Facility whereupon the incidents occurred was individually, collectively, and/or through a joint venture, 13 owned, possessed, controlled, managed, operated and maintained under the exclusive control of the Defendants. 53. At all times material hereto, the Defendants were operating personally or through their agents, servants, workers, employees, contractors, subcontractors, staff, and/or principals, who acted with actual, apparent 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 the Defendants. 54. The aforementioned incidents were caused solely and exclusively by reason of the negligence, carelessness and recklessness of the Defendants, their agents, servants, contractors, subcontractors, staff and/or employees and was due in no part to any act or failure to act on the part of Mamie L. Chism. 55. 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 them. 56. 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. B. Injuries to Mamie L. Chism at the Facility 57. Plaintiff is not seeking damages for the portions of Mamie L. Chism's residency that fall outside of the applicable statute of limitations, as ultimately construed by this Court. However, Plaintiff asserts that, pursuant to Pa.R.E. §404(b), evidence of prior injuries and 14 negligence of the Defendants which pre-dates the applicable damages period are still relevant for determining Defendants' knowledge, notice, habit, routine, pattern, practice, and absence of mistake. 58. Upon admission to the Facility and during the relevant time period, Mamie L. Chism was dependent upon the staff for her physical, mental, psycho-social, medical, nursing and custodial needs, requiring total assistance with activities of daily living, and she had various illnesses and conditions that required evaluation and treatment. 59. Mamie L. Chism was at risk for future illnesses and injuries, including, falls, infections, dehydration, and severe pain. 60. Defendants engaged in a pattern of care replete with harmful and injurious commissions, omissions and neglect as described herein. 61. Defendants deprived Mamie L. Chism of adequate care, treatment, food, water and medicine and caused her to suffer numerous illnesses and injuries, which included hypovolemia, a delay in obtaining medical treatment leading to a cardiovascular accident, a urinary tract infection positive for Beta Hemolytic Group B, dehydration, abuse from other residents, poor hygiene, severe pain, and ultimately death. 62. The severity of the negligence inflicted upon Mamie L. Chism by the Defendants, accelerated the deterioration of her health and physical condition, and resulted in physical and emotional injuries that caused her severe pain, suffering and mental anguish, together with unnecessary hospitalizations, and death. 63. These injuries, as well as the conduct specified herein, caused Mamie L. Chism to suffer a loss of personal dignity, together with degradation, anguish and emotional trauma. 64. On January 30, 2013, Ms. Chism was noted to have contracted a urinary tract 15 infection positive for Beta Hemolytic Group B. 65. On February 19, 2013, Ms. Chism and her new roommate were in a physical altercation. An LPN found Ms. Chism's wrist being held by her roommate. Ms. Chism was fighting back by scratching roommate's right forearm. 66. On March 21, 2013, Ms. Chism was in a physical altercation with a male resident, who slapped her lightly on the right side of her face. 67. On June 18, 2013, at 6:15 a.m., Ms. Chism was noted with increased confusion, slurred speech, and slight drooping of the mouth on her left side. She was noted to be experiencing mild hypovolemia with lab results of: BUN 42H, Creatine 2.2H, and potassium 5.5H. 68. On June 19, 2013, at 6:09 a.m. Ms. Chism continued to express confusion. By 12:35 p.m., she was noted to be listless, have unclear speech, and glazed eyes. Additionally, dependent edema to her bilateral lower extremities was noted. Her pulse was noted to be 78, blood pressure 147/85, and oxygen saturation 94% on room air. Ms. Chism was transferred to the emergency room for evaluation and treatment. 69. Ms. Chism was admitted to the emergency room with a diagnosis of cardiovascular accident. 70. On June 20, 2013, Ms. Chism was readmitted to the Facility after a 23 hour observation at the hospital. She was lethargic, responded to touch, but would then fall back to sleep. 71. Ms. Chism passed away on July 18, 2013. 72. Defendants accepted Mamie L. Chism as a resident fully aware of her medical history and understood the level of nursing care she required. 16 73. Mamie L. Chism's chart includes and evidences missing and incomplete documentation. 74. The severity of the negligence inflicted upon Mamie L. Chism by the Defendants' mismanagement, improper/under-budgeting, understaffing of the Facility and lack of training or supervision of the Facility's employees, failure to provide adequate and appropriate health care; engaging in incomplete, inconsistent and fraudulent documentation; failure to develop an appropriate care plan; failure to ensure the highest level of physical, mental and psychosocial functioning was attained; failure to provide proper medication; and failure to provide sufficient food and water, causing Mamie L. Chism to suffer hypovolemia, a delay in obtaining medical treatment leading to a cardiovascular accident, a urinary tract infection positive for Beta Hemolytic Group B, dehydration, abuse from other residents, poor hygiene, severe pain, and ultimately death. 75. As a result of the negligence, carelessness and recklessness of the Defendants herein described, Mamie L. Chism was caused to suffer serious and permanent injuries as described herein, to, in and about her body and possible aggravation and/or activation of any pre- existing conditions, illnesses, ailments, or diseases she had, and/or the accelerated deterioration of her health, physical and mental condition, and a loss of the ordinary pleasures of life, a loss of dignity, humiliation, and more particularly, hypovolemia, a delay in obtaining medical treatment leading to a cardiovascular accident, a urinary tract infection positive for Beta Hemolytic Group B, dehydration, abuse from other residents, poor hygiene, severe pain, and ultimately death,. along with other body pain and damage, as well as anxiety, reaction and injury to her nerves and nervous system, some or all of which were permanent, together with other medical complications. 17 IV. COUNT ONE Lynette Chism, Executrix for The Estate of Mamie L. Chism, deceased v. Golden Gate National Senior Care, LLC; GGNSC Camp Hill West Shore, LP d/b/a Golden Living Center — West Shore; GGNSC Camp Hill West Shore, GP, LLC; GGNSC Equity Holdings, LLC; GGNSC Holdings, LLC; GGNSC Administrative Services, LLC; GGNSC Clinical Services, LLC; GPH Camp Hill West Shore, LP; and Denise Curry, RVP 76. Plaintiff incorporates herein by reference the preceding paragraphs as though the same were more fully set forth at length herein. 77. Upon accepting Mamie L. Chism as a resident at the Facility, Defendants individually and jointly assumed direct, non -delegable duties to Mamie L. Chism to provide her with adequate and appropriate healthcare, as well as basic custodial and hygiene services, as set forth herein. 78. If Defendants were unable or unwilling to meet the needs of Mamie L. Chism, they had an affirmative duty and legal obligation to discharge Mamie L. Chism from the Facility. 79. Defendants had the ultimate responsibility of ensuring that the rights of the residents, including Mamie L. Chism, were protected. 80. Defendants owed a non -delegable duty to provide adequate and appropriate medical, skilled nursing, rehabilitation, therapy and custodial care services and supervision to Mamie L. Chism and other residents, such as reasonable caregivers would provide under similar circumstances. 81. Defendants each owed a non -delegable duty to the Facility's residents, including Mamie L. Chism, to hire, train, and supervise their employees so as to ensure that the Facility was operated and services were provided to Defendants' residents in a safe and reasonable manner. 82. Defendants, by and through their agents, employees, and/or servants each owed a 18 duty of care to Mamie L. Chism to exercise the appropriate skill and care of licensed physicians, nurses, nurse aides, directors of nursing, and/or nursing home administrators. 83. Defendants each owed a duty and responsibility to furnish Mamie L. Chism with appropriate and competent medical, skilled nursing, rehabilitation, therapy and custodial care services. 84. Defendants each owed and failed to fulfill the following duties to Mamie L. Chism: the duty to use reasonable care in the maintenance of safe and adequate facilities and equipment; to select, train and retain only competent staff; to oversee and supervise all persons who practiced nursing, medical and/or skilled healthcare within the Facility; to staff the facility with personnel sufficient both in number and in training to provide the care and services required by the Facility's residents; to ensure that the Facility's residents were treated with dignity and respect; to maintain sufficient funding, staffing and resources for the Facility so that its residents were provided with the care and services they required; to formulate, adopt, and enforce rules, procedures and policies to ensure quality care and healthcare for all residents, and to update the same as required by the applicable standards of care; to take adequate measures to rectify known problems in the delivery of hygiene and custodial services as well as in the delivery of medical, skilled nursing, rehabilitation, and therapy care; to warn residents, their family and/or representatives of the Defendants' inability to provide adequate care and services when Defendants knew or should have known of their deficiencies in providing such care and services; to refuse admission to residents to whom they knew or should have known they could not provide reasonable care and services; to not admit more residents than to whom Defendants could safely provide adequate care and services; to keep the Facility's residents free from physical and mental abuse and neglect; to provide a safe, decent and clean living environment for 19 the Facility's residents; and to assist the residents in retaining and exercising all of the Constitutional, civil and legal rights to which they are entitled as citizens of the United States and of the Commonwealth of Pennsylvania. 85. In addition to the direct acts and omissions of the corporate Defendants, the Defendants also acted 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. 86. Defendants each authored, produced and/or received frequent reports detailing the number and types of injuries, illnesses, and infections sustained by Mamie L. Chism and the residents in the Facility. 87. 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 Mamie L. Chism, Defendants failed to take steps to prevent the occurrence of said injuries, illnesses, and/or infections. 88. The Defendants knew, or should have known, of the aforementioned problems that were occurring with the care of Mamie L. Chism, as they were placed on actual and/or constructive notice of said problems, through Defendants' own reports and through governmental/state surveys. 89. Defendants, as the corporate members, managers, owners, and/or directors of the Facility, breached their duties and were, therefore, negligent, careless and reckless in their obligations to Mamie L. Chism. 90. The corporate conduct of the Defendants was independent of the negligent conduct of the employees of the Facility, and was outrageous, willful, and wanton, and exhibited 20 a reckless indifference to the health and well-being of the residents, including Mamie L. Chism. 91. The breaches of duties, general negligence, professional negligence, corporate negligence, carelessness and recklessness of the Defendants, individually, vicariously and/or acting by and through their officers, directors, members, managers, physicians, physicians' assistants, nurses, nurses aides, regional and corporate staff who examined, treated and/or communicated the condition of Mamie L. Chism, 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 the Defendants were exhibited in the following acts and omissions in the care and treatment of Mamie L. Chism: a. failure to hire, utilize, train and retain sufficient staff to meet the residents' needs, including those of Mamie L. Chism, which caused Mamie L. Chism to suffer hypovolemia, a delay in obtaining medical treatment leading to a cardiovascular accident, a urinary tract infection positive for Beta Hemolytic Group B, dehydration, abuse from other residents, poor hygiene, severe pain, and ultimately death; b. failure to provide adequate hygiene to prevent infection, to keep Mamie L. Chism clean and to preserve her dignity; c. failure to develop, implement and administer to Mamie L. Chism appropriate infection control policies, procedures and techniques; d. failure to ensure that Mamie L. Chism did not needlessly suffer from preventable and treatable pain; e. failure to ensure that Mamie L. Chism received her physician -ordered medications in accordance with her physicians' orders; f. failure to ensure that Mamie L. Chism received her physician -ordered treatments in accordance with her physicians' orders; g - failure to timely and appropriately notify Mamie L. Chism's physician(s) and consulting specialists when she experienced significant changes in her condition, contributing to Mamie L. Chism's injuries and illnesses, including hypovolemia, a delay in obtaining medical treatment leading to a cardiovascular accident, a 21 urinary. tract infection positive for Beta Hemolytic Group B, dehydration, abuse fromother residents,poor hygiene, severe pain, and ultimately death; h. failure to obtain new or, modified physician orders when Mamie . L. Chism's changes in condition required the same; failure to timely and appropriately notify Mamie L. Chism's family and personal representatives when she experiencedsignificant changes in , her condition, contributing to Mamie L. Chism's injuries and illnesses, including hypovolemia, a delay in, obtaining medical treatment leading to .a cardiovascular accident, a urinary tract infection positive for Beta Hemolytic Group B, dehydration, abuse from other residents, poor hygiene, severe pain, and ultimately death; j. failure to provide adequate and appropriate nutrition and hydration to prevent Mamie L. Chism from suffering from weight loss and malnutrition; k. failure to accurately and consistently document Mamie L. Chism's needs and the care and services provided to her in response to such needs;. 1. failure to prevent fraudulent documentation and allowing the Defendants' staff to chart that they provided care to Mamie L. Chism ,on non-existent days, on days when the charting staff member was not actually at work, and/or on days when Mamie L. Chism was not even in Defendants' Facility; m. failure to ensure that Mamie L. Chism did not develop serious and permanent injuries to, in and about her body and possible aggravation and/or activation of any pre-existing conditions, illnesses, ailments, or diseases she had, and/or accelerated the deterioration of her health,, physical and mental condition, and more particularly; when she suffered hypovolemia, a delay in obtaining medical treatment leading to a cardiovascular accident, a 'urinary tract infection positive for Beta Hemolytic Group B, dehydration, abuse from other residents, poor hygiene, severe pain, and ultimately death; n. failure to respond, in a timely manner with appropriate medical, nursing and custodial care when Mamie L. Chism was injured, including when she experienced hypovolemia_, a delay in obtaining medical treatment leading to a cardiovascular accident, a urinary tract infection positive for Beta Hemolytic Group B, dehydration, abuse from other residents, poor hygiene, severe pain, and ultimately death, when Defendants knew or should have known that Mamie L. Chism was at risk for the same; o. failure to ensure that each resident, including Mamie L. Chism, 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; 22 x. failure to provide Mamie L. Chism with the necessary care and services to allow her to attain or maintain the highest practicable physical, mental and psychological well-being; y. failure to implement a budget that properly funded the Facility and allowed the Facility to provide adequate and appropriate healthcare to Mamie L. Chism, including adequate staff and supplies; z. grossly understaffing the Facility; aa. failure to take appropriate steps to remedy continuing problems at the Facility that Defendants knew were occurring with Mamie L. Chism's care, 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 care; bb. failure to maintain compliance with the governmental regulations to which Defendants' delivery of care is compared as part of the annual and complaint state survey process performed by the Pennsylvania Department of Health; and, cc. in committing the acts and omissions herein, acting in a grossly negligent manner, with reckless indifference to the rights and safety of Mamie L. Chism. 