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HomeMy WebLinkAbout05-3266COMMONWEALTH OF PENNSYLVANIA COURT OF COMMON PLEAS Judicial District, County Of Cumberland NOTICE OF APPEAL FROM DISTRICT JUSTICE JUDGMENT COMMON PLEAS No. ,c- VV Grvt 1 NOTICE OF APPEAL Tnk-CL-z Notice is given that the appellant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the District Justice on the date and in the case referenced below. Stoke, Opthalmology 09-3-02 Harold Bender, specially presiding 338 Alexander Spring Road 6/9/05 Carlisle Stoken Opthalmology William PA 17013 DOCKET No. ervn'ono yr n..nn vnr4. vn?., y ry CV-0000056-05 This block will be signed ONLY when this notation is required under Pa. R.C.P.D.J. No. 1008B. This Notice of Appeal, when received by the District Justice, will operate as a SUPERSEDEAS to the judgment for possession in this case. Syneture of Prothonotary or Deputy before a District Justice, A COMPLAINT MUST BE FILED within twenty (20) days after filing the NOTICE of APPEAL. PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section of form to be used ONLY when appellant was DEFENDANT (see Pa.R.C.P.D.J. No. 1001(7) in action before District Justice. IF NOT USED, detach from copy of notice of appeal to be served upon appellee. PRAECIPE: To Prothonotary Enter rule upon Name of appellees) appellee(s), to file a complaint in this appeal (Common Pleas No. ) within twenty (20) days after service of rule or suffer entry of judgment of non pros. Signature of appellant or attorney or agent RULE: To appellee(s) Name of appellee(s) (1) You are notified that a rule is hereby entered upon you to file a complaint in this appeal within twenty (20) days after the date of service of this rule upon you by personal service or by certified or registered mail. (2) If you do not file a complaint within this time, a JUDGMENT OF NON PROS MAY BE ENTERED AGAINST YOU. (3) The date of service of this rule if service was by mail is the date of the mailing. Date: 20 Signature of Prothonotary or Deputy YOU MUST INCLUDE A COPY OF THE NOTICE OF JUDGMENTITRANSCRIPT FORM WITH THIS NOTICE OF APPEAL. AOPC 312-02 COURT FILE TO BE FILED WITH PROTHONOTARY I PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT (I MS proof of ser ee M(.,S7 BE FILED WITHIN TER (10) DAYS AFTER filing of the notice of appeal. Check applicable boxes.) COMMONVVEALTH OF PENNSYLVANIA COUNTY OF ; ss AFFIDAVIT: I herehy (swear) (affirm) that I served u a copy of the Ntice of Appeal, Common Pleas No. , upon the District Justice designated therein on (date c service) . 11 ? by personal service ? by (certified) (registered) mail, sender's receipt attached hereto, and upon the appellee, (name) , on 20 by personal service ? by (certified) (registered) mail, sonde s receipt atta red hereto (SWORN) (AFFIRMED) AND SUBSCRIBED BEFORE ME THIS DAY OF , 2D signatwe Signature of official before whom affidaot was made ?tle of olfiaa( My commission expires on .20 M O ?r- 7 C-. N ? G. 70 ' J N i U- LL 0 o U AOPG 312A - 02 .__. - _ ---- ----- _._ -- PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT (7his prc? ; or iBfViC,£t A4US-f f3E F'tLE'U 4VtTHUd 7-?=fV f?U') Oft Y`i „F't- r7 tittng or?lt. ??ottt=? r, ,t x., = i;ttt, 1 2?iic;3 ? ' , xa=,;;,) COMMONWEAi-i N OF PENNSYLVANIA COUNTY OF Cumberland " AFFIDAVIT: ereby €swearj (affirm) 'hat j ser ed Fk a copy of the Notice of Appeal, Common P(aas hJo. 05-3266. uao r the ONtr r+ I,i-t' ce dr ?7 r :ic# in e ! .:;a I date of Service] June 28 ,22`05 t_) b}r person a'setvici= :? "tyr'r ?,=ed;-Arai., idilliam McKeehan send+:r's rer_elpx attached hnre`o, arid upon the appOhez, (taeate) Michael T. Traxler, Esquire June 30, 2005 1y` ?e a ?t; f seri e ?t Y t r? eitie<S ?; ^raii, June 28 20 05 .T:ndr., sreceiF,t ar ,;hc;d hPlfptr (SWORN) AFE62P,1ED) AND 11-W63GRIBED BEFORE ME THIS ,j 4f? "Ay OF JM4?.. . eC Us. . Srgrla'u'e o%oJC alb 'oU whor?gtfidU snaade 71tio ui' ofbcrG! ?My w'1m1ss1etts expses .2t2 NOTARIAL SEAL CORRINE L. MYERS, NOTARY PUBLIC CARLISLE 8080, COUNTY OF CUMBERLAND MY COMMISSION EXPIRES MAY 27, 2007 0 C: rn rr,. ?C N 0 cn L c r i cn W N Co v ea-'sn 0 n 5? My M ,gym b 1 AOPC 312A - 02 ...r Y1Y° ? ?vR??.F^+±mt-svmn ',".. ?n ur'.r .n -mm. COMMONWEALTH OF PENNSYLVANIA COURT OF COMMON PLEAS NOTICE OF APPEAL Judicial District, County Of Cumberland FROM DISTRICT JUSTICE JUDGMENT COMMON PLEAS No. J)lr-6-- 3IRG C, f j i NOTICE OF APPEAL jz n e- a-1, SOOT- Notice is given that the appellant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the District Justice on the date and in the case referenced below. NAME OF APPELLANT MAG. DIST. NO. NAME OF O.J. Stoken Opthalmology 09-3-02 Harold Bender, specially presiding ADDRESS OF APPELLANT CITY STATE 21P GORE 338 Alexander Spring Road Carlisle PA 17013 DATE OF JUDGMENT IN THE CASE OF (Plein(iR) (Defendant)' 6/9/05 Stoken Opthalmology , William McR ehan DOCKET No. SIGNATURE OF AP TOR ATTO OR T CV-0000056-05 This block will be signed ONLY when this notation is required under Pa, If apps n s C/arm t ee P . R.C,P.D.J. 01(6) in action R.C.P.D.J. No. 1008B. This Notice of Appeal, when received by the District Justice, will operate as a before a District Justice, A COMPLAINT MUST BE )LED within twenty SUPERSEDEAS to the judgment for possession in this case. (20) days after filing the NOTICE of APPEAL. Signature of Piolhonotaq or Deputy PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section of form to be used ONLY when appellant was DEFENDANT (see Pa.R.C.P.D.J. No. 1001(7) in action before District Justice. IF NOT USED, detach from copy of notice of appeal to be served upon appellee. PRAECIPE: To Prothonotary Enter rule upon Name of apps/lee(s) (Common Pleas No. appellee(s), to file a complaint in this appeal ) within twenty (20) days after service of rule or suffer entry of judgment of non pros. Signature of appellant or attorney or agent RULE: To , appellee(s) Name of appelles(s) (1) You are notified that a rule is hereby entered upon you to file a complaint in this appeal within twenty (20) days after the date of service of this rule upon you by personal service or by certified or registered mail. (2) If you do not file a complaint within this time, a JUDGMENT OF NON PROS MAY BE ENTERED AGAINST YOU. (3) The date of service of this rule if service was by mail is the date of the mailing. Date: 20 Signature ofPmthonotary or Deputy YOU MUST INCLUDE A COPY OF THE NOTICE OF JUDGMENT/TRANSCRIPT FORM WITH THIS NOTICE OF APPEAL. AOPC 312-02 COURT FILE U.S . Post al Ser vice CE RTIF IED MAIL REC EIPT , - (Dom estic M ail Only ; No Ins urance C overage Providec cAQsiFp&1t c 6F to Foemge $ 7 001 O Coaled Fee C3 O Return Redept Fee (Endowment Required) $1.75 Poeon G r9 Reseloted Delivery Fee $0.00 cn (Endowment (Endowment Required) ' m Total Postage & Fees $ $4.65 ? M o sort, e p C ?t t 1 (............. 