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HomeMy WebLinkAbout05-5626DUANE M. DONISON 159 Ringneek Drive Harrisburg, PA 17112, Plaintiff V. HCR Manor Care 1700 Market Street Camp Hill, PA 17011 Defendant AN THE COURT OF COMMON PLEAS :CUMBERLAND COUNTY 7l .0.3-??2? CcnA J? CIVIL ACTION -LAW : JURY TRIAL DEMANDED PRAECIPE FOR WRIT OF SUMMONS To the Prothonotary: Please issue a Writ of Summons in the above-captioned action. Writ of Summons shall be issued and forwarded to ( ) Attorney (X) Sheriff. Res tfully submitted, A drew J. Ostrowski, Esquire ttorney TO 66420 Sheri D. Coover, Esquire Attorney ID 93285 4311 N. Sixth Street Harrisburg, PA 17110 (717) 221-9500 WRIT OF SUMMONS TO: Defendant, HCR Manor Care: YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF HAS COMMENCED AN ACTION AGAINST YOU. Dated: 3 i Pro onotary By: IME COPY FROM in T ny wlerPoi, 1 here un.,? R'4 t?'Gt od the Sea SWd at Jauiisb,. /te. In' 3 " 1e;? avr o?, Rott:onotai7 t:? ,?. ?> ?? ? ';_? ? _, r ?, ? ?: ?,. ?r, ?. ?' ? SHERIFF'S RETURN - REGULAR CASE NO: 2005-05626 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND DONISON DUANE M VS HCR MANOR CARE RONALD E HOOVER Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS HCR MANOR CARE was served upon DEFENDANT the , at 1354:00 HOURS, on the 3rd day of November , 2005 at 1700 MARKET STREET CAMP HILL, PA 17011 by handing to MARTINI RN ADMIN DIRECTOR OF NURSING a true and attested copy of WRIT OF SUMMONS together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 14.40 Affidavit .00 Surcharge 10.00 .00 42.40 Sworn and Subscribed to before me this o2-2?1 day of a)00!;? A. D. Proth ary So Answers: R. Thomas Kline 11/04/2005 SHERI COOVER By: 1 Deputy Sheriff ORIGINAL DUANE M. DONISON, V. NO. 05-5626 CIVIL ACTION - LAW HCR MANOR CARE, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA Defendant I JURY TRIAL DEMANDED ENTRY OF APPEARANCE Kindly enter our appearance on behalf of Defendant, HCR Manor Care, in the above captioned matter. Respectfully submitted, McKissock & Hoffman, P.C. By: r c<, quire Att I.D. # 36818 Lau n M. Burnette, Esquire Attorney I.D. # 92412 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 ` (??? (717) 540-3400 Date: 1? _vJ Attorneys for Defendant, HCR Manor Care CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the Entry of Appearance upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, first-class postage prepaid, addressed as follows: Andrew J. Ostrowski, Esquire 4311 N. Sixth Street Harrisburg, PA 17110 (Counsel for Plaintiff) McKissock & Hoffman, P.C. Date: I • g rM By: B. Aen acl , squire AtI.D. If 36818 L M. Burnette, Esquire Attorney I.D. # 92412 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 (717) 540-3400 Attorneys for Defendant, HCR Manor Care t'l f?J -11 ? ._? Vii.:; T1 - ' P." C-7 _... -fit `J O DUANE M. DONISON, V. HCR MANOR CARE, Plaintiff Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-5626 CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE FOR RULE TO FILE A COMPLAINT Please issue a Rule directed to Plaintiff to file a Complaint in the above-captioned matter within twenty (20) days of service or suffer judgment Non Pros. Respectfully submitted, r By: ?e B. i , Esquir RULE AND NOW, this day of 2006, upon consideration of Defendant's Praecipe For Rule To File A Complaint, a Rule is hereby granted upon Plaintiff to file a Complaint within twenty (20) days of service, or suffer judgment Non Pros. Rule issued this _?ay of 2006. ?" J ?. Curt Long, Prothonotary 4?7, L CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the Praecipe for Rule to File a Complaint/Rule upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, first-class postage prepaid, addressed as follows: Andrew J. Ostrowski, Esquire 4311 N. Sixth Street Harrisburg, PA 17110 (Counsel for Plaintifl) McKissock & Hoffman, P.C. Date:3la ) ey I.D. # 36818 Aten M. Burnette, Esquire orney I.D. # 92412 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 (717) 540-3400 Attorneys for Defendant, HCR Manor Care ,'r ORIGINAL DUANE M. DONISON, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. HCR MANOR CARE, NO. 05-5626 CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the Rule to file a Complaint upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, first-class postage prepaid, addressed as follows: Andrew J. Ostrowski, Esquire 4311 N. Sixth Street Harrisburg, PA 17110 (Counsel for Plaintiff) McKissock & Hoffman, P.C. Date: 4 1`? 0(o By: B. IF, Esquire ey I.D. # 36$1g Lauren M. Burnette, Esquire Attorney 1. D. # 92412 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 (717) 540-3400 Attorneys for Defendant, HCR Manor Care r., c o 0 - c+ -n cri i _ W r .l ti W Y CD K DUANE M. DONISON, Plaintiff V. HCR MANOR CARE, Defendant IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, : PENNSYLVANIA : NO. 05-05626 CIVIL ACTION -LAW NOTICE You have been sued in court. If you wish to defend the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint is served, by entering a written appearance personally of by attorney and filing in writing with the court your defenses of objections to the claim set forth against you. You are warned that if you fail to do so the case may proceed without you and judgment maybe entered against you by the court without further notice for any money claimedn the petition or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Lawyer Referral Service Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17013 DUANE M. DONISON, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 05-05626 HCR MANOR CARE, CIVIL ACTION - LAW Defendant COMPLAINT NOW COMES, Plaintiff Duane M. Donison, by and through his attorneys Andrew J. Ostrowski, Esquire and Sheri D. Coover, Esquire, and in support of this complaint avers as follows: Plaintiff Duane M. Donison is an adult male who currently resides at 159 Ringneck Drive, Harrisburg, Pennsylvania. Defendant HCR Manor Care is a business that provides medical facilities with a business address of 1700 Market Street, Camp Hill, Pennsylvania. Jurisdiction is proper in the Cumberland County Court of Common Pleas because the Defendant is located in Cumberland County and the cause of action arose in Cumberland County. 4. Plaintiff is retired from the United States Army as a Command Sergeant Major after twenty-five years of active service. On or around November 26, 2000, Mira Donison, deceased spouse of Plaintiff, was admitted to Pinnacle Health Harrisburg Hospital. 6. On or around December 5, 2000, Mira had her left hip surgically removed as a result of her medical condition which was diagnosed as rheumatoid arthritis. Plaintiff was informed that Mira would never be able to walk again. On or around December 14, 2000, Mira was transferred to Healthsouth Renova Center, located in Mechanicsburg, Pennsylvania, which is a rehabilitation center. On or around February 9, 2001, Plaintiff completed a nursing home application for residency with Defendant nursing home. 9. At the time that Plaintiff completed the application, Defendant HCR Manor Care was given copies of his wife's insurance cards. At that time, Mira was covered by Capital Blue (which at that time was Blue Cross/Blue Shield and her military identification card which provided coverage under Tricare). 10. Mira was also entitled for medicare Part A coverage for the first 100 days while she was hospitalized and for Medicare Part B for the remainder of her life. 11. On February 15, 2001, Plaintiff met with Monica Shuleva, a representative of HCR Manor Care Admissions Office, who completed the Admission Notice Packet, which listed all resources available to the Plaintiff. The resources available to the Plaintiff included copies of 194 savings bonds. 12. Ms. Shuleva forwarded the Admissions Notice Packet to the Cumberland County Assistance Office. 11 On or around March 2, 2001, Plaintiff received a letter from Lynne Gordon of the Department of Public Welfare informing Plaintiff that Mira was not eligible for Medicaid because his assets were in access to the resource availability cut-off. 14. Upon information and belief, the billing department of HCR Manor Care informed the Cumberland County Assistance Office that insurance coverage through Tricare would not pay for Mira's nursing home bills. 15. According to Pennsylvania law, a nursing facility is required to seek payment from any third party resource, including Medicare or any other insurance prior to seeking payment through the Department of Public Welfare through Medicaid. 55 Pa.Code 1101.64. 16. Plaintiff was informed by Ms. Gordon that if he disposed of $29,962.81 in assets that Mira would be eligible for Medicaid coverage. 17. In response to the representations made by Ms. Gordon, Plaintiff disposed of $29,962.81 in assets, including cashing in his savings bonds. 18. As a result of cashing in his savings bonds, Plaintiff incurred a tax of $2,600.00 that he had to pay to the United States Treasury. 19. On March 13, 2001, Plaintiff met with Ms. Gordon and presented her with the completed Application along with documentation of the disposal of his assets. 20. On March 24, 2001, coverage for Mira through Capital Blue Cross and Medicare Part A & B ran out. On that same day, Mira was approved for Nursing Home Medical Assistance under Medicaid. 21. Defendant HCR Manor Care billed Medicaid directly for Mira's nursing home care effective March 24, 2001 to March 30, 2003. 22. On March 30, 2003, Mira Donison passed away. 23. On or around December 16, 2003, Plaintiff received a letter from Tricare that Defendant HCR Manor Care was active to render services to Tricare patients effective April 1, 1979 to July 31, 2003. 21. Upon investigation, Plaintiff learned that Tricare had paid for services provided to Mira effective March 24, 2001. 22. Upon information and belief, HCR Manor Care sought payment from Medicaid without seeking payment from TriCare contrary to Pennsylvania law. 23. Since Mira's medical services were covered under Tricare, it was unnecessary for Plaintiff to dispose of his assets to qualify for Medicaid to cover Mira's nursing home expenses. 24. As a result of reliance on misrepresentations made by HCR Manor Care, Plaintiff has disposed of assets that he would not otherwise have done and incurred tax repercussions. CLAIM ONE -- NEGLIGENCE 25. Plaintiff incorporates paragraphs 1 through 24 as contained herein in their entirety. 26. HCR Manor Care is a skilled nursing home facility and has a duty to provide quality services to its patients. 27. HCR Manor Care has a duty to be knowledgeable on billing practices and to give patients correct advice in pursuing payment for their services. 28. HCR Manor Care misinformed the Plaintiff that Mira's services would not be covered by TriCare. 29. HCR Manor Care had a duty to pursue payment of Mira's medical expenses through Tricare and not direct Plaintiff to seek coverage through Medicaid. 30. Plaintiff pursued Medicare to pay for Mira's nursing home costs as a result of the misrepresentations made by Defendant Tricare. 31. As a result of this reliance, Plaintiff disposed of 29,962.81 in assets that he would not otherwise have done so if not for reliance on the information provided by HCR Manorcare billing department. 31 As a result of his reliance on representations made by HCR Manor Care billing department, Plaintiff incurred a tax payment to the United States Treasury for $2,600.00 that he would not otherwise have had if he had not disposed of his assets to qualify for Medicare. )WHEREFORE, Plaintiff demands judgment against Defendant in an amount in excess of the arbitration limit, as all other relief that this Court deems to be just and proper. CLAIM TWO -- DETRIMENTAL RELIANCE 33. Plaintiff incorporates by reference paragraphs 1 through 30 as contained herein in their entirety. 34. Plaintiff entered into a contractual agreement with HCR Manor Care that the nursing home would provide skilled nursing care to Plaintiff s wife in exchange for payment of services. 35. The services included informed advice on billing and payment of the services that was provided by the nursing home. 36. Plaintiff relied on the information that he received from the nursing home. 37. In reliance upon the advice that he received, Plaitniff took action, that included disposing of $29,962.81 in assets and, as a result incurred $2,600 in taxes. 38. The advice that HCR Manor Care provided resulted in damages to the Plaintiff. WHEREFORE, Plaintiff demands judgment against Defendant in an amount in excess of the arbitration limit, as all other relief that this Court deems to be just and proper. W Ostrowski, Esquire ID 66420 Sheri D. Coover, Esquire Attorney ID 93285 4311 N. Sixth Street Harrisburg, PA 17110 CERTIFICATE OF SERVICE I, Sheri D. Coover, Esquire hereby certify that on this 3`d day of April, 2006, I caused to be served the foregoing COMPLAINT upon defendant's counsel addressed as follows: B. Craig Black, Esquire McKissock & Hoffman 2040 Linglestown Road, Suite 302 Harrisburg, PA 17110 heri D. Coover, Esquire Attorney ID 93285 4311 N. Sixth Street Harrisburg, PA 17110 7 VERIFICATION I, Duane Donison, hereby state that I am the Plaintiff herein and that I have reviewed the foregoing document and that the facts stated therein are true and correct to the best of my knowledge, information and belief. This verification is made under any applicable penalties for unsworn falsification to authorities. Duane Donison PJ ?? I1 ?. ? ('};e DUANE M. DONISON, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 05-5626 HCR MANORCARE, CIVIL ACTION - LAW Defendant I JURY TRIAL DEMANDED AND NOW, this Z/S? day of -.Ct - , 2006, comes Defendant, HCR ManorCare, by and through its attorneys, McKissock & Hoffman, P.C., and files the within Preliminary Objections to Plaintiff's Complaint, wherein the following is a statement: 1. The within action was commenced by Writ of Summons filed on or about October 31, 2005. Thereafter, following the filing of a Praecipe for Rule to File a Complaint, Plaintiff filed his Complaint in this matter on April 3, 2006. A true and correct copy of Plaintiff's Complaint is appended hereto and labeled as Exhibit "A". 2. These Preliminary Objections are filed to Counts I and II of Plaintiff's Complaint captioned: "Claim I - Negligence" and "Claim II - Detrimental Alliance". PA.R.C.P. 1028(a)(4) 3. In Count I of Plaintiff's Complaint designated "Claim I - Negligence", Plaintiff alleges that HCR ManorCare misinformed Plaintiff that residing services to be provided by Defendant to Plaintiff's deceased spouse would not be covered by Tricare Insurance. (See 128 of Plaintiff's Complaint). 4. Plaintiff further avers in Count I that HCR ManorCare "had a duty to pursue payment of Mira's medical expenses through Tricare and not direct Plaintiff to seek coverage through Medicaid". (See 129 of Plaintiff's Complaint). 5. In 122 of Plaintiff's Complaint, Plaintiff alleges that HCR ManorCare sought payment from Medicaid without seeking payment from Tricare, contrary to Pennsylvania law. (See $22 of Plaintiff's Complaint). 6. Under the statutory and common law of the Commonwealth of Pennsylvania, there is no recognized legal duty owed by HCR ManorCare to the Plaintiff in accordance with the averments set forth in Plaintiff's Complaint. Therefore, Plaintiff cannot state a claim upon which relief can be granted. This court should enter a demurrerto Court I of Plaintiff's Complaint and dismiss said claim with prejudice. WHEREFORE, HCR ManorCare respectfully requests that this Honorable Court grant its demurrer and dismiss Count I of Plaintiff's Complaint with prejudice. 7. The averments set forth in ¶¶s 1 through 6 hereinabove are incorporated herein as if more fully set forth at length. 8. In Count II of Plaintiff's Complaint, Plaintiff attempts to plead a cause of action based upon "detrimental reliance". (See ¶Ts 33 through 38 of Plaintiff's Complaint). 9. Under the statutory and common law of the Commonwealth of Pennsylvania there is no cause of action recognized as "detrimental reliance". Rather, detrimental reliance is an element of a cause of action based in fraud. 10. Plaintiff's Complaint fails to set forth specific factual allegations satisfactory to set forth a prime facie case for fraud against Moving Defendant. See: Pa.R.C.P. 1019(b). 11. Moreover, Count II of Plaintiff's Complaint is deficient as a matter of law in that said count fails to set forth a cause of action upon which relief can be granted. See: Pa.R.C.P. 1028(a)(4). WHEREFORE, HCR ManorCare respectfully request that this Honorable Court sustain its demurrerto Count II of Plaintiff's Complaint and dismiss Count II of Plaintiff's Complaint with prejudice. 12. The averments set forth in ¶Ts 1 through 11 hereinabove are incorporated by reference. 13. In ¶34 of Plaintiff's Complaint, Plaintiff avers that "Plaintiff entered into a contractual agreement with HCR ManorCare that the nursing home would provide skilled nursing care to Plaintiff's wife in exchange for payment of services". 14. Pursuant to Pa.R.C.P. 1019(i) "when any claim or defense is based upon a writing, the pleader shall attach a copy of the writing or the material part thereof...". 15. Although Plaintiff alleges the existence of a contract, Plaintiff fails to specify whether said contract was oral or in writing and, if writing, fails to attach a copy thereof to the Complaint or to set forth the substance thereof in accordance with provisions of Pa.R.C.P. 1019(h) and (i). 16. Plaintiff's Complaint, therefore, is deficient pursuant to Pa.R.C.P. 1028(a)(2) in that said pleading fails to conform to Rule of Court. WHEREFORE, Moving Defendant respectfully request that Plaintiff's Complaint be stricken as in violation of Pennsylvania Rules of Court and/or that Plaintiff be ordered to amend said Complaint in order to comply with the provisions thereof. 17. The averments set forth in ¶¶s 1 through 16 hereinabove are incorporated herein by reference. 18. Plaintiff is identified in this action as Dwayne M. Donison. 19. Plaintiff avers in ¶5 of the Complaint that Mira Donison, a former resident at Defendant's facility, is the deceased spouse of the Plaintiff, Decedent having passed away on March 30, 2003. (See %s 5 and 22 of Plaintiff's Complaint). 20. Plaintiff has failed to aver or establish a basis upon which he has a capacity to represent the Estate of decedent or that the Plaintiff is the duly authorized and proper individual to bring suit on behalf of decedent. To the extent any claims exist, which averments are specifically denied, as pled in the Complaint, Plaintiff's claims are clearly those of the Estate of Mira Donison. 21. Plaintiff's Complaint, therefore, is volative of Pa.R.C.P. 1028(a)(5) in that the Plaintiff has failed to aver and establish the existence of legal capacity to sue on behalf of decedent. WHEREFORE, HCR ManorCare respectfully requests that this Honorable Court strike Plaintiff's Complaint for lack of capacity to sue pursuant to Pa.C.R.P. 1028(a)(5) and dismiss said action in its entirety. Respectfully submitted, McKissock & Hoffman, P.C. By: • B. Crai a6, quire, Attor y .D. # 36818 Laur . Burnette, Esquire Attorney I.D. # 92412 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 L r 7? (717) 540-3400 Date: a ?0& Attorneys for Defendant, HCR ManorCare CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the Preliminary Objections to Plaintiff's Complaint upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, first-class postage prepaid, addressed as follows: Andrew J. Ostrowski, Esquire 4311 N. Sixth Street Harrisburg, PA 17110 (Counsel for Plaintiff) McKissock & Hoffman, P.C. Date: ,D41 I (Ye By: n o B. Cr A Bla c, wire Attopyy I.D. # 36818' La r M. Burnette, Esquire Attorney I.D. # 92412 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 (717) 540-3400 Attorneys for Defendant, HCR ManorCare l p Y 1 PRAECIPE FOR LISTING CASE FOR ARGUMENT TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the September 6, 2006 (Argument Court. CIVIL ACTION - DUANE M. DONISON, V. HCR MANORCARE, Plaintiff IN THE COURT OFI,COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-5626 JURY TRIAL DEMA State matter to be argued (i.e., plaintiff's motion fo new trial, defendant's demurrer to complaint, etc.): Preliminary Object Ions of HCR Manor Care to Plaintiff's Complaint 2. Identify counsel who will argue case: (a) for plaintiff: Andrew J. Ostrowski, Esquir:6 address: 4311 North Sixth Street Harrisburg, PA 17110 (b) for defendant: B. Craig Black, Esquire address: 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: September 6, 2006 Dated: -'q jAJ/0jp2006 ?• B. Cpy c , ire Attor r Defendant, HCR Manor Care r ? CERTIFICATE OF SERVICE I hereby certify that on the date set forth below, I am serving a copy of the foregoing Praecipe for Listing Case for Argument upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania !Rules of Civil Procedure, by depositing a copy of the same in the United States Mail, first-class, postage prepaid, addressed as follows: Andrew J. Ostrowski, Esquire 4311 N. Sixth Street Harrisburg, PA 17110 (Counsel for PlaintiM McKissock & (Hoffman, P.C. 1.5,A J.: 368 8 2W. ingles wn Road, Ste. 302 Harrisburg, P 17110 (717) 540-3400 Date/1l?-P4, ZOOC Attorneys for Defendant, HCR Manor Care r DUANE M. DONISON, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW HCR MANOR CARE, Defendant NO. 05-5626 CIVIL TERM BY THE COURT, IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT BEFORE OLER and GUIDO, JJ. ORDER OF COURT AND NOW, this 27th day of September, 2006, upon consideration of Defendant's preliminary objections to Plaintiff's complaint, and for the reasons stated in the accompanying opinion, it is ordered and directed as follows: 1. Defendant's preliminary objection based upon Pennsylvania Rule of Civil Procedure 1019 as it relates to a writing is sustained, and Plaintiff is afforded a period of 20 days within which to filed an amended complaint complying with Rule 1019; in the absence of a timely amendment, the claims of Plaintiff will be conclusively presumed to be not based upon a writing; and 2. In all other respects, Defendant's preliminary objections are denied. Andrew J. Ostrowski, Esq. 4311 North Sixth Street Harrisburg, PA 17110 Attorney for Plaintiff Wesley , Jr., J. 4= a 7 - Q ? CF? KIN rlr P i 1? 6C :? lvll? LZ d"JS KOZ B. Craig Black, Esq. Lauren M. Burnette, Esq. 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 Attorneys for Defendant z ' DUANE M. DONISON, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW HCR MANOR CARE, Defendant NO. 05-5626 CIVIL TERM IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT BEFORE OLER and GUIDO, JJ. OPINION and ORDER OF COURT OLER, J., September 27, 2006. In this civil case, an individual has sued a nursing home as a result of its allegedly incorrect advice that certain medical insurance coverage on his spouse would not pay for nursing home care that she needed.' In reliance upon this advice, according to the complaint, Plaintiff incurred various financial losses in the process of securing his spouse's nursing home care.2 The complaint contains counts entitled "Negligence" and "Detrimental Reliance." For disposition at this time are preliminary objections filed by Defendant to Plaintiff s complaint.3 The preliminary objections consist of (a) a demurrer to the negligence claim, (b) a demurrer to the "detrimental reliance" claim, (c) a motion to strike or direct amendment of the complaint for failure to attach to the complaint any writing upon which it was based, and (d) a motion to strike the complaint based upon Plaintiffs incapacity to prosecute claims on behalf of his spouse.4 1 Plaintiff's Complaint, ¶T 13-14, filed April 3, 2006 (hereinafter Complaint, ?. z Complaint, ¶¶ 17-18. 3 Preliminary Objections of Defendant, HCR Manor Care, to Plaintiff's Complaint, filed April 25, 2006 (hereinafter Defendant's Preliminary Objections, _). 4 Defendant's Preliminary Objections, % 3-6, 7-11, 12-16, 17-21. Oral argument on the preliminary objections was held on September 6, 2006. For the reasons stated in this opinion, the preliminary objections will be sustained in part and denied in part. DISCUSSION The facts alleged in Plaintiffs complaint may be summarized as follows. Plaintiff is Duane M. Donison, an adult individual residing in Harrisburg, Dauphin County, Pennsylvania.5 Defendant is HCR Manor Care, a nursing home located in Camp Hill, Cumberland County, Pennsylvania.6 On December 5, 2000, Plaintiff's spouse had surgery as a result of rheumatoid arthritis, and on February 9, 2001, Plaintiff applied for her admission to Defendant nursing home.8 Defendant incorrectly informed a governmental agency that the medical insurance of Plaintiff's spouse did not cover her nursing home care,9 as a consequence of which Plaintiff incurred certain financial losses in the process of applying for public assistance for her nursing home care. 10 On March 30, 2003, Plaintiffs spouse died." Plaintiff subsequently discovered that the information provided by Defendant, which he had relied upon in incurring the aforesaid financial losses, had been incorrect 12 and that her insurance did provide coverage for the nursing home care in question.'3 The first claim in Plaintiffs complaint is for negligence.14 The second claim, for "detrimental reliance," appears to be contractual in nature, 15 based upon 'Complaint, ¶ 1. 6 Complaint, ¶ 2. ' Complaint, ¶ 6. 'Complaint, ¶ 8. 9 Complaint, ¶¶ 12-14. 10 Complaint, ¶¶ 16-18. 1 Complaint, ¶ 22. 12 Complaint, 123. 13 Complaint, ¶ 21. 14 Complaint, ¶¶ 25-32. 2 Plaintiff's entry "into a contractual agreement with HCR Manor Care that the nursing home would provide skilled nursing care to Plaintiff's wife in exchange for payment of services,"16 said services to include "informed advice on billing and payment of the services."1 7 Plaintiff's complaint does not contain any attachment in the form of a written contract. Relief requested as to each count is "judgment against Defendant in an amount in excess of the arbitration limit, a[nd] all other relief that this Court deems to be just and proper." 18 DISCUSSION Negligence. "The necessary elements of any negligence claim are: (a) a duty owed by defendant to plaintiff, (2) a failure by defendant to conform his conduct to the standard of care required; (3) a causal connection between the conduct and the resulting injury; and (4) actual loss or damage by plaintiff... Duty, in any given situation, is predicated on the relationship existing between the parties at the relevant time." Murphy v. City of Duquesne, 2006 WL 1191679, at 2, 898 A.2d 676, 679 (Pa. Commw. Ct. 2006). In this regard, it is a well-established general principle that one who undertakes to perform a service for another, even without reward, is bound to exercise reasonable care and can be held responsible for misfeasance .... Guy v. Liederbach, 501 Pa. 47, 55, 459 A.2d 744, 748 (1983). In reviewing a preliminary objection in the nature of a demurrer, which challenges the legal sufficiency of a pleading, the court "must accept all material facts set forth in the [pleading,] as well as all the inferences reasonably deducible therefrom as true." Powell v. Drumheller, 539 Pa. 484, 489, 653 A.2d 619, 621 15 Complaint, ¶¶ 33-38. 16 Complaint, ¶ 34. " Complaint, ¶ 35. 's Complaint, ¶¶ 32, 38. 3 r (1995) (citations omitted). A preliminary objection in the nature of a demurrer to a complaint should be sustained only when, "on the facts averred, the law says with certainty that no recovery is possible." Id. In the present case, in view of the relationship alleged between Plaintiff and Defendant, and the misfeasance alleged on the part of Defendant in performing a service undertaken on behalf of Plaintiff, it would be premature to conclude that as a matter of law Plaintiff can not prevail on his negligence claim. For this reason, Defendant's demurrer to count one of Plaintiff's complaint will be denied. Breach of contract. "Three elements are necessary to plead properly a cause of action for breach of contract: (1) the existence of a contract, including its essential terms, (2) the breach of a duty imposed by the contract and (3) resultant damages." Omicron Systems, Inc. v. Weiner, 2004 PA Super. 389, ¶35, 860 A.2d 554, 564 (citation omitted). The name by which a Plaintiff designates a claim in a complaint is not conclusive as to the sufficiency of the pleading. Weiss v. Equibank, 313 Pa. Super. 446, 453, 460 A.2d 271, 274-75 (1983). In the present case, Plaintiff has pleaded the existence of a contract between the parties, the breach of a duty owed by Defendant under the contract to provide correct advice as to the applicability of certain insurance in relation to its services, and resultant damages to Plaintiff. In view of these allegations, it would be premature to conclude that Plaintiff can not prevail on a contract theory against Defendant, and Defendant's demurrer to count two of Plaintiffs complaint will be denied. Absence of attachment of writing to complaint. Under Pennsylvania Rule of Civil Procedure 1019, (h) When any claim ... is based upon an agreement, the pleading shall state specifically if the agreement is oral or written. (i) When any claim ... is based upon a writing, the pleader shall attach a copy of the writing, or the material part thereof, but if the writing or copy is not accessible to the pleader, it is sufficient so to state, together with the reason, and to set forth the substance in writing. 4 f Pa. R.C.P. 1019(h), (i). "If the complaint does not so specify, the inference is that it is oral." Harvey Probber, Inc. v. Kauffman, 181 Pa. Super. 281, 285, 124 A.2d 699, 700 (1956). An appropriate remedy for a violation of these rules is to afford Plaintiff an opportunity to amend the complaint to comply with them. See, e.g., Goldman v. Schlanger, 49 Pa. D. & C.2d 225, 1970 WL 8781 (Pike Co. 1970). Accordingly, Defendant's preliminary objection will be sustained with regard to this issue, and Plaintiff will be afforded a period of 20 days within which to comply with Pennsylvania Rule of Criminal Procedure 1019 as it relates to writings; in the absence of a timely amendment, the claims of Plaintiff will be conclusively presumed to be not based upon a writing. Defendant's incapacity. A review of the complaint in this case reveals that Plaintiff is asserting a claim for damages suffered by him and not his deceased spouse. Accordingly, Defendant's preliminary objection predicated upon the theory that Plaintiff is pursuing causes of action applicable to another person can not be sustained. For the foregoing reasons, the following order will be entered: ORDER OF COURT AND NOW, this 27th day of September, 2006, upon consideration of Defendant's preliminary objections to Plaintiff's complaint, and for the reasons stated in the accompanying opinion, it is ordered and directed as follows: 1. Defendant's preliminary objection based upon Pennsylvania Rule of Civil Procedure 1019 as it relates to a writing is sustained, and Plaintiff is afforded a period of 20 days within which to filed an amended complaint complying with Rule 1019; in the absence of a timely amendment, the claims of Plaintiff will be conclusively presumed to be not based upon a writing; and 5 2. In all other respects, Defendant's preliminary objections are denied. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Andrew J. Ostrowski, Esq. 4311 North Sixth Street Harrisburg, PA 17110 Attorney for Plaintiff B. Craig Black, Esq. Lauren M. Burnette, Esq. 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 Attorneys for Defendant 6 DUANE M. DONISON, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, : PENNSYLVANIA V. HCR MANOR CARE, Defendant : NO. 05-05626 NOTICE TO PLEAD To: HCR Manor Care You are hereby notified to file a written response to the enclosed Amended Complaint within twenty (20) days from service hereof or a judgment may be entered against you. Sh6ri D. Coover, Esquire Attorney ID #93285 4311 N. Sixth Street Harrisburg, PA 17110 DUANE M. DONISON, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, : PENNSYLVANIA V. HCR MANOR CARE, Defendant : NO. 05-05626 AMENDED COMPLAINT NOW COMES, Plaintiff Duane M. Donison by and through his attorneys Andrew J. Ostrowski, Esquire and Sheri D. Coover, Esquire and in support of this Complaint avers as follows: 1. Plaintiff Duane M. Donison is an adult male who currently resides at 159 Ringneck Drive, Harrisburg, Pennsylvania. 2. Defendant HCR Manor Care is a business that provides medical facilities with a business address of 1700 Market Street, Camp Hill, Pennsylvania. 3. Jurisdiction is proper in the Cumberland County Court of Common Pleas because the Defendant is located in Cumberland County and the cause of action arose in Cumberland County. 4. Plaintiff is retired from the United States Army as a Command Sergeant Major after twenty-five years of active service. 5. On or around November 26, 2000, Mira Donison, deceased spouse of plaintiff was admitted to Pinnacle Health Harrisburg Hospital. 6. On or around December 5, 2000, Mira had her left hip surgically removed as a result of her medical condition which was diagnosed as rheumatoid arthritis. Plaintiff was informed that Mira would never be able to walk again. 7. On or around December 14, 2000, Mira was transferred to Healthsouth Renova Center, located in Mechanicsburg, Pennsylvania, which is a rehabilitation center. 8. On or around February 9, 2001, Plaintiff and Defendant nursing home entered into a contract where the Defendant agreed to provide services related to the health care of Mira. (See, Admission Agreement which is attached as Exhibit 1). 9. At the time the parties entered into the contract, Defendant HCR Manor Care was given copies of his wife's insurance cards. At that time, Mira was covered by Capital Blue (which at that time was Blue Cross/Blue Shield and her military identification card which provided coverage under Tricare). 10. Mira was also entitled for Medicare Part A coverage for the first 100 days which she was hospitalized and for Medicare Part B for the remainder of her life. It. On February 15, 2001, Plaintiff met with Monica Shuleva, a representative of HCR Manor Care Admissions Office, who completed the Admission Notice Packet, which listed all resources available to the Plaintiff. The resources available to the Plaintiff included copies of 194 savings bonds. 12. Ms. Shuleva forwarded the Admissions Notice Packet to the Cumberland County Assistance Office. 13. On or around March 2, 2001, Plaintiff received a letter from Lynne Gordon of the Department of Public Welfare informing Plaintiff that Mira was not eligible for Medicaid because his assets were in access of the resource availability cut- off. 2 14. Upon information and belief, the billing department of HCR Manor Care informed the Cumberland County Assistance Office that insurance coverage through Tricare would not pay for Mira's nursing home bills. 15. According to Pennsylvania law, a nursing facility is required to seek payment from any third party resource, including Medicare or any other insurance prior to seeking payment through the Department of Public Welfare through Medicaid. 55 Pa.Code 1101.64. 16. Plaintiff was informed by Ms. Gordon that if he disposed of $29,962.81 in assets that Mira would be eligible for Medicaid coverage. 17. In response to the representations made by Ms. Gordon, Plaintiff disposed of $29,962.81 in assets, including cashing in his savings bonds. 18. As a result of cashing in his saving bonds, Plaintiff incurred a tax of $2,600.00 that he had to pay to the United States Treasury. 19. On March 13, 2001, Plaintiff met with Ms. Gordon and presented her with the completed Application along with documentation of the disposal of his assets. 20. On March 24, 2001, coverage for Mira through Capital Blue Cross and Medicare Part A & B ran out. On that same day, Mira was approved for Nursing Home Medical Assistance under Medicaid. 21. Defendant HCR Manor Care billed Medicaid directly for Mira's nursing home care effective March 24, 2001 to March 30, 2003. 22. On March 30, 2003, Mira Donison passed away. 23. Since Mira's medical services were covered by Tricare, it was unnecessary for Plaintiff to dispose of his assets to qualify for Medicaid to cover Mira's nursing home expenses. 24. As a result of reliance on misrepresentations made by HCR Manor Care, Plaintiff has disposed of assets that he would not otherwise have done and incurred tax repercussions. CLAIM ONE - NEGLIGENCE 25. Plaintiff incorporates paragraphs 1 through 24 as contained herein in their entirety. 26. HCR Manor Care is a skilled nursing home facility and has a duty to provide quality services to its patients. 27. HCR Manor Care has a duty to be knowledgeable on billing practices and to give patients correct advice in pursuing payment for their services. 28. HCR Manor Care misinformed the Plaintiff that Mira's services would not be covered by Tricare. 29. HCR Manor Care has a duty to pursue payment of Mira's medical expenses through Tricare and not direct Plaintiff to seek coverage through Medicaid. 30. Plaintiff pursued Medicare to pay for Mira's nursing home costs as a result of the misrepresentations made by Defendant HCR Manor Care. 31. As a result of this reliance, Plaintiff disposed of $29,962.81 in assets that he would not otherwise have done so if not for reliance on the information provided by HCR Manor Care billing department. 4 32. As a result of his reliance on representations made by HCR Manor Care billing department, Plaintiff incurred a tax debt to the United States Treasury for $2,600.00 that he would not otherwise have had if he had not disposed of his assets to qualify for Medicare. WHEREFORE, Plaintiff demands judgment against Defendant in an amount in excess of the arbitration limit, and all other relief that this Court deems to be just and proper. CLAIM TWO -- DETRIMENTAL RELIANCE 33. Plaintiff incorporates by reference paragraphs 1 through 32 as contained herein in their entirety. 34. Plaintiff entered into a contractual agreement with HCR Manor Care that the nursing home would provide skilled nursing care to Plaintiff's wife in exchange for payment of services. (See Admission Agreement attached as Exhibit 1). 35. The services to be provided by HCR Manor Care included giving informed advice on billing and payment of the services that was provided by the nursing home. 36. Plaintiff relied on the information that he received from the nursing home. 37. In reliance upon the advice that he received, Plaintiff took action, that included disposing of $29,962.81 in assets and, as a result, incurred $2,600 in taxes. 38. The advice that HCR Manor Care provided resulted in damages to the Plaintiff. 5 WHEREFORE, Plaintiff demands judgment against Defendant HCR Manor Care in an amount in excess of the arbitration limit and all other relief that this Court deems to be just and proper. J. Ostrowski, Esquire ID 66420 Sheri D. Coover, Esquire Attorney ID 93285 4311 N. Sixth Street Harrisburg, PA 17110 6 DUANE M. DONISON, Plaintiff vi. HCR MANOR CARE, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-05626 CERTIFICATE OF SERVICE I, Sheri D. Coover, Esquire hereby certifies that on this day of October, 2006, I caused the foregoing Amended Complaint to be served upon defendant's counsel by United States First Class mail addressed as follows: B. Craig Black, Esquire McKissock & Hoffman 2040 Linglestown Road, Suite 302 Harrisburg, PA 17110 eri D. Coover, Esquire ttorney ID 93285 4311 N. Sixth Street Harrisburg, PA 17110 7 VERIFICATION I, Duane Donison, hereby state that I am the Plaintiff herein and that I have reviewed the foregoing document and that the facts stated therein are true and correct to the best of my knowledge, information and belief. This verification is made under any applicable penalties for unsworn falsification to authorities. Duane Donison HCR Manor Care ADMISSION AGREEMENT This Agreement is entered into by and among HCR Manor Care, the Resident, and the Legal Representative, for the purpose of providing for the rights and responsibilities of the parties with respect to the Resident's stay at this HCR Manor Care's Health Care Center ("Center"). Center: HCR Manor Care Camp Hill Resident: Mlr?. M [)dN 1esoo Legal Representative: btoaflL M . E) 01J Iso PJ Admission Date: a! 10 1 0 1 Deposit: S Term: This Agreement shall begin on the day the Resident enters the Center and end on the day the Resident is discharged. 1. RIGHTS AND RESPONSIBILITIES OF THE RESIDENT . . 1.01 Room and Board Rate. For the basic services provided for in Section 3.01, the Resident agrees to pay the applicable Room and Board Rate set forth on Attachment A hereto. The Room and Board Rate is subject to change upon thirty (30) days written notice. The Room and Board Rate set forth in Attachment A is payable in advance and is due by the tenth (10`) day of each month The Resident shall be responsible for the Room and Board Rate for the day of admission as well as the day of discharge. This Section shall not apply if the Resident is covered under a Governmental Program (see Section 1.05) or by a Third Party Payor or Managed Care Organization (see Section 1.06). 1.02 Ancillary Charges. The Resident further agrees to pay to the Center all charges for additional medical, therapeutic, or personal care services or supplies that may be requested by the Resident, ordered by the attending physician, or provided in the Resident's Plan of Care. The Center reserves the right to charge for personal care items of the Resident if necessary for the well-being of the Resident. Such "Ancillary Charges" are described on Attachment B hereto, and a current ancillary charge list is maintained at the Center's business office for review during regular business hours. Ancillary Charges shall be included in the Resident's statement for the succeeding month, and are payable in full, along with the Room and Board Rate by the tenth (10`h) day of the month. 1.03 Late Payments. Accounts not paid in full within thirty (30) days of billing shall be subject to a service charge equal to the highest legal rate of interest permitted by State law as set forth in Attachment A on the past due balance each month until such time as the balance due is paid in full. Should the Resident's account for any reason be turned over for collection, the Resident agrees to pay the Center's collection costs, including attorney's fees. 1.04 Independent Providers. The Resident shall be directly responsible to independent providers, including but not limited to, the Resident's attending physician for any health or personal program in accordance with the terms of the program. 1.05 Governmental Programs. If the Resident is eligible for coverage under any governmental program, such as Medicare, Medicaid, or through the Veterans Administration, and the Center participates in such program, the Center shall accept payments under such program in accordance with the terms of the program on the contract the Center has with the program The Resident shall be responsible for any co-insurance, deductibles or non-covered charges, according to the same terms and conditions applicable to private pay residents. The Resident must comply with all program requirements. In the event the Resident's coverage under the governmental program(s) cease for any reason, the Resident will be charged at the Center's rate for private pay residents in accordance with Sections 1.01 and 1.02. The Center participates in the following programs: X Medicare, X Medicaid and/or VA. Medicare may pay for some or all of the Resident's care. If Medicare agrees to pay for the Resident's care, there is a required co-payment, which Medicare updates yearly. If the Resident also participates in Medicare Part B, for physical, occupational, or speech therapy or other billable charges (which are not covered by Medicare Part A), the Resident and/or Legal Representative agree to pay any required deductible, any required co-insurance, and any non-covered services according to the same terms and conditions applicable to private pay residents. For Medicaid, see Attachment L for additional information. The Resident and/or Legal Representative are responsible for applying for Medicaid. If the Resident receives Medicaid, most of the Center charges such as Room and Board and nursing services are covered, although Medicaid may require the Resident to pay a portion of the Room and Board Rate from their monthly income. The Resident and/or Legal Representative agree to pay on_a timely basis, as set forth in this Agreement, the contribution amount as determined and periodically adjusted by the State and/or local department(s) handling Medicaid. If the Resident and/or Legal Representative fail to pay the contribution amount, the Center may take such legal action as necessary, including requesting a court to order such payment. 