92. Upon information and belief, Defendants' owners, officers, directors, partners, members and managers were made aware of governmental/state survey results and placed on notice of the status of their nursing homes, including the Facility. 93. Upon information and belief, the Defendants, including their owners, officers, directors, partners, members, managers and employees, knew that they had been cited by governmental units regarding Golden Living Center - Westshore on October 21, 2010 for failure to implement its abuse prevention policies, failure to ensure that call bells were accessible, failure to ensure that residents received the appropriate treatment and services; on January 12, 2011 for failure to notify residents' legal representative of an incident which resulted in an injury, failure to follow their reporting policies for injuries of unknown source; on January 20, 2011 for failure to provide a safe environment; on February 1, 2011 for failure to provide adequate 24 • supervision and oversight in a manner that ensured the safety of the residents in the facility; on March 3, 2011 for failure to ensure that residents were free from any significant medication errors; on May 27, 2011 for failure to ensure that clinical records were complete and accurate; on September 29, 2011 for failure to provide timely and necessary care and services, failure to ensure that residents received adequate supervision to prevent accidents and that the environment remained as free from accident hazards as possible, failure to accurately complete the assessment; on March 30, 2012 for failure to coordinate the necessary care and services in a timely manner; on October 26, 2012 for failure to provide a sanitary environment for the residents, staff, and the public, failure to maintain an effective pest control program to ensure the facility is free of pests, failure to notify the physician of changes in condition, failure to update the care plan to reflect the needs and interventions for residents, failure to follow physicians orders, failure to maintain accurate clinical records; on December 28, 2012 for failure to provide adequate notice prior to a room change, failure to implement physician recommendations in timely manner; on April 2, 2013 for failure to notify the physician of a resident's change in condition, failure to assess and implement interventions in response to a change in condition, failure to accurately and completely document a change in status; and on May 15, 2013 for failure to provide adequate supervision to prevent accidents, failure to maintain an Infection Control Program designed to provide a sanitary environment, failure to maintain accurate clinical records in accordance with accepted professional standards, failure to maintain an effective pest control program, failure to maintain a sanitary environment for residents, staff and the public, failure to fully inform in advance about care and treatments that may affect the resident's well- being, failure to promote care for residents that enhances their dignity, failure to develop a comprehensive care plan. 25 ,-, ,atr . 94. As a direct and proximate result of the Defendants' acts and omissions, and their breach of the duty of care, negligence, carelessness and recklessness, Mamie L. Chism suffered (a) severe permanent physical injuries resulting in pain, suffering, disfigurement and death, (b) mental anguish, embarrassment, humiliation, degradation, emotional distress, and loss of personal dignity, (c) loss of capacity for enjoyment of life, and (d) expense of otherwise unnecessary hospitalizations and medical care. 95. In causing the aforementioned injuries, the Defendants knew, or should have known, that Mamie L. Chism would suffer such harm. 96. At all times pertinent hereto, there was in full force and effect 18 Pa.C.S.A. §2713 "Neglect of Care Dependent Person," which set forth penal consequences for neglect of a care - dependent person. 97. 18 Pa.C.S.A. §2713 "Neglect of Care 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. 98. At all times pertinent hereto, Mamie L. Chism was a care dependent resident of the Defendants' Facility, Golden Living Center - Westshore, 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. 99. 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 Mamie L. Chism sustained. 26 100. The Defendants, in accepting the responsibility for caring for Mamie L. Chism as aforesaid, were negligent "per se" and violated 18 Pa.C.S.A. §2713 "Neglect of Care Dependent Person" in that they: a. failed to provide treatment, care, goods and services necessary to preserve the health, safety or welfare of Mamie L. Chism for whom they were responsible to provide care as specifically set forth in this Complaint; 101. At alltimes 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 care -dependent person. 102. 35 P.S. §10225.102, expresses the policy of the Commonwealth of Pennsylvania that: ...older adults who lack the capacity to protect themselves and are 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 welfare. 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. 103. At all times pertinent hereto, Mamie L. Chism was an older person who was a resident of Defendants' Facility, Golden Living Center - Westshore, 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 Plaintiff to adopt 35 P.S. §10225.101, et seq. as the standard of care for measuring the Defendants' conduct. 104. Additionally, the Pennsylvania Older Adults Protective Services Act is directed, at least in part, to obviate the specific kind of harm which Mamie L. Chism sustained. 27 i 105. In addition to the aforesaid negligence, which said negligence is specifically incorporated herein, the Defendants, in accepting the responsibility for caring for Mamie L. Chism as aforesaid, were negligent "per se" and violated 35 P.S. §10225.101, et seq. in that they had reasonable cause to suspect that Mamie L. Chism was the victim of abuse or neglect and failed to report said abuse and neglect to the appropriate agency and law enforcement officials. 106. As a direct result of the aforesaid negligence "per se" of the Defendants, Mamie L. Chism was caused to sustain serious personal injuries and damages as aforesaid. 107. The conduct of the Defendants was intentional, outrageous, willful and wanton, and exhibited a reckless indifference to the health and well-being of Mamie L. Chism. 108. The conduct of the Defendants was such that an award of punitive damages is justified. WHEREFORE, Plaintiff, Lynette Chism, Executrix for the Estate of Mamie L. Chism, deceased, respectfully requests that judgment be entered in her favor, and against 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 relief that this Honorable Court deems appropriate given the circumstances. A jury trial is demanded. V. COUNT TWO Lynette Chism, Executrix for The Estate of Mamie L. Chism, deceased v. Golden Gate National Senior Care, LLC; GGNSC Camp Hill West Shore, LP d/b/a Golden Living Center — West Shore; GGNSC Camp Hill West Shore, GP, LLC; GGNSC Equity Holdings, LLC; GGNSC Holdings, LLC; GGNSC Administrative Services, LLC; GGNSC Clinical Services, LLC; GPH Camp Hill West Shore, LP; and Denise Curry, RVP 109. Plaintiff hereby incorporates by reference the preceding paragraphs as though the same were more fully set forth at length herein. 110. Plaintiff, Lynette Chism, brings this action on behalf of the decedent's estate 28 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. 111. The following persons are entitled to share under this cause of action in the estate of said decedent, Mamie L. Chism: Lynette Chism, daughter; Dennis Chism, son; Adolph Chism, son, Charles Venable, son, Rosemary V. Banks, daughter, Leroy Venable, son, Barbara Ann (Venable) Mazo, daughter, and Frederick Barns, son. 112. Plaintiffs decedent, Mamie L. Chism, did not bring any action during her lifetime, nor has any other action been commenced on behalf of Plaintiff's decedent, Mamie L. Chism, against the Defendants herein. 113. Plaintiff, Lynette Chism, claims damages for the conscious pain and suffering including mental and physical pain, suffering and inconvenience, loss of life's pleasures and aggravation of pre-existing medical conditions, and expense of otherwise unnecessary hospitalizations undergone by Mamie L. Chism, up to and including the time of her death, which was caused by the Defendants' breach of duties, negligence, carelessness and recklessness. 114. Plaintiff, Lynette Chism, claims damages for the fright and mental suffering attributable to the peril leading.to the physical manifestation of mental injuries, physical injuries, hypovolemia, a delay in obtaining medical treatment leading to a cardiovascular accident, a urinary tract infection positive for Beta Hemolytic Group B, dehydration, abuse from other residents, poor hygiene, severe pain, and ultimately death occurring to Mamie L. Chism, which was caused by the Defendants' breaches of duties, negligence, carelessness and recklessness. 115. In causing the aforementioned injuries, the Defendants knew, or should have known, that Mamie L. Chism would suffer such harm. 116. The conduct of the Defendants was intentional, outrageous, willful and wanton 29 and exhibited a reckless indifference to the health and well-being of Mamie L. Chism. 117. The conduct of the Defendants was such that an award of punitive damages is justified. WHEREFORE, Plaintiff, Lynette Chism, Executrix for the Estate of Mamie L. Chism, deceased, respectfully requests that judgment be entered in her favor, and against 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 relief that this Honorable Court deems appropriate given the circumstances. A jury trial is demanded. VI. COUNT THREE Lynette Chism, Executrix for The Estate of Mamie L. Chism, deceased v. Golden Gate National Senior Care, LLC; GGNSC Camp Hill West Shore, LP d/b/a Golden Living Center — West Shore; GGNSC Camp Hill West Shore, GP, LLC; GGNSC Equity Holdings, LLC; GGNSC Holdings, LLC; GGNSC Administrative Services, LLC; GGNSC Clinical Services, LLC; GPH Camp Hill West Shore, LP; and Denise Curry, RVP 118. Plaintiff hereby incorporates by reference the preceding paragraphs as though the same were fully set forth at length herein. 119. Plaintiff, Lynette Chism, bring this action on behalf of the decedent's estate under and by virtue of the Pennsylvania Judiciary Act 42 Pa.C.S. 8301, known as the Wrongful Death Statute, to recover all damages legally appropriate thereunder. 120. The following persons are entitled to share under this cause of action in the estate of said decedent, Mamie L. Chism: Lynette Chism, daughter; Barbara Ann (Venable) Mazo, daughter; Frederick Barns, son; Charles S. Venable, son; Rose Banks, daughter; LeRoy Venable, son; Dennis Chism, son, and Ralph Chism, son. 121. Plaintiff's decedent, Mamie. L. Chism, did not bring any action during her lifetime, nor has any other action been commenced on behalf of Mamie L. Chism, deceased, 30 against the Defendants herein. 122. Plaintiff, Lynette Chism, claims damages for the pecuniary loss suffered by the decedent's survivors by reason of the death of Mamie L. Chism, deceased, as well as for the reimbursement of hospital, nursing, medical, and funeral expenses, and expenses of administration and other expenses incurred in connection therewith. 123. As a result of the death of Mamie L. Chism, deceased, the survivors, as aforesaid, have been deprived of the companionship, comfort, aid, assistance and society that she would have received from said Mamie L. Chism, deceased, for the remainder of her natural life. WHEREFORE, Plaintiff, Lynette Chism, Executrix for the Estate of Mamie L. Chism, deceased, respectfully requests that judgment be entered in her favor, and against 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 relief that this Honorable Court deems appropriate given the circumstances. A jury trial is demanded. Respectfully Submitted, Dated: /0L/ /Z/ BY: WILKES & McHUGH, P.A. Andrei Govorov, Esquire Attorney for Plaintiff, Lynette Chism; Executrix for the Estate of Mamie L. Chism, deceased 31 VERIFICATION The undersigned, having read the attached pleading, verifies that the within pleading is based on information furnished to counsel, which information has been gathered by counsel in the course of this lawsuit. The language of the pleading is that of counsel and not of signer. Signer verifies that signer has read the within pleading and that it is true and correct to the best of signer's knowledge, information and belief. To the extent that the contents of the pleading 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. DATE: December 15, 2014 Lynett Chism, as Executrix for the Estate of Mamie L. Chism, deceased CERTIFICATE OF SERVICE 1, Andrei Govorov, attorney for Plaintiff, hereby certify that a true and correct copy of foregoing Complaint in Civil Action and Notice of Defend was served via first class mail upon defense counsel for defendant on this date: Jacqueline M. Carolan, Esquire Fox Rothschild LLP 2000 Market Street, 12th Floor Philadelphia, PA 19103 (Attorney for Defendants) Date: /2%_ " By: Wilkes &McHugh, P.A. Andrei Govorov, Esquire Attorney for Plaintiff ALTERNATIVE DISPUTE RESOLUTION AGREEMENT THIS AGREEMENT IS NOT A CONDITION OF ADMISSION TO OR CONTINUED RESIDENCE IN THE FACILITY I. The Parties to This Agreement This Alternative Dispute Resolution ("ADR") Agreement (hereinafter referred to as the "Agreement") is entered into by ("Facility"), and , a Resident at the Facility ("Resident"). The term "Facility" as used in this Agreement shall refer to the living center, its employees, agents, officers, directors, affiliates and any parent or subsidiary of Facility and its medical director acting in his or her capacity as medical director. The term "Resident" as used in this Agreement shall refer to the Resident, all persons whose claim is or may be derived through or on behalf of the Resident, including any next of kin, guardian, executor, administrator, legal representative, or heir of the Resident, and any person who has executed this Agreement on the Resident's behalf. As used in this Agreement, the term "Party" shall refer to the Facility or the Resident, and the term "Parties" shall refer to both of them. It is the intent of the Parties that this Agreement shall inure to the benefit of, bind, and survive them, their successors, and assigns. II. Voluntary Agreement to Participate in ADR The Parties agree that any disputes covered by this Agreement ("Covered Disputes") that may arise • between them shall be resolved exclusively by an ADR process that shall include mediation and, where mediation is not successful, binding arbitration. The parties to this Agreement acknowledge and agree that upon execution by Resident, this Agreement becomes part of the Admission Agreement, and that the Admission Agreement evidences a transaction in interstate commerce govenaed by the Federal Arbitration Act. The relief available to the Parties under this Agreement shall not exceed that which otherwise would be available to them in a court action based on the same facts and legal theories under the applicable federal, state or local law. THE PARTIES UNDERSTAND, ACKNOWLEDGE, AND AGREE THAT THEY ARE SELECTINGA METHOD OF RESOLVING DISPUTES WITHOUT RESORTING TO LAWSUITS OR THE COURTS, AND THAT BY ENTERING INTO THIS AGREEMENT, THEY ARE GIVING UP THEIR CONSTITUTIONAL RIGHT TO HAVE THEIR DISPUTES DECIDED IN A COURT OF LAW BY A JUDGE OR JURY, THE OPPORTUNITY TO PRESENT THEIR CLAIMS AS A CLASS ACTION AND/OR TO APPEAL ANY DECISION OR AWARD OF DAMAGES RESULTING FROM THE ADR PROCESS EXCEPT AS PROVIDED HEREIN. Except as specifically provided in this Agreement, the Parties' resort to a court of law shall be limited to an action to enforce a binding arbitration decision entered in accordance with this Agreement or to vacate such a decision based on the grounds set forth in the Federal Arbitration Act, 9 U.S.C. sections 1- 16, or the law of the state where Facility is located. The Parties agree that the speed, efficiency, and