4 -------- --- (-76 U.S. Postal Service ?. MAIL RECEIPT (Domestic r` N LFPF71?4 y L Pwtwe $ $0.37 O CerWW Fee O Return Redoist Fee (Endowment M Required) $1.75 y v ?, y.re ?r UN r9 Residmed DaVNery Fee ired) nt Re E W $0.00 ' n. n0 O r Orwme qu ( r L m d. 64.42 Tote] Postwe s Fees y m rrea_ 0 0 r? CERTIFIED MAIL. RECEIPT • (Domestic Mail Only; No Insurance Coverage Providec r C F L .. Ln "I, Poemge $ ?P( . P 17073 C3 Coaled Fee 1 O 0 M Return Rede t Fee ? i p (Enoownlem Required) . , -75 7) r=1 (EnR 20rumeq e?qulawd & m Total Poetwe & Fees $ J -. . O o .. ?' to orPoDoxNO. a s ---- l - nc 3or --------- -? ----------- - f ? ? ?„ PS Fop, W00 ll ?'0 ts e roc ' kl ? 0? - H /20/2005 02:46 7172492415 DREW STOKEN MD PAGE 02 COMMONWEALTH OF PENNSYLVANIA rYMrNITV nP CUMEiL7,AW Meq. Dist. No.' 09-3-02 M0J Name: Hon. HELEM a, SRVLMDERGER Aaareae. PO SOS 155 27 W RIG SPRING AVENUE NIEN ILLS, PA Tekphor®(717) 776-3187 17241 NOTICE OF JUDCASE /TRANSCRIPT CIVIL PLAINTIFF: NAME aid ADDRESS I-STOKEN OPTNALMOLOGY, 338 ALEXANDER SPRING ROAD CARLISLE, PA 17013 L ) Vs. DEFENDANT: NAME,?d ADDRESS FXC-ZZBAN, WILLIAM 235 SPRINGVIEM ROAD CARLISLE, PA 17013 L STOKED OPTRALMOLOGY 338 ALExANDER SPRING ROAD Docket No.: CV-0000056-05 CARLISLE, PA 17013 Date Filed: 3128/05 THIS IS TO NOTIFY YOU THAT: XCKIEEAN, WILLIAM DEF 001 .__-J"udgmenT _ __ t7TSXISSED 4TQDT'Y71r _ _ _. _. Judgment was entered for: (Name) ? Judgment was entered against: (Name) in the amount of $ ? Defendants are jointly and severally liable. Damages will be assessed on: This case dismissed with-p?reiudice. G=ey, , Amount of Judgment Subject to ? Attachment/42 Pa.C.S. § 8127 $ - Portion of Judgment for physical damages arising out of residential lease $ Amount of Judgment $ Judgment Costs $ Interest on Judgment $ Attorney Fees $ Total $ Post Judgment Credits $ Post Judgment Costs $ Certified Judgment Total - -ANY-PARTY HAS-THE RIGHT TO-APPEAI WI*I11N 30 DAYS AFTERT+IEE?fffRy-OF-JUDGMEN'F?9Y-FiLfNG-Af4onCE OF APPEAL WITH THE PROTHONOTARYICLERK OF THE COURT OF COMMON PLEAS, CIVIL DIVISION. YOU MUST INCLUDE A COPY OF THIS NOTICE OF JUDGMENTlTRANSCRIPT FORM WITH YOUR NOTICE OF APPEAL. EXCEPT AS OTHERWISE PROVIDED IN THE RULES OF CIVIL PROCEDURE FOR MAGISTERIAL DISTRICT JUDGES, IF THE JUDGEMENT HOLDER ELECTS TO ENTER THE JUDGMENT IN THE COURT OF COMMON PLEAS, ALL FURTHER PROCESS MUST COME FROM THE COURT OF COMMON PLEAS AND NO FURTHER PROCESS MAY BE ISSUED BY THE MAGISTERIAL DISTRICT JUDGE. UNLESS THE JUDGMENT IS ENTERED IN THE COURT OF COMMON PLEAS, ANYONE INTERESTED IN THE JUDGMENT MAY FILE A REQUEST FOR ENTRY OF SATISFACTION WITH THE MAGISTERIAL DISTRICT JUDGE IF THE JUDGMENT DEBTOR PAYS IN FULL, SETTLES, OR OTHERWISE COMPLIES WITH THE JUDGMENT. 6--f--ra?_ Date . Magisterial District Judge l certify that this is a true and correct copy of the record of the proceedings Containing the judgment. Date , Magisterial District Judge My commission expires first Monday of January, 2006 . on. (Date of Judgment) (Date & Time) SEAL AOPC 315-05 DATE PRINTED, 6/09/05 3123:20 PM H r? C' ci+ T! 1 Fd ILES\DATAFJU\Gmeral\Currcnt\90]]. 6.coml/drg Created 3/5/03 2:2129 PM Revised'. 6/27105 106'.36 AM George B. Faller, Jr., Esquire Attorney I.D. No. 49813 MARTSON DEARDORFF WILLIAMS & OTTO Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff STOKEN OPHTHALMOLOGY, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 05- ?ja lv LG CIVIL ACTION-LAW WILLIAM McKEEHAN, Defendant JURY TRIAL OF TWELVE DEMANDED NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiffs. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE 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 LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCE FEE OR NO FEE: Cumberland County Bar Association 32 South Bedford Street Carlisle, Pennsylvania 17013 Telephone (717) 249-3166 George B. Faller, Jr., Esquire Attorney I.D. No. 49813 MARTSON DEARDORFF WILLIAMS & OTTO Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff STOKEN OPHTHALMOLOGY, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. e- j a 1,(? CIVIL ACTION-LAW WILLIAM McKEEHAN, Defendant JURY TRIAL OF TWELVE DEMANDED COMPLAINT AND NOW, comes Plaintiff Stoken Ophthalmology by and through its attorneys, MARTSON DEARDORFF WILLIAMS & OTTO, and hereby avers as follows: 1. Plaintiff Stoken Ophthalmology is in the business of providing medical ophthalmology services for compensation at 338 Alexander Spring Road, Carlisle, Pennsylvania. 2. Defendant William McKeehan is an adult individual whose last known address is 235 Springview Road, Carlisle, Pennsylvania. BREACH OF CONTRACT 1 Paragraphs 1 through 2 are incorporated herein by reference as if set forth in full below 4. Defendant requested Plaintiff s surgeon, Drew J. Stoken, M.D., to perform cataract surgery on Defendant's right eye. 5. On November 11, 2002, Plaintiff informed Defendant that he was out of his network of medical providers and would be personally responsible for the balance not paid by his health insurance carrier. 6. On November 20, 2002, Dr. Stoken performed cataract surgery on Defendant's right eye. 7. Following that surgery, Defendant requested Dr. Stoken to perform cataract surgery on Defendant's left eye. 8. On December 26, 2002, Dr. Stoken performed cataract surgery on Defendant's left eye. 9. Defendant requested the evaluations and two cataract surgeries and agreed to pay for those surgeries. 10. Plaintiff has demanded and Defendant has refused to pay for Plaintiff's services. 