1.06 Third Party Payors and Managed Care Organizations. If a Resident is a participant in a plan offered by a third party payor such as a Health Maintenance Organization ("HMO"), Preferred Provider Organization ("PPO"), Provider Sponsored Organization ("PSO"), or Physician Hospital Organization ("PHO"), indemnity plan or another similar entity with which the Center has executed a provider agreement, the charges are governed by the applicable agreement. The Resident shall be responsible for any co-payments, deductibles or non-covered charges, according to the same terms and conditions applicable to private pay residents. If the Center has not executed a provider agreement with the Resident's third party payor, the Center 2 will bill the Resident's third party payor as a service, but the Resident remains liable for charges not paid or covered by that third party payor including charges not paid within a reasonable period of time. 1.07 Private Pay Resident. The Resident and/or Legal Representative acknowledge that they are responsible for paying the Center for items and services provided during the stay at the Center and during which time the Resident has not been determined to be eligible for Medicaid. The Resident and/or Legal Representative agree to notify the Center promptly if there is insufficient income or assets to meet the financial obligations to the Center or to make prompt application to Medicaid for benefits. The Resident and/or Legal Representative agree to notify the Center in writing when application to Medicaid is made. The Resident and/or Legal Representative agree to cooperate fully in applying for Medicaid and in the eligibility determination process. If the Resident is no longer able to pay for care at the Center and the Resident is not eligible for Medicaid, the Resident will be notified of the Center's intention to discharge the Resident for non-payment in accordance with the Agreement, Resident Handbook and State and federal laws. 1.08 Admission Information. It shall be the responsibility of the Resident and/or Legal Representative to notify the Center and to provide any needed information regarding all third party payors or governmental coverages on admission and throughout the stay including copies of insurance cards, identification or verification of eligibility and coverage information. The Resident and/or Legal Representative agree to provide the Center with notice within five (5) days of the Resident's disenrollment, enrollment, change in health care coverage, failure to pay premium(s) or renewal of insurance coverage and any cancellations in coverage as the Center relies on the information supplied regarding such coverage. The Resident and/or Legal Representative acknowledge that if they fail to provide such information, they may be responsible for any denied charges due to lack of authorization, ineligibility, non-coverage or other costs associated with the failure to provide such notice in accordance with the terms and conditions of this Agreement. 1.09 Application for Benefits. It shall be the responsibility of the Resident and/or Legal Representative to apply for coverage and to establish eligibility under any governmental, third party payor, managed care or private insurance program The Center shall be under no obligation to bill any third party payor other than the Legal Representative and, when applicable, a governmental program third party payor or managed care organization with which the Center is under contract. 1.10 Primar?ReMonsibility for Payment. Except for payments for services covered under governmental programs or provider agreements, the Resident shall remain primarily liable for any and all charges for which the Center may agree to bill a third party. The Resident and/or Legal Representative acknowledge that the insurance company, HMO, PPO, PSO, PHO or managed care provider may not pay for non-covered services, supplies, equipment, medications, and other care and services which may be delivered by the Center or its subcontractors. This Agreement serves as a written notice that the Center has notified the Resident and/or Legal Representative that services provided at the Center may not be covered by a governmental payor, third party payor or managed care organization. The Resident and/or Legal Representative agrees to be responsible for non-covered services. - A price list of services is always available at the business office upon request. 1.11 Personal Physician. The Resident has the right to choose a personal physician, provided that the physician selected is properly licensed and agrees to abide by applicable law and the rules and policies of the Center. At the time of admission, the Resident must supply the Center with the name of his/her personal physician. If the Resident changes physicians at any time after admission, the Resident and/or Legal Representative must immediately notify the Center of the new physician's name. If the physician chosen by the Resident fails to provide needed coverage and attendance or fails to abide by applicable laws and regulations, the Center shall have the right to call another physician to attend the Resident and the fees charged by such physician shall be borne by the Resident. 1.12 Pharmacy. The Resident and/or Legal Representative acknowledge the right to choose a pharmacy of choice, provided the pharmacy selected is properly licensed, packages and supplies pharmaceuticals in accordance with State law and agrees to abide by the Center's policies and procedures and the pharmacy has a medication distribution system similar to the Center's ancillary pharmacy's medication distribution system. II. RIGHTS AND RESPONSIBILITY OF THE LEGAL REPRESENTATIVE 2.01 Legal Authority. The Legal Representative hereby represents that he/she has legal access to the Resident's income or resources and that the documents supporting such authority, if any, have been delivered to the Center. 2.02 Agieement to Make Payments on Behalf of Resident. The Legal Representative agrees to pay promptly from the Resident's income or resources all fees and charges for which the Resident is liable under this Agreement. The Legal Representative shall not incur personal liability on behalf of the Resident except for a breach of the duty to provide payment from the Resident's income or resources for the fees and charges provided for in this Agreement. 2.03 Requested Items. The Legal Representative shall be personally liable for any services or products specifically requested by the Legal Representative to be supplied to the Resident, unless such services or products are covered by a governmental program 2.04 Exhaustion of Resident's Funds. If the Resident's financial resources change such that the Resident may be eligible for Medicaid, the Resident and/or Legal Representative must notify the Center in writing when the application for Medicaid is made. If the Legal Representative fails to notify the Center in writing or fails to file for Medicaid in a timely and proper manner, the Legal Representative shall be personally liable for all charges and fees not covered by Medicaid which otherwise would have been covered had application been made in a timely and proper manner. 4 2.05 Cooperation for Financial Assistance. If the Resident is eligible for Medicaid, the Legal Representative shall provide such information about the Resident's finances as Medicaid representative shall require for continued coverage of the Resident and be personally responsible for any charges denied the Center due to any lack of cooperation. 2.06 Acceptance Upon Discharge. Upon termination of this Agreement as provided in the Resident Handbook, the Legal Representative agrees to arrange and pay for the departure of the Resident from the Center. If after notice the Resident is not removed as requested, then the Center is authorized and empowered to remove the Resident by reasonable means of transportation and to deliver the Resident to the residence address of the Legal Representative, if the Resident's condition permits, who shall unconditionally be obligated to accept the Resident and to pay promptly all charges. 2.07 Additional Responsibilities. The Legal Representative acknowledges the other duties and responsibilities for the Resident and to the Center as set forth in this Agreement and Attachments. III. RIGHTS AND RESPONSIBILITIES OF THE CENTER 3.01 Room and Standard Services. As part of the Room and Board Rate, the Center shall furnish basic room, board, common facilities, housekeeping, laundered bed linens and bedding, general nursing care, personal assessment, social services, and such other personal services as may be required pursuant to the plan of care prepared by the Resident's physician and the Center, with the Resident's consent, for the health, safety and general well-being of the Resident. 3.02 Other Services. The Center shall act in accordance with the Resident Handbook, which is incorporated by reference in this Agreement. 3.03 Deposit. The Center hereby acknowledges receipt of the Deposit, if any, noted at the beginning of this Agreement. The Deposit shall be applied to the charges for the first month of the Resident's stay at the Center. 3.04 Refunds. Any refund owed to the Resident for advance payments shall be paid by the Center within thirty (30) days after discharge or transfer or within the time frame required by State law. In the case of Medicaid Residents, any such refund shall be paid within thirty (30) days of the Center's receipt of the final Medicaid payment for care of the Resident. IV. GENERAL PROVISIONS 4.01 Consent to Release of Information. The Resident and/or Legal Representative hereby consents to the release of his/her medical records to the following persons: Center personnel, attending physicians and consultants; and person, firm, government entity, third party payor or managed care organization responsible for all or any party of the payment or reimbursement of the Resident's charges, including any utilization review or quality assurance reviews or payment audits performed by such; the personnel of any hospital or other health care facility or provider to whom or which the Resident may be transferred; the Center's liability insurance carrier; and any person authorized by law to review the medical records. 4.02 Consent to Treat. The Resident and/or Legal Representative, by signing this Agreement, hereby authorizes the appropriate staff of the Center to perform such functions, care and services (hereinafter "Treatment") as are necessary to maintain the well-being of the Resident, including but not limited to, assistance with bathing, hygiene, dressing, toiletry, and daily activities; and general nursing care, the administration of medications and treatments, and the performance of therapies, as prescribed by the Resident's personal physician in the Resident's Plan of Care, or as required from time to time in the exercise of good nursing judgment, subject to any rights provided to the Resident by federal and/or state law. As applicable, the undersigned Legal Representative hereby represents that he/she has the legal authority to make health care decisions on behalf of the Resident, that documents supporting such authority have been delivered to the Center, and that such Legal Representative hereby consents on behalf of the Resident to the Treatment described above. 4.03 Consent to Photograph. The Resident and/or Legal Representative agree to consent to the Center taking a photograph of Resident for use in identifying the Resident, for placement of the photograph in the Medication Administration Record or other records and for any other similar uses of the photograph for Center and staff to identify the Resident. 4.04 Notice of Services. Policies and Additional Information. The Resident and/or Legal Representative acknowledge that the items listed below have been explained and have received copies of the items or policies and procedures, if applicable. The Resident and/or Legal Representative acknowledge they have had the opportunity to ask questions and questions have been answered satisfactorily. a. Authorization for Release or Review of Medical. Information. See Attachment C. b. Authorization for Payment of Benefits. See Attachment D. C. Social Security Administration Appointment. See Attachment E. d. SNF Medicare Determination Notice. See Attachment F. e. Medicare Secondary Payor Questionnaire. See Attachment G. f. At the request of the Resident and/or Legal Representative, the Center shall maintain the Resident's personal funds in compliance with the laws and regulations relating to. the Center's management of such funds. A description and/or policies and procedures of protection of resident funds and the Personal Trust Fund Agreement, Resident Personal Funds Authorization and any other related documents. See Attachment H-1. and H-2. g. The Center's policy and procedure on bedholds, election of bedholds and readmission. See Attachment I (Center Supplement). h. Social Service Agencies and Advocacy Groups addresses and phone numbers. See Attachment I (Center Supplement). i. Name, address and phone number of Ombudsman. See Attachment I (Center Supplement). j. The location in the Center where the names, addresses and telephone numbers of state client advocacy groups, state survey and certification agency, the state licensure office, the state ombudsman program, the protection and advocacy network and the Medicaid fraud control unit. See Attachment I (Center Supplement). k. The name, specialty and way of contacting the attending physician, medical director and other physicians who serve the Center. See Attachment I (Center Supplement). 1 Procedures, name, address and phone number -on how to file a complaint with the state survey and certification agency concerning resident abuse, neglect, mistreatment and misappropriation of property. See Attachment I (Center Supplement). m. The Resident Handbook. See Attachment J. n. Resident/Patient Rights. See Attachment K. o. Medicare/Medicaid information and display of such information including how to apply for and use Medicare and Medicaid benefits, and how to receive refunds for previous payments. See Attachment L. P. Receipt of information on advance directives including a copy of "Refusal of Life Sustaining Treatment", which summarizes HCR Manor Care's Limited Treatment Practices and "No Cardiopulmonary Resuscitation Orders" and a copy of the State summary of its laws governing the Resident's right to direct his/her medical treatment. See Attachment M-1 and M-2. q. Privacy Act Notification. See Attachment N. r. Inventory sheet and/or policy of personal items. See Attachment 0. 7 S. ASM Form See attachment P. t. See Attachment Q. U. See Attachment R. V. See Attachment S. W. See Attachment T. X. See Attachment U. Y. See Attachment V. Z. See Attachment W. 4.05 Assignment of Benefits. The Resident and/or Legal Representative hereby requests that payment of authorized government and/or third party payor benefits as described in Sections 1.05 and 1.06, if any, be made as set forth in Attachment D to this Agreement either to me or on my behalf for any service fiunished by or in the Center. The Resident and/or Legal Representative hereby authorizes the Center and any holder of medical or other information to release such information to the Health Care Financing Administration and its agents and to third party payors any information needed to determine these benefits or benefits for related services. 4.06 Termination, Discharge and Transfer. This Agreement may be terminated as set forth below and as set forth in the Resident Handbook under the Section Heading "Discharge". The Resident and/or Legal Representative may terminate this Agreement before the Resident's discharge from the Center by providing the Center written notice of the Resident's desire to leave at least seven (7) days in advance of the Resident's departure. If the Resident leaves before the end of that time, the Resident must still pay for each day of the required notice unless the Center fills the bed before the end of the notice period. Except in the event of an emergency or death, the Resident shall be responsible for all charges for the Room and Board Rate and for all services performed up to the end of the day that the Admission ends. Discharge from the specialized units such as the Transitional Care Unit or Subacute Unit may require less than seven (7) days notice. If discharge or transfer becomes necessary because the Resident and/or Legal Representative or someone else abused the Resident's funds, the Center will request that local, state and federal authorities, as appropriate investigate, which may result in prosecution. 4.07 Indemnification. The Resident shall defend, indemnify and hold the Center harmless from any and all claims, demands, suit and actions made against the Center by any person resulting from any damage or injury caused by the Resident to any person or the property 8 of any person or entity (including the Center), except in the case of negligence of the Center's employees and agents. 4.08 Changes in the Law. Any provision of the Agreement that is found to be invalid or unenforceable as a result of a change in State or Federal law will not invalidate the remaining provisions of this Agreement and, it is agreed that to the extent possible, the Resident and the Center will continue to fulfill their respective obligations under this Agreement consistent with the law. THE UNDERSIGNED HEREBY CERTIFY AND ACKNOWLEDGE THAT THEY HAVE EACH READ AND UNDERSTOOD THE FOREGOING AGREEMENT, AND THAT THEY HAVE HAD AN OPPORTUNITY TO ASK QUESTIONS AND THAT ANY SUCH QUESTIONS HAVE BEEN ANSWERED TO THEIR SATISFACTION. Signature of Resident: Signature of Legal Representative, if signing on behalf of Resident: Date: U9?a?v3aq? Date: 'b \ Signature of Legal Representative, signing on his/her own behalf Date: Center Representative: Y1?1 Date: O 9 rw _.-? C?> '7 t" ? .. M _.?) ? Tl __ ° .l , } ? DUANE M. DONISON, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 05-5626 CIVIL ACTION - LAW HCR MANOR CARE, Defendant JURY TRIAL DEMANDED NOTICE TO PLEAD To: Duane M. Donison c/o Sheri Coover, Esquire 4311 N. Sixth Street Harrisburg, PA 17110 You are hereby notified to file a written response to the enclosed New pursuant to Pa.R.C.P. 1030 within 20 days from service hereof. ANSWER AND NEW MATTER OF HCR MANOR CARE TO PLAINTIFF'S AMENDED COMPLAINT AND NOW this lJ? day of 2006, comes Defendant , ManorCare, by and through its attorneys, McKissock & Hoffman, P.C., and file the folic Answer and New Matter to Plaintiff's Amended Complaint wherein the following is a statem 1. Denied. After reasonable investigation, Answering Defendant is of insuff knowledge and information to form a belief as to the true of the averments contained in Plaintiff's Amended Complaint. 2. Admitted in part, denied in part. It is admitted that HCR Manor Care, business maintaining a facility at 1700 Market Street, Camp Hill, PA. It is denied that Manor Care is a business that "provides medical facilities". 3. The averments in ¶3 of Plaintiff's Amended Complaint constitute conclusic law to which no responsive pleading is required. To the extent that said averments are fac specific, it is admitted only that Defendant, HCR Manor Care has a facility located at HCR ng of is a HCR of 1700 3. The averments in ¶3 of Plaintiff's Amended Complaint constitute conclusions of law to which no responsive pleading is required. To the extent that said averments are factually specific, it is admitted only that Defendant, HCR Manor Care has a facility located at 1700 Market Street, Camp Hill, PA which is in the jurisdictional boundaries of Cumberland C unty, PA. 4-7. Denied. After reasonable investigation, Answering Defendant is of insufficient knowledge and information to form a belief as to the truth of the averments in ¶¶s 4 through 7 of Plaintiff's Amended Complaint. 8. Admitted in part, denied in part. It is admitted only that on February 9, 2001 Plaintiff, as the legal representative of Mira M. Donison, and Defendant entered in an Admission Agreement, a copy of which is attached to Plaintiff's Amended Complaint as Exhibit No. 1. It is denied that said Agreement was to "provide services related to the healthcare of Mira". To the contrary, the Agreement, which is in writing, provided for "the right and responsibilities of the parties with respect to the Resident's stay at HCR Manor Care's Healthcare Center'. The entirety of the document, being in writing, speaks for itself. 9. Denied. After reasonable investigation, Answering Defendant is of insuff cient knowledge and information to form a belief as to the truth of the averments contained in 9 of Plaintiff's Amended Complaint. 10. Denied. After reasonable investigation, Answering Defendant is of insuff cient knowledge and information to form a belief as to the truth of the averments contained in ¶ 0 of Plaintiff's Amended Complaint. 11. Admitted. 12. Admitted. 13. Denied. After reasonable investigation, Answering Defendant is of insufficient knowledge and information to form a belief as to the truth of the averments contained in 13 of Plaintiff's Amended Complaint. 14. Denied. After reasonable investigation, Answering Defendant is of insufficient knowledge and information to form a belief as to the truth of the averments in $¶ 14 of Plai tiff's Amended Complaint. 15. Denied. The averments in $15 of Plaintiff's Amended Complaint constitute conclusions of law to which no responsive pleading is required. Any inference arising from the averments in ¶15 of Plaintiff's Amended Complaint to the effect that Defendant violate any provisions of the regulations under the Pennsylvania Code is specifically denied. 16-20. Denied. After reasonable investigation, Answering Defendant is of insufficient knowledge and information to form a belief as to the truth of the averments in J¶s 16 through 20 of Plaintiff's Amended Complaint. 21. Admitted. 22. Admitted. 23. Denied. The averments in %3 of Plaintiff's Amended Complaint constitute conclusions of law to which no responsive pleading is required. To the extent the said averments do no constitute conclusions of law, same are denied. After reasonable investigation, Answering Defendant is of insufficient knowledge and information to form a elief as to the truth of the averments contained in ¶23 of Plaintiff's Amended Complaint. 24. Denied. The averments in 124 of Plaintiff's Amended Complaint constitute conclusions of law to which no responsive pleading is required. To the extent the said averments do not constitute conclusions of law, same are denied. After reaso able investigation, Answering Defendant is of insufficient knowledge and information to form a elief as to the truth of the averments contained in ¶24 of Plaintiff's Amended Complaint. CLAIM ONE - NEGLIGENCE 25. Answering Defendant hereby incorporates ¶Ts 1 through 24 of the fore oing answer as if contained herein in its entirety. 26. Admitted in part, denied in part. It is admitted that HCR Manor Care is a killed nursing home facility. The remaining averments in %6 of Plaintiff's Amended Com taint constitute conclusions of law to which no responsive pleading is required. 27. The averments in 127 of Plaintiff's Amended Complaint constitute conclusi ns of law to which no responsive pleading is required. To the extent that the averments in 12 infer that HCR Manor Care failed to be knowledgeable in billing practices and/or give patients correct advice in payment for its services, said averments are denied. 28. Denied. It is denied that HCR Manor Care provided information to Plainti that Mira's services would or would not be covered by Tricare. By way of further response, Defendant refers to 11.09 "Application for Benefits" (page 3 of the Admission Agreement). 29. Denied. By way of further response, the averments contained in ¶28 sup a. of Defendant's Answer are incorporated herein by reference. 30. Denied. After reasonable investigation, Answering Defendant is of insuff cient knowledge and information to form a belief as to the truth of the averments contained in 130 of Plaintiff's Amended Complaint. It is specifically denied that Answering Defendant mad any "misrepresentations" to Plaintiff. 31-32. Denied. After reasonable investigation, Answering Defendant is of insuff cient knowledge and information to form a belief as to the truth of the averments in ¶¶s 31 and 2 of Plaintiff's Amended Complaint. WHEREFORE, Defendant respectfully requests that this Honorable Court judgment in its favor and dismiss Plaintiff's Amended Complaint with prejudice. CLAIM TWO - DETRIMENTAL RELIANCE 33. Answering Defendant hereby incorporate by reference ¶¶s 1 through 32 foregoing Answer as if more fully set forth at length in its entirety. 34. Admitted. the 35. Denied. To the contrary, the services provided by HCR Manor Care are set forth specifically in the Admission Agreement, a copy of which is attached as Exhibit No. 1 to Plaintiff's Amended Complaint. Under the terms and conditions of the Agreement, speci ically Section 1.09 contained on page 3 thereof, it was the responsibility of Plaintiff and/or Mira Donison to apply for coverage and establish eligibility under any governmental, third party payor, managed care or private insurance program. 36-37. Denied. After reasonable investigation, Answering Defendant is of insufficient knowledge and information to form a belief as to the truth of the averments in T¶s 36 and ?7 of Plaintiff's Amended Complaint. 38. It is denied that any advice rendered by Defendant resulted in damages to the Plaintiff. WHEREFORE, Defendant respectfully requests this Honorable Court enter judg its favor and dismiss Plaintiff's Amended Complaint, with prejudice. NEW MATTER 39. Paragraphs 1 through 38 of Defendant's Answer are incorporated herein, more fully set forth at length. nt in as if 40. To the extent that facts developed during the course of discovery may Plaintiff's claims are barred, in whole or in part, by the Plaintiff's failure to mitigate his c 41. To the extent that facts developed during the course of discovery may impl cate, Plaintiff's injuries and losses, if any, were caused by persons or events outside the control f the Defendant. 42. To the extent that facts developed during the course of discovery may impl cate, Plaintiff is barred by the doctrine of laches and unclean hands from the relief requested. 43. To the extent that facts developed during the course of discovery may impl cate, Plaintiff is barred and/or limited by the provisions of the Pennsylvania Comparative Negli ence Act, 42 P.C.S.A. § 4102. 44. Plaintiff, Duane M. Donison, was contributorily negligent and/or assumed the risk of injury. 45. The negligent acts and/or omissions of other individuals or entities constitutes an intervening or superseding cause of the injuries alleged to have been sustained by the Plai 46. Plaintiff's alleged injuries were caused by the acts and/or omissions of a or persons other than Defendant. 47. To the extent that facts developed during the course of discovery may impll' cate, Plaintiff may have already entered into a Release with other individuals or entities which h 4s the effect of discharging any liability of the Defendant. 48. Plaintiff's claims are specifically barred by the provisions of the contr documentation controlling Mira Donison's admission, specifically Section 1.09 of al said Agreement which provides as follows: "Application for Benefits. It shall be the responsibility of the resident and/or legal representative to apply for coverage and to establish eligibility under any governmental, third party payor, managed care or private insurance program. The center shall be under no obligation to bill any third party payor other than the legal representative and, when applicable, a governmental program third party payor or managed care organization to which the center is under contract'. WHEREFORE, Defendant respectfully requests this Honorable Court enter judgmi its favor and dismiss Plaintiff's Amended Complaint, with prejudice. Respectfully submitted, McKissock & Hoffman, P.C. By: B. Cra' lack, squire Attortef I.D. # 36818 Lauren M. Burnette, Esquire Attorney I.D. # 92412 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 (717) 540-3400 Date: )/P lob Attorneys for Defendant, HCR Manor Care in VERIFICATION I, Helen Maloney, hereby verify that the statements in Defendant's Answer and Matter to Plaintiff's Amended Complaint are true and correct to the best of my info New knowledge and belief. I understand that the statements are made subject to the penalties of PA.C.S. Section 4904, relating to the unsworn falsification to authorities. Helen Maloney, Administrator HCR Manor Care - Camp Hill Dated: \l ?a' t b CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of Answer and New Matter to Plaintiff's Amended Complaint upon the person(s) and in the manner indicated below, which sIrvice satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, first-class postage prepaid, addressed as follows: Sheri Coover, Esquire 4311 N. Sixth Street Harrisburg, PA 17110 (Counsel for Plaintiff) McKissock & Hoffman, P.C. By: B. ig B ac , Esquire _"'--- A ey I. D. # 36818 Lauren M. Burnette, Esquire Attorney I.D. # 92412 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 (717) 540-3400 Date: 1 !7 Attorneys for Defendant, HCR ManorCare h-J -71 Ffl t_?_ CC. =j DUANE M. DONISON, Plaintiff V. HCR MANOR CARE, Defendant :IN THE COURT OF COMMON PLEAS :CUMBERLAND COUNTY, :PENNSYLVANIA : NO. 05-5626 :CIVIL ACTION - LAW : JURY TRIAL DEMANDED PLAINTIFF'S RESPONSE TO DEFENDANT'S NEW MATTER AND NOW, comes Plaintiff, by and through his attorneys Andrew J. Ostrowski, Esquire and Sheri D. Coover, Esquire and files the following Response to New Matter asserted by the Defendant: 39. No response required. 40. Denied. Plaintiff denies that he failed to mitigate his damages or the actions of the Plaintiff in any way bar the Plaintiff's claims or the Defendant's liability for the injuries or losses asserted by the Plaintiff. 41. Denied. Plaintiff denies that his injuries and losses were caused by persons or events outside of the control of the Defendant. To the contrary, Plaintiff asserts that Plaintiffs injuries and losses are a direct result of actions of the Defendant or persons in the employ of the Defendant. 42. Denied. Plaintiff denies that the doctrine of laches and unclean hands in any way bar the Plaintiff's claims or the Defendant's liability for the injuries or losses asserted by the Plaintiff. 43. Denied. Plaintiff denies that any provisions of the Pennsylvania Comparative Negligence Act, 42 P.C.S.A. § 4102 in any way limit or bar the Plaintiff's claims or the Defendant's liability for the injuries or losses asserted by the Plaintiff. 44. Denied. Plaintiff denies that he was contributorily negligent ajid/or assumed the risk of injury. 45. Denied. Plaintiff denies that the negligent acts and/or omissions of other individuals in any way was an intervening or superseding cause of the injuries sustained by the Plaintiff. 46. Denied. Plaintiff denies that the injuries and losses sustained by the Plaintiff were in any way caused by acts and/or omissions of a person or persons other than the Defendant. 47. Denied. Plaintiff denies entering into a Release with other individuals or entities which has the effect of discharging any liability of the defendant. 48. Denied. Plaintiff denies that his claims are barred by any provisions of the contractual documentation controlling Mira Donison's admission. WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter judgment in his favor and against the Defendant. Re§pectfully submitted, By: ,Xndrew J. Ostrowski, Esquire Attorney ID 66420 Sheri D. Coover, Esquire Attorney ID 93285 4311 N. Sixth Street Harrisburg, PA 17110 ATTORNEY FOR PLAINTIFF VERIFICATION I, Duane M. Donison, hereby verify that the statements in Plaintiff s Response to Defendant's New Matter are true and correct to the best of my information, knowledge and belief. I understand that the statements are made subject to the penalties of Pa.C.S. § 4904, relating to the unsworn falsification to authorities. Duane M. Donison * -- ?-- Date: Zj t:i CERTIFICATE OF SERVICE I hereby certify that on this 20th day of December, 2006, I am serving a copy of Plaintiff s Response to Defendant's New Matter upon defendant's counsel Ilia United States mail first class addressed as follows: S. Craig Black, Esquire 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 Respectfully submitted, ?Adrew J. Ostrowski, Esquire Attorney ID 66420 Sheri D. Coover, Esquire Attorney ID 93285 4311 N. Sixth Street Harrisburg, PA 17110 I NO - Zoo ? Date. r DUANE M. DONISON, V. HCR MANOR CARE, IN THE COURT OF COMMON PLEAS Plaintiff : OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No.: 05-5626 Defendants WITHDRAWAL OF APPEARANCE Kindly withdraw my appearance on behalf of Defendant, HCR Manor Care in the above-captioned matter. Dated: Ayk2o Respectfully submitted, McKissock & Hoffman, P.C. BY: .r B. Cr Blac , squire -1 1. : 36818 20.o. 0 Linglestown Road Suite 302 Harrisburg, PA 17110 717-540-3400 Attorney for Defendant. HCR Manor Care r -1 CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing Withdrawal of Appearance upon the following person(s) in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, first class postage pre-paid, addressed as follows: Sheri D. Coover, Esquire Andrew J. Ostrowski, Esquire 4311 N. Sixth Street Harrisburg, PA 17110 Counsel for Plaintiff BY: Dated: mss 2 / McKissock & Hoffman, P.C. B. Crrin lack, sq re I.D. 6818 20 40 estown Road Suite 302 Harrisburg, PA 17110 717-540-3400 Attorney for Defendant, HCR Manor Care :? ??? `=, t? ? `. . ?..-? V,.? 4 r ??? T 9 r ?..' ` ., iJ DUANE M. DONISON, vi. HCR MANOR CARE, IN THE COURT OF COMMON PLEAS Plaintiff : OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No.: 05-5626 Defendants ENTRY OF APPEARANCE Kindly enter my appearance on behalf of Defendant, HCR Manor Care in the above-captioned matter. Respectfully submitted, THE CHARTWELL LAW OFFICES, LLP BY: .: B. Crai la c, sq I . D. 36618 1017 Mumma Road, Suite 100 Wormleysburg, PA 17110 717-909-5170 Dated: i0/3/24,;L Attorney for Defendant, HCR Manor Care c CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing Entry of Appearance upon the following person(s) in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, first class postage pre-paid, addressed as follows: Sheri D. Coover, Esquire Andrew J. Ostrowski, Esquire 4311 N. Sixth Street Harrisburg, PA 17110 Counsel for Plaintiff THE CHARTWELL LAW OFFICES, LLP BY: B. C lac , sq irr I.D. rai36818 1017 Mumma Road, Suite 100 Wormleysburg, PA 17043 717-909-5170 Dated: -,o Attorney for Defendant, HCR Manor Care ('? ?.._J ti? .i 1 ? . t"? -... _-? '•?_.. - i ? ,; -; ? r-, , i._, "7 j=, -..._ `? DUANE M. DONISON, Plaintiff V. HCR MANORCARE, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-5626 CIVIL ACTION - LAW JURY TRIAL DEMANDED MOTION TO WITHDRAW ATTORNEY APPEARANCE 1. Undersigned counsel entered their appearance as attorneys to represent the Plaintiff in the above-captioned matter. 2. Plaintiff has notified the undersigned counsel that he no longer desires for them to continue to represent him in this matter. 3. Undersigned counsel have notified the office of Defendant's counsel and they indicated that they do not oppose the Motion to Withdraw. WHEREFORE, undersigned counsel respectfully request that this Court withdraw 431 A 17110 S'l A D. Coover, Esquire w Office of Sheri D. Coover 4311 N. Sixth Street Harrisburg, PA 17110 their appearance on behalf of the Plaintiff. DUANE M. DONISON, Plaintiff vi. HCR MANORCARE, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : NO. 05-5626 : CIVIL ACTION -LAW : JURY TRIAL DEMANDED CERTIFICATE OF CONCURRENCE I, Sheri D. Coover, Esquire hereby certify that on December 10, 2007 I contacted the office of Craig Black, Esquire. His office indicated that they do not oppose the foregoing Motion. 7A, efi D. Coover, Esquire orney ID 93285 4311 N. Sixth Street Harrisburg, PA 17110 DUANE M. DONISON, Plaintiff vii. HCR MANORCARE, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-5626 CIVIL ACTION -LAW : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE 1&'-' I, Sheri D. Coover, Esquire hereby certify that on this 4,eday of December, 2007, I caused the foregoing WITHDRAWAL OF ATTORNEY APPEARANCE to be served upon defendants' counsel via facsimile and U.S. First Class Mail addressed as follows: TRANSMITTED VIA FACISIMILE (717)909-5173 Craig Black, Esquire Chartwell Law Offices 1017 Mumma Road, Suite 100 Wormleysburg, PA 17110 y submitted, ?heh D. Coover, Esquire Attorney ID 93285 4311 N. Sixth Street Harrisburg, PA 17110 c? v C4 COURT OF COMMON PLEAS OF CUMBERLAND COUNTY DOCKET NO: 2005-05626 DUANE M. DONISON V HCR MANOR CARE CIVIL ACTION, LAW APPEARANCE Now comes Richard R. Gan, Esq. and enters his appearance on behalf of DUANE M. DONISON, the named Plaintiff in this matter. Richard R. Gan, Esq. 1-?Zl-z4oe Dated: Gan Law Group 64 South Pitt Street Carlisle, Pa 17013 ID 68721 717-241-4300 717-243-5175 o c LLI tom`; ?r ""Y 4? V I1 r W Off. 17 2007Nt1 DUANE M. DONISON, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 05-5626 HCR MANORCARE CIVIL ACTION AT LAW Defendant ORDER Upon consideration of the Plaintiff's counsel's Motion to Withdraw Attorney Appearance, the Motion to Withdraw Attorney Appearance by Andrew Ostrowski and Sheri D. Coover, Esquire is hereby GRANTED. 3 Z ooS J. y LA/ td 3, 1 0 t, ono 6£ :01 WV E-- NVF BBOZ 00 (T/ ,KdViC,Nu" iO'dd 3HI ?O Jr ~ B. CRAIG BLACK, ESQUIRE Attorney I.D. No. 36818 PATRICIA HAAS CORLL, ESQUIRE Attorney I.D. No. 59238 1017 Mumma Road, Suite 100 Wormleysburg, PA 17043 (717) 909-5170 Attorneys for Defendant, HCR ManorCare DUANE M. DONISON, Plaintiff V. HCR MANORCARE, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : NO. 05-5626 CIVIL ACTION - LAW JURY TRIAL DEMANDED ENTRY OF APPEARANCE Kindly enter the appearance of Patricia Haas Corll, Esquire of the Chartwell Law Offices, LLP on behalf of Defendant, HCR ManorCare in the above-captioned matter in additional to that of B. Craig Black, Esquire of the Chartwell Law Office, LLP, who has previously entered his appearance. Respectfully submitted, THE CHARTWELL LAW OFFICES, LLP Dated: ACK, ESQUIRE B. C T Att No. 36818 P TAAS CORLL, ESQUIRE tto No: 59238 10 17 Mumma Road, Suite 100 Wormleysburg, PA 17043 (717) 909-5170 Attorney for Defendant, HCR ManorCare CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing Entry of Appearance upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, first-class postage prepaid, addressed as follows: Richard R. Gan, Esquire Gan Law Group 64 South Pitt Street Carlisle, PA 17013 Attorney for Plaintiff, Duane M. Donison Dated: T 70W 1. CK, ESQUIRE ).36818 PATRICIA HAAS CORLL, ESQUIRE Attorney I.D. No: 59238 1017 Mumma Road, Suite 100 Wormleysburg, PA 17043 (717) 909-5170 Attorney for Defendant, HCR ManorCare C? ...• t___. co ' >, co "' B. CRAIG BLACK, ESQUIRE Attorney I.D. No. 36818 PATRICIA HAASI CORLL, ESQUIRE Attorney I.D. No. 59238 1017 Mumma Road, Suite 100 Wormleysburg, PA 17043 (717) 909-5170 Attorneys for Defeodant, HCR ManorCare DUANE M. DONISON, Plaintiff V. HCR MANORCARE, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-5626 CIVIL ACTION -LAW JURY TRIAL DEMANDED MOTION FOR LEAVE TO AMEND NEW MATTER PURSUANT TO Pa. R.C.P. 1033 AND NOW, this 10th day of April, 2008, comes, HCR ManorCare ("Defendant") by and through its attorneys, B. Craig Black, Esquire, Patricia Haas Corll, Esquire, and the Chartwell Law Offices, LLP and files the following Motion to Amend New Matter pursuant to Pa. R.C.P. 1033, averring as follows: 1. This action was originally commenced by Duane M. Donison ("Plaintiff') on or about October 31, 2005 by Praecipe for Writ of Summons in Civil Action. 2. A Complaint in this action was filed after service upon Plaintiff of a Rule to File a Complaint on or about April 3, 2006. This Complaint was subject to Preliminary Objections and, after a ruling sustaining the objections in part by the Honorable J. Wesley Oler, Jr., an Amended Complaint was filed on or about October 16, 2006. This Amended Complaint arises out of financial arrangements for the payment of services during the admission of Plaintiff's late wife, Mira, to Defendant's facility in Camp Hill, Pennsylvania following a surgical procedural which removed her left hip due to rheumatoid arthritis. The action is not however, premised upon medical or nursing care professional liability. After surgical and rehabilitative care, it is alleged that on February 9, 2001 the parties entered into an agreement whereby, in exchange for compensation, ManorCare would "provide services related to the health care of Mira". (See, Amended Complaint at paragraphs 6, 7 and 8). 4. The gravamen of the allegations in the Amended Complaint center on Plaintiff's claims that he unnecessarily disposed of $29,962.81 in assets and incurred $2,600.00 in tax liability in order to qualify Mrs. Donison for Medical Assistance (Medicaid) coverage for her care at Defendant. Plaintiff alleges this sale of assets was not necessary as Mrs. Donison's care should have been paid for by Tricare, a health insurance carrier which provided skilled nursing home coverage for which Mrs. Donison was eligible due to her husband's military service.. 5. The Amended Complaint contains a count in negligence and a count entitled "Detrimental Reliance", which Plaintiff has characterized as a contract claim. 6. The Amended Complaint was answered on or about November 7, 2006, and the parties have been engaged in the process of discovery, which continues to date. This case has never been listed for trial. 7. As a result of information uncovered during the course of recent discovery, specifically the deposition of Mr. Donison conducted on March 6, 2008, the Defendant, seeks to amend its New Matter to raise the affirmative defense of the statute of limitations pursuant to Pa. R.C. P. 1033. 2 8. Pa. R.C.P. 1033 is broadly worded to permit an amendment of a pleading "at any time" with leave of court or consent of the adverse party. 9. Additionally, guidance from the Appellate Courts of our Commonwealth provides that delay alone does not justify the denial of leave to amend a pleading in the absence of prejudice to the opposing party. Further, prejudice must stem from the fact that a new allegation is offered late rather than in the original pleading and not merely from the fact that the opponent may lose his case on the merits if the pleading is allowed. See, Tanner v. Allstate Insurance Company, 321 Pa. Super. 132, 467 A.2d 1164 (1983); Brooks v. McMenamin, 349 Pa. Super. 436, 503 A.2d 446 (1986); Carpitella v. Consolidated Rail Corporation, 368 Pa. Super. 153, 533 A.2d 762 (1987); and Batta v. Central Penn National Bank of Philadelphia, 448 Pa. 355, 293 A.2d 343 (1972), cert. den'd, 409 U.S. 1108 (1973). 10. Accordingly, as there is no prejudice, leave should be granted to amend the pleading to allow Defendant to assert the affirmative defense of the statute of limitations. 11. Pursuant to Cumberland County Local Rule of Procedure 208.2(d), Richard R. Gan, Esquire counsel for Plaintiff has been contacted to seek his concurrence in this Motion. Specifically, on March 20, 2008 a copy of this Motion was sent to him requesting he advise of his position by March 27, 2008. When no response was forthcoming on March 27, 2008, the undersigned initiated telephone contact with Mr. Gan who advised he had not yet had the opportunity to review the same but would advise upon his review as to his position. Despite additional attempts to contact Mr. Gan, he has not yet responded with his position respecting the 3 same. Accordingly, the Motion is being filed, without concurrence to avoid further delay. WHEREFORE, Defendant, respectfully requests this Honorable Court to grant it leave to amend its New Matter to raise the statute of limitations as an affirmative defense pursuant to Pa. R.C.P. 1033. Dated: `{II /x Respectfully submitted, THE CHARTWELL LAW OFFICES, LLP 4 B. ACK, ESQUIRE tt e I. . No. 36818 P R CIA HAAS CORLL, ESQUIRE Attorney I.D. No: 59238 1017 Mumma Road, Suite 100 Wormleysburg, PA 17043 (717) 909-5170 Attorney for Defendant, HCR ManorCare 4 CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing Motion for Leave to Amend New Flatter Pursuant to Pa. R.C.P. 1033 upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, first-class postage prepaid, addressed as follows: Richard R. Gan, Esquire Gan Law Group 64 South Pitt Street Carlisle, PA 17013 Attorney for Plaintiff, Duane M. Donison Dated: tf11(3 tea Respectfully Sub$litted: SLACK, ESQUIRE 7RIPNo. 