cost-effectiveness of the ADR process, together with their mutual undertaking to engage in that process, constitute good and sufficient consideration for the acceptance and enforcement of this Agreement. Golden LivingCentcrs: Altemative Dispute Resolution Agreement (rev. 01/10) 9 III. Covered Disputes This Agreement applies to any and all disputes arising out of or in any way relating to this Agreement or to the Resident's stay at the Facility or the Admissions Agreement between the Parties that would constitute a legally cognizable cause of action in a court of law sitting in the state where Facility is located. Covered Disputes include but are not limited to all claims in law or equity arising from one Party's failure to satisfy a financial obligation to the other Party; a violation of a right claimed to exist under federal, state, or local law or contractual agreement between the Parties; tort; breach .of contract; consumer protection; fraud; misrepresentation; negligence; gross negligence; malpractice; and any alleged departure from any applicable federal, state, or local medical, health care, consumer, or safety standards. Nothing in this Agreement shall prevent the Resident from filing a grievance or complaint with the Facility or appropriate government agency, from requesting an inspection of the Facility from such agency, or from seeking a review under any applicable federal, state, or local law of any decision to discharge or transfer the Resident. This Agreement also shall not prevent any Party from seeking interim equitable relief from a court of competent jurisdiction to prevent irreparable harm or to preserve the positions of the parties pending arbitration, or to seek appointment of an arbitrator. In addition, the parties are not precluded by this Agreement from seeking remedies in small claims court for disputes or claims within its jurisdiction. All claims based in whole or in part on the same incident, transaction, or related course of care or services provided by the Facility to the Resident shall be addressed in a single ADR process, which shall adjudicate solely the claims of the Parties named in this Agreement, and no others. A claim by the Party initiating the ADR process shall be waived and forever barred if it arose and was reasonably discoverable prior to the date upon which notice of arbitration is given to the Facility or the Resident and such claim is not presented in the arbitration proceeding. A claim that is not brought within the statute of limitations period that would apply to the same claim in a court of law sitting in the state where Facility is located also shall be waived and forever barred. IV. Administration and Process Covered Disputes, including the determination of the scope or applicability of this Agreement, shall be determined by arbitration in the federal judicial district in which Facility is located or the hometown of Resident, before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures in cases where no disputed claim or counterclaim exceeds $250,000, not including interest or attorneys' fees, and by its Comprehensive Arbitration Rules .and Procedures in all other cases.1 Judgment on the resulting arbitration award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. Prior to the appointment of the arbitrator, and within 10 days from the date of commencement of the arbitration, the parties shall submit the dispute to JAMS for mediation. The parties will cooperate with JAMS and with one another in selecting a mediator from JAMS panel of neutrals, and in promptly scheduling the mediation proceedings. The parties covenant that they will participate in the mediation in good faith, and that they will share equally in its costs. All offers, promises, conduct and statements, whether oral or written, made in the course of the mediation by any of the parties, their agents, employees, experts and attorneys, and by the mediator or any JAMS employees, are confidential, 1 The Parties may also agree in writing on another substantially similar method of administering ADR. If JAMS is used, the applicable rules are available on the intemet at http://www.jamsadr.coudndes-download-rules/. In the event that JAMS is unable or tinwilling to administer arbitration, a substitute arbitrator will be appointed pursuant to section 5 of the Federal Arbitration Act. 10 Golden LivingCenters: Alternative Dispute Resolution Agreement (rev. 01/10) privileged and inadmissible for any purpose, including impeachment, in any arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non -discoverable as a result of its use in the mediation. If the dispute is not resolved within 30 days from the date of the submission of the dispute to mediation (or such later date as the parties may mutually agree in writing), the administration of the arbitration shall proceed forthwith. The mediation may continue, if the parties so agree, after the appointment of the arbitrators. Unless otherwise agreed by the parties, the mediator shall be disqualified from serving as arbitrator in the case. The pendency of a mediation shall not preclude a party from seeking provisional remedies in aid of the arbitration from a court of appropriate jurisdiction, and the parties agree not to defend against any application for provisional relief on the ground that a mediation is pending. V. Costs and Fees Where Resident initiates arbitration against Facility, the only fee required to be paid by Resident is $250, which is approximately equivalent to a court filing fee; all other fees and costs, including any remaining JAMS case management fees and professional fees for the arbitrator's services, shall be paid by Facility. Where Facility initiates arbitration, Facility will pay all fees and costs associated with the arbitration other than Resident's attorney fees, if any. The Parties shall bear their own costs and attorney's fees except that the arbitrator may, in the Award, allocate all or part of the costs of the arbitration, including the fees of the arbitrator and the reasonable attorneys' fees of the prevailing party. Notwithstanding this provision, in California the Resident may not be required to pay the fees and costs of Facility if the Resident does not prevail. VI. Governing Law Except as otherwise provided herein, this Agreement shall be governed by and interpreted under the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq. VII. Severability If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable in whole or in part the remainder of this Agreement, including all valid and enforceable parts of the provision in question, shall remain valid, enforceable, and binding on the Parties. VIII. Proof of Agreement The Parties agree and stipulate that the original of this Agreement, including the signature page, may be scanned and stored in a computer database or similar device, and that any printout or other output readable by sight, the reproduction of which is shown accurately to reproduce the original of this document, may be used for any purpose just as if it were the original, including proof of the content of the original writing. This agreement shall be binding upon the Facility when signed by or on behalf of the Resident, regardless of whether this Agreement has been signed by a Facility representative. IX. Resident's Understanding The Resident understands that he or she has the right to seek advice of legal counsel concerning this Agreement; that his or her signing of this Agreement is not a condition of admission to or residence in the Facility; that he or she may revoke this Agreement by sending written notice to the Facility within thirty (30) days of signing it; and that this Agreement, if not revoked within that time frame, shall remain in effect for all care and services rendered to the Resident at or by the Facility regardless of whether the Resident is subsequently discharged and readmitted to the Facility without renewing, ratifying, or acknowledging this Agreement. Golden LivingCenters: Alternative Dispute Resolution Agreement (rev. 01/10) 11 This page left intentionally blank. 12 Golden LivingCenters: Alternative Dispute Resolution Agreement (rev, 01/10) THIS AGREEMENT GOVERNS IMPORTANT LEGAL RIGHTS. PLEASE READ IT CAREFULLY AND IN ITS ENTIRETY BEFORE SIGNING. Print Name of Resident Print Name and Number of LivingCcntcr Signature of Resident to By my signature, I acknowledge that I have read is Agreement or had it read to me, that I understand what I am signing, and that 1 accept its terms. �►� I 1 Signature on behalf of LivingCenter: I, '.1 A _: `,,.e//,, (name of LivingCenter witness), sign this Agreeme re n . - half of Liv' enter. By my signature, I attest that (1) before Resident and/or Resident's representative signed thi •• • cument 1 offered the signer(s) the opportunity to read it in full, or to have it read to him/her in 11; (2) I saw the signature of the resident, or of the rson signing on behalf of the Resident, written on this document. Nik;Nk. Si • re of i Ps Legal Representative Print Name of Legal Reptesentativc By my signature, represent that 1 am a person duly authorized by Resident or by taw to execute this Agreement and that 1 accept its terms. Specify Capacity of Legal Representative (e.g., Power of Attorney, Agent, Next of Kin) Address Other acknowledgments: Phone Printed Name and Signature of Other Representative or Next of Kin Date Printed Name and Signature of Other Representative or Next of Kin Date Printed Name and Signature of Other Representative or Next of Kin Date Golden LlvingCenters: Alternative Dispute Resolution Agreement (rcv. 01110) 13 I IN THE COURT Of COMMON PLEAS OP LANCASTER COUNTY, PENNSYLVANIA CIVIL ACTION • LAW SHIRLEY A. CRAMER, by snd through PATRICIA L. CRAMER, her Mornay -In -net, Plaintiff, v. MANOR CARE OP LANCASTER PA, LLC, W. MANOR CARE IfEALTH SERVICES - LANCASTER; 1HCR MANOR CARE, INC.; MANORCARE HEALTH SI,,RVICI S INC; MANOR CARE, INC,; CONSC LANCASTER LP, d/b/a GOLDEN LIVING CENTER -LANCASTER; GGNSC LANCASTER GP, LLC; OONSC HOLDINGS, LLC; GOLDEN GATE NATIONAL SENIOR CARE, LLC;: OONSC EQUITY HOLDINOS, LLC; GGNSC ADMINISTRATIVE SERVICES, LLC; ; and PARUK NOUYAN, N.H.A., Dcrendcntt. OPJNION 9Y; WRJOHT, J. No. CI -I-08392 February 21, 2012 Before this Court aro Manor Care Defendants' Preliminary Objections to Plaintiff, Shirley Cranier's Complaint, Defendants' Preflminary Objection for an ogrvcment for alternative dispute resolution is grantod for tho reasons that follow. fl CKGROUNI7 Shirley Crorrrcr ("Plaintiff'') resided a1 Manor Care of Lancaster from August 13, 2009 Uuough Octobor 5, 2009, Plaintiff then roside4 at Golden Living Cantor from October 15. 2009 through February 8, 2011, In her August 12, 2011 Compiatnt, Plaintiff, through her daughter, Patricia Cramer, alleges that both Manor Care and Golden Living were negligent per se In their caro of her while she was a resident at each facility resulting In pressure sores on the lower half of her body, exacerbation of ha existing heart failure, anxiety, and other permanent and temporary medical conditions. Plaintiff bases her negligence per se claims on violations of the Negkct of Care -Dependent Persons statute,' and the Pennsylvania Older Adults Protective Services Act.' She also claims punitive damages, • On September 6, 2011, Manor Care filed Preliminary Objections to Plaintiff's Complaint in which Manor Care claims tlutC 1) the claims should be submitted to arbitration pursuant to the arbitration agreement ("Agreement'); 2) the claims for negligence per se under the Neglect of a Care -Dependent Person statute and the Pennsylvania Older Adults Protective Services Act should be stricken slnoe those statutes do not provide for a private right•ofaction; and 3) the claims for punitive damages should be stricken. Oral argument was held on December 13, 2011. Ini'VSSION Rule 1028 of the Pennsylvania Rules of Civil Procedure provides that a party may file preliminary objections to any pleading for, among other things, an agreement for alternative dispute resolution. Pa.R•C,P, 1028(a)(4). When considering preliminary objections, the court must consider all well -plead facts as true as well as the reasonable inferences that may be drawn therefrom. Hann v. Cmty. Health Sysyjne„ 14 A.3d 120, 123 (Pa. Super, 20/ I) (quoting Hykes v, Hunhes, 835 A.2d 382, 383 (Pa. Super. 2003)). Preliminary objections which seek the ' 18 Pe.C.S•A, § 2713. 35 P.3. § 10225.101, et. seq, 2 dismissal of a cause of action may be sustained only when it is clear end free from doubt that the pleader will not be able to prove facts sufficient to establish a right to relief. !d If any doubt exists as to whether the preliminary objections should be sustained, the courl should err on the side of overrvfng the objections, id Defendants argue that PleinUff Is requited to arbitrate this dispute as a result of an arbitration agreement signed by Ira Cramer, Shirley Crumcr's husband, at the time she was admitted tb the Menet Caro facility. Oencraily, Pennsylvania Courts favor arbitration clauses. Thibodcau v. Comcast Vorp„ r ' 912 A.2d 574, 880 (Pa. Super, 2006), Accordingly, arbitration agreements are enforced unless they must be set aside for generally recognized contract defenses, !d. When a party challenges an agreement to arbitrate, a trial court's inquiry Is limited to; (1) whether a valid agreement to arbitrate binds the panics; and (2) whether the dispute falls within the purview of the agreement. p13S Coal. Inc, v. Hardhat Mlninx.lne„ 429 Pa. Super, 371, 376.77; 632 A.2d 903, 905 (1993) (citing j'lyhlways Coro. v. Keystone figlicupter Corp„ 459 Pa. 660, 663; 331 A.2d 184, 185 (1975)). With respect to the first inquiry, Plaintiff asserts that the arbitration agcr.emrnt is invalid because: (1) oldie doctrine of Frustration of purpose; (2) It Is unconscionable and the offending clauses are not severable; (3) it Is void u against public; policy; (4) it locks valid consideration; and (5) it is void as a matter of stale and federal law because It violates the Social Security Act because It creates a perpetual tens, These claims will be addressed in order. Pennsylvania law recognizes the doctrine of frustration of purpose ac a valid defense to 3 performance under a contract, StepPlan Serv.s.Jnc, v. Koresko, 12 A.3d 401, 411 (Pa. Super, 2010). Frustration of purpose occurs when: (1) an event, which was a basic assumption under the contract, occurs or does not occur; and (2) performance under the contract is made impracticable by such event, wiUwut the fault of any parry, Id, (citing Rest, 2d Torts § 261). Plaintiff asserts that since the Agreement provides for arbitration through the National Arbitration Forum (NAP), and the NAP stopped hearing such disputes, then performance is excused. However, the Agreement clearly states: "If the NAF h unwilling or unable to serve as the Administrator (of the arbitration), the jp)arties shall agree upon another independent entity to . serve as the Administrator , . ," (Prelim, ObJ. of Manor Care, Ex.!), 13(1).) While it may be true that the NAF no longer hears disputes of this nature, the Agreement provides for such an instance. 'fhereforc, it cannot be said that NAF'3 unwillingness, or inability, to hear the dispute renders performance under the Agreement impracticable, Therefore, the Agreement is not invalid based upon the doctrine of frustration of purpose. Plaintiffnext asserts That the Arbitration Agreement is unconscionable in its entirety because it contains limitations on discovery. 