11. The total amount which is immediately due and payable to Plaintiff by Defendant is Three Thousand Two Hundred Fourteen and 37/100 Dollars ($3,214.37). WHEREFORE, Plaintiff Stoken Ophthalmology demands judgment against Defendant William S. McKeehan in the sum of Three Thousand Two Hundred Fourteen and 37/100 Dollars ($3,214.37), together with an award of such costs, interest and other relief as the Court deems just and reasonable. & OTTO By y` Ge ge . al er, Jr. 1. D. Number 49813 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Date: June 27, 2005 Attorneys for Plaintiff DREW STOKEN MD PAGE 65 w,? ??4x4s„ MliUJU PAGE: 05105 VERTFT?AT[ON Z, DREW J'. STOXEN, NI Z7., acknowledge that I have the autbont,• to execute this Verification on behalf of Stoken Ophthalmology and certify that the foregoing Complaint is based upon informatwit which. %tas bear gathered by my counsel in the preparation of this lawsuit. The language of this Complaint is that of cot tsei and not my own. I have read the document and to the extent that this Complaint is based upon information which I have given to my counsel, it is true and correct and to the bast cf my knowledge, information and beiiet To the extent that the content of this Complaint is that of counsel. I have, relied upon caunsei iL inaking this Verification. Pais statement and Verification are made subject to fbe penalties of 18 Pa. C.S_ § 4904 tclating to unsvrorn falsification to aufl2orities, which provides that if I knowingly mal c false averments, I may be subject to crinuiud penalties. Stnkatx OphthaF ogy f Drew'J, oken, Dated: June 'L7,2005 r: ,Fl4FN>A`.c1'11P?G^.ra•ai&v.-.m?VC?'t +.o?m! CERTIFICATE OF SERVICE I, Melissa A. Mowery, an authorized agent for Martson Deardorff Williams & Otto, hereby certify that a copy of the foregoing Complaint was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Michael T. Traxler, Esquire ABOM & KUTULAKIS 36 South Hanover Street Carlisle, PA 17013 MARTSON DEARDORFF WILLIAMS & OTTO By C C Melissa A. Mowery Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: June 27, 2005 0 - h? O COMMONWEALTH OF PENNSYLVANIA rnl wTV nF. CUMBERLAND Mag. Dee 09-3-02 MDJ Name. Han. HELEN B. SMMMBERGER Add's' PO BOX 155 27 M BIG SPRING AVENUE NENVILLE, PA Takpho (717) 776-3187 17241 HELEN B. SBULENBERGER PO BOX 155 27 W BIG SPRING AVENUE NENVILLE, PA 17241 DS- 32t,?- CuLa. COMMON PLEAS NOTIFICATION REQUEST FORM PLAINTIFF: NAME and ADDRESS rSTOXEN OPTBALMOLOGY, 338 ALEX =ZR SPRING ROAD CARLISLE, PA 17013 L vs. DEFENDANT: NAME and ADDRESS rK-CKZzHAN, WILLIAM 235 SPRINGVIEN ROAD CARLISLE, PA 17013 L Docket No.: CV-0000056-05 Date Filed: 3/28/05 Disposition Date: 6/09/05 Please be advised that an appeal has been filed in the above captioned case. Kindly use this form to indicate the results in this case, and return to the issuing authority (listed above). RESULT OF APPEAL Common Pleas Judge. CIVIL-LANDLORDITENANT APPEAL APPEAL STRICKEN - appeal has been disallowed. - APPEAL DISCONTINUED - appeal has been discontinued by appellant. MAGISTERIAL DISTRICT JUDGE DECISION UPHELD - court has reached the same decision as the magisterial district judge judgement. MAGISTERIAL DISTRICT JUDGE DECISION DISMISSED - court has reached a decision that does not concur with the district justice decision. WRIT OF CERTIORARI - WRIT STRICKEN - appeal has been disallowed. WRIT DISCONTINUED - writ has been discontinued by appellant. MAGISTERIAL DISTRICT JUDGE DECISION SET ASIDE - the case will be reheard due to irregularity, lack of juristiction, or improper venue. WRIT DISMISSED - ma isterial district judge decision was not found to be flawed, lacking jurisdiction, or having Imp?oper venue. STATEMENT OF OBJECTION (Please give a general summary of the results) - OBJECTION DISCONTINUED - objection has been discontinued by the appellant. OBJECTION DENIED - objection has been denied by the Court oil Common Pleas. OBJECTION UPHELD - appellant's objection has been upheld by the Court of Common Pleas. AOPC 7296-05 DATE PRINTED: 6/29/05 8:50:16 AM COMMONWEALTH OF PENNSYLVANIA CQUNTY OF: CUMBERLAND 09-03-02 Disbict JuaNU Name: Hon. HON. HELEN B. S14ULENBERGER Address: 27 West Big Spring Avenue P.O. Box 155 Newville, PA 17241 Telephone (717)776-3187 AMOUNT DATE PAID /? FILING COSTS $ / T 00 SERVING COSTS $ r?( US GpnS- TOTAL $ 3 1;;06 / 1 CIVIL COMPLAINT PLAINTIFF: NAME and ADDRESS STOKE14 OPTHALMOLOGY 338 ALEXANDER SPRING RD. CARLISLE, PA 17013 YS. DEFENDANT: NAME end ADDRESS WILLIAM MCKEEHAN 235 Springview Road Carlisle, PA 17013 L_ J Docket No.: (./ VI? G?" Date Filed:3-- Ol Cj TO THE DEFENDANT: The above named plaintiff(s) asks judgment against you for $ 3214.37 together with costs upon the following claim (Civil fines must include citation of the statute or ordinance violated): Plaintiff, Stoken Ophthalmology, is in the business of providing medical ophtalmology services for compensation. Plaintiff provided services to the Defendant. Defendant failed to pay for the services. Plaintiff has demanded payment and Defendant refused to pay. Defendant owes Plaintiff the amount of $3214.37 plus court costs.. I, 3, SN\) - o-D verify that the facts set forth in this complaint are true and correct to the hest of my knowledge, information, and belief. This statement is made subject to the penalties of Section 4904 of the Crimes Code (18 PA. C.S. § 4904) related to unswom falsification to authorities. r 1 (Signa re PlaIntiff or ze Agent) Plaintiff's Attorney: Mary S. Dletz Esq.ID#68257 Telephone: (717)236-6061 Address: Credit Plus Solutions Group 2491 Paxton St, Hbg. PA 17111 IF YOU INTEND TO ENTER A DEFENSE TO THIS COMPLAINT, YOU SHOULD SO NOTIFY THIS OFFICE IMMEDIATELY AT THE ABOVE TELEPHONE NUMBER. YOU MUST APPEAR AT THE HEARING AND PRESENT YOUR DEFENSE. UNLESS YOU DO, JUDGMENT WILL BE ENTERED AGAINST YOU BY DEFAULT. If you have a claim against the plaintiff which is within district justice jurisdiction and which you intend to assert at the hearing, you must file it on a complaint form at this office at least five (5) days before the date set for the hearing. If you have a claim against the plaintiff which is not within district justice jurisdiction, you may request information from this office as to the procedures you may follow. If you are disabled and require assistance, please contact the Magisterial District office at the address above. AOPC 308A (12-1-98) men teceive&by 6t ,pisteici Justice, will dpc?rate?as a befo/a a Di$tdct Justice,A 'gC IN cv,u, 'vprs 7vuR(6)'in'action udgtnent for pdskessidn in this case. MpLA 7', MUST BED"r< 0 VONA twenty (20) days afterrylirlg the NOTICE of APPEAL,. S/gnean-waahpmtwy Dip k11+t?P I?AY M?hS'?ik??`i ,J?4"!5'y'I?S6` M1 c ' r ggq t I Ili l? 1 Ilµl'IVl U?y .;1 I{ ?? P b a 'e("! -4 71 . , i,4 c c r . r v A s ,' 96 t a ABOM & KuruLAKis, LLP 36 S. Hanover Street Carlisle, PA 17013 (717) 249-0900 STOKEN OPHTHALMOLOGY, : IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. : NO.: 2005-3266 WILLIAM McKEEHAN, CIVIL ACTION- LAW Defendant JURY TRIAL DEMANDED DEFENDANT'S PRELIMINARY OBJECTIONS Defendant, William McKeehan, files this responsive pleading by and through undersigned counsel pursuant to Pa.R.C.P. 1028 as follows: FAILURE TO STATE A CLAIM (DEMURRER) 1. Plaintiff has admitted to performing a left eye cataract surgery on Defendant. 