36818 IA A HAAS CORLL, ESQUIRE Attorney I.D. No: 59238 1017 Mumma Road, Suite 100 Wormleysburg, PA 17043 (717) 909-5170 Attorney for Defendant, HCR ManorCare 5 r :?t r * '"Gt , Ohm ;:._ i PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) CAPTION OF CASE (entire caption must be stated in full) DUANE M. DONISON, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. HCR MANORCARE, CIVIL ACTION - LAW Defendant JURY TRIAL DEMANDED No. 05-5626 Term 1. State matter to be argued (i.e. plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Defendant's Motion for Leave to Amend New Matter Pursuant to Pa RCP 1033 2. Identify all counsel who will argue cases: (a) for plaintiffs: Richard R. Gan. Esquire. 64 South Pitt Street Carlisle PA 17013 (Name and Address) (b) for defendants: B. Craig Black. Esquire. 1017 Mumma Rd. Suite 100, Wormlevsburg PA 17042 (Name and Address) Patricia Haas Corll. Esquire. 1017 Mumma Rd Suite 100, Wormlevsburg PA 17042 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: 28, 2008 / Print you name F ! - I*R ?)QyVrf/'I (? Attorney for Date: (4 C~? EF ??v0 iAfNT INSTRUCTIONS: 1. Two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs much be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. N c y ^` C 27 DUANE M. DONISON, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW HCR MANORCARE, Defendant NO. 05-5626 CIVIL TERM ORDER OF COURT AND NOW, this 22nd day of April, 2008, upon consideration of Defendant's Motion for Leave To Amend New Matter Pursuant To Pa. R.C.P. 1033, a Rule is hereby issued upon Plaintiff to show cause why the relief requested should not be granted. RULE RETURNABLE within 20 days of service. BY THE COURT, t/Richard R. Gan, Esq. 64 South Pitt Street Carlisle, PA 17013 Attorney for Plaintiff B. Craig Black, Esq. tricia Haas Corll, Esq. ?1Q 17 Mumma Road (/ Suite 100 Wormleysburg, PA 17043 Attorneys for Defendant rc J J ?. ?.^? :'.,:.. ?„?_ ti c, t°?_ .,.vv jjyy?? - Sy ??_..:. -: ^;F } B. CRAIG BLACK, ESQUIRE Attorney I.D. No. 36818 PATRICIA HAAS CORLL, ESQUIRE Attorney I.D. No. 59238 1017 Mumma Road, Suite 100 Wormleysburg, PA 17043 (717) 909-5170 Attorneys for Defendant, HCR ManorCare DUANE M. DONISON, Plaintiff V. HCR MANORCARE, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-5626 CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the Order of the Honorable J. Wesly Oler, Jr., dated April 22, 2008 issuing a Rule upon Plaintiff to show cause why Defendant's Motion for Leave to Amend New Matter Pursuant to Pa. R.C.P. 1033 was served upon the following individual in the manner indicated according to the requirements of the Pennsylvania Rules of Civil Procedure: Richard R. Gan, Esquire Gan Law Group 64 South Pitt Street Carlisle, PA 17013 Attorney for Plaintiff, Duane M. Donison By first class mail Respectfully Submitted: Dated: /?.a.. L z 7, tcnoA B. CRAI BLACK, ESQ?IR? Atto D. No. 36818 PATR CIA HAAS CORLL, ESQUIRE Attorney I.D. No: 59238 1017 Mumma Road, Suite 100 Wormleysburg, PA 17043 (717) 909-5170 Attorney for Defendant, HCR ManorCare ?'° n,a v '-- C. J '?.., L;? x'1 - •-f . -ti i ?? F ?? ....? ?'7 ??. ?: ?;: COURT OF COMMON PLEAS OF CUMBERLAND COUNTY DUANE DONISON, Plaintiff File : 05-5626 V HCR MANORCARE, CIVIL ACTION-LAW JURY TRIAL DEMANDED Defendant ANSWER TO MOTION FOR LEAVE TO MEND NEW MATTER PURSUANT TO PA ACP 1033 And now this 120' day of Mat 2008, comes Plaintiff Duane M. Donison, by his attorneys, Gan Law Group, and for his answer to Motion for leave to Amend New Matter states as follows 1. In response to paragraph one of Defendants Motion, Plaintiff admits the same. 2. In response to paragraph two of Defendants motion, Plaintiff responds as follows: The Writ of Summons was filed on October 31, 2005. The original complaint was filed or about A01ril 3, 2006. This Honorable Court substantially denied Defendants preliminary objections. Subsequent to the court ruling and within appropriate time parameters, Plaintiffs Amended complaint was filed on or about October 16, 2006. 3. In response to paragraph three of Defendants motion, Plaintiff states as follows: Defendants would have this court believe that the primary focus and intent of the Amended Complaint was nebulous or obtuse. References in the motion to surgical and rehabilitative care are at best designed to confuse the court. Rather, the amended complaint specifically, and without equivocation charges that Manor Care new or had reason to know that it was a "qualified" TRI-CARE Provider during the time period which Mira Donison was a resident at the facility. As such, when Defendant Manor Care advised Cumberland County Assistance Office that it was not, (erroneously) a TRI CARE provider and initiated the process whereby Plaintiff was required to apply for assistance, it triggered a down spend by Plaintiff, to his great financial detriment. 4. In response to Paragraph four of Defendants Motion, Plaintiff states as follows: Due to Defendants negligence in failing to acknowledge they were TRI CARE providers, Plaintiff was directed by the Cumberland County Assistance office to engage in a down spend of significant magnitude. Specifically, Plaintiff was required to dispose of all of his savings bonds, purchase a vehicle, pay unnecessary taxes and make other expenditures whose actual extent has yet to be determined by this court. That this "down spend" was done as a result of the negligence of Manor care and their failure to acknowledge they were TRI CARE Providers. 5. In response to paragraph five of Defendants motion, Plaintiff acknowledges that counts entitled Detrimental Reliance and Negligence exist in his amended complaint. 6. In response to paragraph six, Plaintiff acknowledges that the Amended Complaint was answered on or about November 7, 2006 and that discovery is ongoing. 7. In response to paragraph seven of Defendants motion, Plaintiff denies the same as it is untrue. Defendants purport to have had a "revelation" during Plaintiffs deposition held on March 6, 2008. The information which was purportedly "uncovered" relates to Plaintiffs "on oin 'not new assertions that he justifiably relied on Defendant Manor Care when applying for compensation from Cumberland County Assistance. Further, by way of discovery (on a disk provided by Defendant to Plaintiff) on or about March 15, 2007 and contained on pages MAN 0967, MAN 0968 and MNA 0969 is a letter from TRI CARE dated December 16, 2003 which confirms that Defendant Manor CARE was in fact a TRI CARE provider. Defendants were certainly aware of the letter from TRI CARE as they provided it (and presumably reviewed it) prior to conveying it during discovery. This information was not new and it was not a revelation. Defendants have know of this information since the commencement of this proceeding as it was in their possession at all times and provided to Plaintiff during the course of discovery. 8. In response to paragraph eight of Defendants Motion, Plaintiffs respond as follows: Defendants would have this court believe that they should be permitted to add an "Affirmative Defense" of statute of limitations as a new matter. While rule 1033 permits the liberal amendment of pleadings by agreement or court order, it does not specifically provide for the "addition of affirmative defenses". (under all other circumstances to be offered in Defendants first responsive pleading, or amended pleading.) 9. In response to paragraph nine of Defendants motion, Plaintiff states as follows. Pennsylvania rules of Civil procedure require, for good and justifiable reason that affirmative defenses must be offered in Defendants first responsive pleading. This is required so that all parties, including Plaintiff are aware of each and all potential defenses to claims made in the pleadings. In this regard, the court must inquire as to when and under what circumstances Defendants claim they learned of "new information" at Plaintiffs deposition. What is it they learned that should permit the addition of an affirmative defense almost two years after they filed their answer? What did Plaintiff say or offer during his deposition they were previously unaware of? What document. are they claiming is the "smoking gun"? All of these inquiries must be answered prior to the court ruling on this request. 10. In response to paragraph ten of Defendant's motion, Plaintiff denies there is no prejudice. Plaintiffs breach of contract claims and claims for justifiable reliance are the foundation of this lawsuit. Counsel for Defendant was duty bound to work with his client to investigate the events leading to this lawsuit and the data available to them prior to filing both their answer and their amended answer. Any or all inequitable application of the court rules is in fact "prejudicial" as it gives unfair advantage to one party. Plaintiff further asserts that even though there is no merit to this defense (as the complaint and all of its counts were timely filed,) Defendant seeks to expand and manipulate PRCP to its benefit. This further constitutes prejudice as it would unfairly administer court rules enacted to uniformly apply to all who practice before the courts in the Commonwealth of Pennsylvania. 11. In response to paragraph eleven of Defendants motion, Counsel for Plaintiff states he was in the process of reviewing the motion when it was eventually filed. Counsel for Plaintiff acknowledges that calls were made and received by our office in this regard. WHEREFORE, PLAINTIFF respectfully requests this Honorable Court deny Defendant's motion to add an "affirmative defense" (under the auspices of a motion to amend pleadings), as it is untimely and not supported in fact or at law. Respectfully submitted, Gan Law Group 64 South Pitt Street Carlisle, Pa 17013 ID 68721 717-241-4300 717-243-5175 Dated rn h3 DUANE M. DONISON, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW HCR MANORCARE, Defendant NO. 05-5626 CIVIL TERM IN RE: DEFENDANT'S MOTION FOR LEAVE TO AMEND NEW MATTER BEFORE OLER, J. ORDER OF COURT AND NOW, this 10 day of May, 2008, upon consideration of Defendant's Motion for Leave To Amend New Matter Pursuant to PA. R.C.P. 1033, and of Plaintiff's Answer to Motion for Leave to Amend New Matter Pursuant to PA RCP 1033, Defendant's Motion is granted and Defendant is afforded a period of 14 days from the date of this order within which to file an amended answer with new matter in accordance with the motion. THIS MATTER is stricken from the May 28, 2008, Argument Court list. Richard R. Gan, Esq. 64 South Pitt Street Carlisle, PA 17013 Attorney for Plaintiff B: Craig Black, Esq. Patricia Haas Corll, Esq. 1017 Mumma Road Suite 100 Wormleysburg, PA 17043 Attorneys for Defendant Qt-1 :rc BY THE COURT, WV G I "W 860Z ?t - MIJ B. CRAIG BLACK, ESQUIRE Attorney I.D. No. 36818 PATRICIA HAAS CORLL, ESQUIRE Attorney I.D. No. 59238 1017 Mumma Road, Suite 100 Wormleysburg, PA 17043 (717) 909-5170 Attorneys for Defendant, HCR ManorCare DUANE M. DONISON, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 055626 CIVIL ACTION - LAW HCR MANOR CARE, Defendant JURY TRIAL DEMANDED NOTICE TO PLEAD To: Duane M. Donison c/o Richard R. Gan, Esquire Gan Law Group 64 South Pitt Street Carlisle, Pa 17013 You are hereby notified to file a written response to the enclosed Amended New Matter pursuant to Pa.R.C.P. 1030 within 20 days from service hereof. AMENDED NEW MATTER OF HCR MANOR CARE TO PLAINTIFF'S AMENDED COMPLAINT AND NOW, this 0?? day of 171 2008, comes Defendant, HCR ManorCare, by and through its attorneys, The Chartwell Law Offices, LLP., and files the following Amended New Matter to Plaintiff's Amended Complaint pursuant to the Order of the Honorable J. Wesley Oler, Jr., Judge dated May 14, 2008, wherein the following is a statement: AMENDED NEW MATTER 39. Paragraphs 1 through 38 of Defendant's Answer are incorporated herein, as if more fully set forth at length. 40. To the extent that facts developed during the course of discovery may implicate, Plaintiff's claims are barred, in whole or in part, by the plaintiffs failure to mitigate his damages. 41. To the extent that facts developed during the course of discovery may implicate, Plaintiffs injuries and losses, if any, were caused by persons or events outside the control of the Defendant. 42. To the extent that facts developed during the course of discovery may implicate, Plaintiff is barred by the doctrine of laches and unclean hands from the relief requested. 43. To the extent that facts developed during the course of discovery may implicate, Plaintiff is barred and/or limited by the provisions of the Pennsylvania Comparative Negligence Act, 42 P.C.S.A. § 4102. 44. Plaintiff, Duane M. Donison, was contributorily negligent and/or assumed the risk of injury. 45. The negligent acts and/or omissions of other individuals or entities constitutes an intervening or superseding cause of the injuries alleged to have been sustained by the Plaintiff. 46. Plaintiff's alleged injuries were caused by the acts and/or omissions of a person or persons other than Defendant. 47. To the extent that facts developed during the course of discovery may implicate, Plaintiff may have already entered into a Release with other individuals or entities which has the effect of discharging any liability of the Defendant. 48. Plaintiff's claims are specifically barred by the provisions of the contractual documentation controlling Mira Donison's admission, specifically Section 1.09 of said Agreement which provides as follows: "Application for Benefits. It shall be the responsibility of the resident and/or legal representative to apply for coverage and to establish eligibility under any governmental, third party payor, managed care or private insurance program. The center shall be under no obligation to bill any third party payor other than the legal representative and, when applicable, a governmental program third party payor or managed care organization to which the center is under contract". 49. Plaintiff knew on or before July 17, 2001, that Defendant had not submitted Mira Donison's billings to TriCare Insurance. 50. Plaintiff knew on or before July 17, 2001, that Plaintiff's downspending of $29,962.81 to qualify Mira Donison for Medicaid was unnecessary because Mira Donison was eligible for long term nursing facility coverage through TriCare. 51. Plaintiff knew on or before July 17, 2001, that Plaintiff unnecessarily downspent $29,962.81 to qualify Mira Donison for Medicaid eligibility during which time Plaintiff alleges that Defendant should have billed TriCare. 52. Plaintiff knew on or before April 30, 2003, that Defendant had not submitted Mira Donison's billings to TriCare Insurance. 53. Plaintiff knew on or before April 30, 2003, that Plaintiffs downspending of $29,962.81 to qualify Mira Donison for Medicaid was unnecessary because Mira Donison was eligible for long term nursing facility coverage through TriCare. 54. Plaintiff knew on or before April 30, 2003, that Plaintiff unnecessarily downspent $29,962.81 to qualify Mira Donison for Medicaid eligibility during which time Plaintiff alleges that Defendant should have billed TriCare. 55. Plaintiff's negligence claims are barred by the applicable Statute of Limitation, 42 Pa. C.S.A. § 5524. 56. Plaintiff's claims for negligent misrepresentation (labeled "Detrimental Reliance" in Plaintiff's Amended Complaint) are barred by the applicable Statute of Limitations, 42 PA. C.S.A. §5524 and/or 42 PA. C.S.A. §5525. WHEREFORE, Defendant respectfully requests this Honorable Court enter judgment in its favor and dismiss Plaintiff's Amended Complaint, with prejudice. Dated: S? ?> Respectfully submitted, THE CHARTWELL LAW OFFICES, LLP B. CRAIG ACK, ES Attorney No. 36818 PATRI HAAS CORLL, ESQUIRE Attorney I.D. No: 59238 1017 Mumma Road, Suite 100 Wormleysburg, PA 17043 (717) 909-5170 Attorney for Defendant, HCR ManorCare 05/22/2008 09:37 4192545155 LEGAL PAGE 02/02 VERIFICATION i, Greg Hamel, Esquire, hereby verify that the statements in Ac£endant's Amended New Matter to Plaintiff's Amended Complaint are true and correct to the best of my information, knowledge and belief. I understand that the statements are made subject to the penalties of PA.C.S. Section 4904, relating to the unworn falsification to authorities. Gr e HCR Man Care Dated: ` 1r27- a -7 7 CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing Amended New Matter upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, first-class postage prepaid, addressed as follows: Richard R. Gan, Esquire Gan Law Group 64 South Pitt Street Carlisle, PA 17013 Attorney for Plaintiff, Duane M. Donison Dated: Respectfully Submitted: K'(?' B. LACK, ESQ Attorn. No. 36818 PAT A HAAS CORLL, ESQUIRE Attorney I.D. No: 59238 1017 Mumma Road, Suite 100 Wormleysburg, PA 17043 (717) 909-5170 Attorney for Defendant, HCR ManorCare - I r.? ;- 4 COURT OF COMMON PLEAS OF CUMBERLAND COUNTY DUANE DONISON, Plaintiff File : 05-5626 V HCR MANORCARE, CIVIL ACTION-LAW JURY TRIAL DEMANDED Defendant ANSWER TO AMENDED NEW MATTER PURSUANT TO PA RCP 1030 And now this 12th day of June 2008, comes Plaintiff Duane M. Donison, by his attorneys, Gan Law Group, and for his answer to Amended New Matter states as follows 39. Paragraph 39 requires no response as it is purportedly identical to Defendants answer to Complaint previously filed in this matter. To the extent and answer is required, Plaintiff restates paragraphs l through 39 as if reproduced in full. 40 In response to paragraph 40, Plaintiff denies this allegation as it is untrue as plead. 41. In response to paragraph 41, Plaintiff denies is allegation as it is untrue as plead. In fact, Defendant is directly responsible for Plaintiffs losses. 42. In response to paragraph 42, Plaintiff denies the same as this allegation is untrue as plead. 43. In response to paragraph 43, Plaintiff denies the same as this allegation is untrue as plead. 44. In response to paragraph 44, Plaintiff denies the same as this allegation is untrue as plead. 45. In response to paragraph 45, Plaintiff denies the same as this allegation is untrue as plead. 46. In response to paragraph 46, Plaintiff denies the same as this allegation is untrue as plead. Plaintiff further states that Defendant is exclusively responsible for the injuries sustained by Plaintiff. 47. In response to paragraph 47, Plaintiff denies this allegation as it is untrue as plead. 48. In response to paragraph 48, Plaintiff denies this allegation as it is untrue as plead. All applicable information regarding each and every insurance carrier that provided coverage for Mira Donison was conveyed to Defendant at or near her time of admission. Plaintiff states that he did everything, as required under the contract of admission. 49. In response to paragraph 49, Plaintiff denies this allegation as it is untrue as plead. 1W 50. In response to paragraph 50, Plaintiff denies the same as this allegation is untrue as plead. Defendant denied they were Tri-Care providers. 51. In response to paragraph 51, Plaintiff denies the same as this allegation is untrue as plead. 52. In response to paragraph 52, Plaintiff knew that certain billings had not been submitted but had no reason as to why. 53. In response to paragraph 53, Plaintiff denies the same as this allegation is untrue as plead. 54. In response to paragraph 54, Plaintiff denies the same as it is untrue as plead. 55. In response to paragraph 55, Plaintiff denies the same as it is untrue as plead. 56. In response to paragraph 56, Plaintiff denies the same as it is untrue as plead. Plaintiff further states Defendants alleged new allegations are simply a reiteration of previously submitted preliminary objections filed with this court, which were denied. Further, Plaintiffs amended complaint is accurate both legally and factually and Defendant has shown no good cause for dismissal or modification. Defendant's new matter represents the standard and typical Potpourri of Defenses, all of which are unsubstantiated legally and factually. WHEREFORE, PLAINTIFF respectfully asks this honorable court to dismiss all allegations and potential defenses raised in this new matter; sustain Plaintiffs Amended complaint in its entirety and award costs and attorneys fees to Plaintiff, so wrongfully incurred. Respectfully submitted, an Dated Gan Law Group 64 South Pitt Street Carlisle, Pa 17013 ID 68721 717-241-4300 C:l C.• m ? - k ? I B. CRAIG BLACK, ESQUIRE Attorney I.D. No. 36818 PATRICIA HAAS CORLL, ESQUIRE Attorney I.D. No. 59238 1017 Mumma Road, Suite 100 Wormleysburg, PA 17043 (717) 909-5170 Attorneys for Defendant, HCR ManorCare DUANE M. DONISON, Plaintiff V. HCR MANORCARE, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-5626 CIVIL ACTION -LAW JURY TRIAL DEMANDED ENTRY OF APPEARANCE Kindly enter the appearance of John R. Canavan, Esquire of the Chartwell Law Offices, LLP, on behalf of Defendant HCR ManorCare in the above-captioned matter in addition to that of B. Craig Black, Esquire and Patricia Haas Corll, Esquire of the Chartwell Law Offices, LLP, who have previously entered their appearance on behalf of Defendant. Respectfully submitted, THE CHAR Dated: g OFFICES, LLP JO . CAANAVAN, ESQUIRE Atto y I.D. No. 84728 1017 tumma Road, Suite 100 Wormleysburg, PA 17043 (717) 909-5170 Attorneys for Defendant HCR ManorCare CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing Entry of Appearance upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, first-class postage prepaid, addressed as follows: Richard R. Gan, Esquire Gan Law Group 64 South Pitt Street Carlisle, PA 17013 Attorney for Plaintiff, Duane M. Donison Dated: ?Lo 0 t Wormleysburg, PA 17043 (717) 909-5170 Attorney for Defendant HCR ManorCare tV CZ- Fz m -um A O CSJ --4WW PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) CAPTION OF CASE (entire caption must be stated in full) DUANE M. DONISON, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA VS. HCR MANORCARE, CIVIL ACTION - LAW Defendant JURY TRIAL DEMANDED No. 05-5626 Term 1. State matter to be argued (i.e. plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Defendant's Motion for Summary Judament 2. Identify all counsel who will argue cases: (a) for plaintiffs: Richard R. Gan Esquire 64 South Pitt Street Carlisle PA 17013 (Name and Address) (b) for defendants: B. Craig Black Esquire. 1017 Mumma Rd Suite 100, Wormlevsburq PA 17042 (Name and Address) John R. Canavan Esquire 1017 Mumma Rd Suite 100, Wormlevsburq PA 17042 I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: October 22, 2008 Date: it z 0 k Signature ' B N? .,4 A]A I /j Print you name btRn?bRT 4CK MAtJ6XCAa.& Attorney for INSTRUCTIONS: 1. Two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs much be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. C C .x - co cT as• cT) r .? ! C ?f . z c? ? r ?Fn O co "` B. CRAIG BLACK, ESQUIRE Attorney I.D. No. 36818 PATRICIA HAAS CORLL, ESQUIRE Attorney I.D. No. 59238 1017 Mumma Road, Suite 100 Wormleysburg, PA 17043 (717) 909-5170 Attorneys for Defendant, HCR ManorCare DUANE M. DONISON, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. HCR MANORCARE, Defendant : NO. 05-5626 CIVIL ACTION -LAW JURY TRIAL DEMANDED PREVIOUS ISSUES ASSIGNED TO THE HONORABLE J. WESLEY OLER, JR. MOTION FOR SUMMARY JUDGMENT OF DEFENDANT HCR MANORCARE Defendant HCR ManorCare ("Defendant" or "ManorCare") by and through its attorneys, B. Craig Black, Esquire, Patricia Haas Corll, Esquire, and the Chartwell Law Offices, LLP, hereby moves this Honorable Court for summary judgment on all claims asserted by Plaintiff in the above-captioned matter. In support hereof, ManorCare states the following: This (non-medical or nursing care liability) case arises out of a dispute regarding financial arrangements that Plaintiff Duane M. Donison ("Plaintiff') made in order to ensure payment for fees that his late wife, Mira, incurred while she was a resident of Defendant's nursing home in Camp Hill, Pennsylvania. 2. Plaintiffs Amended Complaint includes claims for negligence and "detrimental reliance"/breach of contract and alleges that as a result of ManorCare's failure to properly coordinate the insurance benefits available to Mrs. Donison, he unnecessarily disposed of $29,962.81 in assets and incurred a $2,600.00 tax liability, in order to qualify his wife for Medical Assistance (Medicaid) coverage to help pay for her stay at ManorCare. Factual Background 3. On or about February 9, 2001, Plaintiff met with representatives of ManorCare to make arrangements for his wife to reside at the ManorCare facility in Camp Hill, Pennsylvania following surgery to have her left hip removed. During the meeting he filled out an Admission Agreement on behalf of his wife and gave ManorCare her insurance cards (at that time Mrs. Donison had coverage under Blue Cross/Blue Shield and TriCare, as the spouse of retired military). 4. Upon information and belief, shortly after the February 9, 2001 meeting, Mrs. Donison was admitted to ManorCare as a resident. 5. On or about February 15, 2001, Plaintiff alleges he met with a representative of ManorCare's admissions office who, with his input, completed the Admission Notice Packet, which listed all financial resources available to Plaintiff and his wife. Thereafter, the Admissions Notice Packet was forwarded to the Cumberland County Assistance Office by ManorCare. 6. Based on an assistance eligibility letter received from Lynne Gordon of the Department of Public Welfare ("DPW'), Plaintiff alleges that he cashed in $29,962.81 in savings bonds, and incurred a $2,600 tax liability as a result, to qualify Mrs. Donison for assistance. 7. On March 13, 2001, Plaintiff met in person with Gordon and completed the application for assistance. When Mrs. Donison's Blue Cross/Blue Shield coverage expired on March 24, 2001, she was approved for Nursing Home Medical Assistance under Medicaid. 2 8. Shortly after his wife was admitted to ManorCare, Plaintiff learned that ManorCare was not submitting his wife's bills to TriCare, and he alleges it was this original failure to properly bill TriCare, as the proper primary insurer, that caused him to needlessly spend down his assets to qualify for assistance. A true and correct copy of correspondence from Plaintiff dated April 30, 2003 is attached hereto as Exhibit "A," see p. 2, 14. 9. On or about June 26, 2001, Plaintiff met with a Staff Assistant for Pennsylvania State Senator Jeffrey Piccola to discuss his complaint that no one performed a coordination of benefits for the insurance available to Mrs. Donison, the failure of which he alleges caused the unnecessary spending down of $29,962.81 and placed additional stress on his wife. A true and correct copy of an undated letter from Plaintiff is attached hereto as Exhibit "B," see p. 1, ¶ 2 and p. 3, ¶¶ 1 - 4; see also, Exhibit "A," p. 2, 15. 10. On or about July 17, 2001, Plaintiff again met with Lynne Gordon from DPW about the coordination of benefits issue and Gordon informed him that the sole reason Plaintiff had to spend down his assets was ManorCare's failure to properly submit its bills to TriCare. A true and correct copy of Plaintiff's deposition transcript is attached hereto as Exhibit "C," see p. 67, line 9 to p. 68, line 25. Procedural History 11. Plaintiff initiated this lawsuit by filing a Writ of Summons against ManorCare on October 31, 2005. 12. After ManorCare's Preliminary Objections were partially granted, Plaintiff filed an Amended Complaint on or about October 16, 2006. 13. Plaintiff's Amended Complaint contains claims for: (1) negligence, alleging that ManorCare failed to properly instruct him on billing issues and failed to pursue primary payment through TriCare and (2) a claim entitled "Detrimental Reliance," which Plaintiff has defined as a contract claim, alleging that ManorCare breached the contractual duties owed to him by giving him advice that led him to unnecessarily dispose of $29,962.81 in assets and incur a $2,600 tax liability. 14. ManorCare filed an Answer with New Matter on or about November 7, 2006 and on May 14, 2008, the Honorable J. Wesley Oler, Jr., entered an Order granting ManorCare's Motion for Leave to Amend its New Matter to include the applicable statute of limitations as affirmative defenses to Plaintiff's claims. Shortly thereafter, ManorCare filed its Amended New Matter to Plaintiff's Amended Complaint which included the statute of limitations defenses. Motion for Summary Judgment 15. Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits demonstrate that there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ducjai v. Dennis, 656 A.2d 102 (Pa. 1995). 16. It is appropriate for the court to adjudicate a statute of limitations defense on a motion for summary judgment. A. McD. V. Rosen, 621 A.2d 128,130 (Pa.Super. 1993). 17. There exists no genuine issue of material fact in this matter and ManorCare is entitled to summary judgment on the negligence and breach of contract claims as a matter of law. 18. The undisputed facts and legal authority in support of ManorCare's Motion for Summary Judgment are more fully set forth in ManorCare's concurrently filed Memorandum of Law, which is incorporated herein by reference. 4 Negligence Claim 19. The statute of limitations for any action to "recover damages for injury to person or property which is founded on negligent, intentional, or otherwise tortious conduct or any other action or proceeding sounding in trespass, including deceit or fraud" is two years. 42 Pa.C.S. § 5524(7). 20. The statute of limitations begins to run at the time of the alleged breach of duty. Pocono Int'l Raceway, Inc. v. Pocono Produce. Inc., 468 A.2d 468 (Pa. 1983). 21. The discovery rule does not apply if the plaintiff can reasonably discover the injury within the prescribed statutory period. Baumaart v. Keene Building Products Corp., 666 A.2d 238 (Pa. 1995). 22. Here, Plaintiff had all the information he needed regarding (1) the damages he alleges to have sustained and (2) ManorCare, as the alleged cause thereof, by July 17, 2001, which is well within the "prescribed statutory period." 23. The statute of limitations began to run in this case at the time of the alleged breach of duty, which was when Plaintiff spent down his assets, on or before March 13, 2001. 24. Plaintiff s negligence claim is barred because he did not assert it until he filed a Writ of Summons on October 31, 2005, which was approximately two and a half (2 %i) years after the statute of limitations expired on or before March 13, 2003. 25. Plaintiff may argue that his damages, and ManorCare's alleged role in causing them, were not readily ascertainable and, therefore, the discovery rule should toll the statute of limitations. 26. The discovery rule, however, tolls the statute of limitations "until the point where the complaining party knows or reasonably should know that he has been injured and that his injury has been caused by another party's conduct." Crouse v. Cyclops Indus., 745 A.2d 606, 611 (Pa. 2000). 27. When the facts are so clear that reasonable minds cannot differ, as they are in this case, determining whether Plaintiff became aware of his injury in a reasonable time can be decided as a matter of law. See Murphy v. Saavedra, 746 A.2d 92, 94 (Pa. 2000). 28. Here, prior to July 17, 2001, Plaintiff admits that he learned that ManorCare was not properly processing its claims through TriCare and that he was only required to spend down his assets because ManorCare was billing Medicaid instead of TriCare and he took this information to Senator Piccola's office to discuss the ManorCare billing issues. 29. Finally, assuming, for the sake of argument only, that Plaintiff did not possess the necessary information beforehand, on July 17, 2001, DPW's Lynne Gordon told Plaintiff that ManorCare was to blame for Plaintiff unnecessarily having to spend down his assets. 30. Under Plaintiff's theory of the case, his right to institute a lawsuit arose once he spent down his assets and incurred the tax liability in March 2001. However, even under the most generous reading of what is "reasonable" under the discovery rule, Plaintiff certainly possessed "sufficient critical facts" that a wrong may have been committed as of July 17, 2001 and had complete knowledge of the wrongs he would later detail in his Amended Complaint, as well as the identity of the party allegedly responsible for them, ManorCare. 31. At the absolute latest, the two year statute of limitations for Plaintiff s negligence claim began to run on July 17, 2001. 32. Plaintiff did not file his Writ of Summons against ManorCare until October 31, 2005, over two (2) years after the statute of limitations barred this claim, assuming the discovery applies (the propriety of same being denied by ManorCare). 6 33. Plaintiff can offer no rationale for tolling the commencement of the statute of limitations beyond July 17, 2001. WHEREFORE, Defendant HCR ManorCare respectfully requests that this Honorable Court enter an Order in the proposed form granting its Motion for Summary Judgment and dismissing Plaintiff s negligence claim with prejudice. Detrimental Reliance/Breach of Contract 34. The statute of limitations for any action based on a contract, oral or written, is four years. 42 Pa.C.S. § 5525. 35. The Amended Complaint alleges that ManorCare breached its agreement with Plaintiff by giving improper and/or incorrect advice which caused Plaintiff to unnecessarily spend down $29,962.81 in assets and incur a tax payment of $2,600. However, just as with his negligence claim, as of July 17, 2001, at the latest, Plaintiff was aware that his spending down of assets may have been unnecessary and only had to be done because ManorCare allegedly failed to properly bill TriCare. 36. As with the negligence claim, there should be no tolling of the statute of limitations and it should have commenced when Plaintiff sustained his injuries from the alleged breach, which occurred when he spent down his assets on or before March 13, 2001. 37. At the absolute latest, the four year statute of limitations for Plaintiff s breach of contract claim began to run on July 17, 2001. 38. Whether or not the discoveryrule applies, Plaintiff did not file his Writ of Summons against ManorCare until October 31, 2005, which was over three (3) months after the statute of limitations barred this claim, on or before July 17, 2005, under any reasonable application of the discovery rule. 7 39. Plaintiff can offer no rationale for tolling the commencement of the statute of limitations beyond July 17, 2001. WHEREFORE, Defendant HCR ManorCare respectfully requests that this Honorable Court enter an Order in the proposed form granting its Motion for Summary Judgment and dismissing Plaintiffs detrimental reliance/breach of contract claim with prejudice. Respectfully submitted, Dated: 9 0 g Attorney I.D. No: 59238 1017 Mumma Road, Suite 100 Wormleysburg, PA 17043 (717) 909-5170 Attorney for Defendant, HCR ManorCare THE CHARTWELL L OFFICES LLP B. C B ACK, ESQUIRE Attorn I.D. No. 36818 PATRI IA HAAS CORLL, ESQUIRE 8 I CS M (Rd.) Dapne AL Donison 118 Lilac Drive - Sherwood Park, Alberta Canada T8H I WI (780) 464 - 7076 E-mail: d donison@shaw.ca April 30, 2003 The Honomble Tlm Holden Member of Congress SRBC Office Building 1721 N. Front Street, Suite 105 Harrisburg, PA USA 17102 - 2391 Office of Inspector Gene Attention: Mdse Fisher 333 Market Street, 9& Floc Harrisburg, PA U.S.A. 17 Pennsylvania Departmen Executive Office Attention: Robert P. Casey 229 Finance Building Harrisburg, PA, U.S.A. 17120 ?7- F MAY 1 3 2 RECEIVED MAY 15 2003 0IOrOf ?w Dear Congressman Holden, Mr. Fisher and Mr. Casey: I retired from the United States Army as a Command Sergeant Major after 25 years of active duty service. I am lodging a complaint against HCR Manor Care, 1700 Market Street, Camp Hill, PA 17011(717) 737-8551, because of the following situations that have occurred when my wife, Mira, was admitted on February 10, 2001 until her death on March 30, ,2003. Prior to entering the nursing home, Mira had been in the hospital from November 26, 2000 to December 13, 2000 and from December 14, 2000 to February 9, 2001, she was at Healthsouth Renova Center which is a Rehabilitation Facility. On February 9, 2001, I filled out a Nursing Home. Application For Residency and was given a Department of Public Welfare Admissions Notice Packet At that time copies of my wife's insurance cards were made and given to HCR Manor Care (Medicare Part A & B, Capital Blue Cross which was formerly called Blue Cross/Blue Shield, her Military I.D. card for coverage under Tricare which also covers prescriptions, and Delta Dental). Mira was classified as dual- ?Q? 1HS ?fv MAN0877 eligible under Tricam and was enrolled in Medicare Part B. On Her Medicare Card is the following information Hospital Insurance (Part A) and Medical Insurance (Part B) both were effective since 2-1-78. On February 15,200 1, 1 met with Monica Shuleva of HCR Manor Care Admissions Office who completed the Admission Notice Packet listing all resources with back up documentation. Monica Shuleva forwarded the packet to the Cumberland County Assistance Office in Carlisle, PA. On March 2, 2001, I received a letter dated February 28, 2001 from Lynne Gordon of Department of Public Welfare, Cumberland County Assistance Office in Carlisle, PA (1-800- 269-0173) informing me that I would have to down spend $29,962. 81 (Eaclosure 1) to be eligible for Medicaid I was to complete the Application for Nursing Home Assistance once our total assets had been down sped On March 13,200 1, I met with Lynne Gordon with the Application completed along with documentation of the down spend. On March 24, 2001, Mira, was approved for Nursing Home Medical Assistance (Medicaid). On April 2, 2001, I mailed check # 1141 (Enclosure 2) to the United States Treasury for $2,600.00 for estimated tax for 2001. This was for the tax on the interest of $13,513.09 when I cashed in our savings bonds. I found out later on my own I could have included, the $2,600.00 in my down spend I had not been advised of this. After Mira was living at HCR Manor Care for a few months, I decided to check with Tricare to make sure the claims were being submitted and processed and that no problems were occurring. Tricare informed me that it had not received any claims and the Nursing Home should follow the correct procedures for Coordination of Benefits. The Coordination of Benefits is a process governing the payment of claims when a person has other health insurance in addition to Tricare. After talking to Tricare I ascertained that no claims were being submitted I consulted the Tricare Manual and learned that Tricare should be paying for the claims from the Nursing Home and that we had not needed to go through the down spend process (to be eligible for Medicaid). At this time I felt it had been very unfair that we had to down spend as it affected my wife and I. I requested a face to face hearing with my case worker, Lynne Gordon, because of the circumstances of misinformation and Coordination of Benefits being skipped (Enclosure 3) On June 26, 2001, I met with Nancy Japak who is Staff Assistant for Senator Jeffrey Piccola. I gave her the same packet (Enclosure 3). At the time that I wrote the Attachment to the Notice to Applicant for a Hearing dated June 26,2001 (refer to Enclosure 3). I was of the belief that Teresa M. Cmjar--Pully, , the manager for the business office at the Nursing Home, had sent in the claims to Tricare. I later found out that she had lied and that no paperwork had been submitted to Tricare. She later was let go. On this basis I now refute certain statements I made in that attachment. On July 17, 2001, I had a conference with my case worker, Lynne Gordon, about the 2 MAN0878 Coordination of Benefits and that we should never have gone through the down spend process. Lynne Gordon said the Nursing Home was at fault I requested my appeal to be forwwded to the Bureau of Hearing and Appeals. On August 20, 2001, I had a hearing with the Welfare Hearing Officer, Robert S. Rosen (717) 783 - 3950. Also present at the hearing was my case worker, Lynne Gordon and her Nursing Home Unit Supervisor, Melanie Cohid L I discussed the Coordination of Benefits (Medicare Part A and Part B, Capital Blue Cross, Tricare (which wasn't used) and Medicaid. Mira, exhausted her 100 days coverage under Medicare Part A on March 24, 2001. The Nursing Home had from the time of her admission February 10, 2001 until March 24, 2001 to forward the billing to Tricare. I had previously provided Teresa M. Crnjar- Puily with copies of Mire's Medicare Summary Notices, Tricare Handbook, Decision Guide to Tricare Benefits, Sierra Military Health Services Precertification Referral Form, information on how to apply to be a provider for Tricare and a letter from Mira's Orthopedic Surgeon, Dr. Ronald W. Lippe, M.D. I also explained the catastrophic cost "cap" (refer to Enclosure 4 for explanation on Tricare, catastrophic cap and deductible). With reference to the information in the Memo (Enclosure 6) to Lyme Gordon dated July 18, 2001, which was given to me at the hearing and the letter to Senator Picoola dated July 31, 2001, which I showed to the Welfare Hearing Officer, Ronald S. Rosen, which was mailed to me for my information (Enclosure 6) from Department of Public Welfare, both letters are incorrect. Melanie Cohick also informed the Welfare Hearing Officer, Robert S. Rosen, that they updated their system in July 2001 to reflect the change in name from Champus to Tricare (Enclosure S). I informed those present at the hearing that in 1998 the name had been changed. No comments were made. I was directed to pay the patient resource of $808.85 effective April 1, 2001 regardless of whether the Coordination of Benefits was done or not and not to pay the Cost Share towards the Catastrophic Cap since I had already down spent. Mr. Rosen stated that I had grounds for a law suit against the Nursing Home. I should have been informed and advised by Monica Shuleva that since Mira also had Tricare coverage it would be to my benefit to request that a Resource Assessment be completed now as I might have to apply at a later date for Medicaid I wasn't given that opportunity until I found out later on my own. The Department of Public Welfare, Cumberland County Assistance Office in Carlisle, PA processed the Application believing that Medicaid was required. The fault was with HCR Manor Care and no one else. The process of Coordination of Benefits was not followed by the Nursing Home. This is a prime example of not knowing their job and therefore not providing the correct advice. While my wife was alive and in the Nursing Home, Mira did not want me to complain to the authorities about the problems we were having with the Nursing Home as she felt intimidated by possible retribution that the Nursing Home might cause to her while she was living there. I now would like to get, with your assistance, these problems resolved. On August 21, 2001, I wrote check No 124 to HCR Manor Care from my wife's account for $4,044.25 (Enclosure 7). The patient payments from her Social Security was $808.85 per month for April through August 2001. 