'fhe determination of whether a contract is unconscionable is u question of law to bo determined by the courts, Metalized Ceramics for Pr49,.1pc, v. Ngt'J Ammonia Co„ 444 Pa. Super, 238, 242; 663 A,2d 762, 764 (1995), A contract tern is unconscionable if: (1) rhe party challenging It had no reosonabie choice In accepting it, and (2) the term unreasonably favors the other party. Hupp! v. Mitllin CQprtr, CO. lno.. 796 A,2d 350, 337 (Pa. Super, 2002). In the first instance, Plaintiff arguer that her husband had no reasonable choice in accepting the Agreement. However, lo the anntrary, printed at the top of the first page of the Agreement, In bold lettering, is a statement that provides: "YPLUNT1RY A AG_BEEMIDit If you do not accept Ibis Agreement, the Patient will still by allowed 10 live ln, and recolvc services lo, Ibis Center," (Prelim. Obj. of Manor Care, Ex. 13.) This conspicuous slalcmcnl clearly did alert, or should have alencd; Plaintiff's husband that he was not rc julrcd to sign the Agreement KO a prerequisite to his wife's admissldn to the facility, Plaintiff next argues that tbo Agrccmcnt unreasonably favors Manor Cine because It misrepresents Plaintltl's rights, contains false and misleading statements, contains terms not normally expected in an admission agreement, and was presented to an Individual who did not understand the Agreement, importantly, this Agreement was not an agreement for admission to the facility, r$ evidenced by the clause at the beginning of the document, cited above, Further, the fact that Plaintiff, or her husband, did not understand the nature of the Agreement, is not only a fact nos aontalned in this record, but more importantly; it does not give rise to a claim of uncorucionabllity in any case, As such, the Agreement is not invalid based on unconscionability since Plaintiff could have been admitted without having signed the Agreement, and the Agreement itself does not unreasonably favor Manor Care, Plaintiff next claims that the Agreement is void as against public policy since 11 docs not provide a knowing and voluntary' waiver of the right to u Jury trial. Nut only does Plaintiff foil to cite any binding authority for this position, but Plalntlfialso fails to polnl to, and this Court has not located, any (col of record indicating that Mr. Crtuner did not sign the Agreement knowing and accepting Its full meaning end effect. As such, Plaintiff's argument that the Agreement is void as a matter of public policy cannot stand,. Plaintiff next argues that the Agreement Is ineffective because it lacked consideration. h Is fundamental that a valid contract requires consideration. $lciflut k v. iila3'4IQeq,Coal Cp, 339 Pu. 410, 413-1.4; 14 A.2(1127, 128-29 (1940). Consideration consists of a benefit to the isor to a detriment to the promisee, Id, 1n the Instant case, Mr. Cramer, as attomcy-indact for Plaintiff agreed to tho terns of the Agreement, The Creams, In signing the Agreement, agreed to receive a benefit In the form of forgoing a costly and dmc-consuming jury trial and opting for a less formai means by which lo resolve disputer wiring from Plaintiff's stay al Ow facility. Manor Caro received a shnilar benefit, As such, considefudon for the Agreement exists and it cannot be deemed invalid on these grounds. Finally, Plaintiff argues that the Agreement is illegal since it creates u perpetual icon in violation of the Social Security MI and Pennsylvania law, The Social Security Act prohibits o nursing home front requiring additional consideration above and beyond what It required by Mcdlcaro as a condition for a resident's admission for the facility, 42 U.S.C..A§ 1396r(C)(5), However, as mentioned previously, the Agreement was not required as a precursor to Plaintiff's admission to Manor Cara. The Agreement clearly states that Ills o voluntary agreement, and was not required for admission to the facility. Therefore, the Agreement does not violate the Social Security Act. Plaintiff alleges that the Agreement violates Pennsylvania law by creating a perpetual term. Qenernlly, contractual provisions should nut be construed to male a perpetual term unless the intent is expressed in oleai and unequivocal terms. Wvominrt Valley West Soh. Dist, v, Northwest Seh Dist 695 A,2d 949, 953 (Pa. Super. 1997). 6 Plaintiff argues that paragraph F(5) in the Agreement creates a perpetual "for•the-resl-of- your•Ilfo" toren, and b therefore void. under Parotsylvanta law, However, after a carclld review of the Instant clause, Plaintiff's argument must fail. Paragraph F(5) merely provides that both Manor Care and Plaintiff are bound by the Ammon* during the course of Plaintiffs residency at Manor Care, Therefore, the Agreement Is not void because it creates a perpetual tens, Having established that Uro Agreement is valid and binding on rho panics, it is car that the instant dispute falls within the purview of the Agreement. Specifically. the Agreement provides: " ja)ny and alt claims or controversies arising out of or In anyway relating to this Agreement, the Admission Agreement or any of the Patient's says at this Center , .. whether or not related to medical malpractice , .. shall be submitted to binding arbitration." (Prelim. Obi. of Manor Cara, Ex. fl, ¶ B.) Since Site essence of Plaintiffs claim i9 negligence based on Plaintiffs i stay at e'1e of Defendants' facilities, this dispute falls squarely within the scope of the Agreement. As such, this case must bo submined to arbitration.' Accordingly, I enter the following: The resolution of this Preliminary Objecilon in favor of the Manor Gro Defendsntr madam the remainder of lu Preliminary Objections moot, and therefore they will not by addrmod by thio Court. 7 M THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA • CIVIL ACTION • LAW SHIRLEY A. CRAMER, by and through PATRICIA L. CRAMER, her AttomeyIn•Facl, PlalntlfT, v. MANOR (.ARE OP LANCASTER PA, LLC, d/bls MANOR CARE HEALTH SERVICES • LANCASTER; NCR MANOR CARE, INC.; MANORCARE HEALTH SERVICES INC; MANOR CARE, INC.; OGNSC LANCASTER LP, NWa GOLDEN LIVING CENTER•LANCASTER; GONSC LANCASTER GP, LLC; OGNSC HOLDINGS, LLC; GOLDEN OATS NATIONAL SENIOR CARE, LLC;: OONSC EQUITY HOLDINGS, LLC; GGNSC ADMINISTRATIVE SERVICES, LLC; • and PARUK NGUYAN, N.N.A., Defendants, No. CI•II.08392 AND NOW, this 21" . day of February, 2012, upon consfderatfon of the Manor Care Defendants' Preliminary Objections and Plaintiff's response thereto, it is hereby ORDERED and DECREED that Defendants' Preliminary Objection for failure to comply with an agreement for alternative dispute resolution is GRANTED. IT IS FURTHER ORDERED that tho Manor Care Defendants and Plaintiff, Shirley • cramar submit this matter (' l4•under the terms of the Arbitration ASregment. •: • ' s. NO11Cc OVEN= DP OBD TriELIVAN.'TO PA. R.C.P. NO 990 NOI FIC./MON • TEIZATTACBED DOCUMENT IIAS 13PRI F LBD TN TM CABS PRO'1'BONO'fABT OP IANCAIYIVI aa, PA DATha-a�—�a Attrut�y� BY THE CO_ RT; Copies to: Brian 1, .Strouss. VeSqUfra 400 Marker Street, Sufic 1280, Philadelphia, PA 19100 William J. Mundy, Esquire — 109 Four Pella, Suite 518, 1001 Conshohocken Stow Road, West Conshohocken, PA 19428 Jacque)Mc M. Gamlen, Esquirr.--A 2000 Markin Strtust, 20' FtPlttdsega, PA 191034291 fN THE COURT OF COMMON FLEAS OF LANCASTER COUNTY, PENNSYLVANIA. CIVIL ACTON • LAW a 13 P1 r 'N "'t SHIRLEY A. CRAMER., by and through lig m rn PATRICIA L. CRAMER, har AttooyIn•Fact,p p Ptalnlitf, 0itt .<7':t• -v ac c) v, No. 01.11.08592 •no .,y te, `., MANOR CARE OF LANCASTER PA, LLC, tis p d/b/a MANOR CARE HEALTH SERVICES LANCASTER; HCR MANOR CARE, INC.; MANORCARE HEALTH SERVICES INC; MANOR CARE, INC.; OGNSC LANCASTER LP, d/b/a GOLDEN LIVING CENTER•LANCASTER; GONSC LANCASTER GP, LLC; GGNSC HOLDINGS, LLC; GOLDEN GATE NATIONAL SENIOR CARE, LIC;: OONSC EQUITY HOLDINGS, LLC; GONSC ADMINISTRATIVE SERVICES, LLC: and FA FLUX NOUYAN, N.H.A., Oefondents,. • AND NOW, this 21'_ day of February, 2012, upon consideration of the Golden Living Center Defendants' Preliminary Objections and Plaintiff's response thereto and following oral argumenfthereon: IT IS HEREBY ORDERED that Defendants' Motion to Strike Plaintiff's Claim of Negligence Per $e Under 25 P,S, ¢ 10225.101 et seq, is GRANTED. IT IS FURTHER ORDERED that Defendants' retnaining Preliminary Objections and r Motion to Strike Punitive Damages aro DENIED.' Plaintiff may not engage in any discovery„ • , 1 - pursuant 4pursuant to Pa.R.C.P, Rule 4003,7 without prior love of the undersigned, • BY THE COURT: Copies to: 13rlan L, Strauss, Esquire —\• 400 Marker Street, Suite 1750. Phlledelphin, PA 19106 Wllliarn J, Mundy, Esquire ., I 100 Pour Palls, Suite 515, 1001 Conshohocken Ste; Rod, West Conshohocken, PA 19428 )ncqueline M. Ca otan, ) quisc- 2000 Market Street, 20' Floor. P Iede phir1, PA 1910)53791 NOTICE or MTV OF ORM OB 0E10E PWSVM TTO PA,17„.C.2 N0. 930 NOTTtURA DN • no ATM= DOCUAffidf HAS BEI1N ➢R.RD Di 7TUS CASE kurroomowor 0P 1.0i MOMS CO., PA DATE: •'a ^a•Z,\ • I Dffcndaots' remaining Preriminsry Objoct}ons are denied without prajudlco 10 raise ih issues ag■in grin and up to trial, Exhibit D CLYDE FLEAGLE, by and through KAREN M. FRITZ, his Attorney -in -Fact, Plaintiff v. MANOR CARE OF CAMP HILL PA, LLC, d/b/a MANORCARE HEALTH SERVICES — CAMP HILL; MANOR CARE HEALTH SERVICES, INC.; HCR MANORCARE, INC.; MANORCARE, INC.; HCR HEALTHCARE, LLC; HCR II HEALTHCARE, LLC; HCR III HEALTHCARE, LLC; HCR IV HEALTHCARE, LLC; GGNSC CAMP HILL WEST SHORE LP, d/b/a GOLDEN LIVING CENTER — WEST SHORE; GGNSC CAMP HILL WEST SHORE GP, LLC; GGNSC HOLDINGS, LLC; GOLDEN GATE NATIONAL SENIOR CARE, LLC; GGNSC EQUITY HOLDINGS, LLC; GGNSC ADMINISTRATIVE SERVICES, LLC; and GGNSC CLINICAL SERVICES, LLC, Defendants IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT 2012-0828 CIVIL ACTION 9 Z :1114V ZZ AOH EIBZ MEDICAL PROFESSIONAL RESPONSIBILITY ACTION IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT BEFORE GUIDO, MASLAND, and PLACEY, J.J. ORDER OF COURT AND NOW, this 22nd day of November 2013, upon consideration of the Defendant's Preliminary Objections to Plaintiff's Complaint, and following argument held on 21 June 2013, Defendants' preliminary objections are SUSTAINED. The action relative to the ManorCare Defendants must be submitted to arbitration and the action relative to the Golden Living Defendants must be submitted to mediation, then to binding arbitration if mediation fails. Distribution Ruben J. Krisztal, Esq. William J. Mundy, Esq. Jacqueline M. Carolan, Esq. 2 Thomas A. Placey, C.P.J. CLYDE FLEAGLE, by and through KAREN M. FRITZ, his Attorney -in -Fact, Plaintiff v. MANOR CARE OF CAMP HILL PA, LLC, d/b/a MANORCARE HEALTH SERVICES — CAMP HILL; MANOR CARE HEALTH SERVICES, INC.; HCR MANORCARE, INC.; MANORCARE, INC.; HCR HEALTHCARE, LLC; HCR II HEALTHCARE, LLC; HCR III HEALTHCARE, LLC; HCR IV HEALTHCARE, LLC; GGNSC CAMP HILL WEST SHORE LP, d/b/a GOLDEN LIVING CENTER — WEST SHORE; GGNSC CAMP HILL WEST SHORE GP, LLC; GGNSC HOLDINGS, LLC; GOLDEN GATE NATIONAL SENIOR CARE, LLC; GGNSC EQUITY HOLDINGS, LLC; GGNSC ADMINISTRATIVE SERVICES, LLC; and GGNSC CLINICAL SERVICES, LLC, Defendants IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT C'7 c c co rYyr—, >" 3 12-0828 CIVIL ACTION MEDICAL PROFESSIONAL RESPONSIBILITY ACTION IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT BEFORE GUIDO, MASLAND, and PLACEY, J.J. OPINION and ORDER OF COURT In this medical professional liability action, Plaintiff, Clyde Fleagle, by and through Karen M. Fritz, his Attorney -in -Fact, filed suit against two nursing homes alleging that Defendants abused and neglected Plaintiff during his residencies at ManorCare Health Services -- Camp Hill (hereinafter "ManorCare Defendants") and Golden Living Center — West Shore (hereinafter "Golden Living Defendants"); the skilled nursing facilities at issue will hereinafter be known as "the Facilities". For disposition at this time are the Preliminary Objections of the ManorCare Defendants to Plaintiff's Complaint and the Preliminary Objections of the Golden Living Defendants to Plaintiff's Complaint. For the reasons stated in the following opinion, both Defendants' preliminary objections relating to Pennsylvania Rule of Civil Procedure 1028(a)(6) are SUSTAINED1 and the claims are DIRECTED to the alternative dispute resolution process as outlined in the respective agreements. STATEMENT OF FACTS The pertinent facts can be summarized as follows: Plaintiff was admitted to ManorCare Health Services — Camp Hill on 16 October 2009 and resided there until 11 November, 2011, Plaintiff has been a resident at Golden Living Center West Shore from 22 November 2011 until the present. At the time of Plaintiff's admission to the Facilities, his stepdaughter, Karen M. Fritz, was Plaintiffs legal representative pursuant to a Power of Attorney dated 3 September 2009; moreover, Fritz held a healthcare Power of Attorney on behalf of Plaintiff which had been in place since 21 February 2000. During the admission process, Fritz signed various documents on behalf of Plaintiff, including the Arbitration Agreement with ManorCare and the Alternative Dispute Resolution Agreement with Golden Living (collectively hereinafter "Agreements"). During his time at the Facilities, Plaintiff has suffered injuries which The Golden Living Defendants asserted additional preliminary objections seeking to dismiss Plaintiffs negligence per se claims pursuant to 18 Pa,C.S. §2713 and 35 P.S. § 10225.101 et seq*, to dismiss Plaintiffs claim for punitive damages, and to dismiss Plaintiff's allegations for lack of factual specificity. The additional objections by the Golden Living Defendants are not addressed herein because such objections were contingent on this Court finding arbitration is not appropriate. 2 include the development/worsening of pressure ulcers, contractures, a fall, dehydration, malnutrition, severe weight loss, poor hygiene, and severe pain. Plaintiff, through his Attorney-in-fact, initiated this action on 13 June 2013, alleging that Defendants abused and neglected Plaintiff during his residency at the Facilities. 'Defendants filed preliminary objections seeking to compel this matter to alternative dispute resolution; the Golden Living Defendants filed additional preliminary objections, in the alternative, seeking to dismiss Plaintiffs claims for negligence per se, punitive damages, and to strike certain allegations. DISCUSSION Statement of law. When reviewing preliminary objections, the court must accept as true all well -pleaded allegations and material facts averred in the complaint, as well as all reasonable inferences that can be drawn from those facts. Bower v. Bower, 611 A.2d 181, 182 (Pa. 1992). A curt will only sustain preliminary objections when, "based on the facts pleaded, it is clear and free from doubt that the complainant will be unable to prove facts legally sufficient to establish a right to relief." Mazur v. Trinity Area School Dist., 961 A.2d 96, 101 (Pa. 2008). Any doubt should be resolved against the objecting party. Koken v. Steinberg, 825 A.2d 723, 726 (Pa.Cmwlth. 2003). An agreement for alternative dispute resolution may be asserted by preliminary objection. Pa.R.C.P. 1028(a)(6). It is recognized that "the settlement of disputes by arbitration is favored by the public policy of this Commonwealth and is, therefore, encouraged by our courts and by statute." Fastuca v. L.W. Molnar & Assoc., 10 A.3d 1230, 1241 (Pa. 2011) (citing Borgia v. Prudential Ins. Co., 750 A.2d 843,850 (Pa. 2000); Flightways Corp. v. Keystone 3 Helicopter Corp., 331 A.2d 184, 185 (Pa. 1975)). "When one party to an agreement to arbitrate seeks to enjoin the other from proceeding to arbitration, judicial inquiry is limited to the questions of whether an agreement to arbitrate was entered into and whether the dispute involved falls within the scope of the arbitration provision." 331 A.2d at 185. When determining whether the parties entered into an agreement to settle disputes by alternative dispute resolution proceedings, "courts should apply the rules of contractual construction, adopting an interpretation that gives paramount importance to the intent of the parties and ascribes the most reasonable, probable, and natural conduct to the parties." Midomo Co. v. Presbyterian Housing Development Co., 738 A.2d 180, 190-91 (Pa. Super. 1999) (citing Elmenton Area Mun. Authority v. Miles,.548 A.2d 623, 625 (Pa. Super. 1988)). With respect to the first inquiry as to whether an agreement to arbitrate was entered into, Plaintiff argues that there is no valid and binding contract because (1) the signatory had no legal authority to bind Plaintiff to arbitration; (2) there was no valid consideration, (3) the Agreements must be struck down based upon Pennsylvania contract defenses including creation of a perpetual term, unconscionability, and impracticability; (4) there was no knowing and voluntary waiver of the right to a jury trial; and (5) the uniqueness of the healthcare facility setting makes the Agreements inappropriate. The Agreements are found to be valid under Pennsylvania contract principles and the reasons for this determination will be articulated for each of Plaintiffs assertions ad seriatim. The signatory had legal authority to bind Plaintiff to arbitration. "Express authority exists where the principal directly states that an agent has the authority to 4 perform a particular act on the principal's behalf." Jones v. Van Norman, 522 A.2d 503, 511 (Pa. 1987). "Express authority is to be strictly construed." Id. "When an agent is given express authority, he also acquires, in addition, the implied authority to do all that is proper, necessary and ordinary to exercise the authority that has expressly been granted to him," Id. "Such implied authority is actual authority based on the premise that the principal reasonably would want the act done in order to accomplish the express purpose of the agency." Id. The existence of the power of attorney is undisputed in this case. The Plaintiff's stepdaughter, Ms. Fritz, held a power of attorney prior to Plaintiff being admitted to Defendants' facilities and prior to the signing of the Agreements.2 The power of attorney empowered Plaintiffs stepdaughter, • to act on [Plaintiff's] behalf: to transact business, make, execute, and acknowledge all agreements, contracts, orders, deeds, writings, assurances and instruments for any matter, with the same powers and for all purposes with the same validity as [Plaintiff] could, if personally present.3 The power of attorney expressly granted Plaintiff's stepdaughter the actual authority to act on Plaintiff's behalf in contract matters. It is well established that arbitration is a matter of contract. See United Steelworkers of America v. Warrior & Gulf Nay. Co., 363 U.S. 574 (1960), The Agreements at issue are matters of contract and as such it is found that the power of attorney at issue was sufficient to empower Plaintiff's stepdaughter to execute the Agreements on Plaintiffs behalf. 