2. Prior to the left eye cataract surgery, Defendant made no complaints pertaining to the vision in his left eye. 3. Defendant did not request a left eye cataract surgery. Rather, Plaintiff, through Drew J. Stoken, M.D., informed Defendant that he needed a left eye cataract surgery. 4. Defendant was not referred to Defendant for a left eye cataract surgery. Rather, Defendant was referred to Defendant for a right eye cataract surgery following an examination of both eyes at the Wal-Mart Vision Center located in Carlisle, Cumberland County, Pennsylvania. 5. Immediately after the left eye cataract surgery, Defendant began to experience loss of vision in his left eye. 6. It is believed and therefore averred that it was not necessary to perform the left eye cataract surgery and that this unnecessary surgery caused Defendant's loss of vision. 7. Plaintiff's Complaint contains one cause of action for Breach of Contract. 8. Any Contract that has been alleged to have existed between the parties was created as a result of fraudulent misrepresentations made by Defendant through Drew J. Stoken, M.D. 9. Drew J. Stoken, M.D. fraudulently induced Defendant into having a left eye cataract surgery. 10. A valid contract for the left eye cataract surgery was never created. WHEREFORE, Defendant respectfully requests that this Court grant his preliminary objections by way of demurrer and dismiss Plaintiff's Complaint. Respectfully submitted, ABOM & KUTULAKts, LLP Michael T. Traxler, Esquire ~ Supreme Court ID No. 90961 36 S. Hanover Street Carlisle, PA 17013 (717) 249-0900 Attorney for Defendant CERTIFICATE OF SERVICE AND NOW, I, Michael T. Traxler, Esquire of ABOM & KUTULAKIS, LLP, hereby certify that I did serve or cause to be served a true and correct copy of the foregoing pleading by First Class U.S. Mail at the following: George B. Faller, Jr. MARTSON, DEARDORFF, WILLIAMS & OTTO 10 East High Street Carlisle, PA 17013 DATE / /? Michael T. Traxler, Esquire ?- '. i ` ('.. ._? PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. CAPTION OF CASE (entire caption must be stated in full) Stoken Ophthalmology (Plaintiff) vs. William McKeehan (Defendant) No. 2005-3266 Term 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Defendant's Preliminary Objections 2. Identify counsel who will argue cases: (a) for plaintiff: George B. Faller Jr. Esquire, Martson Deardorff W;ILams & Otto (Name and Address) 10 East High Street, Carlisle. PA 17(172 (b) for defendant: Michael T. Traxler, Esquire, Abom & Knt„7ak;c (Name and Address) 36 South Hanover Street, Carlisle, PA 17013 I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: February 15, 2006 George B,. Faller, Jr int your name Defendant Date: January 6, 2006 Attorney for C' r n ?'? ?_ _ -? = ... _ ? a r?i r , s .? Gt. c ABOM & KUTULAKis, LLP 36 S. Hanover Street Carlisle, PA 17013 (717) 249-0900 STOKEN OPHTHALMOLOGY, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. : NO.: 2005-3266 WILLIAM McKEEHAN, CIVIL ACTION -LAW Defendant JURY TRIAL DEMANDED NOTICE TO PLEAD TO: George B. Faller, Jr., Esquire Ten East High Street Carlisle, PA 17013 Attorney for Plaintiff YOU ARE HEREBY NOTIFIED TO PLEAD TO THE WITHIN NEW MATTER AND COUNTERCLAIM WITHIN TWENTY (20) DAYS OF THE DATE OF THIS PLEADING. ABOM & KUTULA)US, LLP 36 S. Hanover Street Carlisle, PA 17013 (717) 249-0900 STOKEN OPHTHALMOLOGY, Plaintiff V. WILLIAM McKEEHAN, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO.: 2005-3266 CIVIL ACTION - LAW JURY TRIAL DEMANDED DEFENDANT'S ANSWER NEW MATTER AND COUNTERCLAIM Defendant, William McKeehan, files this pleading by and through undersigned counsel as follows: 1. Admitted. 2. Admitted. 3. Admitted. BREACH OF CONTRACT 4. Admitted with clarification. In October, 2002, Defendant had an eye examination completed at the Wal-Mart Supercenter in Carlisle Pennsylvania. The eye examination at Wal-Mart resulted in an indication of a right eye cataract and a referral to Plaintiff for a follow-up examination. Defendant scheduled an eye examination with Plaintiff and appeared for a follow-up examination at Plaintiff's office in November, 2002. The follow-up examination was completed by Plaintiff's surgeon, Drew. J. Stoken, M.D. (hereinafter "Dr. Stoken"). Dr. Stoken examined Defendant's left and right eyes during the follow-up examination and diagnosed Defendant with a right eye cataract and recommended surgery on the right eye cataract. Even though Defendant's left eye was examined at that time, Dr. Stoken did not mention the presence of a left eye cataract. Based upon Dr. Stoken's recommendation of surgery on the right eye cataract, Defendant requested that Dr. Stoken perform the surgery. 5. Denied. After reasonable investigation, defendant is without knowledge or information sufficient to form a belief as to the truth or accuracy of these allegations. To the extent a responsive pleading is required these allegations are specifically denied. To the contrary, Plaintiff advised Defendant to submit Plaintiff's invoice to Medicare for payment, even though Defendant was not Medicare eligible at the time. 6. Admitted. 7. Denied as stated. To the contrary, Defendant had three check-ups following the right eye cataract surgery. It was not until the third check-up that Dr. Stoken mentioned anything about a left eye cataract. During the third check-up, Dr. Stoken recommended that Defendant schedule an appointment to perform surgery on the left eye cataract. The Defendant was surprised by Dr. Stoken's recommendation due to the fact that it was the first time a left eye cataract was mentioned. In addition, Defendant was experiencing no problems with his vision after the surgery on his right eye. After Defendant questioned Dr. Stoken on these facts, Dr. Stoken assured Defendant that surgery on the left eye was necessary. Based upon Dr. Stoken's recommendation that a left eye cataract surgery was necessary, Defendant requested that Dr. Stoken perform the surgery. 