3 MAN0879 On August 21, 2001, I met with Lynne Gordon and showed her proof that I had paid the Nursing Home for April 2001 to August 2001 and that Mim's resources limit was below $2,400.00. I withdrew my request for a hearing and I reserved the right to have a re-consideration on the Coordination of Benefits. I continued payments as follows: Check N o. Do 125 17 Sept./01 $808.85 126 6 Oct./O 1 $808.85 127 17 Nov.101 $808.85 128 10 Dec./01 $808.85 129 9 Jan./02 $808.85 130 8 FebJO2 $824.55 Total including check No. 124: $8,913.05 (Enclosure 8) I kept asking Teresa M. Crnjar--Fully if the claims had been sent to Tricare. She advised that they had been billed I called Tricare and was informed that no claims had been received I reported this to the Administrator of the Nursing Home, Susan E. Metrzyk. I don't know what happened. Teresa M. Crnjar--Pully was let go and Iris Melendz was appointed the new business office manager effective November 5, 2001. I talked to Iris Melendz about my situation. No Medicare Summary Notices or copies of Mira's military ID card were found in my wife's file nor Dr. Lippe's letter. This meant I had to start all over again. On January 22, 2002, I provided copies of the Medicare Summary Notices, copies of the Medicare card, Capital Blue Cross card, Military I.D. card, Delta Dental card, Tricare Handbook, Decision (wide to Tricare Benefits, letter from Mira's Orthopedic Surgeon, Ronald W. Lippe, M.D., information on how to apply to be a provider for Tricare and Sierra Military Health Services Precertific ation Referral Form. After much work HCR Manor Care became an approved Tricare provider effective March 1, 2001. Iris Melendz submitted the claims to Tricare for the period March 24, 2001 to December 31, 2001 with the necessary documentation required Sometime in March 2002, HCR Manor Care received statements of Tricare Explanation of Benefits (EOB) and check(s) (Enclosure 9 for fiscal year 2000 paid $31,738.76 and Enclosure 10 for fiscal year 2001 paid $16,503.80) for the amount of $48,242.56. HCR Manor Care paid the Welfare Office back and also I received a check for $7,974.22 (Enclosure 11) for patient payment for April 2001 to December 2001. I informed Iris Melendz and Susan E. Metrzyk that I was overpaid by $694.57. Susan Metrzyk thanked me and told me they still owed me for January 2002, ($808.85) and February 2002 ($824.55) for a total of $1,633.40. HCR Manor Care will deduct the overpayment of $694.57 from 51,633.40 and give me a check for $938.83 when they receive payment for January 2002 and February 2002. As of this date I have not received the $938.83 they owe me. I also informed Lynne Gordon that HCR Manor Care received payment for March 24, 2001 to December 31, 2001. HCR Manor Care is going to refund the Welfare Office back and also the MAN0880 amount owed to me and that Iris Melendz told me not to pay from Mira's account the patient pay for March, 2002 and onward I requested to leave my case open with Medicaid until I was satisfied that HCR Manor Care understood Tricare and the Coordination of Benefits and submitted the claims correctly and in a timely manner. Before my departure to Canada I met with the following people from HCR Manor Care on August 26, 2002 in reference to the care of Mira. Present at the meeting were: Dan W. Deitzel, III - the new Administrator, Iris Melauk Business Office Manager, Barbara Smith, RN, Director of NumW, Nancy Bruno-Cohen - Human Resources Manager (Mira's "Guardian Angel") and Laura Gabriel, Regional Can Manager. We discussed the following. Mira's skilled nursing care and private room; Orthopedic Surgeon, Ronald W. Lippe, MD. (717) 761- 5530) for any questions and updated letter for Tricare; Coordination of Benefits in order: Medicare Part A & B, Capital Blue Cross, Tricare and that Medicaid should not be used, Delta Dental and Tricare prescription. We discussed her appointments with dentist and various doctors. They had previously been provided with copies of the following cards: Medicare, Capital Blue Cross, updated Military I.D. card for Tricare pertaining to her appointments, hospitalization and prescriptions; and Delta Dental card Also discussed were medical bills; instructions that Mira would not sign any documents, to contact me for signature as I was her Legal Representative. I also requested that if Mira needed her skilled nursing care extended to please contact me and Dr. Lippe for an updated letter for Tricare. I needed to know this so that I could contact Tricare about the specified requirements and how to enroll into the Individual Case Management program. During the meeting someone assured me that they would take care of getting her skilled nursing care extended and would get the updated letter from Dr. Lippe. They did not contact me. I recommend that your office obtain the Tricare Handbook. I refer you to the section on "Individual Case Management- where it states that `prhe Individual Case went benefit allows Tricare eligible persons who have extraordinary medical or psychological disorders to receive health care benefits that would normally be limited - or not covered at all. Individual case management is intended to address the complex health care needs of catastrophically ill or injured persons ........... "Waivers of normal benefit limits or exclusions under individual case management will be approved and coordinated by case managers, and must be cost-effective and appropriate. The waivers may include - but are not limited to - services or supplies such as some health care, medical supplies, back-up durable medical equipment, extended skilled nursing care, and home health aides". Please refer to Dr. Lippe's six letters in Enclosure 12 about her severe crippling Rheumatoid Arthritis. (HCR Manor Care has all six of Dr. Lippe's letters on file). Everyone at the meeting was in agreement that my wife would be taken care of and I would be contacted On October 13, 2002, I moved to Sherwood Park, Alberta Canada Mira was fine and doing well. HCR Manor Care assured me they would look after her and keep me informed However, this was not the case. I called Tricam. The last bill processed was on December 31, 2001. I called HCR Manor Care and spoke to Bonnie Campbell from the billing office. I asked her what was happening about billing Tricare. She told me not to worry as she had everything under control and was just waiting on Mira's Medicare Summary Notices from Medicare so they could submit 5 MAN0881 the claims to Tricare. I told her Tricare can deny the claims for lateness after one year and that they must request from Medicare a Remitt = Notice(s) and not the Medicare Summary Notices for billing claims. No claims have been submitted since January 2002. I recommended HCR Manor Care, as a provider, to request the Tricare Reimbursement Book. I told her to keep me informed of the situation This had not been done. In 2003, Mira was hospitalized twice: January 29 to February 11 for 13 days and February 17 to February 27 for10 days. HCR Manor Care informed me when she was hospitalized and when she was admitted back to the Nursing Home. On February 20, 2003, I received a call from Patricia (Pat) M. McIntyre, Social Worker for HCR Manor Care and I was told that when Mira returned from the hospital, this time, she would be moved from her private room on the 3'a floor to a semi private room on the 2id floor (which is a Medicare floor). I questioned this. Mira's condition required her to be in a private room with skilled nursing ( refer to Endosum # 12 Dr. Lippe's letters). Patricia (Pat) M. McIntyre did not know the reason why she was to be moved. I asked to speak with the Administrator Dan Deitzel, III. Dan Deitzel called me on February 21, 2003. I questioned him about the proposed move. He couldn't give a reason. He informed me that he was trying to have all floors in the Nursing Home Medicare approved. I informed him that Mira must be isolated from the other patients due to her compromised immune system and that she required skilled nursing for the rest of her life in accordance with Dr. Lippe's letters. Dan Deitzel advised he would call me back. On February 27, 2003, I talked to Mira after she returned back to the Nursing Home from the hospital. She told me that HCR Manor Care was trying to get her to sign some papers. I advised her not to sip any papers and to have them call me. On February 28, 2003, Dan Deitzel called and I informed him there was no private room on the 2id floor and asked him if he would call Medicare about any exception and what were the consequences if an insurance is waived and I asked him whether other insurers would pay. Dan Deitzel said he would get the information and call me back I don't know why they wanted to move Mira. As far as I'm concerned she gill needed Skilled Nursing, she jkU was covered by Tricare, and it did not make sense to me to have her moved. On March S, 2003, Dan Deitzel called and informed me that Mira would remain in her room. He said he would visit her to tell her personally. Mira told me he had not visited her. I questioned Dan Deitzel whether he had talked to Medicare. He said he had not. He had not at any time advised me that any paper work needed to be signed or the reason it needed to be signed for her to be moved, therefore I didn't bring it up as he told me she was going to stay in her private room. I asked him for the name of the Ombudsman. I asked Dan Deitzel whether he had spoken to Dr. Lippe or Tricare. He said he had not. I asked him who the head manager was at HCR Manor Care head office. I also told him that I would be the one signing any documents, etc, and that Denise from Admissions or anyone else was not to pressure Mira to sign anything as she was not well and that I was her Legal Representative and I would sign any documents if I approved of them. I asked him to send me full names, titles, telephone numbers and fax numbers of the Ombudsman and HCR Manor Care's head office and the paper work that they had wanted Mira to sign with 6 MAN0882 explanation why they needed it signed To this day I have not received this information. Regarding the billing, I informed Dan Deitzel that in the past when Mira had been Hospitalized and returned to the Nursing Home, Susan B. Mitrzyk, the previous Administrator, had carried out a "Split Billing" and Dan Deitml informed me he understood the process. I had trusted that HCR Manor Caro understood the Coordination of Benefits. The billing office kept telling me that they were waiting for Mim's Medicare Summary Notices from Medicare so they could bill Tricare. I was only billed for Mire's cable, Beauty and Barber. On March 20, 2003, Patricia (Pat) M. McIntyre, left a message that an Aide was rough with Mira. Mira reported the Aide. The Aide was sent home until the investigation was completed. I called Mira regarding this. Mira said two Aides had taken her to the bathroom. One was nice to her and the other rough and pushed her down on the toilet seat and hurt her back and left side where her left hip used to be (her left hip was surgically removed on December S, 2000 by Doctor Lippe). Mira said when she was getting her hair done she was crying. Joyce, her hair dresser took her to see Patricia (Pat) M. McIntyre and Jen Stever who works in payroll and who was now Mire's "Guardian Angel", about the incident. Mira informed me that x-rays were taken from head to toe, front and back. I was not told the results of the x-rays. On.Sunday, March 30, 2003, early in the morning. I received a call from my niece, Donna Carricato that Mira had passed away. I never received a call from HCR Manor Can. On April 1, 2003, I flew back to Harrisburg, PA. The funeral was April 2, 2003. On April 2, 2003, I called Lynne Gordon informing her that my wife passed away on March 30, 2003 and asked if HCR Manor Care had notified her. She advised that they had not. Mire's mail was being forwarded to her sister's house. There was a letter from Nancy Bachman of Neighbor Care dated March 19, 2003, that Mira had applied for Medical Assistance with a pending date of 2-27-03. That is that same date Mira was released from the hospital back to HCR Manor Care. Attached to the letter was an Unbilled Charges Report, dated March 18, 2003 from HCR Manor Care for $853.32. On April 3, 2003, I called the undersigned Nancy Bachman about this. I told her that Mira was approved for Medicaid on March 24, 2001 and was now covered under Tricare. She advised she would look into the matter (Enclosure 13). On April 4, 2003, I met with Dan Deitzel and Bonnie Campbell. I told them that I was disappointed with HCR Manor Care that no one called me to tell me Mira had passed away. Dan Deitzel said the Doctor was to call me. I advised him that no one had called me other than my niece. I have not received bills for Mira's cable, Beauty/Barber for February 2003. Bonnie Campbell gave me a print out for February and March 2003. The printout was for $110.00. I questioned them on this printout as to why it was listed as Medicaid I told them she was still covered under Tricare and I wanted a new bill sent to me reflecting the correctrtion. (Enclosure 14). Dan Deitzel said once Tricare pays, then HCR Manor Care will pay Medicaid back. I was also given a printout for Mire's physical therapy, etc. I also questioned them as to why it was 7 MAN0883 listed as Medicaid They gave me no reply. I have since had a chance to look at the Statements and note that there is $74.90 difference between the balances listed on December 1, 2002 ($224.63), and January 1, 2003 ($224.63), and the beginning balance on the March 1, 2003, Statement ($299.53). The bills in question should be billed to Medicare and Capital Blue Cross (Enclosure 15). I know that the charges after the beginning balance on the Statement for March 1, 2003 pertains to physical therapy charges but I do not know what the charges are for on the other two Statements nor the reason for the $74.90 difference. No invoices or printouts have been provided to me for these. I then asked who had applied for Mira for Medical Assistance and showed them the letter from Neighbor Care with unbilled charges (Refer to Enclosure 13). I told Dan Deitzel I had already down spent and Mira had been approved for Nursing Home Medial Assistance effective March 24, 2001. As Mira was covered under Medicare, Capital Blue Cross, Tricare; Medicaid would not even have kicked in. No comments were made. I showed both of them the bill from Pinnacle Health Hospital and told them I had Mira's insurance corrected - listing Tricare as the 3'd payee (Enclosure 16). I inquired as to the fact that when Mira was admitted to the hospital, Tricare had been missed as one of the insurers. No comments were offered I inquired about the Aide who had been rough with Mira. Dan Deitzel said she had been disciplined and was back at work. The only positive thing that he said to me was, "Thank you for helping with Tricare". Dan Deitzel left the meeting. I called Tricare for Bonnie Campbell and spoke with Brenda Washington about the billing. She informed me January 2002, February 2002 and March 2002 were being processed. Bonnie Campbell also spoke with her. On April 7, 2003, I met with Lyme Gordon and told her that HCR Manor Care was late in billing Tricare again and that January, 2002, February, 2002, and March, 2002 were being processed.. She gave me two different letters both dated November 2, 2001. The letter to Monica Shuleva of HCR Manor Care (Enclosure 17) mentions that Tricare will cover the Nursing Home costs after the deductible is met and in the letter to the Third Party Liability (Enclosure 18) they have the deductible as $3,000.00. I informed Lynne Gordon that both of these letters were misleading and incorrect (Refer to Enclosure 4 for explanation on Triune, catastrophic cap and deductible). On April 7, 2003, I met with Cindy Anspoch, of HCR Manor Care Billing Office about billing Tricare. She informed me that HCR Manor Care had been billing Medicaid since August, 2002, since someone in Tricare informed her they will no longer pay for April 2002 and onward (I called Tricare and questioned them on this. I was informed that they did not have anything on file saying that they would no longer pay. I was informed that Tricare had denied a claim because it was incomplete. I was told that Tricare would deny claims for lateness). I told Cindy Anspoch that Tricare would deny the claims because of lateness. She informed me that once Tricare pays HCR Manor Care will pay Medicaid back. I told Cindy Anspoch that Mira required skilled nursing for the rest of her life. She told me she didn't know anything about that. I asked her to give me the reason why they wanted to move Mira from her private room on the 3'd floor to a semi-private room on the 2w floor. She said Mira had refused to sign a waiver and that they indicated that on the document which they would not allow me to see. As previously stated, Dan Deitzel called me on March 5, 2003 and informed me that Mira would remain in her room on the 3w floor. He didn't say anything about Mira refusing to sign the paperwork and had not 8 MAN0884 forwarded anything to me for signature as I was her Legal Representative On April 8, 2003, I called Lynne Gordon that Cindy Anspoch from HCR Manor Can told me that they started billing Medicaid in August 2002, since someone in Tricare said they will no longer pay for April 2002 and onward I told Lynne Gordon that Tricare told me that they will deny the bills because of lateness. Also the last patient payment I paid to the Nursing Home was February 2002 for $824.55 because Tricare was paying the bill and was never informed that they were billing Medicaid and I should start paying patient pay. The personnel from Customer Service with whom I spoke with at Tricare on the Institutional Side are: Cindy Hunter, Supervisor, Janice Little, Brenda Washington and Rosa Smith (1-800-578- 1294 or 1-888-999-5195). Please note that if Coordination of Benefits is done correctly and in a timely manner and Tricare is not skipped, Mira would not have to pay any patient pay. The only thing I would have had to pay would have been the cost share towards the Catastrophic Cap. But if HCR Manor Care billed Medicaid (slipping Tricare) then Mira would have to pay the patient pay of $824.56 per month unnecessarily (refer to Enclosure 4). On April 8, 2003, I called Medicare Part A office in Maryland (1-800-655-1636) and spoke with Niyeka Harris. I asked her if there were any exceptions to the policy regarding moving a patient from non-Medicare floor to approved Medicare floor. I was unsure if that applied to Mira as HCR Manor Care could not tell me why Mira had to be moved. Only the fact that Mira had refused to sign some paperwork. She advised me that HCR Manor Care could wait until a private room (required as per Dr. Lippe's request) became available, or be, moved to a private room at another skilled nursing facility or the patient could waiver Medicare but this item she was unsure of the consequences. Please see note above. I also requested copies of Mira's Medicare Summary Notices for January 2002 to March 2003. On April 13, 2003, my niece Donna Carricato said that Mira had previously complained to her that HCR Manor Care had given her generic prescription for vicodin. Mies could not take that generic medication as it made her vomit. I believe her chart stated that Mira was not to have any generic prescriptions at all. My niece informed me that Mira was not receiving her vitamins. Donna informed me that Mira told her that when she did get sick no one would help her. In my niece's opinion, the Nursing Home's attempt at moving Mira from her room on the 3' floor to a semi-private room on the second floor, giving her generic medications, the Aide treating her roughly led to her earlier death where as if she had not had those stresses she would have lived longer. I have questions as to what happened during the shifts of March 29 to 30, 2003 prior to her death at 5:15 am: • I would like to know her health condition; • I would like to know if her doctor had been called; • who on staff was working; • was the Aide that had been rough with Mira on that floor, 9 MAN0885 • what times had they checked on her prior to her death; • I would like to know if new nurses and aides were made aware of patient's conditions; i.e. how to move them and handle them; • I would like to know why they had given her generic prescriptions;. • I would like to know who discovered Mira had passed away and why I had not been notified by anyone from HCR Manor Care. The Death Certificate was signed by Carole Adams, RN. from HCR Manor Care and that the cause of death was ARRHYTMGA; • I would like to know why I had not been advised by HCR Manor Care to return to see Mira alive before her demise. I am very disappointed that I was not there before she died On April 15, 2003, I returned to Canada. On April 16, 2003, I called Tricare and spoke with Brenda Washington from the Institutional Side about the following claims: January 2002 Processed April 8, 2003 paid provider $6,229.53 February 2002 Processed April 8, 2003 Paid provider $1,485.00 March 2002 Processed April 8 , 2003 paid provider $8.409.76 Total $16,124.29 The check and Explanation of Benefits (EOB) were sent to HCR Manor Care on April 10, 2003. The reason why February 2002 payment was $1,485.00 was because Mira was hospitalized from February 10, 2002 to February 22, 2002 for 12 days. HCR Manor Care billing office should do a split billing for the days that she was in the Nursing Home only. The claim is being reprocessed and HCR Manor Care will probably be receiving a larger sum. I don't think they should be getting a larger sum as Mira was at the Nursing Home for 16 days out of 28 days. The rest of the days she was in the hospital. On April 21, 2003, I received a call from Cindy Anspoch, advising that they had received a check and Explanation of Benefits (EOB) for January, 2002, February 2002, and March 2002 from Tricare. Cindy Anspoch advised she had opened Mira's personal mail from Medicare for the Medicare Summary Notices. I told her that j had requested the Medicare Summary Notices for January 2002 to March 2003 for My information. As previously stated in this letter, HCR Manor Care needs to request a Remittance Notice from Medicare for billing. I had not given anyone at HCR Manor Care written permission to open Mire's mail. Nor had Mira. I enclose an example of HCR Manor Care opening up Mira's mail. (Enclosure 19). On April 4, 2003, Bonnie Campbell had some mail belonging to Mira and she asked me if she could open it. I gave her my permission as I was present when she opened the mail. I told her that after this I wanted all of Mire's mail forwarded to her sister's residence unopened Cindy Anspoch on my request advised she would mail me Mira's Medicare Summary Notices that she had opened and the Explanation of Benefits (EOB). I also asked about the refund for January 2002 and February 2002 of $938.83. She said she didn't lmow as it was up to someone else. On April 8, 2003, I did a change of address with the Post Office forwarding Mire's mail to her 10 MAN0886 sister's address.. Social Security informed me that I could not do a change of address on someone's records once they are deceased. On April 21, 2003, I called Tric are on the Institutional Side and talked with Cindy Hunter, Customer Service Supervisor, and asked if HCR Manor Care had submitted April 2002 claim. She reply that they had On April 29, 2003, I called Tricare and talked to Cynthia Bledsoe from Claims. She reviewed h ira's file for me. One claim in particular was Claim Number 3017X2 K2G which was an electronically submitted claim for a pharmacy bill for $445.30 for the period February 22 - 25, 2002. The claim was submitted by Medicaid. Tric are received the claim on January 17, 2003 and processed it on January 18, 2003 and Tricare has called Medicaid about this. I would like to know why Medicaid is now billing Tricare. She said that Mus's entire record is being reviewed from March 24, 2001, to present. If HCR Manor Care receives denials for lateness or other denials for the April 2002 through March 2003 claims, the fault lies with HCR Manor Care and no one else. I feel that I should not be held responsible for any bills because of HCR Manor Care's mismanagement. I don't think that I should have been the one to do all the legwork for HCR Manor Care so they could be Tricare approved. I got all the necessary information and forms from Tricare and gave it to HCR Manor Care. It took me many, many hours to do all this. After Teresa M. Crnjar--Pully was let go I had to do the legwork all over again for HCR Manor Care as they had misplaced everything. This caused me a lot of anger and stress that I should not have had to go through because it was their job to get Tricare approved and get everything in place for submitting claims to them, and I should not have downspent I volunteered to be placed on the recall list for active duty with the U.S. Army. If I had been recalled, I believe that HCR Manor Cane would = have been Tricare approved or be sending claims to Tricare because I would not have been there to all the work that I did for HCR Manor Care. I feel that they need to be the Subject Matter Experts and not me on all insurances so that they understand the Coordination of Benefits and do not skip any of them and end up going directly to Medicaid after Medicare. I recommend that all Hospitals and Nursing Homes in this state and our nation must be approved for all insurances as this will save the Federal and State medical programs thousands of dollars in instances where the patient has other insurance coverages. This requirement would enforce the Coordination of Benefits to be done, Medicaid would not have to be used and the patient wouldn't have to pay the patient pay. I believe there is nothing wrong with having a resource assessment done for possible future use. I believe that HCR Manor Care should compensate me for the money lost to me in the down spend process: $29,962.81 plus the estimated income tax of $2,600.00 paid on interest when I cashed in my Savings Bonds. I would also lice to be compensated for the $938.83 owed me by 11 MAN0887 t HCR Manor Care for January 2002 and February 2002 for a total of $33,501.64. 1 don't know how to put a price on the stress, anguish and humiliation that Mira and I were put through. I would like to help change the system so that no American Citizen with a loved one will have to go through what my wife and I went through. I hope that coordination between your offices will help solve the problems I have had For additional assistm= your office can contact Tricare Department of Program Integrity at 1- 800-578-1294. If you have any questions please contact me. I would appreciate confirmation of this letter by e- mail. God Bless America, DUANE M. DONISON CSM, USA Retired 19 enclosures as 12 MAN0888 I am a military retiree, not employed, and my wife Mira, is covered under TRICARE as a third insurance. First of all, this is not a WITCH HUNT to fix blame on either Manorcare Nursing Home, Camp Hill or your office in reference to down spending $29,962.81, so that my wife would be eligible for Nursing Home Medical Assistance. Your office did indicate that I already paid $7,352.00 for her burial arrangements, but didn't account for burial spaces for two - $750.00 and headstone for two - $1,540.00. In addition, I have already paid the IRS a sum of $2,600.00 for estimated tax for 2001 when I cashed in my saving bonds. Therefore, the total down spent was $42,204.81. My wife has severe rheumatoid arthritis, and on 5 December 2000, her left hip was surgically removed after the eighth surgery and therefore, she will not be able to walk ever again. The sequence of events before and since her arrival at the Nursing Home: -26 November 2000 - 13 December 2000, Pinnacle Health Harrisburg Hospital -5 December 2000, Surgery (left hip removed) -14 December 2000 - 9 February 2001, Healthsouth Renova Center, Mechanicsburg -10 February 2001 - to present, Manorcare Nursing Home, Camp Hill My wife has the following insurances for coverage which were listed on the application forms: -Medicare Part A for 100 days while hospitalized -Medicare Part B for life -Blue Cross/Blue Shield -Tricare on 24 March 2001, she became eligible for Nursing Home Medical Assistance. My wife for the remainder of her life will be a inpatient for Skilled Nursing Care. I was informed that her Blue Cross/Blue Shield would cover her for an additional 365 days one time and one time only. On 6 June 2001, I spoke in person to Richard P. Le Blanc who works in the Office Of Attorney General for the Health Care Unit. Mr. Le Blanc told me that he wasn't knowledgeable on Tricare. The Nursing Home is not at fault in not understanding Tricare. I personally went to the Tricare Office at the Carlisle Barracks and picked up a Tricare Standard Handbook, Decision Guide To Tricare Benefits and forms for the Nursing Home. Teresa M. Crnjar Pully, the Manager for the Business Office at the Nursing Home tried to get the ball rolling with EXHl81T MAN0805 Tricare with no luck. I called and eventually spoke to Jacki Tucker, supervisor at the Maryland Region Office, in reference to the problems and concerns that the Nursing Home has with Tricare. I gave Ms. Tucker Ms. Pully's telephone number. When no contact was made, I took matters into my own hands. On 11 June 2001, I spoke to Suzzane Stoll in person, who is a Staff Assistant for The Honorable George Gekas, to help with these issues. On 12 June 2001, I called Suzzane Stoll to cancel the Congressional action since Tricare and the Nursing Home are now communicating. Ms. Stoll told me to keep her informed of the situation. The State Legislation needs to look at the issues and amend the bill to list Tricare as a insurance. If not corrected, it will continue to affect military retirees lives, their resources and also the loss of a loved one in a Nursing Home. Furthermore, the State Inspectors for the Nursing Home, Nursing Home itself and your office need to be educated and trained to be the Subject Matter Expert on Coordination of Benefits for all Insurance Procedures. Out of pocket expenses, as of this date, for my wife at the Nursing Home are! Life Insurance Policy, telephone, cable and beauty shop. No payment from her Social Security check has been paid to the Nursing Home yet. My wife is not a well person. I need to ask hypothetically. WHAT IF my wife goes to the hospital and is gone longer than 15 days? She loses her bed. Then each of her insurances starts over again as a new case. UPDATED NEW ISSUES On 21 June 2001, Teresa M. Crnjar Pully, the Manager for the Business Office, informed me that Blue Cross/Blue Shield will not cover my wife for Skilled Nursing care while in the Nursing Home. Therefore, I have to pay $808.85 per month for the months of March, April, May, June and July for a total of $4,044.25 to the Nursing Home. This is unfair. If this is the case I should have started payment of $808.85 per month starting 24 March 2001, when she became eligible for Nursing Home Medical Assistance. Not find out later that she is not covered under Blue Cross/Blue Shield while in the Nursing Home. Therefore, the effective date for Tricare should have been 24 March 2001. I hope Tricare will work with the Nursing Home to accept 24 March 2001, as the effective date, since the Coordination of Benefits was not done in a timely manner and that the Nursing Home submits the necessary paperwork to become a Certified Facility of Tricare. The Decision Guide To Tricare Benefits for Inpatient Services for retirees, their family members and survivors for Skilled -2- MAN0806 Nursing Care states: unlimited services. with authorization, as medically necessary. Under Tricare Standard the beneficiary copayment/cost-share as stated is: $390 per diem charge or 25% cost-share of allowed charges for institutional services, whichever is less, plus 25% of allowed professional fees. There is no way I can pay these costs. I have already down spent for my wife to be eligible for Medical Assistance. What if Tricare doesn't pay, will Medical Assistance pay for the remaining cost share, catastrophic cap and the annual deductible for the rest of her life? ACCORDINGLY, YOUR OFFICE SAID THAT I WILL NEVER BE HELD RESPONSIBLE FOR ANYMORE BILLS FOR THE REST OF MY LIFE BECAUSE I HAVE ALREADY DOWN SPENT. My wife's Social Security check is deposited on the 3rd of each month. I request that effective 3rd August 2001, I start payment of $808.85 to the Nursing Home due to these issues. I have already spent enough money to satisfy all parties concerned and this has destroyed my life and placed additional stress on my wife. THE FACTS ARE SIMPLE; NO COORDINATION OF BENEFITS WAS DONE FOR THE INSURANCES THAT MY WIFE HAS. WHY SHOULD I SUFFER THE CONSEQUENCES? On 26 June 2001, I met with Nancy Japak in person, on these issues. She is a Staff Assistant for Senator Jeffrey Picola. Sincerely, 'N??acr???1C?Y?? DUANE M. DONISON Command Sergeant Major, USA Retired -3- MAN0807 DUANE M. DONISON, PLAINTIFF V HRC MANOR CARE, DEFENDANT IIN THE COURT OF COMMON PLEAS (CUMBERLAND COUNTY, PA I I NO. 05-5626 1 CIVIL ACTION - LAW I I JURY TRIAL DEMANDED DEPOSITION OF: DUANE M. DONISON TAKEN BY: DEFENDANT BEFORE: KAREN C. ALBRIGHT, RPR DATE: PLACE: APPEARANCES: NOTARY PUBLIC MARCH 6, 2008, 9:55 A.M. GAN LAW GROUP 64 SOUTH PITT STREET CARLISLE, PENNSYLVANIA GAN LAW GROUP BY: RICHARD R. GAN, ESQUIRE FOR - PLAINTIFF CHARTWELL LAW OFFICE BY: B. CRAIG BLACK, ESQUIRE FOR - DEFENDANT Hughes Albright Foltz Natale 2080 Linglestown Road • Suite 103 • Harrisburg, PA 17110 717.540.0220 • Fax 717.540.0221 • Lancaster 717.393.5101 Multi-Page' DUANE DONISON mm A T /1Ti l.?r?.n v, ?vva Page 2 Page 4 1 WITNESSES 1 contentions and issues that are raised in the lawsuit. Do 2 NAME EXAMINATION 2 you understand that? 3 DUANE DONISON 3 A Yes, I do. 4 BY: MR. BLACK 3, 121 4 Q Your role in the deposition is to provide answers 5 BY: MR. GAN 97 5 to the best of your information, knowledge and belief to 6 EXHIBITS 6 the questions that I ask of you. Do you understand that? 7 DONISON DEPOSITION EXHIBIT PRODUCED AND MARKED 7 A Yes, I do. 8 1. APPLICATION FOR RESIDENCY 25 8 Q In order for us to properly conduct the 9 2. ADMISSION AGREEMENT 34 9 deposition, it's important that we have a good 10 3. CUMBERLAND CO. ASST. OFFICE LETTER 54 10 communication, and central to that is that you understand 11 4. HANDWRITTEN DOCUMENT 57 11 the question that I ask of you. If at any point in time I 12 5. LETTER DATED APRIL 30, 2003 65 12 use any phrase, any word, any term that you don't 13 6. E-MAILS 69 13 understand, please let me know that and I'll do the best I 14 7. LETTER DATED NOVEMBER 2, 2001 74 14 can to rephrase the question so that it's understandable to 15 8. LETTER DATED NOVEMBER 2, 2001 77 15 you. Do you understand that? 16 9. TYPEWRITTEN STATEMENT 78 16 A Yes, I do. 17 10. RESULTS OF RESOURCE ASSESSMENT 99 17 Q If for any reason the question itself becomes 18 11. LETTER DATED FEBRUARY 28, 2001 101 18 convoluted -- and some times than can happen with lawyers 19 12. COPIES OF SAVINGS BONDS 102 19 -- let me know that as well and I will do the best I can to 20 13. LETTER DATED DECEMBER 16, 2003 109 20 rephrase or make the question understandable. It's 21 14. LETTER DATED APRIL 30, 2004 110 21 important that you respond orally to my questions. While 22 15. FAXED LETTERS FROM TRICARE 113 22 we are all seated here in the presence of one another and 23 16. AFFIDAVIT 118 23 can understand gestures, nods of the head, things of that 24 24 nature, what will happen at the conclusion of the 25 25 deposition is that the court reporter will take a Page 3 Page 5 1 STIPULATION 1 typewritten -- or make a typewritten transcript of the 2 It is hereby stipulated by and between counsel 2 questions and answers that were posed and responded to 3 for the respective parties sealing, certification and 3 during the course of the deposition. And for that reason 4 filing are hereby waived; and that all objections except as 4 it's important for you to answer verbally to the questions 5 to the form of the question are reserved to the time of 5 that are asked of you because she cannot record gestures. 6 trial. 6 Do you understand that? 7 7 A Yes, I do. 8 DUANE DoNiSON, called as a witness, being duly 8 Q I don't know how long we'll be here today. It 9 sworn, testified as follows: 9 will be somewhat dependent upon the scope of your knowledge 10 EXAMINATION 10 of the issues that are raised in the litigation, but if at 11 BY MR. BLACK: 11 any point in time you would like to take a break, either to 12 Q Good morning, Mr. Donison. My name is Craig 12 confer with your counsel who is present for the deposition 13 Black. We were introduced just a few moments ago. I'm an 13 or for purposes of personal convenience let me know that 14 attorney and I'm representing HCR Manor Care in connection 14 and I'll accommodate that. All right? 15 with a lawsuit that you commenced against that entity here 15 A Great. 16 in the Court of Common Pleas of Cumberland County. We're 16 Q First of all, can you state your full name for 17 here today to take your deposition in connection with the 17 the record? 18 issues that are raised under that litigation. Have you 18 A Full name is Duane M. Donison. 19 ever had a deposition taken before? 19 Q And your current address? 20 A Never. 20 A 1426 Bradley Drive, Apartment I-111, Carlisle, 21 Q It will be beneficial both for you, for me, for 21 Pennsylvania. 17013. 22 the court reporter, for us to go over some simple ground 22 Q One additional instruction, and one question that 23 rules about the deposition process. Initially the 23 I neglected to go over with you. Also for purposes of 24 deposition is a question and answer session. It's designed 24 continuity of the deposition, it's important that you allow 25 to allow me to ask questions of you relating to the 25 me to complete my question before you respond to it. There Page 2 - Page 5 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 DUANE M. DONISON MARCH 6, 2008 Multi-Page' Page 6 1 are probably going to be times during the course of the 2 deposition that you'll know before I complete my question 3 what it is that I'm going to inquire of you. And in order 4 for the court reporter to be able to accurately put that 5 down, please allow me to complete my question and then 6 respond. In the same vein, I want to afford you the 7 opportunity to complete your responses to all questions 8 that are posed of you. So if at any point in time I start 9 to ask another question before your complete answering the 10 prior question, let me know that and I'll make sure that 11 you have the opportunity to respond completely. 12 Additionally, at the conclusion of the 13 deposition you will have a right to read and sign the 14 deposition or read and certify the deposition. That means 15 that you have the opportunity to review it. Under the 16 rules of civil procedure you're allowed to review the 17 deposition and make changes that are attributable to 18 typographical errors, things of that nature, where perhaps 19 the court reporter misunderstood a word that you used 20 during the course of your answer, and make those type of 21 changes through the use of an errata sheet. You are not 22 allowed to make substantive changes in your testimony, 23 although you are allowed to review and to certify your 24 transcript. If you'd like to avail yourself of that 25 opportunity, at the completion of the deposition I'm sure Page 7 1 the court reporter will inquire of you of that. 2 Understood? 3 A Understood. 4 Q Is there any reason as you sit here today, either 5 by virtue of medications or anything else, that would 6 impair your recollection of the events that date back into 7 early 2001, and which precipitated this lawsuit? 8 A No. 9 Q You've informed us that you live at 1426 Bradley 10 Drive, Apartment I-111 in Carlisle. How long have you 11 resided at that address? 12 A I just moved. I'm in between moves. 13 Q You're in between moves at this point? 14 A Right. 15 Q How long have you resided at the 1426 Bradley 16 Drive, Apartment I-111 address? 17 A Probably this month. 18 Q In March? 19 A In March. Well, I should say -- correction. 20 February 27th. I'm in between moves. 21 Q What was your residence address prior to moving? 22 A 159 Ringneck Drive, Harrisburg, Pennsylvania. 23 17112. 24 Q We just had an instance where I didn't get a 25 chance to ask my question. Again, please accommodate me Page 8 1 for the purposes of the transcript to allow me to complete 2 my question. 3 How long prior to leaving the Ringneck Drive, 4 Harrisburg address, had you resided at that residence? 5 A I'm going to have to ask that in a two-part 6 question. 7 Q All right. How long did you reside at 159 8 Ringneck Drive, Harrisburg, PA? 9 A When I came back from overseas it would be two 10 years. May of 2003. 11 Q Is that when you came back from overseas, in May 12 of 2003? 13 A When I came back. But I already had that 14 apartment prior. I kept that apartment when I was gone. 15 Q Was that an apartment that you kept as a 16 residence address from May of 2003 through the time that 17 you moved to the 1426 Bradley Drive address? 18 A Yes, and no. I was out of country and I 19 maintained that apartment. I was out of country in 1995. 20 Q How long were you out of the country? 21 A Approximately from 1995 to -- came back, I left 22 -- 2001. So it would be from 2001 to 2005. If you 23 understand that, sir. 24 Q Do you recall when in 2001, you left for 25 overseas? Page 9 1 A Out of country, approximately the month of 2 October. 3 Q Am I to understand that you were out of the 4 country consecutively between October of 2001 up until the 5 time you returned in 2005? 6 A Yes. 7 Q When did you return in 2005? 8 A May 15th, 2003, I crossed the border, arrived in 9 Harrisburg the 18th of May of 2003. 10 Q I'm confused, because I understood that you said 11 you were out of the country consecutively from October 2001 12 through 2005. 13 A Caine back in May of 2003. 14 Q Okay. So you returned -- 15 A May of 2003. 16 Q May 15th of 2003? 17 A Three. 18 Q Into the United States? 19 A To the United States. 20 Q And returned to Harrisburg on May 18th of 2003, 21 is that correct? 22 A Correct. 23 Q Were you out of the country the entire period 24 between October of 2001 and May 15th of 2003? 25 A Except for onetime. Page 6 - Page 9 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 Multi-Page' DUANE M. DONISON 1L A 1M/11Fi L -11ft1ft0 Page 10 1 Q Was that a leave? 2 A That was return for the funeral for the death of 3 my wife. 4 Q Where were you stationed or where were you based 5 when you were out of the country? 6 A I was working out of country in Canada. 7 Q Where were you in Canada? 8 A Edmonton, Alberta. 9 Q What were the circumstances that took you to 10 Alberta, Canada? 11 A Working security. 12 Q For whom? 13 A Minion Protection Services. 14 Q Can you spell that, please? 15 A It's M as in Mike, I-N-I-O-N. 16 Q Where is Minion Security Services based? 17 A Edmonton, Alberta. 18 Q What type of duties and responsibilities did you 19 have in your position working security for Minion Security 20 Services? 21 A Security. 22 Q Can you elaborate on that a little bit? 23 A It's under the security of the premises, the 24 surrounding, and as directed. 25 Q Were you assigned to a facility where you were Page 11 1 providing security services or were you providing security 2 services for a facility of Minion? 3 A I was working for Minion in a mall. 4 Q What was the name of the mall? 5 A Heritage. 6 Q Can you spell that, please? 7 A H-E-R-I-T-A-G-E. 8 Q Heritage, okay. Was that in Alberta, Canada? 9 A Edmonton, Alberta. 10 Q Did you start that position in October of 2001? 11 A I worked with them previously in 1995. 12 Q Did you start the position in security at the 13 Heritage Mall in October 2001? 14 A Yes. A little after 2001. 15 Q Do you recall when you first reported to provide 16 the security services through Minion Security Services to 17 the Heritage Mall? 18 A No. I would have to look at my resume. 19 Q Did you continue to work in that position up 20 until the time that you returned to the United States in 21 May of 2003? 22 A Yes. 23 Q What is your date of birth? 24 A 24 February 1950. 25 Q And your social security number? ?.+. ?i?Vii V? LVVO 1 A 244-96-6196. Page 12 2 Q I'm going to try to go back -- we've been going 3 at this kind of in a piecemeal way, and I'm going to try to 4 I guess organize this a little bit more chronologically so 5 I have an understanding of your background. You were born 6 on February 24 of 1950. Were you born as a United States 7 citizen? 8 A No. 9 Q Where were you born? 10 A Canada. 11 Q When did you first come to the United States? 12 A I don't know really how I can really answer that 13 question without elaborating on it. 14 Q Well, answer it in any way that is comfortable 15 for you to provide the information in response to the 16 question. 17 A 1968, I came down, talked to a recruiter. I 18 believe it was in Great Falls, Montana. In 1969 in Germany 19 1 got my Visa. January 7th, 1970, 1 was discharged from 20 Canadian forces. January 14, I enlisted in United States 21 Army. 22 Q 1970? 23 A 1970. 24 Q What branch of the Canadian armed services did 25 you serve? Page 13 1 A Army. 2 Q I presume -- I'm not familiar with the 3 requirements for enlistment, but I would presume that in 4 order to be able to enlist in the United States Army that 5 you needed to be a nationalized citizen? 