2 Comp'. at ¶ 5. Ms. Fritz was appointed Clyde Fleagle's Power of Attorney on 3 September 2009. Plaintiff's Memorandum of Law in Opposition to Preliminary Objections of Golden Living Defendants; Ex. 8, Power of Attorney, p. 1. 5 There was valid consideration. Plaintiff argues that a lack of consideration invalidates the Agreements based on the proposition that Plaintiff received nothing in exchange for giving up his constitutional right to a jury trial. "[A) contract is enforceable when the parties reach mutual agreement, exchange consideration and have outlined the terms of their bargain with sufficient clarity." Greene v. Oliver Realty, Inc., 526 A.3d 1192, 1194 (Pa. Super. 1987). Consideration may be any bargained for benefit or detriment. ld. at 1197. Consideration is often "done in the name of mutuality of obligation." Id. at 1195. Both Agreements mutually obligate both Plaintiff and Defendants to utilize alternative dispute resolution measures; by the mutual binding of all parties, adequate consideration exists. See Blair v. Scott Specialty Gases, 283 F.3d 595, 603 (3d Cir. 2002). Furthermore, the Arbitration Agreement with ManorCare states: The Parties' decision to select Arbitration is supported by the potential cost effectiveness and time -savings offered by selecting arbitration, which seeks to avoid the expense and delay in the court system. The Parties recognize that often the Patient is elderly and may have a limited life expectancy, and therefore selecting a quick method of resolution is potentially to a Patient's advantage. The parties agree that the reasons stated above are proper consideration for the acceptance of the Agreement.4 Similarly, the Alternative Dispute Resolution Agreement with Golden Living expressly provides: "The Parties agree that the speed, efficiency, and cost-effectiveness of the ADR process, together with their mutual undertaking to engage in that process, ' Plaintiffs Memorandum of Law in Opposition to Preliminary Objections of ManorCare Defendants; Ex. C, Arbitration Agreement (hereinafter "Arbitration Agreement"), p. 3. constitute good and sufficient consideration for the acceptance and enforcement of this agreement."5 Plaintiff and Defendants entered into an agreement to use alternative dispute resolution which provided the parties with the benefit of avoiding a possibly expensive and time consuming jury trial and gaining the ability to resolve their disputes in a more cost effective and timely proceeding. The parties agreed that this benefit would be adequate consideration. Therefore, consideration for the Arbitration Agreement exists. Plaintiff also argues the consideration in the Agreements violates federal law by requiring additional consideration above that provided by Medicare as a condition for a resident to be admitted to a nursing facility since the Agreements waive the constitutional right to a jury trial, Plaintiff alleges that the Agreements were not voluntary because there was not a provision allowing residents to refuse and/or decline to sign; Plaintiff also argues that the Agreements were presented with a stack of admission paperwork that was required to be signed and therefore the Agreements were not truly "optional." Plaintiff, however, ignores the plain language of the Agreements. The ManorCare Arbitration Agreement states, at the top of the document, in bold type, "VOLUNTARY AGREEMENT: If you do not accept this agreement, the Patient will still be allowed to live in, and receive services in, this Center."6 Paragraph II of the Golden Living Alternative Dispute Resolution Agreement is entitled "Voluntary Agreement to Participate in ADR" and Paragraph IX specifically states that 5 Plaintiffs Memorandum of Law in Opposition to Preliminary Objections of Golden Living Defendants: Ex. C, Alternative Dispute Resolution Agreement (hereinafter "Alternative Dispute Resolution Agreement"), p. 1. 5 Arbitration Agreement, p. 1. 7 "[t]he Resident understands that he .,. has the right to seek advice of legal counsel concerning this Agreement; that his ... signing of this Agreement is not a condition of admission to or residence in the Facility[.]"7 Therefore, the Agreements were not an additional requirement of admission and not void under federal and state law. The Agreements will not be struck down based upon Pennsylvania contract defenses. Plaintiff first argues that the Agreements violate Pennsylvania law by creating a perpetual term because there is not a termination clause: Generally, "contractual provisions should not be construed to create a perpetual term unless such intention is expressed in clear and unequivocal terms." Wyoming Valley West Sch. Dist. v. Northwest Sch. Dist., 695 A.2d 949, 953 (Pa. Cmwlth. 1997). It is not found that the Agreements create a perpetual term, but rather bind the parties to the Agreements during the course of Plaintiff's residency at the respective facilities.8 The Agreements do not express in "clear and unequivocal terms" provisions that would create a perpetual term, and a perpetual term will not be found without clear intention. Therefore, the Arbitration Agreement does not violate Pennsylvania law by creating a perpetual term. The Agreements are not unconscionable nor impracticable. Plaintiff argues the Agreements were procedurally unconscionable because they were presented to an 7 Alternative Dispute Resolution Agreement. 8 The Arbitration Agreement, § F(5), restricts the time frame to that of "any person whose claim is derived through or on behalf of the Patient or relates in any way to the Patient's stay(s) at this Center,.," and the Alternative Dispute Resolution Agreement, § III, restricts the term to "any and all disputes arising out of or in any way relating to thls Agreement or to the Resident's Stay at the Facility or the Admissions Agreement" and provides that a "claim that is not brought within the statute of limitations period that would apply to the same claim in a court of law ... shall be waived and forever barred." individual who was under the stress of having a loved one admitted to a nursing home and felt there was no other choice in signing the Agreements and because there was a gross disparity in bargaining power between the parties. Plaintiff argues the Agreements are substantively unconscionable because they violated public policy. A contract's unconscionability is an appropriate state -law contract defense that may be applied to invalidate an unfair arbitration agreement. See Salley v. Option One Mortg, Corp., 925 A.2d 115, 119 (Pa. 2007). A contract, or arbitration agreement, is unconscionable if there is a lack of meaningful choice in the acceptance of the challenged provision, as in the case of a contract of adhesion, and the provision unreasonably favors the party asserting it. Id. Here Plaintiff was not "forced" into residence at either of the Facilities and had thirty days to review the Agreements and decide whether or not to be bound by the signed contract.9 The ManorCare Arbitration Agreement, in CAPITAL, underlined, and bold faced lettering contains a paragraph entitled "E. RIGHT TO CHANGE YOUR MIND" with a concise explanation of how the contract could be cancelled.10 Likewise, the Golden Living Alternative Dispute Resolution Agreement includes a paragraph that details how the agreement can be revoked.11 Thirty days is a sufficient amount of time 9 The instant case is readily distinguishable from Mannion v. Manor Care, Inc., 4 Pa. D & C. 5th 321 (Pa. Com. PI. Lehigh Co. 2006), in which Judge Black of Lehigh County held an agreement to arbitrate between plaintiff and defendant was a contract of adhesion. See 4 Pa. D & C. 5th at 331. In Mannion, the plaintiff had little time to arrange for her mother's move from a hospital to a nursing facility and defendant's facility appeared to be the only option; moreover, the plaintiff was only given three business days to withdraw her consent to the agreement and the provision explaining how to withdraw was at the "bottom of page five of the six-page preprinted agreement[.]" Id. at 330. 10 Arbitration Agreement, § E. 11 Alternative Dispute Resolution Agreement, § IX. 9 to carefully read, understand, and make an informed decision regarding the Agreements. Further, as previously noted, both Agreements clearly indicated to Plaintiff that signing the agreement was not a prerequisite for entrance into the nursing facility. Therefore, it is found the Arbitration Agreement is not a contract of adhesion. Next, Plaintiff argues that the Golden Living Alternative Dispute Resolution Agreement is unconscionable because it unreasonably favors the Golden Living Defendants due to the use of JAMS Arbitration Rules and Procedures which do not bind the arbitrator to the rules of evidence, limit discovery, and the fees and expenses associated with JAMS Rules. In general, arbitrators are not bound to proceed according to technical rules as arbitration is an informal process. See Rosenbaum v. Drucker, 31 A.2d 117, 118 (Pa. 1943). See also Ulansey v. Juniata Park Med. Ctr., Inc., 178 A.2d 547, 548-49 (Pa. 1962). The only explicit limitation on discovery served to limit the number of depositions taken of the opposing party and the JAMS Rules are clearly in an attempt to reduce costs and streamline the proceedings.12 In the instant matter, the limitations on discovery are neither one-sided nor unreasonably favorable to Defendants. Furthermore, both sides are equally limited and there are no overly restrictive clauses that would prohibit access to information that might cause a "chilling effect" or limit "a person's capacity to pursue litigation." See 4 Pa. D & C. 5th at 337. Finally, while the JAMS Rules require each party to pay its pro rata share of the JAMS t2 Again, this case is distinguishable from Mannion where Judge Black held that the limitations on discovery within an arbitration agreement were unconscionable. In Mannion, the limitations imposed "severely restrictled] the plaintiff's ability to prepare and present her case" and created a "chilling effect" that could have prevented the plaintiff from necessary depositions needed to establish theories of liability. 4 Pa. D & C. 5th at 336-37. 10 fees and expenses and non-payment may result in administrative suspension of the case, the Parties are "jointly and severally liable for the payment of JAMS Arbitration fees and Arbitrator compensation and expenses"13 so an indigent party's share may be lowered or eliminated by the pro rata provision or through the "jointly and severally liable" provision. Therefore, it is found there are no unconscionable provisions within the Alternative Dispute Resolution Agreement. Plaintiff argues that the ManorCare Arbitration Agreement is grossly one-sided and misleading due to limitations on discovery and the waiver of the right to a jury trial. The agreement limits discovery with regards to interrogatories, requests for documents, requests for admissions, the number of expert and lay witnesses, and the number of depositions.14 Again, both sides are equally limited and there are no overly restrictive clauses that would prohibit access to information that might cause a "chilling effect" or limit "a person's capacity to pursue litigation." See 4 Pa. D & C. 5th at 337. Further, Plaintiff has not stated how the waiver of a jury trial is grossly one-sided or misleading. In fact, the Arbitration Agreement very clearly notes, at the top and in bold, capital letters, that "BY ACCEPTING THIS AGREEMENT, THE PARTIES ARE WAIVING THEIR RIGHT TO A TRIAL BEFORE A JUDGE AND/OR JURY OF ANY DISPUTE 13 Plaintiff's Memorandum of Law in Opposition to Preliminary Objections of Golden Living Defendants; Ex. D, JAMS Comprehensive Arbitration Rules and Procedures, Rule 31(a). t4 Arbitration Agreement, § D. 11 BETWEEN THEM.i15 The agreement is not misleading as to what right is being waived and the right is being waived by both parties equally. Additionally, Plaintiff states that the ManorCare Arbitration Agreement is impracticable as it states arbitration shall be administered by the National Arbitration Forum (hereinafter NAF), which no longer hears arbitrations of consumer disputes. Regardless, the agreement specifically states that "NAF approved Arbitrators do not have to be used"16 and that the arbitrator panel shall "apply the Federal Rules of Evidence and the Federal Rules of Civil Procedure ... and the arbitration award shall be consistent with the State substantive law" in addition to the NAF's Code of Procedure.17 The Arbitration Agreement specifically provides that: [a]ny term, phrase, or provision contained in this Agreement is severable, and in the event any of them is found to be void, invalid or unenforceable for any reason, this Agreement shall be interpreted as if such term, phrase or provision were not contained herein, and the remaining provisions of this Agreement shall not be affected by such determination and shall remain in full force and effect.18 The severability provision allows for the provision requiring the arbitration to be administered by NAF to be severed as well as any references to the NAF's Code of Procedure. A panel of arbitrators can still be selected and will be governed by Federal Rules of Evidence and Civil Procedure as well as substantive state law which combine to provide sufficient guidance for the panel to proceed. Moreover, the Arbitration 15 Arbitration Agreement, p. 1. 16 Arbitration Agreement, § B(3). 17 Arbitration Agreement, § B(5). 18 Arbitration Agreement, § F(9). 12 Agreement specifically states "If the Parties mutually agree in writing not to select NAF or if NAF is unwilling or unable to serve as the Administrator, the Parties shall agree upon another independent entity to serve as the Administrator, unless the Parties agree to not have an Administrator."19 Even as Plaintiff contends that NAF is unable to serve as the Administrator, the parties have another valid avenue by which to pursue arbitration and fulfill the overarching intent of the Arbitration Agreement. Therefore, the inability of NAF to hear the dispute does not render performance under the Agreement impracticable and the Agreement is not invalid based upon the doctrine of frustration of purpose. There was a knowing and voluntary waiver of the right to a. jury trial. Plaintiff argues that there was no knowing and voluntary waiver of the right to a jury trial. As noted above, it is found that the Agreements were voluntarily signed. The Agreements both explicitly, in bold capital typeface, stated that the parties are waiving their right to a trial by jury and stated that the Agreements were voluntary. As such, the Agreements are clear about the rights being waived, and the Plaintiff's power of attorney voluntarily signed the Agreements. It is found that the waiver of the right to a jury trial was knowing and voluntary. See generally Chighizola v. Beverly Enter. Inc., 79 Pa. D. & C.4th 416 (Pa. Com. PI. Monroe Co. 2006) (finding that plaintiff knowingly and voluntarily waived her right to a jury trial where similar language was present in an arbitration agreement). The uniqueness of the healthcare facility setting does not invalidate the Agreements. Plaintiff asserts that public policy dictates that the Agreements are not 19 Arbitration Agreement, § B(1). 