8. Admitted with clarification. The left eye cataract surgery was not successful. Defendant appeared at Plaintiffs office for a check-up the day after the left eye cataract surgery and there was no difference in his vision. When Defendant appeared for his second check-up following the left eye cataract surgery, his vision was worse than before the surgery. Defendant appeared for a third check-up and realized that the vision in his left eye was getting progressively worse. During the third check-up, Dr. Stoken explained to the Defendant that he had weak eyes and gave Defendant a prescription for glasses. Defendant had the prescription filled but the glasses made no difference in Defendant's ability to see out of his left eye. Defendant learned later that he had a macular pucker of the left eye. This condition was noted by Dr. Stoken prior to the time that the left eye cataract surgery was performed. Dr. Stoken failed to address the macular pucker and failed to bring the macular pucker to the Defendant's attention. Defendant has treated at the Hershey Medical Center numerous times in an effort to regain the vision in his left eye. Defendant's vision in his left eye is impaired to this day. 9. Denied as stated. Defendant agreed to pay for surgeries that would improve his vision. While the right eye surgery resulted in improved vision, the vision in Defendant's left eye became progressively worse immediately following the left eye cataract surgery. Defendant did not agree to pay for surgery that would leave him nearly blind in his left eye. 10. Admitted. 11. Denied. To the contrary, Plaintiff did not perform surgeries that resulted in improved vision for Defendant and, therefore, no amount is due and payable to Plaintiff. NEW MATTER FAILURE OF CONSIDERATION/PERFORMANCE 12. Defendant incorporates herein the averments contained in paragraphs one through eleven of this pleading as though the same were set forth at length. 13. Plaintiffs complaint seeks to recover the sum of $3,214.37 from Defendant, alleging breach of a contract for Defendant's failure to make payment for Plaintiffs performance of cataract surgeries on both of Defendant's eyes. 14. Defendant bargained with Plaintiff for improved vision in his left and right eyes. 15. Plaintiff recommended and opined that performing cataract surgeries on both eyes would result in improved vision for Defendant. 16. Even though the vision in Defendant's right eye improved post surgery, Defendant has only had the use of the right eye since Plaintiff performed the left eye surgery, resulting in an overall decrease in Defendant's ability to see. 17. As a result of Plaintiff's failure to perform, Defendant has suffered damage in an amount in excess of $3,214.37, which serves to offset or diminish Plaintiffs claim for recovery. COUNTERCLAIM-BREACH OF CONTRACT 18. Defendant incorporates herein the averments contained in paragraphs one through seventeen of this pleading as though the same were set forth at length. 19. Plaintiff has admitted to the existence of a contract with Defendant. 20. Defendant bargained with Plaintiff for improved vision in his left and right eyes. 21. The cataract surgeries performed by Plaintiff were intended and expected to improve Defendant's vision. 22. The cataract surgeries performed by Plaintiff resulted in impaired vision in Defendant's left eye and an overall decrease in Defendant's ability to see. 23. Defendant did not get the improved vision for which he bargained. 24. Plaintiff is responsible for the acts of Dr. Stoken. 25. Plaintiff is the cause of Defendant's impaired vision. 26. Since the dates Plaintiff performed the cataract surgeries, Defendant has undergone numerous surgeries and evaluations at the Hershey Medical Center in an effort to improve his vision. 27. As a result of the surgeries performed by Plaintiff's, Defendant has incurred damages in excess of $3,214.37. WHEREFORE, Defendant William McKeehan demands judgment against Plaintiff Stoken Ophthalmology in an amount in excess of $3,214.37, but less than $35,000.00. Respectfully submitted, ABOM& KUTULAJUS, LLP Michael T. Traxler, Esquire Supreme Court ID No.: 90961 36 S. Hanover Street Carlisle, PA 17013 (717) 249-0900 Attorney for D5fendant VERIFICATION I hereby verify that the statements contained in the foregoing pleading are true and correct to the best of my knowledge, information, and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904, relating to unswom falsification to authorities. Date William McKeehan CERTIFICATE OF SERVICE AND NOW, I, Michael T. Traxler, Esquire of ABOM & KUTULAKIS, LLP, hereby certify that I did serve or cause to be served a true and correct copy of the foregoing pleading by hand delivery at the following: George B. Faller, Jr. MARTSON, DEARDORFF, WILLIAMS & OTTO 10 East High Street Carlisle, PA 17013 DATE J 1-3 X00(0 -Ifww ?1 - ? /J? Michael T. Traxler, Esquire-' r., -, i ? ` ii ` l ! . _. .. T f_J _. l J r? ,_ ? 1 T. -< (_,? ABOM & KUTULAKIS, LLP 36 S. Hanover Street Carlisle, PA 17013 (717) 249-0900 STOKEN OPHTHALMOLOGY, Plaintiff V. WILLIAM MCKEEHAN, Defendant TO THE PROTHONOTARY: IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO.: 2005-3266 CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE TO WITHDRAW PRELIMINARY OBJECTIONS Please withdraw the Preliminary Objections filed by Defendant in the above-captioned matter on December 12, 2005. Respectfully submitted, ABOM & KUTULAKIS, LLP Michael T. Traxler, Esquire Supreme Court ID No. 90961 36 S. Hanover Street Carlisle, PA 17013 (717) 249-0900 Attorney for Defendant CERTIFICATE OF SERVICE AND NOW, I, Michael T. Traxler, Esquire of ABOM & KUTULAKIS, LLP, hereby certify that I did serve or cause to be served a true and correct copy of the foregoing praecipe by hand delivery at the following: George B. Faller, Jr. MARTSON, DEARDORFF, WILLIAMS & OTTO 10 East High Street Carlisle, PA 17013 DATE "-"aO 6 f1?Lr c ?co7_ 1?? ?? Michael T. Traxler, Esquire " r...o _. (_ ^ ? S! _ _?" lt.t_. C. i "; ?. '? ER "i ,, -- J7 •-C GP: , F\PILES%DATAPILEVGcneralAC-ei109077b resplmmp Crr ted. 122/03 2 28 41 PM keviscd. 2'21/06 59 25 PM 9077 6 George B. Faller, Jr., Esquire I.D. No. 49813 MARTSON DEARDORFF WILLIAMS & OTTO Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff STOKEN OPHTHALMOLOGY, Plaintiff V. WILLIAM McKEEHAN, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-3266 CIVIL ACTION-LAW JURY TRIAL OF TWELVE DEMANDED PLAINTIFF'S RESPONSE TO DEFENDANT'S NEW MATTER AND COUNTERCLAIM AND PLAINTIFF'S NEW MATTER TO COUNTERCLAIM TO: WILLIAM McKEEHAN, Defendant, and his attorney, MICHAEL T. TRAXLER, ESQUIRE YOU ARE HEREBY NOTIFIED TO FILE A WRITTEN RESPONSE TO THE ENCLOSED NEW MATTER TO COUNTERCLAIM WITHIN TWENTY (20) DAYS FROM SERVICE HEREOF OR A JUDGMENT MAY BE ENTERED AGAINST YOU. AND NOW comes Plaintiff, Stoken Ophthalmology, by and through counsel, MARTSON DEARDORFF WILLIAMS & OTTO, and hereby responds to Defendant's New Matter and Counterclaim as follows: 12. Plaintiff s Complaint is incorporated herein by reference. 