6 A Yes. 7 Q Do you known when it was that you received your 8 nationalization? 9 A Well, I got my Visa, it would be 1969. I'll make 10 it really simple. 1983, after the invasion of Granada when 11 1 came back I became a U.S. citizen. 12 Q So you were actually in the U.S. armed services 13 before you were a United States citizen? 14 A Yes. I was registration alien? 15 Q Can you tell me a little bit about your 16 educational background? Did you go to high school? 17 A Yes. 18 Q Where did you go to high school? 19 A Canada. 20 Q And the name of the high school? 21 A Harry Ainley. 22 Q I think the court reporter and I would both 23 appreciate a spelling. 24 A It's H-A-R-R-Y A-I-N-L-E-Y. 25 Q In what town is Harry -- Page 10 - Page 13 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 DUANE M. DONISON MARCH 6, 2008 Multi-Page Page 14 1 A Edmonton, Alberta. 2 Q Did you graduate? 3 A No. 4 Q Through what grade did you attend? 5 A Grade ten. 6 Q After you completed your education at the Henry 7 Ainley High School, following that have you pursued any 8 additional education? 9 A Yes. 10 Q Can you tell us where and when? 11 A I got my GED United States Army 1970. Associates 12 Degree, I believe it was in May of 1977. 13 Q What institution conferred that? 14 A That would be Fayetteville Institute. 15 Q Fayetteville? 16 A Fayetteville, North Carolina. 17 Q What was that in? 18 A Associates of -- Associates Degree in fine arts. 19 Q Any additional education? 20 A Two years equivalency from the Department of 21 United States Army College. 22 Q When did you complete that? 23 A I would have to look at my military records. 24 Q Is there any particular specialized focus of 25 education or training? Page 15 1 A Yes. I also got credits, college credits, too. 2 Q What was your focus? 3 A United States Sergeant Major's Academy. 4 Q Did you transfer the credits to any other 5 institution? 6 A Liberty University. 7 Q Where is Liberty University? 8 A I believe it is in Virginia. 9 Q Were you ever conferred a degree by Liberty 10 University? 11 A I got -- well, if you don't understand the 12 system, it's very hard. You get the credits and that and 13 it's turned over to the Army. They evaluate the credits 14 and they gave me a four-year degree. 15 Q Had Liberty University conferred to you a 16 four-year degree? 17 A United States Army off the DA Form 2 alpha. 18 Q What was the degree that was conferred upon you 19 by the United States Army? 20 A It's just a general degree, four years. 21 Q When was that conferred? 22 A I'm going to have to say late '80s. 23 Q Any additional training or education? 24 A Other than from the United States Army. 25 Q Any other, other than the United States Army? Page 161 1 A FBI. 2 Q What training or -- 3 A SWAT. 4 Q When did you undergo that? 5 A I would have to look at my certificate, sir. 6 It's in the '90s. After I retired from the Army. 7 Q What period of time were you enrolled or enlisted 8 in the United States Army? 9 A 14 January 1970, 28 February 1995. Retired 1 10 March 1995. 11 Q And at what rank did you retire? 12 A CSM. 13 Q Following your retirement from the United States 14 Military did you serve in any capacity in the reserves? 15 A No. 16 Q I'd like to start in 1995, and from that point, 17 from your retirement date from the U.S. military on May 18 1st, 1995 -- 19 A March 1 st. 20 Q Is that not what I said? 21 A No, you said May. 22 Q I'm sorry. March 1st, 1995. From that point I'd 23 like to move forward chronologically with your employment. 24 Did you secure employment upon your retirement from the 25 United States Army? Page 17 1 A Not immediately. 2 Q When were you first employed following your 3 retirement? 4 MR GAN: If you recall. 5 TIME WITNESS: I went out of country 1995. Again, 6 I would have to look at my resume. 7 BY MR. BLACK: 8 Q Did you bring a copy of your resume with you to 9 the deposition? 10 A No, I didn't. 11 Q Is that something that you could provide to your 12 counsel that he can turn around and provide to me? 13 A Yes, I can. But I'm waiting for my security 14 clearance to come back. 15 Q Can you impart to me how that would affect your 16 ability to provide a copy of your curriculum vitae? 17 A No, no, it would not. It just has.... 18 Q I'm going to ask you to provide a copy of that, 19 and I'll follow up with a production request to counsel for 20 a copy of your curriculum vitae which would chronologically 21 set forth your employment history. Am I correct that your 22 current curriculum vitae will set forth your employment 23 history from the time of your retirement from the United 24 States Military from March 1st, 1995 through the present 25 time? i a?G t r - r Zt?G 1 ? HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 Multi-Page TM DUANE M. DONISON Page 18 1 A I can do that up there, and I used the word 2 Minion Protection which no longer exists. They ended up 3 changing their names, which I forgot to tell you guys. 4 Okay? It's all there in the resume. 5 Q Is the resume already prepared? 6 A The resume is already prepared, but it does not 7 show my current employment. 8 Q What is your current employment? 9 A I work with the Department of the Army, Carlisle 10 Barracks, DES. 11 Q What does that stand for? 12 A Directory of Emergency Services, security. 13 Q What is your capacity or what is your title? 14 A Security guard. 15 Q What are your duties and responsibilities? 16 A Checking IDS, Department of Defense, DODS. 17 Inspection of vehicles. Threats. And as directed. 18 Q Where are you stationed? 19 A Carlisle Barracks, Pennsylvania. 20 Q How long have you been holding that position? 21 A I started the job, I'm training 13 November of 22 2007. 23 Q Is that a full time position? 24 A Yes. 25 Q How many hours a week? Page 19 1 A 40. 2 Q Are you considered a civilian employee? 3 A They came under a DA civilian. 4 Q What do the initials DA stand for? 5 A Department of the Army. 6 Q What is your understanding? Are you considered 7 in your mind a civilian employee of the military? 8 A I am -- well, it's -- in order to secure this 9 position you must have been military. 10 Q So you to have -- 11 A Military. 12 Q -- service credit in order to be able to be 13 eligible for this position? 14 A That is correct. 15 Q That's really not my question. My question is, 16 in your mind do you consider yourself to be a civilian 17 employee of the United States Army? 18 A In this position, yes. 19 Q Thank you. Now, my understanding is that you 20 were married to Mira Donison, is that correct? 21 A Yes. 22 Q And Miss Donison passed away in, as I understand 23 it, 2003, is that correct? 24 A Yes. 25 Q What was your date of marriage to Miss Donison? MAKUH 6, 2008 Page 20 1 A 12 September 1972. 2 Q Have you since remarried? 3 A No. 4 Q And the lawsuit that you filed concerns events 5 transpiring back when Ms. Donison was being transferred 6 from HealthSouth Rehabilitation Center in Mechanicsburg to 7 the Camp Hill facility in Manor Care -- of Manor Care. I 8 just want to make sure that I understand from the Complaint 9 the factual sequence of events and that they correspond 10 with your understanding. From the Complaint it's alleged i l that your wife was initially admitted to Harrisburg 12 Hospital on November 26th of 2000, immediately preceding 13 her placement at Manor Care in Camp Hill, is that correct? 14 A Somewhere around November. 15 Q And she had that point in time had some surgery 16 which included removal of her left hip, is that correct? 17 A That's correct. 18 Q Subsequent to her hospitalization at Harrisburg 19 Hospital, she was then released and was transferred to the 20 HealthSouth Renova Center in Mechanicsburg, is that 21 correct? 22 A Correct. 23 Q And at some point in time I take it that she 24 received or that she underwent sufficient progress in her 25 recovery that she was eligible for transfer to a skilled Page 21 1 nursing care center, is that correct? 2 A Correct. 3 Q Can you tell me how it is that you and/or your 4 wife came to decide that the Manor Care nursing facility in 5 Camp Hill would be a potential facility for her placement? 6 A Renova Health Center is the one who found the 7 nursing home who accepted our insurances which included 8 TRICARE. 9 Q Did you ask individuals at Renova Health Center 10 fr referrals for a skilled nursing center? 11 A They were in the process of trying to locate a 12 suitable nursing home that accepted our insurances. 13 Q Who at Renova Health Center was performing that 14 function? 15 A The only thing I can tell you, sir, is the case 16 -- is the people who do it there. I do not know, I do not 17 remember her name. 18 Q Other than the Manor Care Camp Hill facility, 19 were there any other health skilled nursing care facilities 20 that you were informed would be eligible for placement of 21 your wife? 22 A I just remember a list. 23 Q Do you recall who was on the list? 24 A No, I don't. 25 Q From the fact that there was, in fact, a list, I HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 Page 18 - Page 21 DUANE M. DONISON Multi-Pape"M MAKU11 6, 2008 Page 22 1 presume, then -- and correct me if I'm wrong -- there was 2 more than just the Manor Care Camp Hill facility on the 3 list? 4 A Yes. 5 Q Did you, in fact, visit the Manor Care Camp Hill 6 facility prior to your wife's placement there? 7 A Received a call from HCR Manor Care. 8 Q Do you remember when it was that you had received 9 that call? 10 A It would be some time in February of 2001. 11 Q Do you remember who you received the call from? 12 A It was either someone in the admission office. 13 Q Do you know the name? 14 A I believe -- I believe her name is Monica 15 Shuleva. 16 Q What was the substance of the telephone call that 17 you received in February of 2001? 18 A That they will accept my wife with the 19 insurances. 20 Q Did you subsequently then have a meeting with any 21 of the staff at HCR Manor Care Camp Hill with respect to 22 completion of paper work for an admission of your wife? 23 A Yes. 24 Q Do you remember when it was that you made an 25 appointment to meet with them? Page 24 1 Q Did you provide just copies of the identification 2 card for her for Medicare Part A and Part B? 3 A I provided her military ID card which has her 4 picture on it. 5 Q My question wasn't geared toward the military ID. 6 Did she have a separate medication identification card? 7 A Yes. 8 Q Did you provide a copy of that? 9 A Yes. 10 Q Did she also have a separate coverage card for 11 the Capital Blue Cross/Blue Shield? 12 A Yes. 13 Q And you provided a copy of that? 14 A Yes. 15 Q You also provided a copy of the military ID card? 16 A Yes. They're the ones who made the copies. And 17 Delta Dental. 18 Q So you provided the actual card and they made the 19 copies? 20 A Yes. 21 Q Now, prior to your meeting on February 9th of 22 2001, with a representative of HCR Manor Care, do you have 23 any knowledge as to what, if any, of those sources of 24 health insurance were utilized by Harrisburg Hospital for 25 the services that they had rendered to your wife? Page 23 1 A I met with them on 9 February of 2001, to the 2 best of my knowledge. 3 Q Who did you meet with? 4 A I don't know if I met with Monica or I met with 5 somebody in the billing office. I'm not sure. 6 Q What transpired during that meeting? 7 A I turned over copies of Mira's insurances. 8 Q Anything else? 9 A Filled out some paper work. 10 Q When you say you turned over copies of her 11 insurances, can you explain to me what it was you turned 12 over? 13 A Yes. 14 Q What was it? 15 A First Medicare Part A and Part B. And that was 16 called Capital Blue Cross. 17 Q What was it called then? 18 A Previously? 19 Q Well, I'm presuming it was called something else 20 at the time that you turned it over, because you said it's 21 now called Blue Cross? 22 A Right. I believe it was called Capital Blue 23 Cross and Capital Blue Shield. I'm not sure. 124 Q Anything else? 25 A Her military ID card, coverage under TRICARE. D?..o ')7 D INC Page 25 1 A The first three. Medicare, Capital Blue Cross 2 and TRICARE. 3 Q How about the -- 4 A HealthSouth, the same. 5 Q Do you remember anything more about the meeting 6 that you had on February 9th of 2001? 7 A Other than filling out the paper work and 8 providing them the cards for coverage. And admission 9 agreements. 10 (Application for Residency, four pages, produced 11 and marked Donison Exhibit No. 1.) 12 BY MR. BLACK: 13 Q Mr. Donison, I'm going to hand you what the court 14 reporter has just marked now as Donison Exhibit No. 1. I 15 would ask you to take a few seconds and familiarize 16 yourself with that document. 17 Are you ready to proceed? 18 A Yes. 19 Q Do you recognize what this document is? 20 A Yes. 21 Q Can you tell us what it is? 22 A It's an application for residency. 23 Q Was this application for residency for your wife 24 that you completed in connection with the meeting that you 25 had on February 9th of 2001, with a representative of Manor »b. .r r . -5 -. HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 Multi-Page TM DUANE M. DONISON Page 26 1 Care? 2 A To the best of my knowledge. 3 Q There appears to be throughout this document 4 perhaps two separate handwritings or perhaps more. What 5 I'd like to do is looking at the first page of deposition 6 Exhibit No. 1, can you tell me, do you recognize the 7 handwriting that appears on that page? 8 A Yes. 9 Q Is that handwriting all in your -- is that all 10 appearing in your handwriting? 11 A Yes. 12 Q Did you complete this form on that date, 9 13 February of 2001? 14 A Yes. 15 Q Let's turn to the second page. Do you recognize 16 the handwriting that appears on the second page? 17 A Yes. 18 Q Do you recognize that all to be completed in your 19 handwriting? 20 A Yes. 21 Q Turning to the third page, do you recognize the 22 handwriting that appears on that particular page? 23 A No. 24 Q Is any of the handwriting on page three of the 25 application for admission in your handwriting? Page 27 1 A No. 2 Q Turning to the fourth page, do you recognize any 3 of the handwriting that appears on the fourth page? 4 A This is my wife's. 5 Q There is a signature line underneath the written, 6 the printed word resident or responsible party signature, 7 is that correct? Do you see where I'm referring, 8 immediately below a signature that appears to be your 9 wife's? 10 A Yeah, that's my wife's signature. 11 Q That carries a date of February 22nd of 2001 ? 12 A Yes. 13 Q Do you know how it was that this form was 14 prepared on February 9th of 2001, yet didn't get signed 15 until February 22nd of 2001, by your wife? 16 A I can't answer that. 17 Q Now, when you were -- were you given this form by 18 a representative of Manor Care? 19 A I filled it out there in their office. 20 Q Did they just supply you with a form and ask you 21 to complete it? 22 A Completed it right there. 23 Q My question is, did they complete it with you or 24 did they simply hand you the form and ask you to fill it 25 out? MAKUH 6, 2UU8 Page 28 1 A They completed it with me. 2 Q Did they review with you the available insurances 3 that your wife would have? 4 A I just gave them a list of the insurances, as I 5 previously stated. 6 Q You gave them copies of the cards, is what you 7 said. 8 A They took the cards, made the copies. 9 Q Did they review with you during the process of 10 completing the application for residency the available 11 insurances that may be covered -- or may provide coverage 12 for your wife for her placement in the skilled nurses 13 center? 14 A Other than under the admission agreement, third 15 party. 16 Q I'm not sure I understand your answer. 17 A Then I might not understand yours either, sir. 18 Q My question simply relates to the document that's 19 in front of you that's labeled as Exhibit No. 1. My 20 question, as they completed this form or reviewed this form 21 with you as you completed it, did they review with you the 22 available insurances that potentially covered your wife's 23 skilled nursing care facility? 24 A She was still under skilled nursing for Medicare 25 and Capital Blue Cross. Page 29 1 Q With all due respect, that's not responsive to my 2 question. Maybe we're not communicating. 3 A I probably don't understand your question fully. 4 Q My question simply is this -- my understanding is 5 -- tell me if I'm wrong -- on February 9th, 2001, you met 6 with a representative of Manor Care in Camp Hill, is that 7 correct? 8 A That is correct. 9 Q And at that time they presented you with this in 10 application for residency for you to complete in order to 11 apply for Mira's placement at the facility for skilled 12 nursing care, is that correct? 13 A Yes. 14 Q My question is simply with respect to the 15 completion of this form, as you completed this form, did 16 any of the representatives of Manor Care review with you 17 the available insurances that might be in place for your 18 wife that could potentially cover her care at the nursing 19 center? 20 A The only thing I can say, again, I provided them 21 the cards for billing purposes, also covered under the 22 admission agreement. 23 Q Do you see on the first page of the application 24 for residency underneath the printed words social security 25 number, that there are boxes for the completion of Page 26 -Page 29 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 DUANE M. DONISON Multi-Page""" MARCH 6, 2008 1 information regarding Medicare number, HMO insurance 2 provider, other insurance providers. Do you see that? 3 A Yes. 4 Q Do you see that there is nothing that's filled 5 in, in any of those boxes with respect to any of that 6 information? 7 A Yes. 8 Q As you completed this form, why did you not fill 9 out that information? 10 A They told me not to. I 1 Q Who told you not to? 12 A Someone there from the billing office. 13 Q You have a specific recollection as you sit here 14 today of someone telling you not to complete that form, 15 that portion of the form? 16 A That portion. 17 Q But you do not know who it was? 18 A I would have to say I believe it was Theresa 19 Cmjar-Pully. 20 Q Did she tell you why she didn't ask you -- that 21 you didn't need to complete that form, that portion of the 22 form? 23 A The cards. 24 Q That the cards would provide the information that 25 she needed for that, is that correct? Page 30 Page 31 1 A Yes, to the best of my knowledge. 2 Q Further down on the form there's a reference says 3 how did you hear about the nursing center, and you wrote in 4 the word people talk, or the words people talk, is that 5 correct. 6 A That's correct. 7 Q To what does that refer? 8 A I just wrote simply down people talk, Renova 9 Health Center, which obviously I should have been more 10 specific, I just said people talk because I went off the I 1 list. 12 Q People talk meaning colloquial conversations with 13 other individuals? 14 A Other individuals. 15 Q It wasn't any people source named People Talk? 16 A People talk, news, television, paper. 17 Q Under the line immediately following that 18 particular area of inquiry there's a line that says have 19 you visited any other nursing centers or assisted living 20 facilities; if yes, which ones. You wrote HCR Manor Care 21 East, is that correct? 22 A Yes. 23 Q Had you, in fact, visited that facility prior to 24 coming to the Camp Hill facility of Manor Care? 25 A No, that was at the same time with Renova Health pnvP in _ PQ_. ZZ Page 32 1 Center. 2 Q Can you explain that to me? I don't understand 3 your answer. 4 A Well, there's two HCR Manor Cares. One on the 5 East side and one in Camp Hill. 6 Q My question to you was, have you visited the East 7 Manor Care -- 8 A I visited the East. 9 Q -- prior to coming to -- 10 A No. 11 Q -- the Camp Hill? 12 MR. GAN: If you recall. 13 THE WITNESS: I can't really recall on that. 1 14 remember going down to the East, the East one, and talking 15 to them. 16 BY MR. BLACK: 17 Q The question is posed on the application, says 18 have you visited any other nursing centers or assisted 19 living facilities; if yes, which ones, and it's after that 20 question that you wrote the HCR Manor Care East. In light 21 of the fact that you wrote in that response to that 22 question, does that lead you to believe or would it refresh 23 your recollection that you, in fact, visited that facility 24 prior to coming to the Camp Hill facility? 25 A I must have seen them before I seen the one in Page 33 1 Camp Hill because they're sisters, they work together. 2 Q What, at the time, was the condition of your wife 3 physically and mentally at the time that you went to the 4 Manor Care Camp Hill facility and completed the application 5 for residency? 6 A Physically, she was not very good. 7 Q Can you elaborate on that? 8 A Needed assistance. 9 Q With what type of activities? 10 A Walking. 11 Q How about her mental? 12 A Outstanding. 13 Q She was alert? 14 A Very, very alert. 15 Q She had a good memory? 16 A Outstanding. 17 Q And she was able to communicate fully, understand 18 questions asked of her and respond appropriately to them? 19 A Outstanding. 20 Q Did you complete any other documents on the day 21 that you went and completed the application for residency 22 at the Manor Care Camp Hill? 23 A Admission agreement. And authorization to bill 24 third party. 25 Q To your knowledge, with respect to Donison HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 Multi-Page TM DUANE M. DONISON Page 34 1 Exhibit No. 1, do you believe that this was a complete copy 2 of the application for residency that you completed at the 3 time of your visit on February 9, 2001? 4 A I completed it according to their guidance. 5 Q That's not my question. Do you believe that this 6 document that is before you is complete, that it contains 7 in the entirety of the document that you completed when you 8 met with them on February 9th, 2001? 9 A To the point other than the insurance is not 10 listed. 11 Q Do you believe that there were any additional 12 pages or any information that you did not complete on the 13 application when you filled it out on February 9 of 2001, 14 that's not included in this copy? 15 A To the best of my knowledge, it's three pages -- 16 or there's four. 17 (Admission Agreement, 40 pages, produced and 18 marked Donison Exhibit No. 2.) 19 BY MR. BLACK: 20 Q Mr. Donison, I'm now going to hand you Donison 21 Deposition Exhibit No. 2 and ask you to take a few minutes 22 to review that, please. 23 Ready to proceed? 24 A Yes. 25 Q Do you recognize that document? Page 35 1 A I recognize part of it. 2 Q Why don't you tell me, is there more the document 3 that you recognize than don't recognize, or is there more 4 the document that you don't recognize than -- 5 A It's more of the document that I don't recognize. 6 Q Why don't you tell me which portions of the 7 document that you do recognize? Let's do this: I think 8 the pages are actually numbered throughout the exhibit, 9 pages I through 40. So why don't you tell me by page 10 number which pages you do recognize? 11 A l through 9. I recognize number 13, but I don't 12 have a copy of it. Recognize 15. Recognize 17, but I 13 don't have a copy of it. Pages 17 through 40 1 do not have 14 copies of. 15 Q Despite the fact that you don't have copies of 16 them, out of pages 17 through 40 are there any of the pages 17 you recognize that you have seen before? 18 A I recognize pages 1 through 9 and 15 very, very 19 well. 20 Q That's really not responsive to my question. My 21 question is, despite the fact that you may not have copies 22 of 17 through 40, are there any of those pages that you 23 recognize having seen before today? 24 A Other than the ones I have seen with my signature 25 on there, with my handwriting. MAxc:H 6, 2008 Page 36 1 Q Are there any of those pages 17 through 40 that 2 you've seen before that have your signature on it? 3 A Say it again? 4 Q Are there any of the pages between pages 17 5 through 40 that you recognize as having seen before because 6 your signature is contained on them? Let's try this 7 again. My understanding as you sit here today, you 8 recognize having seen before the deposition today pages 1 9 through 9, page 13, and page 15, is that correct? 10 A Yes, I remember that. 14, I don't. 11 Q And in response to my question, you indicated 12 that with respect to pages 17 through 40, that you don't 13 have copies of those, is that correct? 14 A Yes. 15 Q My question is not whether or not you have copies 16 of them, my question is whether or not prior to today's 17 deposition you had ever seen any of the documents contained 18 in pages 17 through 40? 19 A No. 20 Q With respect to the pages at 1 through 9, pages 1 21 through 9, do you recognize this as being the admission 22 agreement that was presented to you on your February 9th, 23 2001 visit to HCR Manor Care in Camp Hill? 24 A Yes. 25 Q For purposes so I don't have to continue to Page 37 1 repeat and take up pages, I'm going to refer to the Camp 2 Hill Manor Care facility simply as Manor Care from this 3 point further. If I use the phrase or term Manor Care, you 4 can understand that I'm referring to the Camp Hill facility 5 of Manor Care. Do you understand that? 6 A Yes. 7 Q Turning to page 9 of that Deposition Exhibit No. 8 2, do you recognize the signature that appears 9 approximately halfway through that document, that page? 10 A My signature. I 1 Q That indicates that you signed this particular 12 document on February 9th of 2001, is that correct? 13 A Yes. 14 Q Did you have a chance to review the document 15 before you signed it? 16 A Yes. 17 Q Did you read fully and thoroughly through the 18 document before you signed it? 19 A Yes. 20 Q Did you have the opportunity or were you provided 21 the opportunity to ask any questions regarding any of the 22 terms or conditions of the document before you were asked 23 to sign it? 24 A To the best of my knowledge, yes. 25 Q And to your knowledge, did you have any questions Page HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 34 - Page 37 DUANE M. DONISON Multi-PaoPTM MAKU11 6,:Z008 Page 38 1 or did you ask any questions of any of the staff at Manor 2 Care regarding any of the provisions in pages 1 through 9 3 of this particular document? 4 A Yes, I did. 5 Q What do you recall asking of the staff at Manor 6 Care with respect to those pages? 7 A Trisha McIntyre. 8 Q You asked about Patricia McIntyre? 9 A She was the lady who helped me do this paper 10 work, admission agreement. 11 Q What question did you ask of Miss McIntyre at the 12 time that you were -- 13 A Care of my wife. 14 Q Excuse me. Again, you're talking over me. Let 15 me ask my questions, and then you can answer. Okay? 16 What particular questions did you ask of Miss 17 McIntyre when you were presented with this agreement and 18 asked to sign it? 19 A Patient care and billing. 20 Q What did you ask her about patient care? 21 A The treatment. 22 Q What about the treatment? 23 A The wellbeing, looking out for a patient, their 24 needs, their responsibilities, my responsibilities. 25 Q Were you satisfied with the response that Miss Page 39 1 McIntyre gave you with respect to your inquires regarding 2 patient care? 3 A At that time. 4 Q What questions did you ask her about billing? 5 A Insurances. 6 Q What about insurances? 7 A The three listed insurances. Medicare, Capital 8 Blue Cross, TRICARE. 9 Q Well, Mr. Donison, I don't mean to be -- this is 10 not meant to be disrespectful, but when you answer with 11 single words I'm not sure how that computes to a question. 12 My question to you, when you met with Miss McIntyre, I 13 understand you expressed some questions about billing. 14 What I want to know is, what questions did you ask her 15 about billing? 16 A Coordination of benefits. 17 Q What about it did you ask her? 18 A The billing process. 19 Q Is there any other specific questions that you 20 asked her about the billing process? 21 A Not that I can remember. 22 Q What do you remember Miss McIntyre telling you in 23 response to the questions you raised about coordination of 24 benefits and the billing process? 25 A I believe what she said -- and I'm not sure -- Pave 'AR _ Pn"a A t 0 1 that is done by the billing office. Page 40 2 Q Were you satisfied with the answer that you 3 received from Miss McIntyre in response to your question 4 about the coordination of benefits and the billing process? 5 A At that time. 6 Q Am I to understand that she imparted any 7 information to you other than the fact that that would be 8 handled by the billing office? 9 A That was the only thing I understood. 10 Q You were satisfied with that response? 11 A At that time I was satisfied. 12 Q Any other questions that you asked of the 13 admission staff at Manor Care or of Miss McIntyre with 14 respect to the admission agreement? 15 A Not that I remember. 16 Q Do you not remember being presented with the 17 attachment A page then, which set forth the room and board 18 rates? 19 A Not that I remember. 20 Q Is it possible that that was provided to you but 21 you do not recall it? 22 A Can't answer that. Not sure. 23 Q So you don't know whether or not you were 24 presented with it at the time? 25 A I don't remember this. Page 41 1 Q I'd like you to turn back to page 25 of Exhibit 2 No. 2. This is Attachment G, Medicare secondary payor 3 questionnaire. I understand from your earlier testimony 4 that you do not recall seeing this document prior to today, 5 is that correct? 6 A To the best of my knowledge. 7 Q Is it possible that you were -- this document was 8 part of the admission agreement application process that 9 you reviewed or assisted the Manor Care staff in providing, 10 but you just simply don't recall it as you're sitting here? 11 A Negative. 12 Q You're absolutely certain that you never saw this 13 document before today? 14 A Never seen this. 15 Q Now, in your Complaint -- 16 A I want to clarify something. Pages 1 through 9 I 17 remember very, very well. I remember page 15 very, very 18 well, but never received a copy of this. I reviewed it on 19 the disk. 20 Q On which disk? 21 A The one that you provided my previous lawyer, 22 1449 pages, this is where I remember where I made a copy of 23 this. 24 Q Let's make the record clear with respect to page 25 15 of Deposition Exhibit No. 2, do you remember seeing that HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 Multi-Page' DUANE M. DONISON X- Page 42 1 document at the time that the admission agreement was 2 completed on February 9th of 2001? 3 A I remember signing it. 4 Q On February 9th of 2001? 5 A Yes. 6 Q But you did not receive a copy of it, correct? 7 A Correct. 8 Q The next recollection you have of seeing that 9 document occurred when you reviewed documents that were 10 provided by Manor Care in response to discovery on a 11 CD-rom, is that correct? 12 A Yes. 13 Q Anything else? 14 A No. 15 Q My understanding is at some point in time that 16 you had an appointment with a woman by the name of Lynne 17 Gordon who is affiliated with the Cumberland County 18 Assistance Office, is that correct? 19 A Yes. 20 Q Do you remember when it was that you met with 21 Miss Gordon? 22 A March 13th. 23 Q Of what year? 24 A 2001. 25 Q What was the purpose of your meeting with her? i•XPU.%.n v, Z-vva 1 Q The application for what? 2 A For Medical Assistance that I believe the intent 3 of that letter was truthful and that they were 4 professionals and they knew what they were doing. 5 Q I'm not going to argue that. My question is, I'm 6 trying to get some background and perspective with respect 7 to why you met with Miss Gordon on March 13th of 2001. 8 understanding is that you received the letter from her 9 dated February 28 of 2001, and in response to that letter 10 you met with Miss Gordon in order to complete an 11 application for your wife to receive Public Assistance 12 benefits, is that correct? 13 A After the down spend. 14 Q After the date you met with Miss Gordon on March 15 13th, 2001, this -- stoke that. 16 What do you mean by after the down spend? 17 A We received the letter dated February the 28th, 18 2001, listing all the resources, informed me how much I had 19 to do a down spend. After that was completed I must fill 20 out the application and meet with them and turn the 21 application over. 22 Q My question to you is, what do you mean by down 23 spend? 24 A That is your resources, your total resources that 25 you have. And it tells you how much you have to get rid Page 44 My Page 43 Page 45 1 A This is in reference to the down spend, to 1 of. 2 complete the application. 2 Q In order to what? 3 Q Application for what? 3 A For Medical Assistance. 4 A I would have to look it up, sir, to give you the 4 Q Is it accurate, Mr. Donison, that your 5 correct full term. 5 understanding is that in order to qualify for Medical 6 Q Were you meeting with Miss Gordon in order to 6 Assistance benefits, that the Department of -- the 7 apply on behalf of your wife for her to receive Assistance 7 Cumberland County office, assistance office, had completed 8 benefits? 8 an assessment review, an asset review? 9 A I was going off the letter dated February the 9 A From my understanding, yes. 10 28th, 2001. 10 Q That asset review requested you provide 11 Q What letter is that? 11 information the property, regarding the bank accounts and 12 A That was from Lynne Gordon. 12 the various assets that you and your wife owned? 13 Q What did the letter say? 13 A She received that -- to answer your question -- 14 A It listed resources. 14 she received that from HCR Manor Care when I met with 15 Q Did you know who Lynne Gordon was at the time you 15 Monica Shuleva on February 15, 2001, listing all my 16 received this letter on February 28th, 2001? 16 resources. 17 A That was a letter dated February the 28th. 17 Q That was not my question. Please listen to my 18 Q Did you know who Lynne Gordon was when you 18 question and try to respond to my question. My question 19 received the letter dated February 28, 2001 from her? 19 simply was, in order to determine your wife's eligibility 20 A Never met her. 20 to receive Assistance benefits, it was necessary for you to 21 Q What efforts, if any, did you undertake to 21 complete a form which would disclose the assets that you 22 ascertain why you received this letter? 22 and your wife owned in order for them to determine her 23 A I received the letter there believing that this 23 eligibility, is that correct? 24 is what I had to do in order to finish completing the 24 A Not from Cumberland County Assistance Office. 25 application for my wife. 25 Q Who did you disclose your assets to? Page 42 -Page 45 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 DUANE M. DONISON MARCH 6, 2008 Multi-Page Tm Page 6 4 1 A HCR Manor Care. 2 Q And when did you complete the disclosure -- 3 A 15 February 2001. 4 Q Again, please don't talk over me. 5 MR. GAN: Let me inject just a second so I can 6 help the process move along. Oftentimes when we ask 7 questions they're bifurcated, they're multiple sentences 8 and some times we finish thoughts, so to assist Mr. Black 9 so that he can get all of his thoughts out, make certain 10 that the question is concluded. If you think that it's not 11 concluded, pause or ask if it's not concluded, because I 12 don't want to spend the rest of the day here having some 13 dialogue, useless dialogue between you and Mr. Black. Just 14 be patient and Mr. Black will get his question out. 15 THE WITNESS: It's just my training is just quick 16 and fast. 17 BY MR. BLACK: 18 Q When did you complete the disclosure of assets 19 with HCR Manor Care? 20 A 15 February 2001, dated. 21 Q At some point in time during your meeting with 22 Manor Care representatives on February 9th, 2001, did you 23 have discussions with them regarding the eligibility of 24 your wife for Public Assistance? 25 A No. Page 47 1 Q How was it, then, that it came about that you 2 completed the form with representatives of HCR Manor Care 3 disclosing your assets for application to assistance? 4 A That was done on February the 15th, 2001, where I 5 had to turn in a list of all my assets to complete a 6 resource assessment. 7 Q I understand what was being accomplished. My 8 question to you is, how did it come about that you were 9 requested to complete this form with representatives of HCR 10 Manor Care? 11 A I was just directed. 12 Q By whom? 13 A I got -- I believe the lady there, her name is 14 Monica Shuleva. She is the one who completed the resource 15 assessment. 16 Q When did she request that you complete this? 17 A We met on February the 15th -- no. I would have 18 to look at the document. We met in February. 19 Q Did she explain to you why she was asking you to 20 complete this? 21 A The listing that was according to Pennsylvania's 22 law, you to list all your resources. 23 Q Well, did you explain to her at the time or did 24 you have discussions with either Miss Shuleva or any of the 25 representatives of HCR Manor Care expressing confusion as D..,-,. AL T___ en Page 48 1 to why you would be completing this application for Public 2 Assistance when you had -- your wife had three eligible 3 sources of insurance? 4 A No. I was completing a resource assessment. Had 5 nothing to do with Public Assistance. 6 Q All right. What was your understanding of the 7 reason you were being asked by Manor Care to complete the 8 resource assessment? 9 A For future use. 10 Q For what purpose? 11 A In case the insurances did not pay, that my 12 resources at that time would be protected. 13 Q And how would they be protected by virtue of 14 completing the resource assessment? 15 A It would already been logged and already been 16 filed. 17 Q Filed with whom? 18 A HCR Manor Care. 19 Q So you understood when you filled out the 20 resource assessment that the purpose of completing the 21 resource assessment was in case the insurances would not 22 cover your wife's services, that there would be an avenue 23 to make application for Public Assistance, so Public 24 Assistance would cover those charges, is that correct? 25 A What did you say about the last part, cover -- Page 49 1 Q Let me try it again. 2 A I understood part of your question. 3 Q I'm going to break it down as best as I can. 4 When you were presented with this resource assessment form 5 to complete with Monica Shuleva at HCR Manor Care, it was 6 your understanding, was it not, that you were completing 7 that form as a contingency for presentation to the County 8 Office of Assistance in the event that the insurance 9 carriers -- or the insurance coverage your wife had would 10 for some reason deny coverage for her nursing home stay, is 11 that correct? 12 A No. 13 Q Then I'm confused. I don't understand why -- 14 what your understanding was of why you were being asked to 15 complete this assessment form. 16 MR. GAN: I believe the question has been asked 17 and answered, but try to answer it one more time. 18 THE WITNESS: I completed the resource assessment 19 to protect the resources that I had at that time with HCR 20 Manor Care. In case the insurances did not pay. I do not 21 know where that paper work, the resource assessment, goes 22 to, have no idea. I do know I completed that, and I want 23 to say on the 15th of February of 2001. I remember on the 24 back of that form there Monica Shuleva wrote in big 25 handwriting in her handwriting, military retired request ..bv v i u?v -T 7 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 Multi-Page TM DUANE M. DONISON Page 50 1 face-to-face. What I believe with the resource list to 2 protect your resources that you had at that time now. 3 BY MR. BLACK: 4 Q How did you understand by completing that form it 5 would protect your resources? 6 A From what I was told. 7 Q What reason were you given that completion of 8 that form would protect your resources? 9 A I have no idea, sir. I did what I was told. 10 Q Then the next thing that transpired after you 11 completed this resource assessment was that you received 12 this letter dated February 28, 2001, from Lynne Gordon, is 13 that correct? 14 A That is correct. 15 Q And you knew by virtue of that letter that Lynne 16 Gordon was affiliated with the Cumberland County Assistance 17 Office, did you not? 18 A At that time. 19 Q Did you call Miss Gordon when you received this 20 letter to ascertain why it was that she sent you a letter? 21 A I remember giving her a call. I remember talking 22 to her. And I remember that she told me that I had to do a 23 down spend for eligibility. And I remember setting up a 24 meeting with her to meet after the down spend was done. 25 Q As of the date that you had the telephone Page 51 1 conversation with Miss Gordon, did you then understand that 2 the reason she was contacting you was in reference to an 3 application for Public Assistance benefits on behalf of 4 your wife? 5 A The application came with the letter dated 6 February the 28th, 2001. 7 Q My question is, did you understand as of the 8 conversation you had with her, that the reason that she had 9 communicated with you in this letter of February 28, 2001, 10 was in reference to the fact that there was an application 11 to be filed for Public Assistance benefits on behalf of 12 your wife? 13 A No. 14 Q When, if at all, did you learn that the reason 15 that Miss Gordon was involved in this matter in any way was 16 in relationship to an application for Medicaid benefits? 17 A I never received anything. The only thing I ever 18 filled out was a resource assessment. 19 Q You received the notification that there were 20 certain assets that were computed by the Department of 21 Public Welfare as a result of their review of the resource 22 assessment, did you not? 23 A I believe so. 24 Q And you also received notification that there was 25 a certain amount of money that was attributable to your MAKUH 6.2008 Page 52 1 wife's assets that needed to be -- I'm going to use your 2 word -- down spent before she would qualify for Public 3 Assistance benefits, did you not? 4 A According to the letter dated February 28, 2001, 5 joint assets. 6 Q So you understood that there were certain amount 7 of joint assets that needed to be down spent in order for 8 your wife to be eligible for Medicaid, is that correct? 9 A According to that letter dated February 28, 2001. 10 Q And at any point in time after you received the 11 letter of February 28, 2001, did you make inquiry of Manor 12 Care as to why you were being asked by the department of -- 13 the County Office of Assistance to meet with them with 14 respect to the resource assessment? 15 A No. I believed that they were professionals. 16 Q You met with Miss Gordon then on March the 13th 17 of 2001? 18 A Yes. 19 Q And what took place during that meeting? 20 A She reviewed the packet. 21 Q What packet? 22 A The application at the time. 23 Q What else happened? 24 A At that time she realized she seen the insurances 25 listed, and at that time became aware that we had TRICARE. Page 53 1 Q Now, when you say application, what application 2 are you referring to? 3 A That's the application for nursing home. 4 Q Exhibit No. 1, is that what she reviewed? 5 A No. 6 Q Exhibit No. 2? 7 A No. 8 Q Do you have in your possession a copy of this 9 application that she reviewed? 10 A Yes. 11 Q Can you describe it for me? 12 A It's the one there has about nine pages in it, 13 front and back, lists all pertinent information including 14 your insurances, including I believe your resources, date 15 of birth. 16 Q Was this an application for Manor Care or was 17 this an application that you completed that was transmitted 18 with her letter of February 28, 2001? 19 A That's the application came with the letter. 20 Q I'm not going to mark this as an exhibit, but I'm 21 going to hand to you a binder which contains records that 22 were sent to me by your counsel, which were produced by the 23 Department of Public Welfare in response to a subpoena that 24 he served upon them for records. Is the document the 25 application that you're referring to that you reviewed with Page 50 -Page 53 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 DUANE M. DONISON MARCH 6, 2008 Multi-Page" Page 54 1 Miss Gordon in the meeting on March the 13th is that Page 56 1 , 2 document contained in the first full packages of the binder MR. GAN: Excuse me. You have to respond for the 2 record. 3 I handed you? 4 A This is the one I filled out 3 THE WITNESS: I said yes. . 