13 appropriate in this case. No grounds in law or equity can be found to void the Agreements. Similar agreements have been upheld in this county and across the Commonwealth.20 Furthermore, in Marmet Health Care Ctr., Inc. et al. v. Brown, 132 S.Ct. 1201 (2012), the United States Supreme Court vacated a West Virginia Supreme Court decision which had held that an arbitration provision in a nursing home admission agreement would not be enforced as a matter of public policy. The United States Supreme Court reiterated that the Federal Arbitration Act provides that a provision to settle by arbitration a controversy that arises out of the contract or transaction is valid, irrevocable, and enforceable unless grounds exist at law or in equity for the revocation of the contract. Id. at 1203. The Supreme Court, discussing the FAA, stated "It requires courts to enforce the bargain of the parties to arbitrate. It reflects an emphatic federal policy in favor of arbitral dispute resolution." Id. Absent grounds at law for revocation of a contract or extraordinary circumstances, agreements to arbitrate will stand. Plaintiff's argument is not found to be persuasive and the Agreements are not void as against public policy. The dispute is within the scope of the Agreements. "[Alrbitration agreements are to be strictly construed and ... should not be extended by implication." Emmaus Municipal Authority v. Eltz, 204 A.2d 916, 927 (Pa. 1964). The Court should look to the "clear, express and unequivocal intent of the parties as manifested by the writing itself." 20 See e.g. Cumberland County Court of Common Pleas Order in Dougherty v. Manor Care — Carlisle, et a/., No. 2013-00102; Lancaster County Court of Common Pleas Opinion and Order in Anderson v. Manor Care — Lancaster, et al., No. CI -11-06249; Montgomery County Court of Common Please Order in Mack v. Manor Care— Lansdale, et al., No. 2011-32836; Bucks County Court of Common Please Order in Water v. HCR Manor Care, et al., No. 2012-4400; and Philadelphia Court of Common Please Order in Williams v. Penn Center for Rehab. And Care et al., No. 3790. 14 Hazelton Area School Dist. v. Bosak, 671 A.2d 277 (Pa. Cmwlth. 1996). Furthermore, "every reasonable effort should be made to favor the agreement, unless it may be said with positive assurance that the arbitration clause involved is not susceptible to an interpretation that covers the asserted dispute." 548 A.2d at 625. "In Pennsylvania the issue of whether a particular dispute falls within a contractual arbitration provision is a matter of law for a court [to] decide." McNulty v. H&R Block, Inc., 843 A.2d 1267, 1272 (Pa. Super. Ct. 2004). The Arbitration Agreement with ManorCare specifically provides that "[a]ny and all claims or controversies arising out of or in any way relating to this Agreement, the Admission Agreement or any of the Patient's stays at this Center ... whether or not related to medical malpractice ... shall be submitted to binding arbitration."21 The Alternative Dispute Resolution Agreement with Golden Living specifically provides that "[t]he Parties agree that any disputes covered by this Agreement ("Covered Disputes") that may arise between them shall be resolved exclusively by an ADR process that shall include mediation and, where mediation is not successful, binding arbitration.i22 It is clear that the instant dispute falls within the scope of the Agreements because Plaintiff's claims are grounded in negligence and based on Plaintiff's stays at the Facilities. Therefore, this dispute falls squarely within the scope of the Agreement and, as such, must be submitted to alternative dispute resolution. Following the language of the 21 Arbitration Agreement, § B. 22 Alternative Dispute Resolution Agreement, § 11. Moreover, Paragraph 111 of the Agreement is entitled "Covered Disputes" and states' that the agreement "applies to any and all disputes arising out of or in any way relating to this Agreement or to the resident's stay at the Facility or the Admission Agreement between the Parties[.]" 15 Agreements, the dispute relative to the ManorCare defendants must be submitted to. arbitration and the dispute relative to the Golden Living defendants must be submitted to mediation, then to binding arbitration if mediation fails. ORDER OF COURT AND NOW, this 22"d day of November 2013, upon consideration of the Defendant's Preliminary Objections to Plaintiffs Complaint, and following argument held on 21 June 2013, Defendants' preliminary objections are SUSTAINED. The action relative to the ManorCare Defendants must be submitted to arbitration and the action relative to the Golden Living Defendants must be submitted to mediation, then to binding arbitration if mediation fails. Thomas A. Placey, Distribution Ruben J. Krisztal, Esq. William J. Mundy, Esq. Jacqueline M. Carolan, Esq. C.P.J. SHARLENE R. CORMANY, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. : CIVIL ACTION • HCR MANORCARE, LLC; MANOR ' : NO. 13-5381 CARE OF CARLISLE PA, LLC- d/b/a MAN.ORCARE HEALTH SERVICES— CARLISLE; MANOR CARE HEALTH SERVICES, INC.; MANOR CARE, . INC.; HCR MANORCARE, INC.; HCR : HEALTHCARE, LLC; HCR II HEALTHCARE, LLC; NCR III HEALTHCARE. LLC; HCR IV HEALTHCARE, LLC; HCR . MANORCARE-HEARTLAND, LLC; • HCR MANORCARE OPERATIONS II, LLC; HCRMC. OPERATIONS, LLC; and : DANIEL FESSLER, NHA Defendants • IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT BEFORE GUIDO, J.. and EBERT, J. OPINION and ORDER OF COURT ' AND NOW this 22"° day, of.May, 2014, after consideration of Defendants' . Preliminary Objections to.Plaintlff's Complaint, the briefs. filed by the parties, and after argument held on April 4, 2014; IT IS HEREBY ORDERED AND DIRECTED that the Defendants' Preliminary Objections to Plaintiff's Complaint are SUSTAINED. Plaintiff's Amended Complaint is DISMISSED and the parties are directed to proceed to arbitration pursuant to the arbitration agreanient executed on November 6, 2092. By the Court, Erica C. Wilson, Esquire Attorney for Plaintiff Sears P. O'Mahoney, Esquire Attorney for Defendant 2 SHARLENE R. CORMANY, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION HCR MANORCARE, LLC; MANOR : NO. 13-5381 CARE OF CARLISLE PA, LLC- d/b/a MANORCARE HEALTH SERVICES — CARLISLE; MANOR CARE.HEALTH SERVICES, INC:; MANOR CARE, INC.; HCR MANORCARE, INC.; HCR HEALTHCARE, LLC; HCR II HEALTHCARE, LLC; HCR III HEALTHCARE, LLC; HCR IV HEALTHCARE, LLC; HCR MANORCARE HEARTLAND, LLC; . . HCR MANORCARE OPERATIONS 11, : LLC; HCRMC OPERATIONS, LLC; and ; DANIEL FESSLER, NHA Defendants IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT BEFORE GUIDO, J. and EBERT, J.• OPINION and ORDER OF COURT Ebert, J., May 22, 2014 - Statement of Facts and Procedural History The pertinent facts can be summarized as follows: Sharlene R. Cormany (hereinafter "Plaintiff") was a resident at a Manor Care facility frorn November 5, 2012, until December 11, 2012. Plaintiff alleges Manor Care deprived her of adequate care which caused her to suffer numerous illnesses and Injuries Including a fall, dehydration, respiratory failure, overmedication, weight Toss, poor hygiene, and severe pain. Of • particular note Is a series of events in mid-November. The nursing staff noted that Plaintiff was sleepier than usual on November 16 and 17, so they.withheld certain 3 medications. On November 18, it was noted that Plaintiff was lethargic and disoriented; the nurse documented that she appeared overmedicated. On November 19, Plaintiff went to the emergency room due to her worsening condition where she was diagnosed with altered mental status and lethargy due to Iatrogenic opiate overdosing. She returned to the facility around 4:30 p.m: only to be sent back to the emergency room less than five hours later with a change in mental status and respiratory failure. Less than two weeks later, Plaintiff fell while walking in the hallway. On December 11, 2012, Plaintiff was discharged from the facility; upon discharge, it was noted that she had a weight loss of 6.9% In one month. Plaintiff Initiated this action on September 12, 2013, alleging that.Manor Care was negligent during Plaintiff's residency at the Manor Care facility. Manor Care filed preliminary objections seeking to compel this matter to arbitration. Manor Care asserts that Plaintiff's husband signed:an Arbitration Agreement (hereinafter "Agreement") on the day after his wife's admission to the facility. The Agreement is titled the "Voluntary Arbitration Agreement" and states that "tap claims arising out of or relatingto this Agreement, the Admission Agreement or any and all past or future admissions of the Patient at this Center ...including claims for malpractice, shall be submitted to arbitration." Plaintiff does not deny that Plaintiffs husband signed the Agreement, but instoad states that the Agreement is unenforceable, void, unconscionable, andfor a contract of adhesion; Plaintiff makes a blenket assertion that the Agreement is void because it was signed by someone without proper legal authority. 4 Discussion When reviewing preliminary objections, the court must accept as true all well- pleaded allegations and material facts averred in the complaint, as well as all reasonable inferences that can be drawn from those facts. Bower v. Bower, 811 A.2d 181, 182 (Pa. 1992). A court will only sustain preliminary objections when, "based on the facts pleaded, it is clear and free from doubt that the complainant will be unable to prove facts legally sufficient to establish a right to relief," Mazur v. Trinity Area School Dist., 981 A.2d 98, 101 •(Pa. 2008). Any doubt should be resolved against the objecting party. Koken v. Steinberg, 825 A.2d 723, 726 (Pa.Cmwlth, 2003). An agreement for alternative dispute resolution may be asserted by preliminary objection. Pa.R.C.P. 1028(a)(6). it is recognized that "the settlement of disputes by arbitration is favored by the public policy of this Commonwealth and is, therefore, encouraged by our courts and by statute," Fastuca v, L.W. Molnar & Assoc., 10 A,3d 1230, 1241 .(Pa. 2011) (citing Borgia v. Prudential Ins. Co., 750 A.2d 843,850 (Pa. 2000); Flightways Corp, v. Keystone Helicopter Cork., 331 A.2d 184, 185 (Pa. 1975)). "When one party to an agreement to arbitrate seeks to enjoin the other from proceeding to.arbitration, judicial inquiry is limited to the questions of whether an agreement to arbitrate was entered Into and whether the dispute involved falls within the scope of the arbitration provision." Flightways, 331 A.2d at 185. When determining whether the parties entered into an agreement to settle disputes by alternative dispute resolution proceedings, "courts should apply the rules of contractual construction, adopting an interpretation that gives paramount importance to the intent of the parties and ascribes the most reasonable, 5 probable, and natural conduct to the parties." Midomo Co. v, Presbyyeria0 Housing Development Co., 738 A.2d 180, 190=91 (Pa. Super, 1999) (citing Elmenton Area Mun. Authority v. Miles, 548 A.2d 623, 625 (Pa. Super. 1988)). With respect to'the first inquiry as to whether an agreement to arbitrate was entered.into, Plaintiff argues that there is no valid and binding contract because 1).the signatory had no legal authority to bind Plaintiff to arbitration; 2) there was no valid consideration, 3)•the Agreement must be struck dowh based upon Pennsylvania contract defenses Including creation of a perpetual term, unconscionability, and impracticability; 4) the Agreement is unconscionable; 5) there was no knowing and voluntary Waiver of the right to a jury trial; and 6) the uniqueness of the healthcare facility setting makes the Agreement inappropriate. Plaintiff first argues that Plaintiffs husband did not have legal authority to bind Plaintiff to•arbitration. "Express authority exists where the principal directly states that an agent has the authority to perform a particular act on the principal's behalf." Jones v. Van Norman, 522 A.2d 503, 511 (Pa. 198.7). "Express authority is to be strictly construed." d. "When an agent is given express authority, he also acquires, in addition, the implied authority to do all that is proper, necessary and ordinary to exercise the authority that has expressly been granted to him." id. "Such implied authority is actual authority based on the premise that the principal reasonably would want the act done in order to accomplish the express purpose of the agency." Id The existence of the health care power of attorney is undisputed In this case. Plaintiff actually attached a copy of the Power of Attorney for Health Care of Sharlene R. Cormany to her memorandum of law in opposition to Manor Care's preliminary 6 objections.' The Plaintiffs husband, Robert Cormany, held a power of attorney prior to Plaintiff being admitted to Manor Care's facility and. prior to the signing of the Agreement.' Thepower of attorney granted Plaintiffs husband "full authority to make decisions for [Plaintiff] regarding [her] health care.i3 In particular, Plaintiff's husband was permitted to "authorize [her] admission' to ... any hospital, nursing home, residential card, assisted Living Or similar facility or service" and to "contract on [her] behalf for any health care related service or facilityi4 and to "take any other action necessary to do what [she] authorize[d] [therein], including ... pursuing any legal action in [her] name.i5 Plaintiff argues that the Power of Attorney was intended for health care purposes only and that signing the Agreement was not a healthcare decision. However, the Power of Attorney clearly authorizes the agent to contract for health care related services and offers a broad authorization to "take any other action necessary."6 Plaintiff's husband signed the Agreement as part of Plaintiff's admission to a health care facility. Moreover.,•the.•Agreement•itself:states.•ihat•the"Raftfes••:::•stipulatethat-the — decision to have [Plaintiff] move into [the Manor Care facility] and the decision to agree to.this Agreement are each a health care decision."2 As the decision to sign the Agreement was a health care decision related both to Plaintiffs admission to a health care facility and pursuing legal action on her behalf, ' Memorandum of Law attached to Plaintiff's Response to Preliminary Objections, flied Nov. 8, 2013. 2 Plaintiff's tVlemorandum of Law In Opposition to Preliminary Objections; Ex. A, Power of Attorney for Health Care of Sharlene R. Cormany (hereinafter "Power of Attorney"), p. 1. The Power of Attorney was executed on March 1, 2000, 3 Power of Attorney, p. 1. Id. s Power of Attorney, p. 2 (emphasis added). 6 Power of Attorney, p. 2. Plaintiff's Memorandum of Law In Opposition to Preliminary Objections; Ex. B, Voluntary Arbitration Agreement (hereinafter" Agreement") at 1114. 7 Plaintiff% husband was withinhisauthority to sign the Agreement and bind Plaintiff to compulsory arbitration. Even more convincing to this Court is the authorization that Plaintiff's husband was allowed to "contract on [Plaintiff's] behalf for any health care • related, service or facility on (Plaintiff's]behalf...i8 This authorization• indicates that Plaintiff's agent had the express authority to contract directly with a health care facility on her behalf and, at a minimum, had the implied authority to enter into the Agreement at issue here, Furthermore, the power of attorney contains a section entitled "Statement of Desires, Special Provisions, and Limitations", Plaintiff's agentis•authorized to•pursue the actions discussed above. as long as there are no specific limitations contained within this section. The Limitations section does not.contain any language specifically limiting the type of agreements that her agent may sign when admitting Plaintiff to a health care facility or limiting the kinds of contracts that may be entered into with a health care facility. The Limitations section makes no qualifications regarding the agent's ability to make.any.. legal_decistons-.on. P.laintiff.'s..behalf,-including-the •decision•to•sign the -- Arbitration - Arbitration Agreement. • Additionally, Plaintiff notes that the Power of Attorney was only effective during any period of incapacity,° However, Plaintiffs own Amended Complaint states that, upon admission, Plaintiff was "incapable of independently providing for all of her daily care and personal needs without reliable assistancei10 and was "dependent upon the staff for her physical, mental, psycho -social, medical, nursing and custodial needs, ° Power of Attorney, p. 1, ¶ p ° Power of Attorney, p. 1. 