13. Admitted. 14. Deniedasstated. Byway of further answer, Defendant requested that Plaintiff perform cataract surgery on Defendant's right eye and subsequently left eye, 15. Deniedasstated. Plaintiff stated that performing cataract surgery may result in improved vision. By way of further response, denied under Pa.R.C.P. 1029(e). 16. Denied. Plaintiff is without knowledge sufficient to forma belief as to the truth of the averment and the same is therefore denied and strict proof is demanded. By way of further response, denied under Pa.R.C.P. 1029(e). 17. Denied. Plaintiff is without knowledge sufficient to form abeliefas to the truth of the averment and the same is therefore denied and strict proof is demanded. Byway of further response, denied under Pa.R.C.P. 1029(e). WHEREFORE, Plaintiff Stoken Ophthalmology demands judgment against Defendant William S. McKeehan in the sum of Three Thousand Two Hundred Fourteen and 37/100 Dollars ($3,214.37), together with an award of such costs, interest and other relief as the Court deemsjust and reasonable, and requests that this Court dismiss Defendant's New Matter with prejudice. PLAINTIFF'S RESPONSE TO DEFENDANT'S COUNTERCLAIM BREACH OF CONTRACT 18. Plaintiff's answers to Paragraphs l2throughl7ofPlaintiffsResponse toDefendant's New Matter are incorporated herein by reference. 19. Admitted. 20. Denied as stated. By way of further answer, Defendant requested that Plaintiffperform cataract surgery on Defendant's right eye. 21. Denied as stated. Plaintiff performed cataract surgery on Defendant's eyes in an attempt to improve Defendant's vision. Denied pursuant to Pa.R.C.P. 1029(e). 22. Denied. Plaintiff is without knowledge sufficient to forma belief as to the truth of the averment and the same is therefore denied and strict proof is demanded. Byway of further response, denied under Pa.R.C.P. 1029(e). 23. Denied. Plaintiff is without knowledge sufficient to form abelief as to the truth of the averment and the same is therefore denied and strict proof is demanded. Byway of further response, denied under Pa.R.C.P. 1029(e). 24. Denied as stated. It is admitted that Dr. Stoken is an employee of Plaintiff. 25. Denied as stated and pursuant toPa.R.C.P.1029(c). By way of further response, Plaintiff did not cause Defendant's impaired vision. 26. Denied as stated pursuant to Pa.R.C.P. 1029(e). By way of further response and after reasonable investigation, Plaintiff is without knowledge sufficient to form a belief as to the truth of the averment and the same is therefore denied and strict proof is demanded. 27. Denied pursuant toPa.R.C.P. 1029(e). Byway of further response and after reasonable investigation, Plaintiff is without knowledge sufficient to forma beliefas to the truth of the averment and the same is therefore denied and strict proof is demanded. WHEREFORE, Plaintiff Stoken Ophthalmology demands judgment against Defendant William S. McKeehan in the sum of Three Thousand Two Hundred Fourteen and 37/100 Dollars ($3,214.37), together with an award of such costs, interest and other reliefas the Court deemsjust and reasonable, and requests that this Court dismiss Defendant's Counterclaim with prejudice. NEW MATTER TO COUNTERCLAIM 28. The averments of paragraphs 12 through 27 are incorporated herein by reference. 29. The Defendant's claims are barred by the applicable Statute of Limitations. WHEREFORE, Plaintiff Stoken Ophthalmology demands judgment against Defendant William S. McKeehan in the sum of Three Thousand Two Hundred Fourteen and 37/100 Dollars ($3,214.37), together with an award of such costs, interest and other relief as the Court deemsjust and reasonable, and requests that this Court dismiss Defendant's Counterclaim with prejudice. MARTSON_pEARjZORFY WILLIAMS & OTTO George B. Faller, Jr.- I.D. No. 49813 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: February 21, 2006 Attorneys for Plaintiff VERIFICATION The foregoing Response is based upon information which has been gathered by my counsel in the preparation of the lawsuit. The language ofthe document is that of counsel and not my own. Ihaveread the document and to the extent that it is based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the content of the document is that of counsel, I have relied upon counsel in making this verification. This statement and verification are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unswom falsification to authorities, which provides that ifI make knowingly false averments, I may be subject to criminal penalties. 222 , Drew J. ken, M. Stoken Ophthalmology F \FILES'OA"FAFILE\Cenem1\Curzm[\9077.6. re,, 8EC-FI\/Fl FEB0 °? ?i1i ; v CERTIFICATE OF SERVICE I, Mary M. Price, an authorized agent ofMartson Deardorff Williams & Otto, hereby certify that a copy ofthe foregoing document was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Michael T. Traxler, Esquire ABOM & KUTULAKIS 36 South Hanover Street Carlisle, PA 17013 MARTSON DEARDORFF WILLIAMS & OTTO B t? p . Y Ma Price Ten E t High Street Carlisle, PA 17013 (717) 243-3341 Dated: February 21, 2006 ?`? ?-11 -{ ^":} 1" . f ' f ' ?' ?. C George B. Faller, Jr., Esquire I.D. No. 49813 Christopher E. Rice, Esquire I.D. No. 90916 MARTSON DEARDORFF WILLIAMS & OTTO 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff STOKEN OPHTHALMOLOGY, Plaintiff V. WILLIAM McKEEHAN, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-3266 CIVIL ACTION - LAW JURY TRIAL OF TWELVE DEMANDED PLAINTIFF'S MOTION TO ALLOW FILING OF A PRAECIPE FOR ENTRY OF JUDGMENT OF NON PROS PURSUANT TO RULE 1042.6 Plaintiff is in the business ofproviding medical ophthalmology services for compensation at 338 Alexander Spring Road, Carlisle, Cumberland County, Pennsylvania. 2. Defendant William McKeehan is an adult individual whose last known address is 235 Springview Road, Carlisle, Cumberland County, Pennsylvania. 3. On November 20, 2002, Dr. Stoken performed cataract surgery on Defendant's right eye. On December 26, 2002, Dr. Stoken performed cataract surgery on Defendant's left eye. 4. On June 27, 2005, Plaintiff filed suit seeking the sum of Three Thousand Two Hundred Fourteen and 37/100 Dollars ($3,214.37) after Defendant refused to pay for the services. 