5 Q Now, were you ever requested to complete that 4 BY MR. BLACK: 5 Q Turning to the next pages and I would note th 6 document by any individual at HCR Manor Care? 7 , e 6 following two pages are two-sided copies. Do you recognize A No. 7 that document? 8 Q I understand that that document came with a 8 A Yes. 9 letter that was dated February 28, 2001? 9 Q Can you tell us what that is? 10 A To the best of my knowledge. 10 A It's a resource assessment completed by Monica 11 Q To your knowledge did you ever provide a copy of 11 Shuleva and myself. 12 that document to anyone at HCR Manor Care? 12 Q Is the resource assessment that you're referring 13 A No. 13 to earlier in your testimony that you completed with Miss 14 Q Just delivered that to Miss Gordon, is that 14 Shuleva back on February 15th, 2001? 15 correct? 15 A Yes. 16 A Strictly straight to Lynne Gordon. 16 Q Do you recognize the handwriting that's contained 17 (Cumberland County Assistance Office Letter, 17 throughout that document? 18 three pages, produced and marked Donison Exhibit No. 3.) 18 A I recognize my signature. 19 BY MR. BLACK: 19 Q Is there any other handwriting on that document 20 Q Mr. Donison, I'm going to hand you now what has 20 that's in your handwriting other than the signature? 21 been marked as Donison Deposition Exhibit No. 3. I ask you 21 A Other than the signature, that's it 22 to take a few minutes to review that. . 22 Q How about the spouse's street address under the 23 Do you recognize that document? 23 first block of resource assessment general information 40 24 A Yes. . 24 Ringneck Drive, Harrisburg, PA, is that in your 25 Q The first page of that document is a letter on 25 handwriting? Page 55 1 the stationery of the Department of Public Welfare, 2 Cumberland County Assistance Office. Is this, in fact, the 3 letter that you received that you were referencing in your 4 earlier testimony from Lynne Gordon that you believe was 5 dated February 27th -- or 28th of 2001? 6 A No. 7 Q It was not the letter. Do you recognize 8 receiving this letter? 9 A This letter? 10 Q Yeah, the first page of Deposition Exhibit No. 3. 11 A I don't remember. 12 Q You don't remember if you did or didn't? 13 A I remember seeing it, and I believe it did come 14 from Lynne Gordon. 15 Q I'm not going to read the text of the letter into 16 the record, but would you agree with me that essentially 17 what this letter is doing is advising that the Department 18 of Public Welfare had reviewed the resource assessment and 19 had calculated that this countable resources jointly owned 20 between you and your wife amounted to a value of 21 $59,925.62, and in order to have her qualify for Medical 22 Assistance benefits that there would be a necessity of 23 reducing her countable assets by the sum of $29,962.81? 24 A Yes. 25 Q You would agree with that? PAQP. Sd - pan- <1 Page 57 1 A Pardon me. Yes, it is. 2 Q Did you provide the information that's contained 3 on this form to Miss Shuleva for her to serve as a scribner 4 and place it into the form? 5 A I provided documents. 6 Q Did you review this form before you signed it? 7 A Yes. 8 Q Was it completed and all the information that's 9 contained on the document now incorporated into the 10 document before you signed it? 11 A Everything was done properly, listing all 12 resources. 13 Q I understand, but that's not my question. My 14 question is, did you review the information that was 15 transcribed onto this form before you signed it? 16 A Yes. 17 (Handwritten Document, one page, produced and 18 marked Donison Exhibit No. 4.) 19 BY MR. BLACK: 20 Q Mr. Donison, I'm going to hand you now what has 21 been marked as Deposition Exhibit No. 4. 22 MR. GAN: This is my writing. 23 MR. BLACK: Okay let me ask him. I'm going to 24 ask him if he recognizes; if he doesn't know anything about 25 it, we can go on. HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 Multi-Page"`` DUANE M. DONISON am A T ITT i 1yAxxA%V11 V, LVVB Page 58 Page 60 1 BY MR. BLACK: I insurance coverage for your wife, resulting in you 2 Q Can you take a look at that for a second, 2 disposing of these assets unnecessarily. Is that a fair 3 Mr. Donison. Do you recognize that document? 3 statement of your claim? 4 A No. 4 THE WITNESS: I believe that my -- our insurances 5 Q You've never seen this before? 5 was not completed, exhausted. Cumberland County would 6 A I don't have a copy of it. 6 never heard of me that I ever existed if the insurance were 7 Q Again, that's not my question. My question -- 7 done properly. 8 A No. 8 BY MR. BLACK: 9 Q -- is, have you ever seen it before today's 9 Q All right. So my question to you becomes, why is 10 deposition? 10 it that Cumberland County Assistance Office is involved in 11 A I've just seen it as of now. 11 any way in requesting that you spent this money if Miss 12 MR. GAN: Let me inject, this is an internal 12 Donison never received Medical Assistance benefits? 13 document. Why it was copied and sent to you, I have no 13 A They would have never heard from us. 14 idea. This is my internal work product. 14 Q You do recognize that she received Medical 15 MR. BLACK: That's fine. I'll just ask him if he 15 Assistance benefits at some point in time, do you not? 16 ever saw it before, if he knew it was produced as part of 16 A Yes. 17 the Public Assistance records. I didn't know it was his 17 Q As a result of the application that you made on 18 writing or not. I'm asking him the questions. 18 her behalf to the Department of Public Welfare that she was 19 THE WITNESS: No. 19 afforded these Medical Assistance benefits, right? 20 BY MR. BLACK: 20 A Yes and no. 21 Q You can turn that aside. 21 Q Why don't you tell me why no? 22 A Pardon? 22 A I'll say this: March 24th, 2001, she was 23 Q You can turn that aside. 23 approved for Medical Assistance. That is the same date as 24 Did you at some point in time learn from Miss 24 TRICARE became effective. 25 Gordon that your wife had, in fact, applied for Public 25 Q And why was TRICARE effective on March 24th of Page 59 Page 61 1 Assistance? 1 2001? 2 A My wife never applied for Public Assistance. 2 A Her Medicare and Capital Blue Cross was 3 Q Did you ever apply on her behalf for Public 3 exhausted. 4 Assistance? 4 Q Now, in order for your wife to qualify for 5 A I was directed. 5 Medical Assistance benefits, it was necessary by virtue of 6 Q That's not my question. 6 correspondence you received from the Cumberland County 7 A That's this best I can answer, sir. 7 Board of Assistance to dispose of certain assets, is that 8 Q Did you apply on her behalf for Public 8 correct? 9 Assistance? 9 A Yes. 10 A Well, the question to that, I was going off the 10 Q As I understand the allegations in your 11 letter dated February 28, 2001, directing me. 11 Complaint, the assets that you disposed of included some 12 Q So she did -- you did apply for Public Assistance 12 United States savings bonds, is that correct? 13 on her behalf? 13 A Yes. 14 A Based on the letter of February 28, 2001. 14 Q From the calculation of the savings bonds that 15 Q You can qualify it whatever way you want to, but 15 were contained in the records produced by Cumberland County 16 you did apply on behalf of your wife for Public Assistance? 16 Assistance Office, it's my understanding that the total 17 A Based on that letter. 17 amount of savings bonds which you redeemed, $22,413.23, is 18 Q Were you subsequently advised she was eligible 18 that correct? 19 for Public Assistance specifically for medical coverage? 19 A Yes, to the best of my knowledge, yes. 20 A Sir, again, going off the letter of February the 20 Q Of that $22,413.23, $13,431.91 was attributed to 21 28th. 21 interest, correct? 22 MR. GAN: Mr. Donison, this case is involving 22 A Yes, approximately. 23 your allegations that you disposed of certain assets that 23 Q And $8,981.25 was attributed to principle, 24 were jointly owned by you and your wife, and that the Manor 24 meaning the money that you had used to purchase the bonds? 25 Care office failed to properly recognize available 25 A Yes, approximately. Page 58 -Page 61 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 DUANE M. DONISON MARCH 6, 2008 Multi-Page TM Page 62 1 Q The difference between $29,962.81 and $22,413.23 Page 64 1 the amount of money you spent in order to qualify her for 2 is $7,549.58. My question to you is, what source of your 2 Medicaid? 3 assets did you liquidate in order to make up the difference 3 A No -- yes, it is. It is part of the resource 4 between the redemption amount of the bonds and the total 4 assessment. 5 amount that you down spent as complained of in this 5 Q Did you take the entire -- first of all how much 6 Complaint of $29,962.81? , 6 was the purchase prise of the vehicle that you bought? 7 A Well, you have your checking, you have your 7 A It was approximately a little over $29 000 and 8 savings, and you also have your sun ender value of your , 8 some change. 9 life insurance policies. 9 Q Did you take the entire redemption value of the 10 Q Out of those assets which ones did you utilize in 10 United States savings bonds and additionally sums from your 11 order to -- in addition to the savings bonds in order to 1 I checking and savings accounts to purchase that vehicle? 12 down spend your assets to meet the Department of Public 12 A Yes. 13 Welfare's guidelines? 13 Q Then did you advise Miss Donison at some point in 14 A That is done by accommodation of what I said. 14 time that you had, in fact, spent amount equal to or in 15 Q Which life insurance policies did you surrender? 15 excess of $29,962.81 of your joint assets in order to 16 A I did not surrender any. 16 further the application for your wife's Medical Assistance? 17 Q Did you take a loan out of the policies? 17 A I provided the documentation as she requested it. 18 A No. You use the surrender value is deducted. 18 Q When did you do that? 19 Other words, the surrender value of the life insurance 19 A March 13th, 2001. 20 policy is $6,000. We'll divide it by two. It would be 20 Q During the meeting that you had with her? 21 three. And that $3,000 is added to your resources. 21 A Yes. 22 Q But in this action -- 22 Q When did you learn that Manor Care had not 23 A That's from my understanding. 23 submitted any of your wife's skilled nursing charges to 24 Q In this action, Mr. Donison, you alleged that you 24 TRICARE? 25 were forced to liquidate $29,962.81 of your joint assets 25 A Approximately one year later. Page 63 1 because Manor Care failed to submit Mrs. Donison's expenses 2 through TRICARE insurance, is that correct? 3 A Say the word expenses? 4 Q The bills for her services while a resident at 5 Manor Care? 6 A They did not submit the claim. 7 Q And as a result of that you're alleging that you 8 were forced to spend $29,962.81 worth of your joint assets 9 in order to qualify her for Medicaid, correct? 10 A According to the letter dated February 28, 2001. 11 Q What I'm trying to do is simply find out what 12 assets you disposed of to reach the $29,962.81. Okay? 13 A Yes. 14 Q My understanding is that you redeemed United 15 States savings bonds worth $22,413.23, is that correct? 16 A Yes. 17 Q And you used those proceeds from those bonds to 18 purchase a vehicle, is that correct? 19 A Yes. Part of it. I had to add to it. 20 Q That's my question. Where did you get the 21 additional monies that you needed in order to accommodate 22 the $29,962.81 that you had to down spend in order for your 23 wife to qualify for assistance? 24 A Checking and savings. 25 Q So life insurance has nothing to do with it, with D- <) _ D--- cc Page 65 1 Q How did you learn? 2 A Calling TRICARE. 3 Q One year later from when? 4 A That would be from March 24th of 2001 to around 5 March of 2002. That's the date of the notice on the 6 TRICARE EOB. 7 Q So is it your testimony that you learned for the 8 first time in March of 2002, that TRICARE had not been 9 billed for any of the skilled nursing services your wife 10 was receiving through Manor Care? 11 A In between that time I was talking to the billing 12 officer, Theresa Cmjar-Pully. She said yes, we're waiting 13 on payments. 14 Q From whom? 15 A TRICARE. 16 Q Do you need a break? 17 A Yes. I'd like to go to the washroom and talk to 18 my counsel. 19 (Recess taken from 11:33 to 11:46.) 20 (Letter dated April 30, 2003, 12 pages, produced 21 and marked Donison Exhibit No. 5.) 22 BY MR. BLACK: 23 Q Mr. Donison, I'll show you now what's been marked 24 as Deposition Exhibit No. 5. Please take a few minutes to 25 review this; it's a lengthy letter. HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-02201717-393-5101 Multi-Page TM DUANE M. DONISON Page 66 1 Are you familiar with this document, Mr. Donison? 2 A Can I say one thing before we proceed onto this 3 question? I just want -- it's a question on my employment. 4 Q If you'd like to amend, you certainly have that 5 right. 6 A I just remembered the name of the company now. 7 It used to be called Minion, then they changed their name 8 to Intersect Security, I believe. The reason I said that 9 is because it's on my resume. 10 Q Are you familiar with Deposition Exhibit No. 5? 11 A Yes. 12 Q Are you familiar with it? 13 A Yes. 14 Q Can you tell us what it is, please? 15 A This is the document of my Complaint to Honorable 16 Holden, the Attorney General's Office, Inspector General. 17 Q This letter is dated April 30th of 2003, is that 18 correct, Mr. Donison? 19 A Yes, it is. 20 Q Hand was this letter compiled by you? 21 A Yes, it was. 22 Q At the time that you made this letter back in 23 April of 2003, were the facts and the chronology of events 24 that are set forth in this letter true, to the best of your 25 information, knowledge and belief? I A Yes. 2 Q Did you, in fact, then sign this letter on page 3 12? LV"U&%,ri 0, LUU5 Page 68 1 A Yes, they should have been submitting it. 2 Q And you understood that on -- no later than July 3 17th of 2001, is that correct? 4 A I understood partly. 5 Q Let's take it item by item. You met with Lynne 6 Gordon on July 17th of 2001, correct? 7 A I met with her March 13th of 2001, and then I met 8 with her again on July the 17th of 2001. 9 Q And the meeting that you had with her on July 10 17th, 2001, dealt with the coordination of benefits between 11 the various insurances and Medicaid for your wife, is that 12 correct? 13 A That was between TRICARE, Medicare, Capital Blue 14 Cross and Medical Assistance. 15 Q Correct. And it was at that point in time that 16 you knew that the request that you spend $29,962.81 was 17 improper, is that correct? 18 A Yes, it was. 19 Q And, in fact, you discussed that with Lynne 20 Gordon at that meeting, is that correct? 21 A I discussed with her about that. 22 Q She told you at that point in time that it was 23 her belief that the nursing home was at fault for your down 24 spending of that money? 25 A Yes. Page 67 4 A Yes. 5 Q I'd like to just turn your attention to page 2, 6 the very last paragraph of that letter. I'm going to read 7 this. You tell me, make sure I don't misread what you 8 wrote here. 9 Quote: On July 17th, 2001, I had a conference 10 with my case worker Lynne Gordon about the coordination of 11 benefits and that we should never have gone through the 12 down spend process. 13 MR. GAN: Excuse me. For the record, why don't 14 we do a page reference. 15 MR. BLACK: It's continuing to page three. I 16 think I did say it started on page two at the very 17 bottom. 18 BY MR. BLACK: 19 Q Period. Quote: Lynne Gordon said the nursing 20 home was at fault. End of quote. It was your 21 understanding, was it not, as of July 17th, 2001, that you 22 should not have been required to spend the $29,962.81 that 23 you down spent in order to qualify your wife for Medical 24 Assistance because Manor Care should have been submitting 25 those bills to TRICARE insurance, is that correct? Page 69 1 (E-Mails, two pages, produced and marked Donison 2 Exhibit No. 6.) 3 BY MR. BLACK: 4 Q I'm going to hand you now what's been marked as 5 Donison Deposition Exhibit No. 6. Are you ready to proceed 6 with inquiry on the deposition exhibit? 7 A Yes. 8 MR. GAN: Let me just state for the record if 9 we're all looking at the same thing here, let the record 10 reflect we're looking at communication from a Melanie I 1 Cohick to a Lynne Gordon dated July 18th, 2001, if that's 12 what I have in front of me, and its subsequent 13 communication that goes onto page two, I briefly reviewed 14 it, and unless I see something in here that has my client's 15 name on it and he was not privy to this communication, I'm 16 going to object to his ability to make any comments or 17 answer any questions in regard to this communication as he 18 was not a party to this communication. 19 That being said, you may now go ahead and answer 20 any questions presented to you by counsel. 21 BY MR. BLACK: 22 Q Do you recognize this document, Mr. Donison? 23 A I recognize this document as one of my enclosures 24 to my letter dated April 20th, 2003. 25 Q So you had seen this document before the Page 66 - Page 69 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 DUANE M. DONISON MARCH 6, 2008 Multi-Page TM Page 70 1 deposition today, is that correct? 2 A ON Yes. I have this in my possession. 3 Q There's some handwriting that appears on this 4 document that is not typewritten, do you see that? 5 A Yes. 6 Q Is that your handwriting? 7 A Yes. 8 Q So you had a chance of reviewing this document 9 and you actually made notations on this document, is that 10 correct? 11 A Yes. 12 Q Do you remember when it was that you first saw 13 this document? 14 A That was July of 2001 or shortly thereafter. 15 Q I'm going to go sequentially down this document, 16 the first page of this document. There's originally the 17 first third of the document is what appears to be a e-mail 18 from Melanie Cohick to Lynne Gordon, subject matter is 19 forward NH coverage. And there is then an original message 20 which was from a Kathy Martofel to Melanie Cohick regarding 21 the same subject matter. At the bottom of the typewritten 22 e-mail there appears to be at least two words, maybe more, 23 but the ones I can make out legibly from this copy says not 24 hue. Is that in your handwriting, the not true? 25 A Yes. Page 71 1 Q Were there any words interspersed between the not 2 true? 3 A I don't remember. I had something else there and 4 1 might have misspelled something so I took it out or 5 something like that. Not to be true or something like 6 that. I'm not sure. 7 Q What were you edifying or what comment were you 8 adding not true to in the text of the e-mail? 9 A That was the deductible $7,500. 10 Q What about that was not true? 11 A That is what is called a cost share. It comes 12 off the TRICARE EOB. That is for a fiscal year. The max 13 is $7,500 for military retirees. At that time. 14 Q We'll discuss the implications of that a little 15 bit later, but that's what the not true was referring to 16 with respect to the text of this e-mail? 17 A Is dealing with what's called a TRICARE 18 deductible. 19 Q That's what that was referring to? 20 A That's to the best of my knowledge, yes. Because 21 I'd have to refer to my notes. 22 Q Then starting about halfway down on the first 23 page there is a message from Melanie Cohick to Kathy 24 Martofel, and there appears to be some notations in your 25 handwriting that are subscribed over top of the text PnoP 70 - Pn"A '72 Page 72 1 printed e-mail message. Can you read for me what you 2 wrote? 3 A Not a true statement. Read the info I provided 4 on 17th of July 2001. 5 Q What did that particular comment refer to with 6 respect to the text of the e-mail? 7 A What that referred to -- and I'm going to have to 8 read it to you, if that's fine. 9 Q That's fine. 10 A The husband is telling us there is currently a 11 $7,500 cap, that is expected to be reduced to $3,000 in 12 10/01, that the client must spend before TRICARE pays. 13 That is an untrue statement. 14 Q What did you understand to be untrue about that? 15 A The way it is put forth in here, they're saying 1 16 must pay the $3,000 first before TRICARE. You can't do 17 that. A $3,000 cap is a fiscal year. The Army works off 18 fiscal years. The way they arrive at the $3,000 is by your 19 monthly TRICARE EOBS. It breaks it down and tells you on a 20 particular bill how much a cost share is. For example, 21 let's say the month of January is $300. That's a cost 22 share. Cost share is my responsibility to pay to my 23 provider. So it will add all the way up through a fiscal 24 year. The max it will reach is $3,000. Under the new 25 system. So the max out of your pocket for a fiscal year, Page 73 1 to clarify it for you, is $3,000. It's called a cost 2 share. 3 Q Did you sustain out of pocket expenses for 4 TRICARE cost share for any fiscal year where your wife was 5 a resident at Manor Care Camp Hill? 6 A No. 7 Q What is your understanding of who paid the 8 responsible expenses for the cost share during the period 9 of time that your wife was a resident of Manor Care Camp 10 Hill? 11 A HCR Manor Care did not bill me for my cost share. 12 They took the cost share, applied it to Medical Assistance 13 and written it off. You'll find that on page 727 of the 14 disk. 15 Q So is it your understanding that Medical 16 Assistance did not assume the cost share portion of that 17 payment? 18 A Medical Assistance does not pay cost share. 19 Q Is it your understanding that Medical Assistance 20 didn't contribute toward the cost of your wife's skilled 21 nursing care during the period of time that there would 22 have been cost sharing ongoing with TRICARE? 23 A Medical Assistance -- I'm going to repeat this, 24 sir -- cost share is my responsibility to pay to the 25 provider. The provider must give me a bill of the cost HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 Multi-Page TM DUANE M. DONISON 1! ? T/NTr / Page 74 1 share per TRICARE EOBs. It is against the law to write off 2 a cost share. Cost share is my responsibility. 3 Q What do you mean it's against the law to write 4 off a cost share? 5 A Because I am part of TRICARE. i help pay for my 6 wife's stay. 7 Q Well, a provider can offset your obligation under 8 the cost share if it chooses, can it not? 9 A No, they can't. 10 Q So you have sustained no out of pocket expense 11 whatsoever for the portion of the cost share during the 12 period of time that your wife resided at Manor Care Camp 13 Hill, is that correct? 14 A I was never billed for my cost share. 15 Q And you never paid? 16 A TRICARE told me not to pay until you receive a 17 bill. 18 Q Do you know what the total amount of your cost 19 share obligation was under the TRICARE coverage for your 20 wife in a skilled nursing home during the time she resided 21 there? 22 A $6,213.05 exactly. That's effective March 24, 23 2001. 24 (Letter dated November 2, 2001, one page, 25 produced and marked Donison Exhibit No. 7.) Page 75 1 BY MR. BLACK: 2 Q Mr. Donison, I'm now handing you Deposition 3 Exhibit No. 7. Do you recognize that document, sir? 4 A Yes. 5 Q Have you seen that document before the deposition 6 today? 7 A Yes. It was included in my letter dated April 8 30th, 2001, it was one of the enclosures. 9 Q Do you remember when it was you first saw this 10 letter? 11 A Other than back here at the date -- Lynne Gordon 12 gave me this in her office. 13 Q Do you remember when? 14 A No, I don't. It might be -- I would have to 15 refer to my letter. May I? 16 Q You can use what ever resources that you have 17 available to you. 18 A That will have to be April 7th, 2003. 19 Q That is when you believed you saw this letter for 20 the first time? 21 A Yes. 22 Q Did you understand at the time that you first saw 23 this from Miss Gordon that the purpose of this letter was 24 to alert the Office of Medical Assistance of the Department 25 of Public Welfare to monitor the interaction between Manor --%-JLA V, LVVO Page 76 1 Care Camp Hill and TRICARE Health with respect to the 2 billing? 3 A What part of the billing are you referring to? 4 Q The fact that TRICARE would be primary with 5 respect to skilled nursing care services over Medical 6 Assistance. 7 A TRICARE only becomes primary under one condition. 8 Q Why don't you elaborate on that. 9 A When a person has TRICARE under the military and 10 they're under the age of 65, that is the third insurance. 11 The first insurance in my wife's case is due eligible under 12 TRICARE. Her first insurance is Medicare, her second 13 insurance is Capital Blue Cross, her third insurance is 14 TRICARE. To make it really easy, I'll give you an example. 15 When she goes to the hospital her Medicare and Capital Blue 16 Cross is used first. They pay. Now, Medicare works this 17 way -- 18 Q Let me stop you a second. 19 A This is very important, sir. 20 Q That's fine, go ahead. 21 A Medicare pays first. When Medicare pays, Capital 22 Blue Cross pays. After a person has Medicare and Capital 23 Blue Cross, and it's exhausted, then at that time TRICARE 24 pays. 25 Q Okay. And we established that as of March 24 of Page 77 1 2001, your wife had exhausted benefits under Medicare and 2 under Blue Cross, isn't that correct? 3 A Yes. 4 Q As of that point in time, as of March 24th, 2001, 5 as between Medical Assistance and TRICARE, TRICARE became 6 primary, correct? 7 A At that time, yes. 8 Q And you understood that this letter that was sent 9 to the Office of Medical Assistance by Lynne Gordon which 10 you received a copy of or you became aware of at a meeting 11 on April 7th, 2003, was to alert the Department of Public 12 Welfare that as between TRICARE and Medicaid, TRICARE was 13 primary? 14 A TRICARE is primary. 15 Q You understood that? 16 A Yes, even though the letter is over two years 17 dated. 18 Q By that time you also understood that you had 19 been requested or you had been advised to down spend the 20 29,900 and some dollars in order for your wife to qualify 21 for Medicaid when, in fact, TRICARE should have been 22 primary? 23 A TRICARE should have been primary after Medicare 24 and Capital Blue Cross was already exhausted. 25 (Letter dated November 2, 2001, one page, Page 74 -Page 77 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 DUANE M. DONISON MARCH 6, 2008 Multi-Page' Page 78 1 produced and marked Donison Exhibit No. 8.) 2 BY MR. BLACK: 3 Q Mr. Donison, I'm handing you now Deposition 4 Exhibit No. 8. Do you recognize that document? 5 A Yes. 6 Q Have you seen that document prior to the 7 deposition today? 8 A Yes, I have. 9 Q Do you remember when it was that you first saw 10 this document? 11 A April 7th, 2003. 12 Q Was this provided to you by Lynne Gordon? 13 A Yes, it was. 14 Q Was it similar in nature to the letter that we 15 just reviewed, Deposition Exhibit No. 7, except that it was 16 directed to Monica Shuleva at Manor Care rather than to the 17 Department of Public Welfare? 18 A Yes. 19 (Typewritten Statement, three pages, produced and 20 marked Donison Exhibit No. 9.) 21 BY MR. BLACK: 22 Q Just let me know when you're ready to proceed. 23 A I'm ready. 24 Q Do you recognize that document that's been marked 25 as Deposition Exhibit 9? Page 79 1 A Very well. 2 Q Can you tell me what that is? 3 A This is a letter I sent off here to Lynne Gordon 4 on an appeal, I believe. I'm pretty sure it was to her or 5 it was to Senator Piccola. I would have to see my original 6 packet since these are enclosures. 7 Q I had perused this document and I haven't seen 8 anywhere that it contains a date. Do you see a date 9 anywhere as to when this document was prepared? 10 A There should be an attachment to it. It is a 11 form letter. And then I said, see continuation. It should 12 be part of the packet dated April 30 of 2003. 13 Q But my question relates more to when this 14 particular document was prepared. When did you prepare 15 this document? 16 A Again, sir, I have to see my original packet. 17 This is done in 2001, at least. At least in 2001. 18 Q Do you know when in 2001? 19 A Could be around June. I am not sure. Again, I 20 would have to refer to my complete packet. 21 Q What complete packet are you referencing? 22 A There is a cover letter that goes on here. It 23 was a form. Official military -- official form from 24 Pennsylvania. You filled it out and then I put in the 25 back, see continuation. Okay? I am not sure, so I would D...... 70 Tl___ 01 Page 801 1 have to look at that. 2 Q Was this an appeal form, the form that you 3 received, was it an appeal form to the Cumberland County 4 Bureau of Assistance regarding the determination on Mira's 5 Medicaid? 6 A I believe this went to Lynne Gordon. I'm sorry. 7 Q If you just bear with me, I need to take a second 8 to page through here and see if we can locate the face page 9 to that particular document from the records that were 10 produced by the Assistance Bureau. I1 Mr. Donison, I'm not locating any document which 12 to me would indicate that it would be responsive to the 13 document that you're describing. Do you recall whether or 14 not you maintained a copy of the cover form to which 15 Deposition Exhibit No. 9 would have been attached? 16 A Yes, I am remember that. 17 Q Did you provide a copy of that to your attorney? 18 A I believe so. 19 Q I'll have to make a request for that. What was 20 your understanding of what the nature of the cover form 21 was? 22 A Well, this is my little complaint here is about 23 TRICARE being my third insurance, and about the down spend, 24 listing her events and her arrival when she went to the 25 nursing home, listing the insurances, and at that time I Page 81 1 believe that Manor Care -- I believe at that time Manor 2 Care was very -- did not know anything about how to do 3 TRICARE. And I refuted that letter later on. 4 Q What was the nature of the form for which you 5 prepared this as an addendum? 6 A This one here? 7 Q Yes, sir. 8 A This is just my voicing my opinion on the 9 coordination of benefits. 10 Q I understand that. That's not my question. My 11 question to you is, what was the nature of the form to 12 which you attached this explanation? What was the purpose 13 of the form? 14 A The purpose? 15 Q Not this letter. But you told us earlier that 16 you believe that this was an attachment to a form that you 17 sent to Lynne Gordon, is that correct? 18 A Yes, what I believe, right. 19 Q And my question to you is, what is your 20 recollection with respect to the nature of the form to 21 which this was attached? What was the purpose of the form 22 to which is this was attached? 23 A Appeal. 24 Q Appeal of what? 25 A About the down spend. Best of my knowledge. I + ..bv i ? ¦ u?v U 1 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 Multi-Page TM DUANE M. DONISON Page 82 1 have to see the form. 2 Q What was your appeal about the down spend? 3 A We should have never did a down spend because 4 TRICnxE was never billed. It was never used. 5 Q I guess my question is, why would you be 6 appealing that to Miss Gordon or why would you be 7 transmitting that appeal to Miss Gordon? 8 A She was my case manager. 9 Q Who was the appeal being lodged with? 10 A I lodged it there with the nursing home -- I mean 11 with the Cumberland County Assistance Office about the 12 nursing home. 13 Q Do you believe that occurred back in 2001? 14 A I believe. I would have to look at the document. 15 Q Do you believe it occurred -- we have established 16 in one of these documents here, I think Deposition Exhibit 17 No. 5, that you had the meeting on July 17th, 2001, with 18 Lynne Gordon. Do you believe that that document would have 19 been prepared either in connection with or prior to July 20 17th, 2001? 21 A It was probably prior. 22 Q So we're clear, Deposition Exhibit No. 9 you 23 believe was prepared prior to July 17, 2001? 24 A I believe -- I would have to say this: I would 25 have to look at the document to see the actual date of the Page 8s 1 document in order to answer your question more fully for 2 the information on page two and three, because it goes and 3 coincides with August 20th of 2001. 4 Q And you're referencing Deposition Exhibit No.? 5 A No. 5. 6 Q I'm going to tell you right now that I will be 7 issuing a request for production to your attorney, and I'm 8 going to label it so that we understand what document I'm 9 seeking, I'm going to label it as I'm requesting a copy of 10 the form of the appeal for down spend. What I mean by that 11 is, the form that accompanied Deposition Exhibit No. 9 that 12 you provided to Miss Gordon. Okay? So we're all clear on 13 what it is that I'm requesting in that. 14 A Can you say that again, please? 15 Q Sure. In order to make sure that we're 16 communicating, it's my understanding that it is your belief 17 that Deposition Exhibit No. 9 was attached to a form which 18 you forwarded no Lynne Gordon appealing the down spend, 19 correct? 20 A That's to the best of my knowledge. 21 Q My understanding is that you believe you have 22 provided a copy of the form to which Deposition Exhibit No. 23 9 was attached to your counsel, correct? 24 A I believe. 25 Q So I am going to serve a request for production j.Xr&,M%,n 0, LVVB Page 84 1 asking for a copy of that form, and I'm going to 2 characterize the form as being the form of appeal for down 3 spend, so we all know what I'm referring to. 4 A I would say as a complaint. 5 Q A complaint, okay. For down spend? 6 A A listing of complaints. Not only down spend, 7 it's a listing of complaints. 8 Q I'm not referring to this document, I'm talking 9 about the document so which this was appended. 10 A That document is a Pennsylvania form that I 11 filled out listing my attachment to it. 12 Q What I'm trying to do is, I'm just making sure we 13 understand and we're communicating, because I haven't seen 14 that document, and I'm going to ask for a copy of it and I 15 don't want us to be confused about what it is phrased or 16 what it is called so that I can get a copy of it. I'm just 17 saying to you that I am going to call it in my request an 18 appeal form for down spend so that we all understand what 19 it is I'm requesting, okay? 20 A You can label it as you please. 21 Q You understand what I'm referring to? 22 A I understand. 23 Q Very good. Now, my understanding is further that 24 you remitted the sum of $2,600, in estimated federal tax 25 payments attributable to the interest that you received on Page 85 I the savings bonds you redeemed, is that correct? 2 A Yes, reported two-six. 3 Q And that was estimated tax toward calendar year 4 2001 taxes? 5 A I believe so. That was for the savings bonds. 6 Q Did you retain a copy of your federal 2001 income 7 tax return? 8 A Yes, I did. 9 Q And you still have that? 10 A Yes, I do. 11 Q Do you know what your tax liability, if any, was 12 for the calendar year 2001, federal tax liability? 13 A No, I don't. 14 Q Do you know if you received a refund in 2001? 15 A Yes. 16 Q Did you? 17 A Yes. 18 Q Do you know the amount? 19 A No. 20 Q I'm going to turn to the Complaint that you and 21 your counsel filed in this matter. I want to ask you some 22 questions about some allegations that you made in the 23 Complaint. Actually, your amended Complaint. I'm going to 24 read this, because I don't have a copy of it, but I'll 25 certainly turn it to you so you can review it after I ask HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 Page 82 - Page 85 DUANE M. DONISON Multi-Page'rm MAIKUH 6.2001 Page 86 Page 88 1 you the question so it s in context for you. Paragraph 14 1 Q So whatever information you have relating to 2 of your amended Complaint you allege that, upon information 2 complaints that this Miss Ashbrook would have made would 3 and belief the billing department of HCR Manor Care 3 have come to you secondary through Lynne Gordon? 4 informed the Cumberland County Assistance Office that 4 A Lynne Gordon at that time. 5 insurance coverage through TRICARE would not pay for Mira's 5 Q Any other basis for the allegations in Paragraph 6 nursing home bills. Just verify that I read that exactly 6 14? 7 the way it's stated in the Complaint. 7 A On the allegations I can say Cindy Ashbrook told 8 A That's number 14, right? 8 me personally face to face when I met with her April of 9 Q Correct. 9 2003, that she is going to hurry up and clear out all the 10 A Yes, um-hum. 10 bills dealing with TRICARE. 11 Q My question to you is, what factual basis do you I 1 Q Do you have believe that that comment somehow 12 have to support that allegation that HCR Manor Care 12 supported the allegation that she informed Cumberland 13 informed Cumberland County Assistance that TRICARE would 13 County Assistance that TRICARE wouldn't pay for the nursing 14 not pay for Mira's nursing home bills? 14 home bills? 15 A Letter dated June 6 of 2003, to the Attorney 15 A From my understanding. What I can say this, is 16 General's Office by Dan Dyssem (phonetic). 16 that with Cindy Ashport she failed to follow through, then 17 Q Anything else? 17 she told I guess Lynne Gordon that TRICARE would no longer 18 A No. Not at that time, sir. 18 pay. 19 Q I'm talking at the present time, not at that 19 Q That's your impression? 20 time, at this time. Are there any other facts that you're 20 A That was my impression. 21 aware of, any other documents that you're aware, that 21 Q I'm looking for facts, Mr. Donison, I'm looking 22 support your allegation in paragraph 14 that HCR Manor Care 22 for facts that you base your allegations. 23 informed Cumberland County Assistance Office that TRICARE 23 A Based on the facts of their billing coordination, 24 wouldn't pay for Mira's nursing home bills? 24 lateness in billing. 25 A Other than the comment made by Cindy Ashport back 25 Q So you're entering it based on the lateness of Page 87 1 in April of 2003, Lynne Gordon. 2 Q To who? 3 A Cindy Ashport, I believe is her last name. 4 Q Who is she? 5 A She works for HCR Manor Care. 6 Q In what capacity is she at HCR Manor Care? 7 A I believe she's under billing. 8 Q At the Camp Hill facility? 9 A At the Camp Hill facility. 10 Q Do you have any personal information about any 11 comments? 12 A Only there is when I met with April -- July of 13 2003, I had previously met with Cindy Ashport April of 14 2003. 15 O My understanding of vnnr annn1Pmi-ntn1 r cnnnea ; Page 89 1 billing? 2 A Lateness of billing. Dates up to one year for 3 them, no bill. 4 Q Is it true it's an inference? 5 A What do you mean by that? 6 Q That you're surmising or assuming based on the 7 fact that there was a delay in billing that they had 8 informed the Assistance Office that TRICARE wouldn't cover? 9 A There always was a lateness in billing. That's 10 the only way I can answer that, is because when you look at 11 the TRICARE EOBS, it took them a year to bill for services. 12 Q I'm not disputing any of that, Mr. Donison. What 13 I'm asking you simply is, when you file a complaint and you 14 make factual allegations in the Complaint there should be 16 that you learned information from Miss Gordon that leads 16 learn from you what factual basis that you had to make the 17 you to believe that Miss Ashbrook communicated to the 17 allegations that Manor Care informed the Assistance Office 18 Department of Public Assistance that TRICARE wouldn't pay 18 that TRICARE would not pay for Mira's nursing home bills. 19 for Mira's nursing home bills, is that correct? 19 A I told Lynne Gordon that TRICARE will not pay if 20 A That's my understanding. 20 they're late in billing after one year. 21 Q My question is, did you have any personal 21 Q Mr. Donison, with all due respect, that is not 22 knowledge that Miss Ashbrook or Ashport, whatever her name 22 responsive to my question. Do you understand the question 23 is, ever tell you that TRICARE would not pay for Mira's 23 l asked? 24 nursing home bills? 24 A No, I don't. 25 A No. 25 Q Let me try it again. At the beginning of this n-__ ne i use, vv - r agu o7 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 Multi-Page T"` DUANE M. DONISON M M A - Page 90 1 deposition I told you if you don't understand the question, 2 tell me and I will rephrase it or restructure it to try to 3 make it understandable to you. Okay? So if you don't 4 understand the question, tell me. Otherwise, I assume you 5 understand the question and your answer is supposed to be 6 responsive to it. 7 Now, partnership 14 of your Complaint you allege 8 is that the billing department at Manor Care told 9 Cumberland County Assistance that TRICARE would not cover 10 for Mira's nursing home bills. What I want to know from 11 you is, what facts, what documents, what basis you have for 12 that allegation? 13 A In writing June 6th of 2003, letter from Dan 14 Dyssem (phonetic). 15 Q Anything else? 16 A Other than what Lynne Gordon told me. 17 Q What Lynne Gordon told you was what? 18 A Cindy Ashbrook told her that they will not -- can 19 1 look in here? 20 Q You can look at whatever resources you have 21 available to refresh your recollection. 22 A It came also from Cindy Ashbrook when I talked to 23 her on April the 7th. 24 Q What year? 25 A 2003. She told me someone in TRICARE informed Page 91 1 her that they would no longer pay for April 2002 and 2 onward. I called TRICARE and I questioned about this. I 3 was informed that they did not have anything on file saying 4 they would no longer pay. 5 Q By April of 2002 TRICARE -- the issue with the 6 down spend had already been accomplished, is that correct? 7 A It was already over with, done with. 8 Q You knew well before April of 2002 in your mind 9 that Manor Care had failed to bill TRICARE or had failed to 10 recognize that TRICARE would cover services that were being 11 provided to Mira, isn't that correct? 12 A March 24th, 2001. 13 Q In fact, you knew that as far back as July 17 of 14 2001, when you met with Lynne Gordon, isn't that correct? 15 A No, that's partly right and partly not. 16 Q Well, you knew in July of 2001, that Manor Care 17 had not recognized that TRICARE was an eligible insurance 18 provider for Mira Donison, didn't you? 19 A No. 20 Q You didn't know that? 21 A I signed admission agreement dated 9 February of 22 2001, for them to bill my third party insurance. 23 Q Then let's go back, because I misunderstood your 24 testimony with respect to this letter and the portions of 25 this letter that were marked as Deposition Exhibit No. 5. iyAr&JM% " V,6VV8 Page 92 1 Will you turn back to that Deposition Exhibit, No. 5. 2 Page two, the last sentence of page two and on to page 3 three, again, you said on July 17th, 2001, I had a 4 conference with my case worker Lynne Gordon about the 5 coordination of benefits and that we should never have gone 6 through the down spend process. Lynne Gordon said the 7 nursing home was at fault. 8 Again, Mr. Donison, on July 17, 2001, you 9 recognized that Manor Care had failed to coordinate the 10 benefits with TRICARE and Medicaid and had required that 11 you down spend 29,900 some dollars in order to qualify Mrs. 12 Donison for Medicaid when TRICARE would have covered those 13 nursing home costs? 14 A It had nothing to do with Medicaid. Medicaid 15 comes when all insurances have been exhausted. TRICARE has 16 never been exhausted. Medicare would never came in play. 17 Q Exactly. And what you're saying is that by July 18 17 of 2001, you knew that Manor Care bad failed to bill 19 TRicARE or had failed to look at TRicARE as a resource and 20 required you to down spend $29,900 to qualify Mira for 21 Medical Assistance when they should have been billing 22 TRICARE? 23 A Partly right. 24 Q What's wrong about what I said? 25 A Because I was told by Susan Mitrick that they Page 93 1 just became a TRICARE provider effective 1 March 2001. 2 Q But the substance of it is that you knew that as 3 of July 17, 2001, that they should have been attempting to 4 bill TRICARE instead of having you make application for 5 Medical Assistance, correct? 6 A They did not bill TRICARE until one year later. 7 Q I'm not asking what they did, I'm asking what you 8 knew. 9 A What I knew at that point? They just became a 10 TRICARE provider 1 March of 2001. 11 Q You knew that on July 17 of 2001? 12 A Somewhere around there. I'm not sure exactly 13 when, but they just became a TRICARE provider 1 March 2001. 14 That was relayed to me back in -- I don't have the exact 15 date. But it's going to go into somewhere past 2001. I 16 can't give you an exact date. 17 Q We can agree, can we not, Mr. Donison, that 18 regardless of whether or not TRICARE -- Manor Care was 19 TRICARE participating as of March 1, 2001, really didn't 20 have any affect on anything because Mira was still covered 21 under Medicare and Blue Cross until March 24 of 2001? 