10 Compl. at ¶ 32. requiring total assistance with activities of daily living."11 It Is found that Plaintiff was sufficiently incapacitated at the time of her admission to the facility for the Power of Attorney to be effective and provided Plaintiffs husband the authority to sign the Agreement. Next, Plaintiff argues that a lack of consideration invalidates the Agreement based onothe proposition that Plaintiff received nothing In exchange for giving up her constitutional right to a Jury trial. This same argument was• made by the Plaintiff in Fleagle v. M.nor Care of Camp Hill, et al., No. 12-0828 CI (C.C.P. Cumberland, November, 22, 2013). This C.ourt adopts the language of F!eaaie and finds the Agreement mutually obligates both Plaintiff and Manor Care to utilize alternative dispute resolution measures; by the mutual binding of all parties, adequate consideration exists, See Fleagle (citing Greene v. Oliver Realty, Inc., 526 A.3d 1192, 1194 (Pa. Super. 1987); Blair v. Scott Specialty Gases, 283 F.3d 595, 603 (3d Cir. 2002)). Plaintiff also argues the consideration in the Agreement violates federal law by requiring additional consideration above that provided by Medicare as a condition for a resident to be admitted to a nursing facility since the Agreement waives the constitutional right to a jury trial. Plaintiff alleges that the Agreement was not voluntary because there was not a provision allowing residents to refuse and/or decline to sign. Again, this same issue was addressed in Fleagle. As in Fleagle, Plairitiff ignores the plain languagA of the Agreement. The Agreement is entitled "VOLUNTARY ARBITRATION AGREEMENT" and it states, at the top of the document, in bold type, "THE PATIENT WILL RECEIVE SERVICES IN THIS CENTER WHETHER OR NOT Comp!. at tl 64, 9 THIS AGREEMENT IS SIGNED.i12 Therefore, the Agreement was not an additional requirement of admission and was not void under federal and state law, In regard to Pennsylvania contract defenses, Plaintiff first argues that the Agreement violates Pennsylvania law by creating a perpetual term because there is not a termination clause. The same argument failed in FleaAle because "contractual provisions should not be construed to crate a perpetual term unless such intention is expressed In clear and unequivocal terms." Wyeming Valley West Sch..Dist. v. Northwest Sch. Dist., 695 A.2d 949, 953 (Pa, Cmwith, 1997), This Court finds that the Agreement does not create a perpetual term, but rather binds the parties to the Agreement during the course of Plaintiff's residency at the facility and until the statute of limitations for any cause of action expires.13 The Agreement does not express In "clear and unequivocal terms" provislons that would create a perpetual term, and a perpetual term will not Le found without clear intention. Therefore, the Arbitration Agreement does not violate Pennsylvania law by creating a perpetual term. Plaintiff next argues the Agreement was procedurally unconscionable because it was presented to an individual who was under the stress of having a loved one admitted to a nursing home and felt there was no other choice except to sign the Agreement. Plaintiff argues this created a gross disparity In bargaining power between the parties. Plaintiff argues the Agreement was substantively unconscionable because it violated public policy. A contract, or arbitration agreement, Is unconscionable if there Is a lack of meaningful choice in the acceptance of the challenged provision, as inthe case of a 12 Agreement, p. 1. 13 Paragraph 1 of the Agreement restricts the term to "all claims arising out of or relating to this Agreement, the Admission Agreement or any and all past and future admission of the Patient at this Center"" and provides that a "claim that Is not brought within the statute of !Imitations period that would apply to the same claim In a court of law ...shall be waived and forever barred." 10 contract of adhesion, and the provision unreasonably favors the party asserting it. Salley v. Option One Morto. Corp., 925 A.2d 115, 119 (Pa. 2007). . Again, Plaintiff has not differentiated this case from this Court's decision in Fleaole, Plaintiff was not "forced" into residence at the facilityia and had thirty days to review the Agreement and decide whether or not to be bound by. the signed contract. The.Agreemr, nt contains a paragraph entitled "8. Right to Change Your Mind" with a concise explanation of how the contract could be cancelled. Thirty days Is a sufficient ' amount of time to carefully read, understand, and make an informed decision regarding the Agreement. Further, as previously noted, the Agreement clearly indicated.to Plaintiff that•signing the agreement was not a prerequisite for entrance Into the nursing facility." Moreover, Plaintiff was not forced to .enter.the Manor Care facility as there were other health care faciiities.able to meet Plaintiff's needs." Therefore, itis found the Agreement is not a contract of adhesion, Moreover, the Agreement is not found.to be unconscionable dUe to a disparity In the bargaining powers of the parties. Not only did Plaintiff and. her husband have thirty days to cancel the contract, Plaintiff's husband is en educated man who has previously gone through•the alternative dispute resolution process "a number of times."'" Finally, Plaintiff argues that the Agreement Is cost prohibitive because the arbitrator's fees must be split between the parties. In actuality, the Agreement states t4 Plaintiff entered the faclllty following a back surgery at Harrisburg Hospital which left her In need of constant care and required her to reside at a long-term care facility. See Supplemental Memorandum of Law In Support of the Preliminary objections of Manor Care Defendants to Enforce•the Arbitration Agreement; Ex. C, Deposition of Robert B. Cormeny, p, 8; 8. ' Agreement, pg, 1. !Agreement, at g 14. 'Y Deposition of Robert B. Cormany, p. 4. Furthermore, Plaintiffs husband seemingly indicates that the opposition to the Agreement is based on hls previous unsatisfactory experiences with arbitration rather than the proposition that he lacked authority to sign the Agreement. See Deposition of Robert B. Cormany, pg. 4-6. the "Panels' fees and costs will be paid by [Manor Care] except in disputes over non- payment of [Manor Care] fees wherein such fees and costs will be divided equally between the partles."18 Therefore; the Plaintiff actually has no fees or costs associated • with arbitration in this matter, besides any attorney fees which Plaintiff willingly agreed to pay and which Plaintiff would likely pay regardless of whether the case was arbitrated or litigated. Next, Plaintiff argues that there was no knowing and voluntary waiver of the right to a jury trial. In fact, the Arbitration Agreement very clearly notes, at the top and in bold, capital letters, that THE. PARTIES ARE WAIVING THEIR RIGHT TO A TRIAL BEFORE A JUDGE OR JURY IN ANY DiSPUTE BETWEEN THEM. PLEASE READ CAREFULLY.I3EFORE SIGNING. THE PATIENTWILL RECEIVE SERVICES•IN THIS CENTER WHETHER OR NOT THIS AGREEMENT IS SIGNED.i10 The Agreement Is not misleading as to what right •ls being waived and •the right Is being waived by both parties equally. As noted above, this Court finds that•the Agreement was voluntarily signed. As such, the Agreement was clear about the rights being waived, and the Plaintiff's power of attorney voluntarily signed the Agreement. Thus, the waiver of the right to a jury trial was knowing and voluntary. 'See Fleagle. See generally C11 ghlzola v. Beverly Enter. Inc., 79 Pa. D. & C.4th 415 (Pa. Com. Pl. Monroe Co. 2006) (finding that plaintiff knowingly and voluntarily waived her right to a jury trial where similar language was present in an arbitration agreement). In her final argument, Plaintiff asserts that public policy dictates that the Agreement is not appropriate In this case. Plaintiff makes the same argument as was . to Agreement at 11 10. 10 Agreement, p. 1. 12 already set forth in Fleagle and denied by thls Court. No grounds in law or equity can be found to void the Agreement. Plaintiff's argument Is not found to be persuasive, and the Agreement is not void as against public policy. In the alternative, Plaintiff asks for a discovery schedule.to create a factual record to develop further arguments against the validity of the Agreement. However, limited discovery has already taken place In thiis•case with depositions taken of Plaintiff, Robert . Cormany, and Karen Scott, the Facility Admissions Coordinator. However, the Agreement itself states that the "Panel shall apply the ... State Rules of Civil Procedure" 2Q which offer the possibility of discovery. Furthermore, the Agreement states that "the Panel is empowered to, and shall, resolve all disputes, including without limitation,any disputes about, the making, validity, enforceability, scope, interpretation; voidability, unconscionability, preemption, severability and/or waiver of this . Agreement"Z' so Plaintiff is free to argue. the validity of the Agreement to the Panel in hopes of a different result than this Court now offers. Conclusion This.matter is governed by this Court's November 22, 2013, decision in Fleagle v. Manor Care of Camp Hill, et al, No. 12-0828 Cl. As In Fleaale, the signatory had the authority to bind Plaintiff to the Agreement, and the Agreement is otherwise found to be validand enforceable. Accordingly the following Order will be entered: 20 Agreement at TI 6, 21 Agreement at 1f 6. 13 ORDER OF COURT AND NOW this 22nd day of May, 2014, after consideration of Defendants' Preliminary Objections to Plaintiffs Complaint, the briefs filed by the parties, and after argument held on April 4, 2014; IT IS HEREBY ORDERED AND DIRECTED that the Defendants' Preliminary Objections to Plaintiff's Complaint are SUSTAINED. Plaintiff's Amended Complaint is DISMISSED and the parties are direct?d to proceed to arbitration pursuant to the arbitration agreement executed on November 6, 2012. By the Court, Erica C. Wilson, Esquire Attorney for Plaintiff Sean P. O'Mahoney, Esquire Attorney for Defendant • 14 Chighizola v. Beverly Enterprises inc., 2006 WL 4069446 (2006) 79 Pa. D. & C.Ath 416 2006 WL 4069446 (Pa.Com.Pl.) Court of Common Pleas of • Pennsylvania, Monroe County. • Chighizola v. Beverly Enterprises Inc. No. 6672 Civil 2005. j March 13, 2006 Attorneys and Law Firths *417 Brian L, Strauss, for plaintiff Chighizola. Marc A. Moyer, for defendant. Opinion WALLACH MILLER, J. This negligence action arises out of events that occurred between *418 October 28, 2003 and November 4, 2003, when plaintiff decedent resided at defendant Beverly Enterprises—Pennsylvania inc. d/b/a Beverly Healthcare— Stroud (facility). On October 28, 2003, decedent Mary Rosalie Jones was admitted under the defendant's care at Beverly Health Care—Stroud. In admitting plaintiff into the defendant's care, plaintiffs daughter, Candace Macintire, signed her name in the place reserved for an "authorized agent" on the admission forms. In the same time span, Ms. Maclntire also signed, as an "authorized agent" of the plaintiff, a "Resident Trust Fund Authorization" and a "Resident and Facility Arbitration Agreement." Pursuant to the terms of the arbitration agreement, plaintiffs daughter agreed on behalf of the plaintiff decedent that all claims and disputes arising or in connection with the arbitration agreement or health care services would be resolved exclusively by an arbitration conducted at a place agreed upon by both parties in accordance with the National Arbitration Forum Code of Procedure and not by lawsuit or resorting to the court process. The arbitration agreement further provides: "The resident understands that (1) he/she has the right to seek legal counsel concerning this arbitration agreement, (2) that execution of the arbitration agreement is not a precondition to admission or to the furnishing of services to the resident by the facility, and (3) this arbitration agreement may be rescinded by written notice to the facility from the resident within 30 days." Procedurally, on August 19, 2005, plaintiff filed a complaint against defendant as a result of an incident which occurred on November 4, 2003, while in the care of the defendant. On October 12, 2005, defendant filed preliminary *419 objections, which did not include an averment that this matter was subject to an arbitration agreement. After a stipulation between the parties to drop claims against certain individuals employed by the defendant,. plaintiff filed an amended complaint on October 29, 2005. Defendant filed preliminary objections to plaintiffs amended complaint on November 18, 2005, but again, defendant did not include any averments that this matter was subject to an arbitration agreement. However, on November 23, 2005, defendant filed a motion to compel arbitration, which plaintiff opposed, and this court heard oral arguments from both sides on February 6, 2006. Presently, no discovery has been exchanged between the parties, nor has this court ruled on any pretrial motions by either side. in opposing defendant's motion to compel arbitration, plaintiff raises the following arguments: (1) the arbitration agreement is not valid because decedent plaintiffs daughter, Candace Macintire, had no authority to bind her mother to the arbitration agreement, (2) the arbitration agreement is not valid because the defendant fails to establish a knowing and voluntary waiver by the decedent plaintiff of a right to a Jury trial, (3) the arbitration agreement is not valid because the defendant breached their fiduciary duty to the decedent plaintiff, (4) the Federal Arbitration Act does not apply if the arbitration agreement is invalid, and (5) the defendant waived their right to arbitration by not raising the arbitration agreement as a preliminary objection. Under Pennsylvania law, where a party to a civil action seeks to compel arbitration, judicial inquiry is limited to determining first whether a valid agreement to *420 arbitrate exists between the parties, and if so, whether the dispute involved is within the scope of the arbitration provision. Warwick Township Water and Sewer Authority v. Boucher & James inc., 851 A.2d 953 (Pa. Super. 2004); Midomo Company Inc. v. Presbyterian Housing Development Co., 739 A.2d. 180 (Pa. Super. 1999). Arbitration is a favored policy for the resolution of disputes because it serves to promote the swift and orderly disposition of claims. Midomo, 739 A.2d at 190. Therefore, if the parties agree to arbitration in a clear and unmistakable manner, every reasonable effort 'A` 3stiNiNext raj 2014 Thomson Reuters. No claire to original U.S. f overnment Works. 1 Chlghizola v. Beverly Enterprises Inc., 2006 WL 4069446 (2006) 79 Pa. D. & C.4th 416 should be made to favor the enforcements of such agreements. Williams v. Grunta! & Company, 447 Pa. Super. 357, 669 A.2d 387 (1995). In the present case, plaintiff does not challenge whether the dispute involved here is within the scope of the arbitration agreement, but only the validity of the agreement. In its first argument opposing the validity, plaintiff relies on principal -agent theory that decedent's daughter, Candace Maclntire, had no authority to act on behalf of decedent (the principal) regarding the arbitration agreement. At oral argument on February 6, 2006, plaintiff argued that, while Ms. Maclntire can act as an agent in signing medical admissions forms, the arbitration agreement was beyond Ms. Maclntire's scope of authority because of the legally binding nature of the agreement. In Pennsylvania, there are three basic elements necessary to establish a principal -agent relationship: (1) manifestation by a principal that an agent shall act for the principal, (2) the agent's acceptance of the undertaking, and (3) the parties' understanding that the principal is to be in control of the undertaking. Basile v. H & R Block *421 Inc., 563 Pa. 359, 368, 761 A.2d 1115, 1120 (2000); Scott v. Purcell, 490 Pa. 109, 117, 415 A.2d 56, 60 (1980). The burden of establishing an agency relationship rests with the party asserting the relationship. Id. An agent cannot, simply by its own words, invest himself with apparent authority; such authority emanates from the action of the principal and not the agent. Turnway Corporation v. Soifer, 461 Pa. 447, 458, 336 A.2d 871, 876 (1975); Jennings v. Pittsburgh Mercantile Company, 414 Pa. 641, 645, 202 A,2d 51, 54 (1964). While plaintiff presents a novel argument that an agent's authority to sign medical admissions forms differs from the authority to sign an arbitration agreement, we cannot agree. Pennsylvania has long held that the liability of a principal to a third party for an agent's acts may stem from express, implied, or apparent authority. Reifsnyder v. Dougherty, 301 Pa. 328, 333, 152 A. 98, 100 (1930). The liability of the principal is not limited to such acts of the agent as are expressly authorized or necessarily implied from express authority, but all such acts of the agent as are within the apparent scope of the authority conferred on him are also binding upon the principal. Downey & Co. Inc. v. Kraemer Hosiery Co., 136 Pa. Super. 