5. On January 13, 2006, Defendant filed an Answer, New Matter and Counterclaim seeking an amount in excess of Three Thousand Two Hundred Fourteen and 37/100 Dollars ($3,214.37). 6. Defendant's New Matter is for "Failure of Consideration/Performance" and Counterclaim is for "Breach of Contract." 7. Defendant alleges that the Plaintiff"recommended and opined that performing cataract surgery on both eyes would result in improved vision ... ", Defendant's Answer, New Matter and Counterclaim 115, and that the Defendant only "agreed to pay for surgeries that would improve his vision" Id. at 19. 8. Rule 1042.6 ofthe Pennsylvania Rules of Civil Procedure requires that a Certificate of Merit be filed within sixty (60) days of filing the complaint "[i]n any action based upon an allegation that a licenced professional deviated from an acceptable professional standard ...." 9. Rule 1042.1(b)(1) defines "licensed professional" to include an "optometrist" or "a health care provider as defined by Section 503 of the Medical Care Availability and Reduction of Error (MCARE) Act." Plaintiff is a licensed professional under this Rule. 10. Defendant has not filed a Certificate ofMerit as required byRule 1042.3 and the sixty (60) days has passed. 11. Defendant claims there is breach of contract. "Such an action is permitted only when the parties have contracted for a specific result." Kershak v. Pa. HM., 1995 U.S. Dist. LEXIS 1452,7-8 (D. Pa.1995). Compare Orozco v. Children's Hosp. OfPhiladelphia, 638 F. Supp 280 (E.D. Pa. 1986) (action sounded in tort, not contract, where only promise alleged was "to achieve the health of the minor plaintiff...."). Here, Defendant alleges certain facts in order to avoid the Certificate of Merit requirement. 12. While Pennsylvania courts do recognize "the failure to employ reasonable skill in performing a duty may constitute a breach of implied contract," our courts do not recognize a cause of action for implied warranty of cure. Murphy, 2 Pa. D. & C.4th at 275-76. See also Murphy, 2 Pa. D. & CAth 273 (noting Pennsylvania courts have held the two year statute of limitations cannot be avoided by pleading implied contract in the alternative to a negligence theory). 13. A claim of an implied contract would still require the filing of a Certificate ofMerit because the Defendant would have to be relying on an implied undertaking to provide professional services reasonably consistent with those expected in the profession at large. 14. In the alternative, the gravamen of all the allegations against Plaintiff are that a licensed professional has deviated from an acceptable professional standard. Such allegations should require the filing of a Certificate of Merit pursuant to Rule 1042.3 whether they are brought in contract or in tort. See Fez Food Service. Inc. v. Steinbura, 2004 WL 3559621 (Pa. Com. Pl., Beaver Co.). 15. Further, Defendant's claim of breach of contract would be barred by the two (2) year statute of limitations for personal injuries since the two year statute of limitations cannot be avoided by conveniently pleading in contract rather than tort. See Murray, 490 A.2d at 842 (Pa. Super. Ct.1985). See also Murphy v. Aesthetic & Reconstructive Surgery, 2 Pa. D. & C.4th 273 (Pa. Com. Pl., Erie Co. 1989). 16. The two year statute of limitations cannot be avoided by pleading implied contract in the alternative to a negligence theory. WHEREFORE, Plaintiffrespectfullyrequests that this Courtpermit the filing of a Praecipe for Entry of Judgment of Non Pros pursuant to Rule 1042.6 and as attached hereto as Exhibit "A," because Defendant failed to file the required Certificate ofMerit and state that the Counterclaim and New Matter are barred by the applicable statute of limitations. MARTSON DEARDORFF WILLIAMS & OTTO By 0"IeAw&- 5 George B. Faller, Jr., Esquire I.D. No. 49813 Christopher E. Rice, Esquire I.D. No. 90916 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Date: June 5, 2006 Attorneys for Plaintiff ?? R((YCI.FD PAPkN F(Y<I ABLF ENxh ih i- - A George B. Faller, Jr., Esquire I.D. No. 49813 Christopher E. Rice, Esquire I.D. No. 90916 MARTSON DEARDORFF WILLIAMS & OTTO 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff STOKEN OPHTHALMOLOGY, Plaintiff V. WILLIAM McKEEHAN, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-3266 CIVIL ACTION - LAW JURY TRIAL OF TWELVE DEMANDED PRAECIPE FOR ENTRY OF JUDGMENT OF NON PROS PURSUANT TO RULE 1042.6 TO THE CUMBERLAND COUNTY PROTHONOTARY: Enter judgment of non pros against William McKeehan in the professional liability claim against Stoken Opthalmology in the above captioned matter. I, the undersigned, certifythat the defendant named above has asserted a professional liability claim against the plaintiffnamed above who is a licensed professional, that no certificate of merit has been filed within the time required by Rule 1042.3 and that there is no motion to extend the time for filing the certificate pending before the court. MARTSON DEARDORFF WILLIAMS & OTTO Dated: By George B. Faller, Jr., Esquire I.D. No. 49813 Christopher E. Rice, Esquire I.D. No. 90916 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff Exhibit "A" CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Plaintiff's Motion to Allow Filing of a Praecipe For Entry of Judgment of Non Pros Pursuant to Rule 1042.6 was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Michael T. Traxler, Esquire ABOM & KUTULAKIS 36 South Hanover Street Carlisle, PA 17013 Attorney for Defendant MARTSON DEARDORFF WILLIAMS & OTTO By Melissa A. Scholly 10 East High Street Carlisle, PA 17013 (717) 243-3341 Dated: June 5, 2006 L71 Ell _. G17 ;r.1l,.J 1. N "? V STOKEN OPHTHALMOLOGY, : IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. WILLIAM McKEEHAN, Defendant CIVIL ACTION - LAW NO. 05-3266 CIVIL TERM ORDER OF COURT AND NOW, this 12"' day of June, 2006, upon consideration of Plaintiff's Motion To Allow Filing of a Praecipe for Entry of Judgment of Non Pros Pursuant to Rule 1042.6, a Rule is hereby issued upon Defendant to show cause why the relief requested should not be granted. RULE RETURNABLE within 20 days of service. BY THE COURT, J. , eorge B. Faller, Esq. Christopher E. Rice, Esq. 10 East High Street Carlisle, PA 17013 Attorneys for Plaintiff Michael T. Traxler, Esq. 36 South Hanover Street Carlisle, PA 17013 A rney for efendant oasoNi???lal?i S :rc V )':: i, ?p ? 0 r _ _ ; i. ?;???; ,i?,?r ?' ? __ ,r;.