22 A March 24th. 23 Q The first date that Mrs. Donison would have been 24 eligible for coverage under TRICARE would have been March 25 24th, 2001, under coordination of benefits with Medicare Page 90 - Page 93 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 DUANE M. DONISON MARCH 6, 2008 , Multi-Pager' Page 94 1 and with Blue Cross, correct? 2 A With TRICARE. 3 Q That's exactly what I said. 4 A Right. 5 Q What you knew as of July 17, 2001, was that Manor 6 Care had provided this resource assessment to the 7 Cumberland County Assistance Office, and you knew that you 8 had provided Manor Care with information that Mira was a 9 TR[cARE eligible individual? 10 A Dual eligible. 11 Q Whatever. She was eligible for TRtc.ARE coverage? 12 A There's a difference. 13 Q I understand there's a difference coverage-wise, 14 but she's covered by TRIcARE? 15 A Yes. 16 Q And you realized by July 17 of 2001, that it was 17 unnecessary for you to have spent those assets, the $29,900 18 and some dollars, because Manor Care should have been 19 billing TRICARE, correct? 20 A Something like that, yes. 21 Q Now, you also stated in paragraph 30 of your 22 Complaint, quote: Plaintiff -- which refers to you -- 23 pursued Medicare to pay for Mira's nursing home costs as a 24 result of the misrepresentations made by defendant HCR 25 Manor Care. Take a look at that. Page 95 1 A That is wrong. That's the wrong word, Medicare. 2 It's supposed to be Medicaid. 3 Q Let's modify it for purposes -- 4 A I believe that's what it is. I would have to go 5 to look at my paper work. 6 Q I am telling you that's the Complaint that was 7 served on me. I'm not going to get into a big argument 8 about the propriety of Medicare versus Medicaid. What I 9 want to know is, what misrepresentations did Manor Care 10 make that caused you to pursue Medicaid to pay for Mira's 11 nursing home costs? 12 A They skipped TRICARE. 13 Q Anything else? 14 A No, they just skipped it. 15 Q So nobody actually told you anything, it's just 16 that they didn't do? 17 A They just did not do it. 18 MR. BLACK: Let me just look over my notes. 19 (Recess taken from 12:28 to 12:30.) 20 BY MR. BLACK: 21 Q Just a few more questions, Mr. Donison. This is 22 relating to paragraphs 36 and 37 of your amended complaint. 23 Paragraph 36 states, quote: Plaintiff -- referring to you 24 -- relied on the information that he received from the 25 nursing home. Paragraph 37 says, quote: In reliance upon -- ,,. Page 96 1 the advice he received, plaintiff took action that included 2 disposing of $29,962.81 in assets, and as a result incurred 3 $2,600 in taxes. Read over that to make sure I read that 4 properly. Did I read it correctly? 5 A Yes, you did. 6 Q What information did you receive from the nursing 7 home that you relied upon when you disposed of the assets 8 and incurred the taxes? 9 A Resource assessment. Admission agreement. 10 Q What specifically in the admission agreement? 11 A Admission agreement that they bill my third party 12 insurances. Once all insurances have been exhausted, then 13 payment is made to Medical Assistance. You'll find that I 14 believe on page 3. Page 2. 15 Q What particular portion of that admission 16 agreement on page two are you referencing? 17 A That they will bill my third party. 18 Q There's clauses in there numbered on page two of 19 three of the contract, I'm asking if you can correlate that 20 for me. 21 A Yes, I will. That goes into on page 15 the 22 authorization for payment of benefits for third party. 23 Q Could you provide me a section on page two? 24 A The only thing I can see in here that the center 25 will agree to bill the third party. Page 97 1 Q That was your understanding? 2 A That was my understanding, and there's the form I 3 signed. 4 Q Did you also read the provisions on page three of 5 the admission agreement under section 1.09 application for 6 benefits? 7 A Um-hum. 8 Q Did you read that when you reviewed the 9 application? 10 A Oh, yes, I remember this quite well. 11 Q You reviewed that? 12 A Oh, yes. I know that quite well. 13 MR. BLACK: That's all the questions I have. 14 Thank you, Mr. Donison. 15 MR. GAN: If we can go off the record for a 16 minute. 17 (Discussion held off the record.) 18 EXAMINATION 19 BY MR. GAN: 20 Q Let the record reflect, my name is Richard Gan. 21 I'm counsel for Duane Donison in the matter of Donison 22 versus Manor Care. 23 Mr. Donison, obviously you know me, and I'm going 24 to try to be as brief and concise and precise as possible 25 today when I ask these questions. You've already -- what I ? u?, ?`t - r arc 7 i HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 Multi-Pap TM DUANE M. DONISON Page 98 1 want you to do, first of all, is put away all of the 2 exhibits that you have been referred to by counsel for 3 Manor Care and put those aside. Although this is probably 4 the only topic we have discussed, other than me telling you 5 just to express the truth here, the same things as 6 Mr. Black has expressed to you, if I ask you a question 7 that is not clear, which can very well and likely occur, 8 please let me know and I will try to rephrase that 9 question. I will try not to be repetitive, however, many 10 questions that were presented to you by Mr. Black today 11 require some clarification. So with that being said, Mr. 12 Donison, based on your knowledge of the entire application 13 process with Manor Care, who or whom ordered you to undergo 14 the resource assessment of Cumberland County Assistance 15 Office? 16 A That came from when I first filled out the 17 application, and as I look back on to the documents I can 18 clarify a little bit. 19 Q Listen to my question, Mr. Donison. Did you file 20 that application or did someone tell you to file the 21 application? 22 A I was told to file it. 23 Q Who told you to file that? 24 A That came from I believe Monica Shuleva, resource 25 assessment. Page 99 1 Q She works for who? 2 A HCR Manor Care. 3 (Results of Resource Assessment, five pages, 4 produced and marked Donison Exhibit No. 10.) 5 BY MR. GAN: 6 Q Mr. Donison, following up on my question in 7 regard to who ordered this, your response was HCR Manor 8 Care, correct? 9 A Yes. 10 (Discussion held off the record.) I 1 BY MR. GAN: 12 Q Mr. Donison, I want you to look very briefly, 13 because you've seen these documents already this morning -- 14 this afternoon, the results of the resource assessment, the 15 follow up pages and the collective data that you supplied 16 to them, just glancing at it, do you have any reason to 17 believe that any of the information contained on the 18 resource assessment in terms of the data itself is 19 incorrect? 20 A The data from here, I remember them. This 21 information was not there. 22 Q No, no. Mr. Donison, I don't want you to refer 23 to any exhibits utilized by the defense. I just want you 24 to look at what I'm looking at. Do you have any reason to 25 belief that the information here is incorrect? MAKUH 6, 2008 1 A No. Page 100 2 MR. BLACK: I'm going to object to that. If the 3 witness wants to refer to other documents in order to 4 answer the question, I think that's a proper use of 5 documents he already reviewed. I think the instruction to 6 ignore other information that is a potential resource for 7 him in order to respond to the question is inappropriate. 8 MR. GAN: Objection is noted. 9 BY MR. GAN: 10 Q Mr. Donison -- 11 A No. 12 Q Mr. Donison, look at me. As your attorney, when 13 I'm asking you questions today, I want you to refer to the 14 documents that I hand to you only and exclusively? 15 MR. BLACK: I object to that. 16 MR. GAN: Fine, your objection is noted. 17 BY MR. GAN: 18 Q Now, Mr. Donison, I think your answer was no, you 19 had no reason to believe any of this is incorrect? 20 A Yes, that's right. 21 Q Now, Mr. Donison, in response to the resource 22 assessment that you filled out, you received what we've in 23 part marked as Exhibit 1, what's called the results of 24 resource assessment, correct? 25 A Yes. Page 101 1 Q And I want you to go down to the second paragraph 2 where it says the purpose of this assessment. Do you see 3 that? 4 A Yes. 5 Q You see the figure down there, $29,962.81? 6 A Yes. 7 Q What did you understand that figure to represent? 8 A This part here is my down spend. 9 (Letter dated February 28, 2001, one page, 10 produced and marked Donison Exhibit No. 11.) 11 BY MR. GAN: 12 Q Mr. Donison, can you identify what's been marked 13 as plaintiff's proposed Exhibit 2 for me? 14 MR. BLACK: Excuse me. I think it's Deposition 15 Exhibit 11. There is no plaintiff's. 16 (Discussion held off the record.) 17 BY MR. GAN: 18 Q Marked Exhibit No. 11, can you identify that for 19 me? 20 A Yes. 21 Q Did you personally receive that letter on or 22 about February 28, 2001? 23 A Yes. 24 Q Now, I believe you testified, Mr. Donison, that 25 you spent 25 years of your life as a soldier, correct? Page 98 -Page 101 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 DUANE M. DONISON MARCH 6, 2008 Multi-Page' Page 102 1 A Yes. 2 Q When you received this letter from Lynne Gordon, 3 from the Cumberland County Assistance Office, did you 4 interpret it as an order to down spend? 5 A Yes. 6 MR. BLACK: Objection. 7 BY MR. GAN: 8 Q In response to that, did you, in fact, down spend 9 assets? 10 A Yes. 11 Q Can you tell us approximately how much or to what 12 degree you down spent assets that you had? 13 A A little over $29,000. 14 Q After you received the February 28th letter dated 15 February 28, 2001, from Miss Gordon, what, if any, steps 16 did you take to execute the down spend? 17 A I had to take and cash in 194 savings bonds. 18 Q Do you recall approximately how long or how many 19 days after you received this letter that you took the 20 necessary steps to redeem the savings bonds? 21 A Within two weeks. 22 (Copies of Savings Bonds, 67 pages, produced and 23 marked Donison Exhibit No. 12.) 24 BY MR. GAN: 25 Q Mr. Donison can you take a quick look at that Page 103 1 collective packet that's been marked Exhibit 12? I don't 2 need you going through every page, but does that appear to 3 accurately represent copies of the bonds that you redeemed? 4 A Yes, it does. 5 Q Now, Mr. Donison, being a bit repetitive, but 6 it's important that we understand this for the 7 record. When you submitted your original application to 8 Manor Care on behalf of your wife, you listed three forms 9 of insurance, correct? 10 A Yes. 11 Q And again, for the record, please state what 12 those forms of insurance were? 13 A Medicare Part A and Part B. And it's Capital 14 Blue Cross/Capital Blue Shield, and it's now called Capital 15 Blue Cross. And her military ID card, which is for TRICARE 16 and Delta Dental. 17 Q You had previously testified that when you 18 submitted this information regarding insurance policies to 19 Manor Care that you provided them with not only the data on 20 the policy itself, but also the card, the actual card, 21 correct? 22 A Yes. MR. BLACK: Objection. I think that that -- object to the form. I think that misstates his prior testimony. Page 104 1 THE WITNESS: They made copies -- they used my 2 cards. I will clarify this. You turned over the insurance 3 cards, they make the copies. 4 BY MR. GAN: 5 Q Is there any question in your mind that you 6 failed or neglected to advise HCR Manor Care of all forms 7 of insurance? 8 A Noway. 9 Q Mr. Donison, what was your understanding as to 10 why you are required by Manor Care to fill out an 11 application at the Cumberland County Assistance office? 12 A The application? Nursing home care application? 13 Q No, the application for Assistance, Cumberland 14 County Assistance. Let me rephrase the question for you. 15 You already testified that HCR Manor Care required that you 16 fill out an application at Cumberland County Assistance? 17 MR. BLACK: Objection to the form. He testified 18 to no such thing. He testified he was directed. 19 MR. GAN: Your objection is notes. 20 MR. BLACK: No, it's an objection to the form and 21 the format for this deposition is that all objections 22 except as to the form of the question are reserved to the 23 time of trial, so you rephrase the question to not misstate 24 his prior testimony. He did not previously testify that he 25 was required, he previously testified he was directed. Page 105 I There's a substantial difference. 2 MR. GAN: I disagree there's a substantial 3 difference. I'll note your objection and rephrase the 4 question, just as long as we don't get argumentative. I 5 gave you a lot of latitude, and I'm asking for the same 6 respect. 7 MR. BLACK: You're not allowed to misstate the 8 testimony. If we want to take a break the court reporter 9 can find his testimony, read it back, so we have a properly 10 formed question. 11 BY MR. GAN: 12 Q Mr. Donison, who requested, required, directed -- 13 you may substitute any word you choose -- that you fill out 14 the application for Cumberland County Assistance Office? 15 MR. BLACK: Note my objection to form. 16 THE WITNESS: Cover date of February -- 17 MR. BLACK: You can answer the question. I want 18 to make sure the question reflects an appropriate 19 objection. Note my objection to form of question. Now you 20 may respond. 21 THE WITNESS: I was directed, received a letter 22 from Lynne Gordon telling me exactly what to do. 23 BY MR. GAN: 24 Q And Lynne Gordon is employed by? 25 A Cumberland County Assistance Office. rage 1 u/- - rage 1u--) HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 Multi-Page" m DUANE M. DONISON 1L A nnu c -lnno +?al`t.il V, L.VVO Page 106 Page 108 1 Q Did you initiate, personally initiate, or seek 1 received an invoice, so he never paid, so what relevance 2 out the assistance of Cumberland County Assistance Office? 2 does the hypothetical have? 3 A No. 3 THE WITNESS: I'll gladly answer that. 4 Q Did you meet with them before you got the request 4 MR. BLACK: You don't answer my objection, you 5 from Lynne Gordon to fill out this application? 5 answer your counsel's question. 6 A No. 6 THE WITNESS: I said I'll gladly answer 7 Q When you filled out this application for the 7 that. Each TRICARE EOB, it tells me what my cost share is. 8 Cumberland County Assistance Office, did you list all the 8 As previously stated, fiscal year is $3,000. Each TRICARE 9 available insurance policies? 9 EOB gives you a cost share. For example, month of January 10 A Yes. 10 it could be 300, the month of February it could be 0. The 11 Q Now, Mr. Donison, I believe you previously 1 l provider bills me. I am part of the TRICARE process in 12 testified that there was a certain sequence in which the 12 paying a medical bill. HCR Manor Care never billed me. 13 insurance providers would pay for the care of your wife, 13 Instead, as previously stated, they took my cost share 14 correct? , 14 adjusted to Medical Assistance and written it off, as per 15 A Yes. 15 page 727 of the disk. 16 Q Just so I'm clear for the record, please again 16 BY MR. GAN: 17 state what that sequence was. 17 Q Mr. Donison, knowing that you had adequate 18 A Coordination of benefits. Medicare Part A and 18 insurance coverage to cover all your wife's expenses, did 19 Part B, now is called Capital Blue Cross, then TRICARE. 19 you question why you were being asked to fill out an 20 Q What was the extent of the coverage of the Blue 20 application through the Cumberland County Assistance 21 Cross/Blue Shield, if you recall? 21 Office? 22 A They expire after one hundred days of coverage. 22 A No, not at that time. 23 Q What was your understanding as to what form of 23 Q Can you tell me why? 24 insurance would cover your wife's care at HCR Manor Care 24 A I believed that these people are professionals, 25 once that had expired? 25 they understand their jobs, they know their jobs, and I'm Page 107 Page 109 1 A TRICARE. 1 following orders. And I'll further elaborate. If you lie, 2 Q Now, in regard to your TRICARE policy, what were 2 you can get in trouble. 3 your responsibilities in terms of a deductible or a co-pay? 3 (Letter dated December 16, 2003, three pages, 4 A It's called a cost share. 4 produced and marked Donison Exhibit No. 13.) 5 Q You had cost share responsibilities? 5 BY MR. GAN: 6 A Yes, per TRICARE EOBs as stated. 6 Q Mr. Donison, can you -- what's the date on this 7 Q And what is your recollection as to what your 7 letter that I just handed you that's been marked Deposition 8 cost share was on a yearly basis? 8 Exhibit 13? What's the date on that letter? 9 A Max is $3,000. 9 A December 16, 2003. 10 Q Did you at any time ever pay your cost share to 10 Q Who is that letter addressed to? 11 TRICARE while your wife was a resident at HCR Manor Care? 11 A Myself. 12 A Not payment to TRICARE, payment to the provider, 12 Q Who is that letter regarding? 13 HCR Manor Care. I never received a bill. 13 A It's regarding TRICARE, about HCR Medicare. 14 Q Not receiving a bill, may I presume that you 14 Q And it's regarding, who's the patient addressed 15 never any type of payment to Manor Care? 15 on the top line? 16 A Never did. 16 A Yes, it does. 17 Q Would you have objected under the terms of your 17 Q Is that your wife? 18 policy with TRICARE in making a payment if you had been 18 A Yes, it is. 19 asked to do so? 19 Q Who is this letter from? 20 MR. BLACK: Objection. Go ahead and answer. 20 A It's from TRICARE. 21 MR. GAN: On what basis? 21 Q Who or whom at TRICARE was the author of this 22 MR. BLACK: Well, whatever relevance it has. He 22 letter? 23 testified he hasn't made any payment, so what relevance is 23 A Miss Gray. 24 that hypothetical question about would he have objected if 24 Q Now, just glancing at that letter, would you 25 he would have been requested to. He testified he never 25 please state for the record based on this communication Page 106 -Page 109 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 DUANE M. DONISON MARCH 6.2008 Multi-Page "m Page 110 1 from Miss Gray, when HCR Manor Care became a provider under 2 TRICARE? 3 A Military terms, 1 April 1979 till 13th of July of 4 2003. That's also covered in the disk. 5 Q Do you have any reason to doubt the truth or 6 veracity of this letter from Miss Gray? 7 MR. BLACK: Objection. Calls for speculation. 8 Calls for him to state an opinion to which he has no basis. 9 THE wITNESs: This is a valid document from 10 TRICARE, will never issue you a piece of paper along with 11 skilled nursing, plus this date of 24 March of 2001 12 coincides with TRICARE's Eoss. 13 (Letter dated April 30, 2004, one page, produced 14 and marked Donison Exhibit No. 14.) 115 BY MR. GAN: 16 Q Mr. Donison, can you identify first the date of 17 that letter for the record? 18 A April 30th, 2004. 19 Q Who is that letter to? 20 A Miss Lynne Gordon. 21 Q Who is the author of this letter? 22 A Myself. 23 Q Mr. Donison, I'd like you to just refresh your 24 memory and read that letter for a moment. 25 A Yes. Page 111 1 Q Are you familiar with that? 2 A Very, very well. 3 Q Mr. Donison, I bring your focus and attention to 4 the second full paragraph of your communication to Miss 5 Gordon, and it indicates that you became aware that TRICARE 6 was a provider for HCR Manor Care for April 1, 1971, 7 correct? 8 A Yes. 9 MR. BLACK: I don't think it says TRICARE was a 10 provider for Manor Care, I think it says maybe the other 11 way around. 12 BY MR. GAN: 13 Q Mr. Donison, I want you to move up to the top of 14 the letter for the record. Read the first paragraph for 15 us. 16 MR. BLACK: Objection. The letter speaks for 17 itself. 18 MR. GAN: That's fine, the objection is noted. 19 BY MR. GAN: 20 Q Read the first paragraph. 21 A On November 25th, 2003, I spoke with you on the 22 phone. At that time you told me that Miss Cindy Aspoch of 23 HCR Manor Care had told you that the reason I had had to do 24 a down spend was that HCR Manor Care was not a TRICARE 25 provider. Page 112 1 Q I'd like you to move down the second, if you 2 will. 3 A It has been brought to my attention by TRICARE 4 that this provider was active to render services to TRICARE 5 patients from April 1st, 1979 through July 31st, 2003, and 6 became inactive August 1st, 2003. I was previously 7 informed by HCR Manor Care that they became a provider 8 effective March 1st, 2001. 9 Q Now, based on this information that you just 10 shared with us, Mr. Donison, did you conclude that on or 11 about February 20th, went you submitted the resource 12 assessment to the Cumberland County Assistance Office -- 13 A Resource -- 14 Q Let me finish my questions. That at that time 15 HCR Manor Care was an authorized provider for TRICARE? 16 A At that time I believed it. 17 Q Has anything happened or have you learned 18 anything since that date that leads you to believe that 19 that is not true? 20 A I have to say this: HCR Manor Care knew that 21 they were a TRICARE provider. The person in the billing 22 office made one mistake. They tried to cover it up. 23 MR. BLACK: Objection. 24 THE WITNESS: Cumberland County Assistance Office 25 would have never known of me at all, at all, until all Page 113 1 recourses have been exhausted. As stated in the Cumberland 2 County Assistance Office for nursing home, all insurances 3 must be exhausted before any payment is made to Medical 4 Assistance, nursing care handbook states that. 5 MR. BLACK: Objection. Non-responsive. 6 THE WITNESS: And the letter there from TRICARE 7 dated September 16, 2003, states it. 8 (Faxed letters from TRICARE North Region, two 9 pages, produced and marked Donison Exhibit No. 15.) 10 BY MR. GAN: I 1 Q Mr. Donison, would you please identify what's 12 been marked Deposition Exhibit 15, please? Can you 13 identify that for me? 14 A Yes, I can. 15 Q What is that? 16 A It's a letter from Federal HealthNet Services who 17 took over Sierra Military Health Services under TRICARE. 18 Q How many pages does this -- 19 A It's three. 20 Q Mr. Donison, who is this fax communication 21 addressed to? 22 A It's addressed tome. 23 Q I'd like you to go to the second page of this 24 communication page, please. What is the date on this 25 letter, Mr. Donison? Page 110 -Page 113 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 Multi-Page '` DUANE M. DONISON MARCH 6, 2008 Page 114 1 A May 26, 2006. 2 Q Who is this addressed to? 3 A Addressed to my wife. Okay? 4 Q Okay. Actually in the salutation it's addressed 5 to you, correct? 6 A Right. 7 Q I'd like you to take just a moment and refresh 8 your memory and read that letter. To yourself, just for a 9 moment. 10 A Okay. 11 Q Are you familiar with that? 12 A Oh, yes. 13 Q Mr. Donison, in your own words, what is TRICARE 14 expressing to you in this communication? 15 MR. BLACK: Objection. The document speaks for 16 itself. If he wants to express what he understands it to 17 mean, he can go ahead. 18 MR. GAN: I will rephrase and redirect. 19 BY MR. GAN: 20 Q Mr. Donison, what I'd like you to do is to read 21 the letter into the record. 22 A Read it? 23 Q Yes, sir, read it into the record. 24 A Dear Mr. Donison, thank you for using TRICARE and 25 for your inquiry received on May 24th. The attached letter Page 116 1 A Yes, it is. 2 Q Does that letter specifically state the dates and 3 times in which TRICARE was a certified provider at Manor 4 Care? 5 A Yes, it does. 6 MR. BLACK: TRICARE was not a certified provider; 7 I think it's the other way around, counsel. 8 BY MR. GAN: 9 Q You can set that aside, Mr. Donison. I have some 10 general questions for you. Mr. Donison, at the time that i l you were asked to do the down spend, so that you would 12 qualify for Cumberland County Assistance, did you own a 13 vehicle? 14 A Yes. 15 Q What did you own? 16 A It was a '86 Chevy Celebrity. 17 Q Did you need a new vehicle? 18 A No. 19 Q Did you intend to purchase a new vehicle? 20 A No. 21 Q Mr. Donison, without going into specifics or 22 great detail, do you have any major -- strike that. 23 Without going into specific detail at the time that you 24 were asked to do your down spend, did you hold any major 25 consumer debt? Page 115 1 dated December 16, 2003, is accurate, and is a valid 2 TRICARE letter. It was issued by Sierra Military Services 3 as they were the overseer of the TRICARE program until 4 September 1st of 2004. At that time HealthNet took over as 5 the contractor for TRICARE in Pennsylvania. 6 Our records indicate that Manor Care Camp Hill, 7 PA, was TRICARE certified between April 1 st, 1979, and 8 August 1st, 2003. As a skilled nursing facility, Manor 9 Care Camp Hill, PA, would have been required to sign a 10 participation agreement with TRICARE in order to receive a 11 reimbursement. Since payments were issued to Manor Care 12 Camp Hill, PA, the provider was participating with TRICARE. 13 If a lawyer needs to be addressed by TRICARE, an associate 14 from our priority department would need to contact the 15 lawyer. A claims associate would not be able to address 16 the lawyer directly. If you need any additional 17 assistance, please contact our office. 18 Sincerely, Josh Richard, Claims Associate, 19 TRICARE Services. 20 Q Thank you, Mr. Donison. I'd like you to look at 21 the third page of this communication dated December 16th, 22 2003. Do you see that? 23 A Yes. 24 Q That, in fact, is the letter you referred to 25 earlier in your deposition, correct? Page 117 1 A I had 0 debt. 2 Q Did you have any credit cards? 3 A Yes. 4 Q Did they have any balances on them? 5 A No. If they did it was very, very limited. 6 Q Were you able to meet all of your expenses and 7 responsibilities with the income that you had or were 8 earning at that point? 9 A Yes. 10 Q Now, but for the request that was made of you to 11 do the down spend, would you have cashed in or redeemed the 12 bonds? 13 A No. I had them for years to years. 14 Q Mr. Donison, do you remember what the maturity 15 date is or was on these bonds or did that vary? 16 A That varied. 17 Q Mr. Donison, was it your intent to permit these 18 bonds to mature before you cashed them in? 19 A Yes. 20 Q So while you repeatedly under the direction of 21 counsel for Manor Care testified as to what the value of 22 the bond was and its interest when you redeemed them, that 23 did not -- strike that. Did that include any interest that 24 would have been obtained or gained on those bonds if they 25 were permitted to go to maturity? Page 114 -Page 117 HUGHES, Al-BRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 DUANE M. DONISON XNAvl"u K ')nn2 Multi-Page Page 118 Page 120 1 of March 30th of 2003. Same time collecting payment from 2 TRICARE, double dipping. 3 Q Now, if TRICARE insurance policy was in effect as 4 you testified, and you also had a responsibility under that 5 policy, do you know why Cumberland County Assistance was 6 making payments? 7 MR. BLACK: Objection. Calls for pure 8 speculation. I don't understand the relevancy. 9 BY MR. GAN: 10 Q If you know. 11 A I do. I understand it quite clearly. 12 MR. BLACK: You can just respond to his question. 13 THE WITNESS: I will respond to it. I'm going to 14 break this thing down so everybody understands it. Like I 15 said before, Medicare is her first insurance, her second 16 insurance is Capital Blue Cross, her third insurance is 17 TRICARE. Under this particular listing right now the other 18 insurance is Medicaid. When Medicare and Capital Blue 19 Cross no longer pays, TRICARE picks up. TRICARE becomes 20 her primary, and it stays like that until it is exhausted. 21 In other words, when TRICARE no longer pays for the 22 patient, then it becomes Medical Assistance. 23 BY MR. GAN: 24 Q Were you ever advised at any time during your 25 wife's stay at HCR Manor Care that TRICARE benefits had Page 121 1 ceased or had been utilized to their fullest capacity? 2 A No. 3 Q Did you ever receive any communication telling 4 you that? 5 A No. 6 Q Did you ever get a phone call from anybody? 7 A No. 8 Q So based on the analysis that you've just given 9 us, TRICARE should have made any and all payments after the 10 first insurances had expired? 11 A After the first two insurances had expired. 12 Q And that would precede any payments that were 13 made by Cumberland County Assistance? 14 A That's correct. 15 MR. GAN: I have no further questions. 16 EXAMINATION 17 BY MR. BLACK: 18 Q Mr. Donison, do you still have the automobile 19 that you purchased with the money that you down spent? 20 A Yes, I do. 21 Q Exactly what was the make and model of that 22 vehicle? 23 A It is a Chevy Silverado, 1500, extended cab. 24 Q What year? 25 A 2000. 1 A I would continue on earning interest until 2 maturity, yes. 3 Q So when you testified as to the value of those 4 bonds and their interest, it didn't include interest to 5 their full maturity? 6 A No, it did not. 7 Q Were you in need of anything else? Furniture, 8 surgery, clothing, jewelry? Did you personally need 9 anything that you didn't have at the time that you were 10 asked to do the down spend? 11 A It was debt free. I did not need anything. 12 (Affidavit, 11 pages, produced and marked Donison 13 Exhibit No. 16.) 14 BY MR. GAN: 15 Q Mr. Donison, can you identify that for me, 16 please? 17 A Yes, I can. 18 Q Collective document? 19 A It's an application I filled out. 20 Q How many pages does that consist of, Mr. Donison? 21 A According to this one here, it's 11. 22 Q All of that information on one side of the page 23 or are they two-sided copies? 24 A These are all one sided. 25 Q Mr. Donison, I'd like you to thumb through this Page 119 1 application until you reach a page that has three choices, 2 Capital Blue Cross, TRICARE and Social Security 3 Administration. Do you see that? 4 A Yes, I do. 5 Q Noting for the record that that is not on an 6 official page or form, did you, in fact, fill that out and 7 include that with the affidavit and subsequent information 8 that you supplied? 9 A Yes, I did. 10 Q Would you tell us for the record why you did 11 that? 12 A Because I did not have enough room for insurance 13 company addresses under the application. 14 Q Would you state for the record who you have 15 listed on that sheet of paper? 16 A Capital Blue Cross, TRICARE and social security, 17 which is Medicare. 18 Q Mr. Donison, are you aware of whether or not 19 Cumberland County Assistance Office ever made any payments 20 to HCR Manor Care? 21 A Cumberland County Assistance Office? Medical 22 Assistance has. 23 Q Do you know to what extent payments were made? 24 A I believe payments were made to Medical 25 Assistance March 24th of 2001, all the way up to her death Page 118 - Page 121 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-0220/717-393-5101 Multi-Pager` DUANE M. DONISON . MARCH 6, 2008 Page 122 Page 124 1 Q Now, you talked about following orders. Lynne 1 COUNTY OF DAUPHIN 2 Gordon was not your superior, was she, Mr. Donison? 2 : Ss 3 A Well, it depends which office you're talking 3 COMMONWEALTH OF PENNSYLVANIA 4 about. 4 I, Karen C. Albright, a Notary Public, authorized to 5 Q Well you weren't in the service at the time that 5 administer oaths within and for the Commonwealth of 6 this all transpired, were you? 6 Pennsylvania, do hereby certify that the foregoing is the 7 A Doesn't matter. I carry a military ID card. 7 testimony of DUANE DONISON. 8 Q Were you in the service or weren't you in the 8 1 further certify that before the taking of said 9 service at the time? 9 deposition, the witness was duly sworn; that the questions 10 A I was retired. 10 and answers were taken down stenographically by the said 11 Q So you weren't in the service at the time, 11 Reporter-Notary Public, and afterwards reduced to 12 correct? 12 typewriting under the direction of the said Reporter. 13 A That's right. 13 I further certify the said deposition was taken at 14 Q Miss Gordon was a civil employee with the Office 14 the time and place specified in the caption sheet hereof. 15 of -- Cumberland County Office of Assistance, isn't that 15 I further certify I am not a relative or employee or 16 correct? 16 attorney or counsel to any of the parties, or a relative or 17 A That's right. 17 employee of such attorney or counsel, or financially 18 Q She was not your superior, was she? 18 interested directly or indirectly in this action. 19 A She is a government representative. 19 1 further certify that the said deposition 20 Q She's a government employee? 20 constitutes a true record of the testimony given by the 21 A She's a government representative. 21 said witness. 22 Q My question, Mr. Donison, is, she was not your 22 IN WITNESS WHEREOF, I have hereunto set my hand 23 superior, was she? 23 this 23rd day of April, 2008. 24 A I was following orders. 24 25 Q Can you answer my question? Was she your 25 Karen C. Albright, RPR Page 123 1 superior? 2 A What do you mean was she my superior? I'm 3 following orders. A government official telling me what to 4 do. 5 Q Was Monica Shuleva a government official? 6 A She was Medicare. 7 Q Was she a government official? 8 A She was not my superior. 9 Q That's not responsive. Was she a government 10 official? 11 A She was an employee of the nursing home. 12 Q That's not responsive to my question. Was Monica 13 Shuleva your superior? 14 A No, she wasn't. 15 MR. BLACK: Thank you. That's all I have. 16 (The deposition was concluded at 1:20 p.m.) 17 18 19 20 21 22 23 24 25 Page 122 -Page 124 HUGHES, ALBRIGHT, FOLTZ & NATALE 717-540-02201717-393-5101 CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing Motion for Summary Judgment upon the person(s) and in the manner indicated below, which. service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, first-class postage prepaid, addressed as follows: Richard R. Gan, Esquire Gan Law Group 64 South Pitt Street Carlisle, PA 17013 Attorney for Plaintiff, Duane ' T,___:____ Dated: g 0 g Attorney I.D. No: 59238 1017 Mumma Road, Suite 100 Wormleysburg, PA 17043 (717) 909-5170 Attorney for Defendant, HCR ManorCare f a.7 ? r? 22 7B COURT OF COMMON PLEAS OF CUMBERLAND COUNTY DUANE DONISON, Plaintiff File : 05-5626 V HCR MANORCARE, CIVIL ACTION-LAW JURY TRIAL DEMANDED Defendant ANSWER IN OPPOSITION TO MOTION FOR SUMMARY JUDGEMENT PRESENTED BY HCR MANORCARE And now this 15'h day of October, Plaintiff Duane M. Donison, by his attorneys, Gan Law Group, and for his Answer to Motion for summary disposition states as follows: 1. This matter arises from the failure of HCR Manor Care to acknowledge and properly process the insurance benefits of the Plaintiff, Duane Donison on behalf of his ailing wife. 2. Specifically, at the time of admission of Mrs. Donison to the HCR Manor Care facility, Plaintiff provided to Defendant all relevant and appropriate insurance information. 3. Significant questions arise when Mr. Donison is advised by HCR Manor Care that he should apply to The Cumberland County Assistance Office as all insurance benefits had reached their maximum payout. 4. Mr. Donison, presuming that each and all of the insurance companies provided had reached their maximum payout, dutifully and as suggested by Manor care, applied to the Cumberland County Assistance Office for aid to assist in the care and maintenance of his wife. It is critically important for the court to understand that this process was initiated by Defendant, not Plaintiff. 5. Once the asset analysis was evaluated by Cumberland County Assistance, it was determined the Donison Family had assets in excess of the level which would permit payment of benefits by the County. 6. On or about February 28, 2001, the Cumberland County Assistance Office, relying on the representations made to them by HCR Manor Care as to the lack of available insurance and Mr. Donisons true and accurate asset analysis, issued a "spend down " letter. 7. This letter from Cumberland County assistance unequivocally and without contradiction nor ambiguity stated to Mr. Donison that he would be required to relinquish in excess of $30,000.00 in assets to qualify for assistance to maintain his wife in the Manor Care facility. 8. In response to this order / Spend down letter, Plaintiff immediately complied resulting in the spend down of in excess of $30,000.00 in assets. 9. That at the time of the spend down, Mr. Donison believed, as represented by HCR Manor Care that they were not TRI CARE providers, notwithstanding the fact that they received TRI CARE insurance data at the time of admission. 10. Plaintiff continued, for a significant period of time to pursue his belief they were TRI-CARE providers. A belief yes, a certainly, absolutely not. 11. In explanation, on October 27, 2003, Daniel Deitzel, administrator for Manor Care forwarded a letter to the Attorney Generals office, where he clearly outlines all claims were submitted to Medicare, not TRI CARE. 12. Finally, On December 16, 2003, Plaintiff received a confirmation letter from TRI-CARE confirming that Manor Care, Camp Hill, was in fact a "certified" TRICARE provider during the time period Mrs. Donison was a resident. 13. The December 16, 2003 notification from TRI CARE is the date the Plaintiff knew with certainty that Defendant had improperly and incorrectly declared to Plaintiff and Cumberland County Assistance they were not Tri-Care providers. Up until this point, everything was only belief and speculation. 14. The December 16, 2003 is the only correct date from which the statute of limitations begins to run for the purpose of filing this action. 15. All other actions taken by Plaintiff up until this confirmation by TRI CARE were only part of an ongoing investigation by Plaintiff, in conjunction with the Attorney Generals office and Senator Piccola. FACTUAL BACKGROUND 16. Plaintiff is a career military officer and was married to his wife (decedent Mira Donison) for over 20 years prior to her admission to Manor Care on February 9, 2001. 17. On or about February 15, 2001, Plaintiff met with the admissions office and provided them with complete information on all health insurance available to him and his wife for her care and treatment at HCR Manor Care. 18. After review of the packet, it was forwarded to the Cumberland County Assistance Office by HCR Manor Care. 19. Cumberland County Assistance determined that Mr. and Mrs. Donison were seized of assets in excess of the statutory maximum which would permit payment of benefits for Mrs. Donisons care. 20. Based upon the "spend down letter" issued on February 28, 2001, Plaintiff was required to dispose of over $30,000 in family assets to qualify, which he did do. 21. As a result of Mr. Donisons compliance with the "Spend Down letter", Cumberland County Assistance began pay (in part) for Mrs. Donisons care. 22. Plaintiff continued to believe (but was not certain) that HCR Manor Care (defendant) was a TRI CARE provider. 23. As a result of his beliefs he sought the assistance of Senator Jeffrey Piccola and the State of Pennsylvania, office of Attorney General to determine if and why Defendant had declared that they were not Tri Care providers. 24. As referenced above, Plaintiff followed the orders of Cumberland County Assistance, while continuing his investigation into what he believed to be the truth, (that HCR Manor Care was in fact a Tri- Car provider, (although not supported by the results of his ongoing investigation at this time.) 25. It is important to note that Plaintiff believed Defendant had made an error in not processing his request for payment through Tri Care but was challenged continuously and profusely by Defendant that they were not in fact Tri- Care providers. 26. Finally, as a result of the ongoing investigation by Plaintiff, Senator Piccola and the Attorney Generals office, Manor Care Administrator Daniel Deitzel offered a "defense letter" to the Attorney generals office on October 27, 2003. 27. Finally, and not until December 16, 2003, after receiving the letter from TRI CARE confirming that (Manor Care, Camp Hill) was in fact a certified Tricare provider did the Plaintiff know that his suspicions that benefits were improperly denied were true. 28. That the December 16, 2003 date is the point at which the statute of limitations began to run, not when Mr. Donison may have believed, or speculated that they had made a mistake when his wife was admitted in 2001. PROCEDURAL HISTORY 29. Plaintiff initiated this lawsuit by filing a Writ of Summons against Defendant on October 31, 2005. 30. The filing of the Writ of Summons was almost two months before the applicable statutue of limitations expired. 31. Plaintiffs Amended complaint contains claims for Negligence, detrimental reliance, and breach of contract. 32. All of the above claims are directly tied to the failure of Defendant to properly process and acknowledge that they were in fact TRI CARE providers. 33. This court is aware of the filing of subsequent pleadings by the parties and Defendants effort to subvert the truth by filing this motion for summary Judgment. ANSWER TO MOTION FOR SUMMARY JUDGMENT 34. Plaintiff agrees with Defendant that Summary Judgment is appropriate when the pleading, depositions, answers to interrogatories, admission on file and affidavits demonstrate that there exists no genuine issue of material fact and the moving parting is entitled to judgment as a matter of law. 35. It is important to note that discovery is not complete in this matter. Plaintiff intends to take the deposition of Administrator Deitzel and relevant personal from Cumberland County Assistance who can comment on the spend down letter. 36. Notwithstanding, a motion for summary disposition is a hybrid and seldom granted tool which is only warranted under the most extreme and compelling of circumstances. 37. Those circumstances must clearly and without any question of fact or law result in a finding that no matter what testimony or proofs offered by the non moving party, they can never prevail. 38. That is certainly not the case in the matter before the court. 39. Defendants would have the court believe (and ask it to rule) that notwithstanding the methodical and well crafted investigation conducted by Plaintiff, Senator Piccola and the Attorney Generals office that he knew or should have known, (without proof or verification) that Defendant had made a mistake when it denied it was a TRI CARE Provider in 2001. 40. In 2001, all the Plaintiff had was his beliefs, nothing more. 41. As applied, Plaintiff has "testified" under oath that he was not certain that his beliefs were true until partially verified by Administrator Deitzel in October of 2003 and finally verified by letter from TRI CARE in December of 2003. 42. That after the "defense letter by administrator Deitzel but before verification by Tri-Care, Plaintiff commenced this action by the filing of a Writ of summons. 43. The Defendant asserts, via the filing of this motion that the record contains insufficient evidence of arguable facts to make out a prima facie cause regarding when the statute of limitations should begin to run and therefore, there is no issue to be submitted to the Jury. 44. This is a far and remote from the truth as it can possibly be. 45. Clearly, a genuine issue of material fact exists as to when the Plaintiff became conclusively aware that Defendant was a TRI CARE provider. 46. As soon as Defendant had reasonable knowledge that this was the case, a writ of summons was filed, preserving the action and his claim. NEGLIGENCE CLAIM 47. In regard to the negligence claim, Defendant is correct when they state that the statute of limitations is two years. 48. The statute commences from the time Plaintiff knew of should have know that the negligence occurred. 49. In the case before the court, Plaintiff had only suspicions until December of 2003 when he was conclusively provided information that Defendant was in fact a TRI CARE Provider. 50. The point and time at which the Plaintiff became aware of this fact, is the point at which the statute begins to run. 51. Plaintiff reasonably conducted an extensive investigation with the help of the Commonwealth of Pa and the office of Jeffrey Piccola for over two years until the conclusive answers emerged leading to the filing of the Writ of Summons. 52. Plaintiff did not know that Tri Care was in fact a Tri Care provider until December of 2003. 53. Defendants suggest that the facts are so clear in this matter that reasonable minds cannot differ. This notion is so far a field from the truth that little further comment is necessary. 54. HCR MANOR CARE is a Billion dollar plus conglomerate. 55. Plaintiff has been depleted of a substantial portion of his savings and retirement due to their arrogance, misfeasance, and neglectful attitude. 56. Again, Plaintiffs beliefs were only positively confirmed in December of 2003. 57. The court should note, that even through June of 2003, Defendant continued to deny they were "qualified" Tri Care providers. 