553, 7 A.2d 492 (1939). Where the principal, by words or conduct, holds one out as an agent, there is apparent authority. Reifsnyder, 301 Pa. at 333, 152 A. at 100. In order for a reasonable inference of the existence of apparent authority to be drawn from prior dealings, these dealings must have a measure of similarity to the act for which the principal is sought to be bound and a degree ofrepetitiveness. Turnway, 461 Pa. at 459, 336 A.2d at 877. A principal.who clothes his agent with such *422 apparent authority is estopped from denying such authority. Id. at 457, 336 A.2d at 876. In the present matter, decedent plaintiff held Candace Maclntire out as having the authority to sign decedent's admission forms as well as the Resident Trust Fund Authorization. In both documents, Ms. Maclntire signed as decedent's agent, and plaintiff does not contest Ms. Maclntirc's authority to do so. One can reasonably infer that the decedent appears to have given her agent the apparent authority to sign the arbitration because of the similarities of how and when the documents were signed. See Turnway, 461 Pa. at 459, 336 A.2d at 877. In the arbitration agreement, Ms. Maclntire again signed as decedent's agent, and the arbitration agreement was signed in the same time span and context as the other documents. Moreover, plaintiff's counsel stated at oral argument that the decedent was of sound mind and conscience on October 28, 2003. Therefore, there is no reason why the decedent could not have rescinded the arbitration agreement, as permitted under the terms of the arbitration agreement, if the decedent believed that Ms. Maclntire had overstepped her authority as an agent. Allowing the plaintiff in hindsight to now narrowly pick which documents the agent did not have authority to authorize would unjustly benefit the plaintiff for litigation purposes. Therefore, mindful of the circumstances in which the arbitration agreement was authorized, we find that Ms. Maclntire had the proper authority to bind the decedent to the arbitration agreement. Examining plaintiffs next argument that Ms. Maclntire did not knowingly and voluntarily waive her right to a jury trial, we disagree with the plaintiff due to the *423 conspicuous nature and clarity of the arbitration agreement that plaintiff's agent signed. At the top of the arbitration agreement, it clearly states in bold letters "RESIDENT AND FACILITY ARBITRATION AGREEMENT (NOT A CONDITION OF ADMISSION -READ CAREFULLY)." The document contents are clearly unambiguous from the title, and Ms. Maclntire's signature appears at the end of the document. On the second page of the document, it reads in bold letters "THE PARTIES UNDERSTAND AND AGREE THAT THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES." The document also clearly informs Ms. Maclntire that she has the right to seek '1•hc,;:son Routcrs, tJu c!^itu tb original 11.5. (aovermm� Ii Works. 2 Chighlzola v. Beverly Enterprises Inc., 2006 WL 4069446 (2006) 79 Pa. 0. & C.4th 416 legal counsel and can rescind the agreement in 30 days if she chooses. Even if plaintiff did not properly read the agreement, "in the absence of fraud, the failure to read a contract before signing it is an unavailing excuse or defense and cannot justify an avoidance, modification or nullification of the contract; it is considered supine negligence." Germantown Savings Bank v. Talacki, 441 Pa. Super. 513, 521, 657 A.2d 1285, 1289 (1995). As a result, we find plaintiffs argument Tacks merit and is denied. Finally, in plaintiffs last argument challenging the validity of the arbitration agreement, plaintiff states that defendant breached its fiduciary duty to the plaintiff by taking advantage of the decedent and her family by enticing Ms. Maclntire into signing the arbitration agreement. Plaintiff insists at length that defendant had a fiduciary duty with Ms. Maclntire, decedent's agent, at the time of the arbitration agreement's signing; therefore, defendant had an affirmative duty to disclose all *424 terms of the agreement and their substantive effect. However, assuming defendant actually owed such a duty orguendo, the arbitration agreement uses conspicuous and clear language highlighting the arbitration agreement and its effect. The terms of the arbitration are listed as well as the binding effect that the arbitration agreement has. Ms. Maclntire's failure to read those terms is not a defense. Talacki at 521, 657 A.2d at 1289. Plaintiff's argument again fails to challenge the validity of the arbitration agreement. Plaintiff's next argument, which states that the Federal Arbitration Act does not apply if the arbitration agreement is found invalid, is now inapplicable since we have found the agreement valid notwithstanding plaintiff's challenges. Lastly, plaintiff argues that defendant waived their right to arbitration by filing preliminary objections without including averments that this case was subject to an arbitration agreement. For support, plaintiff cites Wilk v. Ravin, 46 Pa. D. & C.4th 347 (2000) an Allegheny Common Pleas Court decision holding that a party waives an arbitration agreement if the agreement is not asserted prior to the filing of an answer to the complaint. In that case, the court ruled that because of the 1991 Amendment of Pa.R.C.P. 1028(6) making alternative dispute resolution a ground for which preliminary objections may be filed, an agreement to arbitrate may be waived if not raised as a result of Pa.R.C.P 1032(a). Id. at 350. The court held that a preliminary objection based on an arbitration agreement is analogous to one based on lack of jurisdiction because both grounds involve objections to the consideration of the merits of the complaint by the court in *425 which the lawsuit was filed. Id. at 352. Therefore, because a preliminary objection based on lack of jurisdiction can be waived under Pa.R.C.P 1032(a), an objection based on an arbitration agreement should also be waived. Although the Ravin case could pose as persuasive but not binding authority for this court, successive Pennsylvania Superior Court cases have diminished Ravin's impact. In Keystone Technology Group Inc. v. Kerr Group Inc., 824 A.2d 1223 (Pa. Super. 2003), the Pennsylvania Superior Court held that even though the appellant had already filed a complaint and amended complaint before filing a motion to compel arbitration, the appellant did not waive its right to arbitration because there was no resulting prejudice to the appellee. The court stated: "a waiver of a right to proceed to arbitration pursuant to the term of a contract providing for binding arbitration should not be lightly inferred and unless one's conduct has gained him an undue advantage or resulted in prejudice to another he should not be held to have relinquished the right." Id. at 1226. The Keystone court placed particular emphasis on the fact that no discovery had taken place before the filing of a motion to compel arbitration; therefore, no side had gained an advantage from the discovery process. See id. at 1227. As a result, the mere filing of a complaint or answer without resulting prejudice to either side will not justify a waiver of the right of arbitration. Id. at 1226. In Thermal C/MServices Inc. v. Penn Maid Dairy Products, 831 A.2d 1189, 1191 (Pa. Super. 2003), our Superior Court followed the Keystone rationale in holding that a party does not waive its right to arbitration *426 when there is no undue advantage gained or imposed prejudice upon the other party. Thermal Services initially raised the arbitration agreement as a preliminary objection, but later intentionally abandoned this argument in its accompanying supporting brief and proposed draft order, which the trial court adopted without reference to the arbitration agreement. Id. at 1191. However, Thermal brought a motion to compel arbitration two months later to the trial court. Id. The Superior Court ruled that Thermal did not waive its right to compel arbitration even though it initially abandoned its arbitration argument because Thermal had not gained an unfair advantage, nor had the other party been prejudiced. Id. at 1191 n.2. In the present case, we find the circumstances very similar to Keystone and Thermal. Here, no discovery has taken place. While plaintiff made a request for answers to its rr�zi: ?41,"vhit? f O 2014 Thomson Roiiter8. No claire to original t.1.$. Covr rnmerd Work,;. 3 Chlghlzola v. Beverly Enterprises Inc., 2006 WL 4069446 (2006) 79 Pa. b. & C.4th 416 interrogatories, there have been no answers, nor have any depositions taken place. Neither side has gone through the discovery process except for plaintiff's request for interrogatory answers, nor has pretrial progressed to a point where it would be inefficient to grant defendant's motion to compel. Because nothing has taken place such as pretrial motions or even setting up a discovery time period, there is no discernible advantage gained by defendant or prejudice that will befall the plaintiff. Therefore, we cannot lightly infer a waiver of the arbitration agreement. Keystone, 824 A.2d at 1226. Pennsylvania courts long have held arbitration as a favored policy for resolutions of disputes because it serves to promote the swift and orderly disposition .of claims. Midorno, 739 A.2d at 190. In this light, we find that defendant has not waived his right to arbitration. • End of Document *427 Summarily, we find the arbitration agreement between defendant and plaintiff valid and has not been waived by defendant. Therefore, defendant's motion to compel arbitration is granted. ORDER And now, March 13, 2006, defendant's motion to compel arbitration is granted. Parallel Citations 79 Pa. D. & C.4th 4I6 2014 Thomson Reuters. No claim to original U.S. Government Works. W-:�.>"«:aNext" � 2 }1 Thomson Reutu r>. Na claim to original U.S. laaGvornrrtont to/ork,a. 4 Mamie L Chism 43270 8/27/2010 • TELEVISION & CABLE POLICY + ❑-Klo wish to have a television in my room and would like it to be hooked up to the local cable service. I understand that 1 am responsible for the hookup and disconnection of service. 0 1 do not wish to have cable service. • TELEPHONE POLICY + 1 do wish to have a telephone in my room and would like it to be honked up to the local phone service. 1 understand that I am responsible for the hookup and disconnection of the phone service. ❑ I do not wish to have a telephone. • PERSONAL LAUNDRY AND LABELING POLICY + 0 I would like the facility to provide laundry services; 1 understand that there is no additional charge for these services. I understand that unless 1 follow the facility policy and label and provide inventory of the clothing and personal items. [ do NOT wish to have laundry services provided by the facility; in turn, the family will provide these services. • PHARMACY POLICY + I have read the listed Pharmacy policy and understand the conditions of participation. I choose: 0 The facility pharmacy • NIGHTSTAND KEY + I do wish to have a key for my nightstand I do not wish to have a key for my nightstand SIGNATU 30 DATE: 8/27/2010 MC-GLWS000030 Resident's Name: ti,ti`c UL (\i\ i; Admission Date: r - (�} Record Number: LI 3'0 By signing below, you, your Legal Representative and this LivingCenter agree to the terms of this Admissio greement: • Rep LivingCenter Date By my signature, I acknowledge that ave read this Admission Agreement or had it read to me, that I understand what i am signing, and that I accept its terms. Signature of Resident Dutc By my signature, l represent that 1 am a person duly authorized by Resident or by law to execute this Admission Agreement and that I accept its terms. nota o csit's Legal Representative (if applicable) Date Address Phone NOTE: Copies of all documents verifying the status of the Legal Representative must be obtained at the time of admission. Examples of the required documents include but are not limited to the following: Power of Attorney, Durable Power of Attorney. Healthcare Proxy. Guardianship Appointment, Conservator Appointment and others conveying legal authority. A LEGAL REPRESENTATIVE, INCLUDING ANY PERSON OTHER THAN THE RESIDENT OR FINANCIALLY RESPONSIBLE SPOUSE, MAY NOT BE REQUIRED BY THE FACILITY TO ASSUME PERSONAL FINANCIAL LIABILITY FOR THE RESIDENT'S CARE. By signing this Agreement and providing current credit card information, you authorize us to charge all charges under this Agreement to your credit card. If you plan to pay using a credit card, please provide the card information below. Discover' Account # Exp. MasterCard'' Account # Exp. Visa`'`' Account # Exp. Guklen LivingCcnas: Admission AgreemenUnw. 011101 MC-GLWS000033 Mamie Llm 43270 8/27/2010 CODE STATUS DECISION Agent/Legal Representative's Name: Rose Relationship to Resident: Daughter Date 8/27/2010 a met/711-4-; IN THE EVENT OF CARDIOPULMONARY ARREST DO WANT CARDIOPULMONARY RESUSCITATION PERFORMED (and have been informed of the, explanation & procedures of CPR in accordance with Golden Living Center - West Shore's Policy). • G(114Agent/Legal Representative's Signaturei/l]� . � Resident's Signature (if able to sign: Signature of Physician: I DO NOT WANT CARDIOPULMONARY RESUSCITATION PERFORMED (and have been informed of the explanation & procedures of CPR in accordance with Golden Living Center - West Shore's Policy). I DO NOT WANT RESIDENT TRANSFERRED TO THE HOSPITAL (DN1) (Resident will be kept at the facility rather than sent to the hospital for life sustaining procedures). Agent/Legal Representative's Signature: Resident's Signature (if able to sign): Physician's Signature: /149( Cf vy `t4 2,g 50 MC-GLWS000036 Mamie L • 43270 8/27/2010 Golden Living West Shore Physician Assistant/Nurse Practitioner/Nursing Student Consent Form Physician Assistant I do consent to be seen by a Physician Assistant. I do not consent to be seen by a Physician Assistant. Nurse Practitioner ramtlitt I do consent to be seen by a Nurse Practitioner. I do not consent to be seen by a Nurse Practitioner. Nursing Student I do consent to be seen by a Nursing Student. I do not consent to be seen by a Nursing Student. ent's Representative Signature 49 8/2712010 Date 8/27/2010 Date MC-GLWS000042 Mamie LOP m 43270 8/27/2010 w CUSTOMARY ROUTINE ASSESSMENT Please Check Any Of The Following That May Apply To You Or Your Loved Ones Customary Routine, Answers To These -Questions Will Help Us To Create A Careplan That Is As Resident Specific As Possible. es 1. i/ Stays Up Late At Night (After 9pm) 2. Naps Regularly During The Day (1 Hour) 3. Goes Out 1+ Days A Week 4. Stays Busy With Hobbies, Reading Or Fixed Routine 5.1 /Spends Most Of Time Alone Or Watching TV 6. 1. Moves Independently Indoors (w/ Appliances If Necessary) 7. Uses Tobacco Products At Least Daily 8. Distinct Food Preferences 9. Eats Between Meals All Or Most Days 10. Use Of Alcoholic Beverages At Least Weekly 11. In Bed Clothes Most Of The Day 12. Fatly Riser (Before 6am) 13. Late Riser (After 9ani) 14. l/ Likes To Get Up At 15. V Wakens To Use The Toilet All Or Most Nights 16. / Has Irregular Bowel Movement Pattern 17. V" Showers For Bathing 18. V. -Bathing In Am 19. Bathing In Pm 20, i/ Daily Contact With Relatives/Close Friends 21. Usually Attends Church, Temple, Synagogue 22. Finds Strength In Faith 23. Daily Animal Companion/Presence 24. Involved In Group Activities 25. Resident Has A Specific Name i[ckname) He/She Wishes To Be Called 26. Previo J•ccupation C�,_, 4 (._-fid -- Agent Signa Facility Signature: 51 Date: 8/27/2010 Date: 8/27/2010 MC-GLWS000043 Fox Rothschild LLP ATTORNEYS AT LAW 2000 Market Street, 20th Poor Philadelphia, PA :19103-3222 Te 215.299.2000 Fax 215,299.2150 Jacqueline M. Carolan Direct Dial: (215) 299-2863 Email Address: jcarolan@foxrothschild.com January 6, 2015 Andrei Govorov, Esquire Wilkes & McHugh, PA Three Parkway 1601 Cherry Street, Suite 1300 Philadelphia, PA 19102 Re: Estate of Mamie L. Chism v. Golden LivingCenter —West Shore, et al. Dear Mr. Govorov: Please note that 1 am representing the various defendants in the above -captioned matter. Please note that there is a signed Arbitration Agreement which is attached hereto for your • review. Accordingly, this case has been inappropriately filed in Cumberland County. Please advise if you will voluntarily withdraw this action in accordance with the Arbitration Agreement. I look forward to working with you, and should you have any other questions regarding the above, please do not hesitate to contact Inc. • Very truly yours, line M. Carolan 5MC:ajd Enclosure A Peor,.,7i,;,3r:n California Colorado Connecticut Delawarr? Di$Ifict off3nrlit,.)ia. F1or1 Nevada New .ieNew York Pennsylvania