`? ?' f ." , t ?y?:o .v 1,c?tr "j rJ ? , ?? i r r... STOKEN OPHTHALMOLOGY, Plaintiff V. WILLIAM McKEEHAN, Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA NO.: 2005-3266 : CIVIL ACITON - LAW JURY TRIAL DEMANDED TO THE HONORABLE J. WESLEY OLER, JUDGE OF SAID COURT: DEFENDANT'S ANSWER TO PLAINTIFF'S MOTION TO ALLOW FILING OF A PRAECPE FOR ENTRY OF JUDGMENT OF NON PROS PURSUANT TO RULE 1042.6 AND NOW, the 30' day of June, 2006, comes Defendant by and through his counsel, Abom & Kutulakis, L.L.P., and respectfully files this Answer in opposition to Defendant's Motion for Judgment of Non Pros, and in support thereof avers the following: 1. PROCEDURAL HISTORY 1. On March 28, 2005, Plaintiff filed a civil action before Magisterial District Justice Shullenberger in Newville, Pennsylvania. 2. A hearing was held on June 9, 2005. 3. Plaintiff failed to appear at the hearing before the MDJ. 4. Magisterial District Justice Bender' dismissed Plaintiff's claim with prejudice. 5. On June 27, 2005, Plaintiff filed a Notice of Appeal from the June 9, 2005, dismissal to This Honorable Court. 6. On June 27, 2005, Plaintiff filed a complaint in the above-captioned matter. 7. On January 13, 2006, Defendant filed Defendant's Answer, New Matter and Counterclaim in the above-captioned matter. 1 District Justice Bender presided due to D .J. Shullenburger's poor health. 8. On February 21, 2006, Plaintiff filed Plaintiffs Response to Defendant's New Matter and Counterclaim and Plaintiff s New Matter to Counterclaim 9. On June 5, 2006, Plaintiff filed Plaintiff s Motion to Allow Filing of a Praecipe for Entry of Judgment of Non Pros Pursuant to Rule 1042.6. 10. On June 12, 2006, This Honorable Court issue an Order of Court returnable within 20 days of service. 11. Undersigned counsel received said Order on June 14, 2006. II. NOT PROFESSIONAL LIABILITY CLAIM 12. Paragraphs 1 through 11 are incorporated herein. 13. Defendant's counterclaim does not assert a Professional Liability Claim, rather asserted a claim for breach of contract. 14. Rule 1042.1 provides that "the rules of this chapter govern a civil action in which a professional liability claim is asserted against a licensed professional." Pa. R.C.P. 1042.1(a)(emphasis added). 15. Rule 1042.2 provides that "A complaint shall identify each defendant against whom the plaintiff is asserting a professional liability claim." 16. It is believed and therefore averred that a Certificate of Merit is not required. 17. Rule 1026 states that, "Every pleading subsequent to the complaint shall be filed within 20 days after service of the proceeding pleading." 18. More than 20 days have elapsed since the filing of the complaint. 19. Rule 1042.2 requires a defendant to raise a failure to provide a Certificate of Merit, in cases where a Professional Liability Claim has been raised, by way of preliminary objections. 20. Plaintiff is well beyond the procedural deadline to file preliminary objections. 21.It is believed and therefore averred that Plaintiffs Motion to Allow Filing of Judgment of Non Pros in procedurally incorrect and untimely. WHEREFORE, it is respectfully prayed that This Honorable Court deny Plaintiffs Motion and to bar the entry of Judgment of Non Pros against Defendant's Counterclaim Respectfully submitted, A}bom & Kutulakis, L.L.P. Jas P. Kutulakis CERTIFICATE OF SERVICE AND NOW, I, Jason P. Kutulakis, Esquire of ABOM & KUTULAKIS, LLP, hereby certify that I did serve or cause to be served a true and correct copy of the foregoing pleading by First Class U.S. Mail at the following: George B. Faller, Jr. Christopher J. Rice, Esquire MARTSON, DEARDORFF, WILLIAMS & OTTO 10 East High Street Carlisle, PA 17013 DATE: JuNE 30, 2006 1 Jason P. Kutulakis, Esquire cto t O l 1( 0 STOKEN OPHTHALMOLOGY, Plaintiff V. WILLIAM McKEEHAN, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 05-3266 CIVIL TERM IN RE: PLAINTIFF'S MOTION TO ALLOW FILING OF A PRAECIPE FOR ENTRY OF JUDGMENT OF NON PROS PURSUANT TO RULE 1042.6 BEFORE OLER, J. ORDER OF COURT AND NOW, this 26`" day of July, 2006, upon consideration of Plaintiff's Motion To Allow Filing of a Praecipe for Entry of Judgment of Non Pros Pursuant to Rule 1042.6, it is ordered and directed as follows: 1) To the extent that Defendant's Counterclaim is based on professional negligence, the Motion To Allow Filing of a Praecipe for Entry of Judgment of Non Pros, filed on behalf of Plaintiff, is granted and judgment is entered in favor of Stoken Ophthalmology on the counterclaim of William McKeehan to the extent, but only to the extent, that the counterclaim purports to set forth a cause of action for professional negligence; and 2) To the extent that Defendant's Counterclaim is based on an alleged breach of an express promise by Plaintiff for a specific result, the Motion To Allow Filing of a Praecipe for Entry of Judgment of Non Pros filed on behalf of Stoken Ophthalmology is denied. BY THE COURT, lt?z [/Wesley ( Jr., J. 0 c' George B. Faller, Esq. Christopher E. Rice, Esq. 10 East High Street Carlisle, PA 17013 Attorneys for Plaintiff Stoken Ophthalmology Michael T. Traxler, Esq. Jason P. Kutulakis, Esq. 36 South Hanover Street Carlisle, PA 17013 Attorney for Defendant William McKeehan F:\F1LES\C1ients\9077 stokes\9077.6.pral Created: 03/07/00 09:48:31 AM Revised: 07121/09 02:52:35 PM 9077.6 George B. Faller, Jr., Esquire I.D. No. 49813 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff STOKEN OPHTHALMOLOGY, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 05-3266 CIVIL ACTION-LAW WILLIAM McKEEHAN, Defendant JURY TRIAL OF TWELVE DEMANDED PRAECIPE TO SETTLE, DISCONTINUE AND END TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Kindly mark the above-referenced matter as settled, discontinued and ended. MA SON LAW OFFICES By George B. Faller, Jr., Esq re I.D. No. 49813 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff Dated: 2 7 C ABOM & KUTULAKIS By 1 Jason Kutulakis, Esquire 2 WOst High Street Carlisle, PA 17013 Attorneys for Defendant Dated: t CERTIFICATE OF SERVICE I, Melissa A. Scholly, an authorized agent for MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER, hereby certify that a copy of the foregoing Praecipe was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Jason Kutulakis, Esquire ABOM & KUTULAKIS 2 West High Street Carlisle, PA 17013 MARTSON LAW OFFICES 4x-?kw- a. By - Melissa A. Scholly 10 East High Street Carlisle, PA 17013 (717) 243-3341 Dated: '-7 13i I )TARY 31 AM T. 13 2' F