58. Interestingly, even with the ongoing denials of Defendant, Defendant now wants the court to declare that Plaintiff should have conclusively known that they were providers in 2001. 59. This factual situation alone is more than enough to preserve this matter for a trier of fact or a jury. DETRIMENTAL RELIANCE. 60. As presented earlier, Plaintiff relied to his great detriment on the representations made by Defendant leading to the order to "spend down" buy Cumberland County Assistance. 61. This spend down occurred in early March of 2001. 62. Plaintiff, as represented herein, did not conclusively determine that Defendant was a TRI CARE provider until December of 2003. 63. Plaintiffs cause of action, including Detrimental reliance was initiated by writ of summons on October 31, 2005, well within the statute of limitations for claims of this nature. WHEREFORE, Plaintiff Duane Donison respectfully request this Honorable court deny Defendants motion for Summary Disposition on all counts and for all the reasons stated herein. Many and multiple issues of fact exist and must be determined by a jury or trier of fact. Defendant has provided no basis upon which a motion for summary disposition can be supported, legally or factually. chard R. Gan Dated 64 South Pitt Street Carlisle Pa 17013 717-241-4300 717-243-5175 ID 68721 DUANE DONISON Plaintiff V. HCR MANORCARE Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA CIVIL ACTION - LAW NO. 05- 5626 MEMORANDUM OF LAW IN OPPOSITION TO MOTION FOR SUMMARY Plaintiff Duane Donison, by and through his Attorneys, Gan Law Group, submit this Memorandum of Law in opposition to its concurrently filed Answer in opposition to Motion for Summary Judgment. 1. INTRODUCTION This matter arises out of a breach of contract action and the justifiable reliance by plaintiff in regard to false assertions made by Defendant HCR Manor Care. The factual foundation of this case is not complex. Plaintiff Donison did everything he could to comply with all admission requirements when his wife was admitted to Defendants care facility in 2001. Plaintiff Donison followed procedure and protocol as he has done his entire life as a soldier in the United States Military. He did not vary from what he was directed to do. Defendants Document #: 181832.1 breached their responsibilities to Plaintiff. Defendants erroneously advised Plaintiff they were not participating or authorized providers for TRI CARE Insurance. Defendant's assertions were incorrect. Due to Defendants representations, they initiated the process whereby Plaintiff was directed by Cumberland County Assistance to dispose of nearly $30,000.00 in family assets to qualify for financial assistance. Interestingly, Defendant then would have this court believe, (and even use the word "unnecessarily") that this spend down was unjustified. This curiously deceptive semantic game is a clear and unfettered effort to mislead the court. The Defendant failed, refused, neglected and erroneously informed the Plaintiff they were not authorized TRI CARE providers. This was not true. It was never true. The Defendant then initiated the process whereby Plaintiff was encouraged to apply for financial aid through the Cumberland County Assistance Office. Plaintiff did as he was told by Defendant and filed the application for financial assistance. As soon as he was advised by Cumberland County Assistance that he had assets in excess of the allowable limit to qualify for aid, he complied with the "spend down letter" and disposed of assets he had spent years acquiring. Document #: 181832.1 II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY As stated in our answer in opposition to Defendants motion, this matter began when Mira Donison was admitted to Manor Care in February of 2001. At the time of her admission, Defendant was given verification of all medical coverage, including TRI CARE coverage. Later in February of 2001, Manor Care erroneously advised Cumberland County Assistance that because they were not TRI CARE providers, inadequate insurance coverage existed to cover the expenses Mrs. Donison would incur as a resident of Defendants facility. As we have already stated, after Review, Cumberland County Assistance advised Mr. Donison that assets would have to be sold or disposed of to qualify for assistance. As a good husband and former soldier, Mr. Donison complied with the letter and disposed of the necessary assets to qualify for assistance. (EXHIBIT A) Notwithstanding the assertions of Defendant, Plaintiff began his investigation into why Manor Care did not acknowledge the TRI CARE Coverage. In pursuit of this investigation, Plaintiff involved the Attorney Generals office and the office of Senator Jeffrey Piccola. Defendant would have this Court believe that because Plaintiff became aware of Defendants failure to file his wife's bills with TRI CARE that the statute of limitations on his multiple counts should begin to run at this point. This is a very interesting twist on the facts and the law if you can get away with it. The Defendant asserted to the Plaintiff and to Cumberland County Assistance that they were not TRI CARE Providers. In support of their assertions, they had the Plaintiff apply for assistance. In further support of their assertions, they did not Document #: 181832.1 bill TRI CARE for Mrs. Donisons expenses. Defendant now says, "Well, you knew we were not billing TRI CARE and you knew that we told you to file for benefits and you know that we vehemently denied being a participating provider for TRI- Care", but you should have know that we were in fact TRI CARE providers in 2001! This argument is no more than a massive effort to distort and pervert the facts to save a Billion dollar corporation $30,000.00. PROCEDURAL HISTORY This matter was commenced through the filing of a Writ of Summons on October 31. 2005. An amended complaint was filed on October 16, 2006. The Compliant included multiple theories of recovery including breach of contract, detrimental reliance and negligence. Plaintiff initially sought $29,962.81 in damages as well as tax liability incurred due to the spend down. Plaintiff will illustrate at trial that this sum inadequately reflects actual damages sustained. Actual damages are closer to $70,000.00. This court is aware of the motions filed and has ruled upon them as reflected in the record. This motion for summary disposition is now before the court. Document #: 181832.1 III QUESTIONS PRESENTED A. IS PLAINTIFFS NEGLIGENCE CLAIM BARRED BY PENNSYLVANIAS TWO YEAR STATURE OF LIMITATION APPLICABLE TO THOSE ACTIONS? (SUGGESTED ANSWER, NO) B. ARE PLAINTIFFS DETRIMENTAL RELIANCE / BREACH OF CONTRACT CLAIMS BARRED BY PENNSYLVANIA'S FOUR YEAR STATURE OF LIMITATION APPLICABLE TO THOSE ACTIONS? (SUGGESTED ANSWER, NO) IV ARGUMENT A. STANDARD FOR SUMMARY JUDGMENT As this court is overwhelmingly aware, because an order favorable to the moving party will prematurely end an action, summaryjudgment is only appropriate in the clearest of cases. Scoael v Donegal Mutual Insurance Company 698 A2nd 602. PA Super, 1997. This matter contains multiple issues that must be decided by the trier of fact and a jury. Document #: 181832.1 Defendant would have the court believe that there are no other conclusions that can be drawn from the discovery conducted in this mater to date. This notion is merit less. We have a Defendant who feverishly and continually denied they were TRI CARE providers for years. Yet, as referenced above, only after investigation by the Attorney Generals Office and the Office of Senator Jeffrey Piccola did they acknowledge their error. ((Please see exhibit B). It is also important that this Court remember that while the function of summary judgment procedure is to avoid a useless trial, it cannot be used to provide for trial by affidavit or trial by deposition, which is exactly what Defendants are asking this court to do. Troy v Kamngrounds of America 581 A2nd 665, Pa Super, 1990. The granting or denial of preemptory judgment continues to be guided by principles governing dispositions of motions for summary judgment; one such principle is that such a motion should not be granted except in the clearest of cases where there is not the least doubt as to the absence of triable issues of material fact. Mertz v Lakatos 381 A2nd, 497, 1989. Plaintiffs respectfully assert to this court that this foundational element contained in Mertz, Ibid, cannot remotely be met. In fact, Plaintiff was not conclusively certain of Defendants error in denying coverage until he received a letter from TRI CARE in December of 2003. (Please see exhibit C.) Notwithstanding, Plaintiff did take action after Defendants "Defense letter to the Attorney General" on October 27, 2003 but before the letter from TRI CARE in December of 2003. The Defendant wants this court to Document #; 181832.1 replace Plaintiffs right to trial with this motion for Summary Judgment. Summary Judgment procedure was not created to replace trial but only to avoid a useless trial. Chrysler Corp. v Smith, 643 A 2"d, 1994 and Hankin v Mintz, 419. A2nd 588, 1980. More precisely, if a question of material fact is apparent, the court must defer the question for consideration by a jury and deny the motion. Kmart of PA LP v MD Mall Associates 2008 PA Super, 213. Also see, Flood v Silfies 933 A2nd 1072, Brown v Pa Department of Corrections 932, A2nd, 316 and Arnold v Forklift LP, 927 A 2"d 257, 2007. A Factual issue is considered material for summary judgment purposes if its resolution could affect the outcome of the case under governing law. Strine v Comm, 894 A2nd, 733. This is certainly the case in the matter before the court. We also remind the court that all facts and the law must be applied most favorably to the non moving party. McSpadeen v Department of Corrections 886 A2nd, 321. Defendants suggest that Plaintiff had plenty of time to determine that they (defendants) were in fact a Tri Care provider,( should have acted upon it) and the relevant statute of limitations should begin to run when "he should have known". Again, Defendant continued to deny they were providers for years. Yet, the Plaintiff should have known? Determining whether a party acted in good faith,( for the purpose of determining) as in this case) when the statute of limitations began to run, is generally a question for the finder of fact and improper for disposition through Summary Judgment. Coy v Ford Document #: 181832.1 Motor Cred618, A2nd, 1024. Please also see Drelles V Manufacturers Life, 881 A2nd, 822, 2005 and Flynn v Northeastern Eve Institute 56 PA D&C, 0, 571, 2001. Defendant also suggests that under all circumstances, in reference to discovery, a reasonableness rule requires this court to grant this motion for summary disposition. This is simply not true. Where issues under discovery rule involve factual determination regarding what is a reasonable time for Plaintiff to discover his injury and cause, this issue is usually for the jury. White v Owens Corning Fiberglass, 668 A2nd, 136, 1995. More precisely, the general issue of due diligence in discovery rule cases, is a factual issue for resolution by the jury, and it is only exceptional cases which are decided by summary judgment. Defendant asks this court to preliminarily adjudicate and infer reasonableness through this motion. This is not permitted or supported by Pennsylvania Rules of Civil procedure or established case law. See Sanders v State Farm 622 A2nd, 966, 1993. V. CONCLUSION Plaintiff respectfully requests that Defendant's motion for summary disposition be denied for all reasons stated herein. Document #: 181832.1 Respectfully Submitted, Gan Law Group Attorney I.D. No. 68721 64 South Pitt Street Carlisle, PA 17013 (717) 241-4300 Attorneys for Plaintiff Dated: U r1w Document #: 1818321 Richard R. Gan, Esquire CERTIFICATE OF SERVICE AND NOW, this 15th day of October, I, Richard R. Gan, attorney for Plaintiff hereby certify that I served a copy of the within Answer in Opposition to Motion for Summary Disposition and Brief in Support thereof this day by depositing the same in the United States mail, postage prepaid, at Harrisburg, Pennsylvania, addressed to: Chartwell Law Office 1017 Mumma Road, Suite 100 Wormleysburg, Pa 17043 Document #: 181832.1 AXALIB I T 00 Commonwealth of Pennsylvania Department of Public Welfare CUMBERLAND COUNTY ASST OFFICE 33 Westminster Drive P.O. Box 599 Carlisle, PA 17013-0599 Telephone 240-2744 OR 1-800-269-0173 FAX: 249-0919 February 28, 2001 Duane Donison 40 Ringneck Dr. Harrisburg, PA 17112 Re: Mira Donison Record #: 89844 Nursing Home: Manorcare Camp Hill Dear Mr. Donison, Enclosed please find the Results of the Resource Assessment. As you can see your allowance will be $29,962.81 of the countable resources of $59,925.62, plus your exempt IRA accounts. These amounts were determined as of the date of admission to the Nursing Home. As you have expended monies to purchase cemetery lots, etc., the total resources as of now will be less than the amounts on the Resource Assessment Computation sheets. I have enclosed an application for Nursing Home Assistance, please complete the form and ` return it to-this office when your total resources (minus your IRA accounts) are $32,362.81 or less. (your allowance of $29962.81 plus $2400 for Mrs. Donison) Call me if you have any questions. Enclosures Sincerely, Lynne Gordon IMC t Commonwealth of Pennsylvania Department of Public Welfare CUMBERLAND COUNTY ASST OFFICE 33 Westminster Drive P.O. Box 599 Carlisle, PA 17013-0599 Telephone 240-2744 OR 1-800-269-0173 FAX: 249-0919 RESULTS OF RESOURCE ASSESSMENT Dear MRS. AURA M. DONISON The Department of Public Welfare has completed the Resource Assessment received on _February 20, 2001. Based on the information you provided, the total value of the countable resources owned by you and your spouse as of the date of your admission to the nursing facility is _$59,925.62_. A copy of the Resource Assessment Form is enclosed. The purpose of the assessment was to determine what portion of the total resources owned by you and your spouse may be protected for the spouse at home. This portion is called the "protected spousal share" and is not considered available to pay for nursing facility care. This protected spousal share is generally one-half of your joint resources, up to a maximum, set by federal law (currently $87,000) and not less than a minimum (currently $17,400). Based on that formula, your protected spousal share is _$29,962.81_ Except as described below, you should apply for Medical Assistance when the total countable resources of you and your spouse are reduced to an amount approximately equal to the protected spousal share (above) plus $2,400. In some cases, more resources may be protected for the spouse at home. In order to be able to protect more resources, you must apply for Medicaid sooner and request a hearing. Information describing when you are permitted to protect more resources for your spouse at home was included in Part 3 of the Admissions Notice Packet you received from the Nursing facility when you were admitted. You should refer to this information if the income of the spouse at home is less than $2175 per month. If you need another copy of Part 3, contact the admission office of your nursing facility. It is important for you to calculate the mon&ly income allowance and actual monthly income needs of the spouse at home in order to appropriately protect resources and provide income to your spouse at home as permitted by federal law. The enclosed worksheet will help you in making this determination, Once you have applied for Medicaid benefits, either you or your spouse may request a fair hearing if you are dissatisfied with the Department's determination of the community spouse's share of resources or monthly income allowance, or to establish that your spouse should receive a higher income or resource allowance. If you have any questions about this letter, you may contact me by telephone at 240-2744 or 1- 800-269-0173 or by writing to the address above. LYNNE GORDON Copies: Nursing Home HCR nlanorCam 1701; MATkcc S[reci Camp Hill, Nnns)l,ania 17011 717-737-8551 717-737-2139 Fax October 27, 2003 Nedra Brooks Office of Attorney General Bureau of Consumer Protection Health Care Unit 14'h Floor, Strawberry Square Harrisburg, PA 17120 RE: Duane M. Donison, H-000521-2003 Dear Ms Brooks: &rV4 i$iT S HCR-MenorC we Enclosed please find billing worksheets for Medicare Part A, Capital Blue Cross, and Tricare which includes information you have requested. As you can see from the worksheets, all claims up to 1/28/03 have been submitted to Medicare. We are still waiting for a denial from Medicare for dates of service 1/1-1/28/03. Once a denial is received for that date of service a claim will then be entered into Medicare's system for the month of February 2003. Because bills need to be entered in Medicare's system in chronological order, we can not proceed until we receive the denial for 1/1-1/28/03. We will continue to submit bills into Medicare's system up to 3/30/03 as we receive the denials. All claims that we have received Medicare denials for have now been submitted to Tricare as of 10/21/03. We will continue to bill Tricare as we receive the Medicare denials. On September 26, 2003 a refund check in the amount of $938.83 was ovemighted to Mr. Donison. That check was cashed on October 9, 2003. If you have any questions, please do not hesitate to contact me. Sincerely, Daniel W. Deitzel III, MAR, NHA Administrator Enclosures MAN0954 ucti-io-?uU3tru?? 1?.3D= CHUM (FAIMI 665 2M P. 002 IMC.ARA MUS K0010R 1 LXffWpor dWCe ; P= O Box 7012 ?- ?C:?9020.7012 %,,, camdm-?BOa??T Phonot t .., a-t29A T R I C A R i Northeast December 16) Z0CTr Duane M Donison 118 Lilac Or Sherwood Pk ? Alberta, TOM iftT Canada • 'T$ N 1 W 1 Re: Patient% Mira M Donison Sponsor: Duane Donison S Sponsor'SSNx 244-96-6196 Dafets) of Service: March 24, 2001 thur March 30, 2003 Providers Manorcare Camp Hill Dear Claimants Thank you for your recent inQuiry regarding the above referenced provider. This provider was active to randerad services to TRICARE patients from April 1,1979 thru July 31, 2003. On December 28, 2001, President Bush signed the National Defense Authorization Act on Fiscal Year 2002. This legislation has three important provisisons far all Skilled Nursing FacilitesQ providers to Particats. Manorcare Camp Hill is inactive August 1, 2003 for no certification or Skilled Nursing particiaption agreement./ Si caraly, Felice Or Claims Associate (5561 TRICARE MCS Region 1 FF1A (PRT1275) ! SKEYs 244-96-6196 CKEY.1 help PKEI(s 231719762 OECD Adminlsstter?eddbby td hu,wui ??/ SIIF-RPA MILITARY HV LTV SERVICES, INC.w "*to I r G Health et' Federal Services may 26, 2006 MIRA UNISON 159 RINGNECK DRIVE HARRISSUR© PA 17112 RE: Patient; Mira Donison Sponsor; Duane Donison Sponsor's SSN; *ss-sI*?619b Patient Account Number; 1013 Data(s) of Service! March 24, 2001 - March 30, 2003 Provider: 14ANORCARE CAMP HILL, PA Dear.Mr Donison; Thank you for using TRICARE and for your inquiry received on May 24, AAA `"'^ T R I C A R 8 North The attached letter, dated December 16, 2003, is accurate and is a valid TRICARE latter. it was issued by Sierra Military Services as they were the overseer of the TRICARE program until September 1, 2004. At that time, Healthnet took over as the contractor for TRICARE in Pannsylvania. Our records indicate that MANORCARE CAMP HILL, PA was TRICARE certified between April 1, 1979 and August 1, 2003. As a Skilled Nursing Facility, MANORCARE CAMP HILL, PA would have been required to sign a participation agreement with TRICARE in order to receive a reimbursement. Since payments were issued to MANORCARE CAMP HILL, PA, the provider was participating with TRICARE. If a lawyer needs to be addressed by TRICARE, an associate from our priority department would need to contact the lawyer. A claims associate would not be able to address the lawyer directly. If you need any additional assistance, please contact our office. Sincerely, 9?16-c Joshua Richard Claims Associate TRICARE Services ST1 091 08 CKEY; 244966196 OEDD TRICARE - North Region PGBA, LLC 0 Fax: 1-888432-7077 t PO Box 870141 1 Surfride Beach. SC 29587.9741 Customer Service' 1-877-TRICARE • www.MYT1UCA.RE.com by PGSA 5OF 007(06/04) ? 1? r DUANE M. DONISON, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION--LAW HCR MANOR CARE, Defendant : NO. 05-5626 CIVIL TERM IN RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BEFORE OLER and EBERT, JJ. ORDER OF COURT AND NOW, this 6 h day of November, 2008, upon consideration of Defendant's motion for summary judgment, and for the reasons stated in the accompanying opinion, the motion is granted and Plaintiff's amended complaint is dismissed. ..,Richard R. Gan, Esq. 64 South Pitt Street Carlisle, PA 17013 Attorney for Plaintiff B. Craig Black, Esq. Patricia Haas Corll, Esq. 1017 Mumma Road Suite 100 Wormleysburg, PA 17043 Attorneys for Defendant l:.Opt£S BY THE COURT, '=' a ?, r.?i? ?? ,? ?__,. ,??. . r-:'1'?t t? t ?,?.,-, ?•y ? } ? ?'" 145 ?UU? '? ! ?4 ,?gg ?° ? ? DUANE M. DONISON, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. HCR MANOR CARE, Defendant CIVIL ACTION--LAW NO. 05-5626 CIVIL TERM IN RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BEFORE OLER and EBERT, JJ. ORDER and OPINION OF COURT Oler, J., November 6, 2008 In this civil case, an insured has sued a nursing home for allegedly advising him incorrectly that his insurance would not cover his spouse's expenses at the facility, leading to a certain financial loss on his part.' Plaintiff's claims sound in negligence2 and "detrimental reliance." 3 For disposition at this time is a motion for summary judgment filed by Defendant, contending that Plaintiffs claims are time-barred.4 The matter was argued on October 22, 2008. For the reasons stated in this opinion, Defendant's motion for summary judgment will be granted. STATEMENT OF FACTS Plaintiff commenced the present action by a praecipe for writ of summons on October 31, 2005.5 Plaintiffs amended complaint alleges that he disposed of about $30,000.00 in assets to qualify for Medicaid coverage for care of his spouse at Defendant's facility. It alleges further that Plaintiff did so because Defendant erroneously advised him that certain insurance which Plaintiff had through a ' Plaintiff's Amended Complaint, paras. 14, 16-17, 23-24, filed October 16, 2006. z Plaintiffs Amended Complaint, Claim One, filed October 16, 2006. 3 Plaintiffs Amended Complaint, Claim Two, filed October 16, 2006. 4 Motion for Summary Judgment of Defendant HCR Manor Care, filed August 11, 2008. 5 Plaintiff's Praecipe for Writ of Summons, filed October 31, 2005. company called Tricare would not cover her expenses.6 Defendant disposed of the assets, according to the complaint, on or about March 13, 2001.7 He testified at a deposition that he had used the proceeds to buy an automobile,8 an asset which apparently did not adversely affect Medicaid eligibility. In his deposition, Plaintiff conceded that at a meeting on July 17, 2001, a discussion had occurred with his caseworker from the Cumberland County Assistance Office, Lynne Gordon, "about the coordination of benefits and that we should never have gone through the down spend process."9 More specifically, he stated in the deposition that he realized around July 17, 2001, that Manor Care had proceeded incorrectly and that his disposition of assets had been unnecessary: Q And you realized by July 17 of 2001, that it was unnecessary for you to have spent those assets, the $29,900 and some dollars, because Manor Care should have been billing TRICARE, correct? A Something like that, yes.10 According to an April 30, 2003, letter that he wrote to several governmental officials, he was told at a hearing on August 20, 2001, by a welfare hearing officer of the Commonwealth that he "had grounds for a lawsuit against the nursing home."' i A letter dated October 27, 2003, from Defendant to the Office of the Pennsylvania Attorney General seemed to indicate its ultimate concurrence with Plaintiff's position that Tricare did provide coverage for his spouse during the 6 Plaintiff's Amended Complaint, paras. 1-24, filed October 16, 2006. ' Plaintiff's Amended Complaint, para. 19, filed October 16, 2006. 8 N.T. 63-64, Deposition of Plaintiff, March 6, 2008 (attached to Defendant's Motion for Summary Judgment as Ex Q. 9 N.T. 67, Deposition of Plaintiff, March 6, 2008 (attached to Defendant's Motion for Summary Judgment as Ex. Q. 10 N.T. 94, Deposition of Plaintiff, March 6, 2008 (attached to Defendant's Motion for Summary Judgment as Ex. C). " Deposition of Plaintiff, March 6, 2008 (letter attached to Defendant's Motion for Summary Judgment as Ex. A). 2 period in question, according to Plaintiff. 12 A letter to the Office of the Attorney General from Tricare dated December 16, 2003, also confirmed its coverage of Plaintiffs spouse, according to Plaintiff's deposition testimony. 13 As previously noted, the present litigation was commenced by Plaintiff on October 31, 2005. DISCUSSION Statement of the Law Summary judgment. Pennsylvania Rule of Civil Procedure 1035.2 provides as follows: After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law (1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or (2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. Statute of limitations-burden of proof and discovery rule. "Where the statute of limitations is at issue, the burden of proof falls on the plaintiff to demonstrate that the cause of action is not barred by the passage of time and that his or her failure to file the action in timely fashion is excusable." Jones v. Harleysville Mutual Ins. Co., 2006 PA Super 100, ¶11, 900 A.2d 855, 858 (citation omitted). The "discovery rule," with respect to operation of statutes of limitations, has been described as follows: 'z See Defendant's Answer in Opposition to Motion for Summary Judgment Presented by HCR Manorcare, Ex. B, filed October 15, 2008. 13 N.T. 109-10, Deposition of Plaintiff, March 8, 2008 (attached to Defendant's Motion for Summary Judgment as Ex. C); see Defendant's Answer in Opposition to Motion for Summary Judgment Presented by HCR Manorcare, Ex. C, filed October 15, 2008. 3 The discovery rule is an exception to the requirement that a complaining party must file suit within the statutory period. The discovery rule provides that where the existence of the injury is not known to the complaining party and such knowledge cannot reasonably be ascertained within the prescribed statutory period, the limitations period does not begin to run until the discovery of the injury is reasonably possible.... The statute begins to run in such instances when the injured party possesses sufficient critical facts to put him on notice that a wrong has been committed and that he need investigate to determine whether he is entitled to redress.... The party seeking to invoke the discovery rule bears the burden of establishing the inability to know that he or she has been injured by the act of another despite the exercise of reasonable diligence. Baselice v. Franciscan Friars Assumption BVM Province, Inc., 2005 PA Super 246, ¶13, 879 A.2d 270, 276 (citations omitted). With regard to the discovery rule, "the point at which the complaining party should reasonably be aware that he has suffered an injury is generally an issue of fact to be determined by the jury." E.J.M. v. Archdiocese of Philadelphia, 424 Pa. Super. 449, 455, 622 A.2d 1388, 1391 (1993). However, [w]here the facts are so clear that reasonable minds cannot differ ... the commencement of the limitations period can be determined as a matter of law.... Additionally, if a party has the means of discovery within his power but neglects to use them, his claim will still be barred. Baselice v. Franciscan Friars Assumption BVM Province, Inc., 2005 PA Super 246, ¶18, 879 A.2d 270, 277. In this context, once the running of the statute of limitations is properly tolled, only where the facts are so clear that reasonable minds cannot differ may the commencement of the limitations period be determined as a matter of law. Crouse v. Cyclops Industries, 560 Pa. 394, 404, 745 A.2d 606, 611 (2000) (emphasis in original). Negligence. As a general rule, the statute of limitations for negligence actions is two years. Act of July 9, 1976, P.L. 586, §2, as amended, 42 Pa. C.S. §5524(7) (2008 Supp.). The discovery rule normally applies to negligence actions. See, e.g., Szpynda v. Pyles, 433 Pa. Super. 1, 639 A.2d 1181 (1994) (medical malpractice). Detrimental reliance. "Detrimental reliance is another name for promissory estoppel.... Under this theory, a promise which the promisor should reasonably 4 expect to induce action or forbearance on the part of the promisee and which does induce such action or forbearance is binding if injustice can be avoided only by enforcing the promise." Matarazzo v. Millers Mutual Group, Inc., 927 A.2d 689, 692 (Pa. Commw. 2007) (citations omitted). "The doctrine of promissory estoppel sounds in contract law and, like other contract actions, is subject to the four-year statute of limitations set forth at 42 Pa.C.S. § 5525." Id. As with negligence actions, the discovery rule has been applied to promissory estoppel actions. See Crouse v. Cyclops Industries, 560 Pa. 394, 745 A.2d 606 (2000). Application to Facts According to Plaintiff, acting in reliance on a negligent misrepresentation of Defendant he disposed of certain property unnecessarily on March 13, 2001, and suffered some economic loss as a result. Although he conceded in his deposition that he was aware as early as July 17, 2001, that it had been "unnecessary for [him] to have spent those assets ... because Manor Care should have been billing TRICARE," it is his position that the statutes of limitations did not begin to run on his negligence and promissory estoppel claims until Tricare's letter of December 16, 2003, "conclusively" showed that Defendant had made a mistake. 14 However, it appears clear to the court from Plaintiffs own testimony that he had been on notice by July 17, 2001, that his disposition of assets had been unnecessary and that any advice or action on the part of Defendant to the contrary had been erroneous. By August 20, 2001, he had been expressly advised by a state hearing officer that he had a cause of action against Defendant. Under these circumstances, and given (a) the burden of proof upon Plaintiff with respect to statutes of limitations in general and the discovery rule in particular, (b) the necessity under the summary judgment rule for Plaintiff to produce evidence in la Plaintiffs Memorandum of Law in Opposition to Motion for Summary Disposition, at 6, submitted October 15, 2008. 5 accordance with this burden, and (c) the principle that the discovery rule will not delay the operation of a statute of limitations beyond the point that an injured party possesses sufficient critical facts to put him or her on notice that a wrong has been committed and that he or she needs to investigate to determine whether he or she is entitled to redress, the court is constrained to conclude that Plaintiff's action herein, filed on October 31, 2005, more than four years after the aforesaid events in 2001, is time-barred as a matter of law. For the foregoing reasons, the following order will be entered: ORDER OF COURT AND NOW, this 6t` day of November, 2008, upon consideration of Defendant's motion for summary judgment, and for the reasons stated in the accompanying opinion, the motion is granted and Plaintiff s amended complaint is dismissed. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Richard R. Gan, Esq. 64 South Pitt Street Carlisle, PA 17013 Attorney for Plaintiff B. Craig Black, Esq. Patricia Haas Corll, Esq. 1017 Mumma Road Suite 100 Wormleysburg, PA 17043 Attorneys for Defendant 6 DUANE M. DONISON : IN THE COURT OF COMMON PLEAS OF Pro Se Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION --LAW HCR MANOR CARE Defendant : NO. 05-5626 CIVIL TERM MOTION TO OVERTURN COURT DECISION BEFORE OLER and EBERT, JJ. On November 6, 2008, your court granted the Defendant's motion for summary judgment and dismissed the Plaintiff's amended complaint. (Enclosure 1) The Plaintiffs amended complaint was dismissed based on the courts understanding that the Plaintiff exceeded the statute of limitations. The Defendant's motion for summary judgment was misleading to the court while stating that new information was uncovered during the deposition of the Plaintiff, Duane Donison, on March 6, 2008. RPC Rule 3.1 Meritorious Claims and Contentions. A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein unless there is a basis in the law and fact for doing so that is not frivolous which includes a good faith argument. FACTS: The Defendant was in possession of the so called new matter, by way of CD ROM on or about March 15`h 2007. The Defendant did not present the previous knowledge to the court until October 22, 2008. (Excerpts from the CD Rom attached. See enclosure 2, highlighted areas on pgs. 2&3) The Defendant waited for seventeen months to address the court with the prcViously discovered evidence and called it new matter. Allowing that much time to pass, pretending not to know, cannot be considered as discovering new matter, but instead might be considered as tactics to procrastinate and prolong. The Defendant learned of no new evidence during the March 6, 2008 deposition ofthe Plaintiff Infonning the court otherwise is not acting in good faith. While reviewing the CD ROM dated March 15`h 2007, Plaintiff discovered that when HCR Manor Care did begin billing Tricare, the facility made no effort to collect his cost-share but instead applied the cost-share to medical assistance and was written off. It is illegal to waive deductibles and cost shares. By law health care providers may not waive Tricare beneficiary deductibles or cost-shares and requires providers to make reasonable efforts to collect these amounts. (Enclosure 3) While reviewing the CD ROM dated March 15`h 2007, Plaintiff discovered that when HCR Manor Care did begin billing Tricare, payment was reduced because the nursing home failed to obtain pre-certification. The nursing home illegally applied a difference of $3,787.66 between amount billed and amount received to medical assistance and was written off. (Enclosure 4) While reviewing the CD ROM dated March 15th 2007, Plaintiff also discovered that if the nursing home had not referred him to the Department of Public Assistance, his total out of pocket expenses for his wife's care while at the facility would have been his cost share totaling $6,213.05 instead of having to down spend all his assets. When this civil case was argued on October 22, 2008, the court made comment that this case had been heard a year ago. The Defendant replied with an untrue statement by saying that within the past year new matter was discovered. When this matter was argued before the court on October 22, 2008, the Defendant reminded the court that because the statue of limitation had been exceeded, it no longer mattered who was responsible for the wrong doing. The amended complaint charged that HCR Manor Care denied participation with Plaintiff's Tricare insurance. (Enclosure 5, highlighted area) The amended complaint charged that the nursing home advised Plaintiff incorrectly when informing Plaintiff that his Tricare insurance would not cover his wife, Mira Donison"s expenses while she resided at their facility. The amended complaint charged that the nursing homes denial of Tricare participation resulted in the unnecessary down spend. The nursing home has not defended their denial of participation with Plaintiff's insurance company. The Defendant continually tiles motions with claims that have nothing to do with the charges filed within the amended complaint. This case has been twisted away from the facts charged within the amended complaint and again demonstrates tactics to procrastinate and prolong. Plaintiffs statement made during deposition resulting in the order to dismiss is not denied. It is true that during a conversation between Plaintiff and Cumberland County Assistance Office case worker Lynne Gordon that Ms. Gordon did tell Plaintiff that if Manor Care had billed correctly, he would not have had complete the down spend until after his insurance denied payment. This conversation was in general and should not be construed to be an expert report. (Again see enclosure 2, highlighted areas.) Plaintiff s entire investigation process prior to filing suit was questioning Manor Care's coordination or benefits. The contacts and meetings that took place prior to filing suit questioned why the nursing home did not bill third party insurances in accordance to the Admissions Agreement, or in accordance to a Manor Care provided form, and signed by him, authorizing bill third party. (Enclosure 6) Plaintiff used all avenues available to him in attempt to settle the billing issues and his persistence resulted in Manor Care having to reimburse the Department of Public Assistance. Plaintiffs preliminary investigation had nothing to do with whether Manor Care was, or was not, Tricare providers as charged in the amended complaint. With the billing issues settled, Plaintiff no longer had a valid claim for injury. (Enclosure 7, highlighted area) Plaintiff asks for the court to recognize that sometimes it is not reasonably possible for a person to discover the true cause of an injury due to false statements. This injury was caused by HCR Manor Care's false statements. Not until December 16, 2003 did Plaintiff learn the critical facts. (Enclosure 8) Critical fact: The nursing home denied participation with Tricare. Critical tact: During the Plaintiffs investigation period, the nursing home responded to the billing inquiries by falsely claiming not to be a Tricare provider. Critical fact: Defendant claimed that Manor Care had made numerous phone calls attempting to become a certified provider. (Again see Enclosure 5 highlighted area) Critical fact: Plaintiff had no reason to not believe the nursing home's false claim. Critical fact: Not until December 16, 2003, did the Plaintiff discover that the nursing home was a "certified Tricare provider" during the entire time that Mira was a resident in the facility. Critical tact: HCR Manor Care was active to render services from April 1, 1979 thru July 31, 2003 and became inactive August 1, 2003. Critical fact: The nursing home's denial of Tricare participation led to the unnecessary down spend. Critical fact: Not until December 16, 2003 did the Plaintiff discover that the nursing home had been deceiving and lying to him since February 2001. Critical fact: Litigation was commenced on October 31, 2005. Plaintiff asks the court to recognize that he was residing and working out of country from October 2002 and did not return to the United States for residency until May of 2005. Upon his return to the states he immediately began seeking legal counsel. He retained legal counsel on June 22, 2005 and within three months thereafter, he learned that his newly retained attorney had become ill and was unable to pursue the case. In October 2005, Plaintiff retained another legal firm. One of his attorney's was disbarred for reasons unknown to him and the other had plans to leave the fin-n. The internal problems within the finn resulted in his case not moving forward and so he discharged their services. In December 2007, Plaintiff retained yet a third attorney. Eleven months after retaining his third attorney, and after receiving the courts order to dismiss, his attorney displayed no interest in continuing to represent the case. The Plaintiff has experienced a very expensive and difficult time with legal representation. Plaintiff was honest while reporting all his assets, he has been honest while pursuing retribution and had made a reasonable offer in an attempt to settle the suit out of court. HCR tilanor Care counter offered with an unacceptable amount of $3,000.00. Plaintiff's deceased wife contributed to their life's savings for more than twenty years. Because of HCR. Manor Care's illegal and deceitful actions, her dignity was taken away and she died a poor woman, but the Defendant is a very large multi million dollar company. Plaintiff begs the court to reverse the decision to dismiss his case and with the help of his girlfriend, Ms. Jane Hart, continue this case Pro Se. The Plaintiff wants to do everything possible in hopes that this will not happen to some other innocent person who is properly insured. 4 Respectfully Submitted, DUA M. DONISON, PRO SE PLAINTIFF JANE A. HART 2 Marcella Way Carlisle, PA 17015-9485 (717) 240-0026 - H (717) 422-3608 - C Dated DUANE M. DONISON, Plaintiff V. HCR MANOR CARE, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION--LAW NO. 05-5626 CIVIL TERM IN RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BEFORE OLER and EBERT, JJ. ORDER OF COURT AND NOW, this 6 h day of November, 2008, upon consideration of Defendant's motion for summary judgment, and for the reasons stated in the accompanying opinion, the motion is granted and Plaintiffs amended complaint is dismissed. RAard R. Gan, Esq. 4 South Pitt Street Carlisle, PA 17013 Attorney for Plaintiff B. Craig Black, Esq. Patricia Haas Corll, Esq. 1017 Mumma Road Suite 100 Wormleysburg, PA 17043 Attorneys for Defendant I I Z3LXI - r BY THE COURT, r DUANE M. DONISON, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. HCR MANOR CARE, Defendant CIVIL ACTION--LAW NO. 05-5626 CIVIL TERM IN' RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BEFORE OLER and EBERT, JJ. ORDER and OPINION OF COURT Oler, J., November 6, 2008 In this civil case, an insured has sued a nursing home for allegedly advising him incorrectly that his insurance would not cover his spouse's expenses at the facility, leading to a certain financial loss on his part.' Plaintiff's claims sound in negligence2 and "detrimental reliance."3 For disposition at this time is a motion for summary judgment filed by Defendant, contending that Plaintiff's claims are time-barred.4 The matter was argued on October 22, 2008. For the reasons stated in this opinion, Defendant's motion for summary judgment will be granted. STATEMENT OF FACTS Plaintiff commenced the present action by a praecipe for writ of summons on October 31, 2005.5 Plaintiff's amer)ded complaint alleges that he disposed of about $30,000.00 in assets to qualify for Medicaid coverage for care of his spouse at Defendant's facility. It alleges further that Plaintiff did so because Defendant erroneously advised him that certain insurance which Plaintiff had through a Plaintiff's Amended Complaint, paras. 14, 16-17, 23-24, filed October 16, 2006. z Plaintiff's Amended Complaint, Claim One, filed October 16, 2006. ' Plaintiff's Amended Complaint, Claim Two, filed October 16, 2006. Motion for Summary Judgment of Defendant HCR Manor Care, filed August 11, 2008. 5 Plaintiff's Praecipe for Writ of Summons, filed October 31, 2005. company called Tricare would not cover her expenses.6 Defendant disposed of the assets, according to the complaint, on or about March 13, 2001.7 He testified at a deposition that he had used the proceeds to buy an automobile,8 an asset which apparently did not adversely affect Medicaid eligibility. In his deposition, Plaintiff conceded that at a meeting on July 17, 2001, a discussion had occurred with his caseworker from the Cumberland County Assistance Office, Lynne Gordon, "about the coordination of benefits and that we should never have gone through the down spend process."9 More specifically, he stated in the deposition that he realized around July 17, 2001, that Manor Care had proceeded incorrectly and that his disposition of assets had been unnecessary: Q And you realized by July 17 of 2001, that it was unnecessary for you to have spent those assets, the $29,900 and some dollars, because Manor Care should have been billing TRICARE, correct? A Something like that, yes.10 According to an April 30, 2003, letter that he wrote to several governmental officials, he was told at a hearing on August 20, 2001, by a welfare hearing officer 4 of the Commonwealth that he "had grounds for a lawsuit against the nursing home."1 1 A letter dated October 27, 2003, from Defendant to the Office of the Pennsylvania Attorney General seemed to indicate its ultimate concurrence with Plaintiff's position that Tricare did provide coverage for his spouse during the t 6 Plaintiff's Amended Complaint, paras. 1-24, filed October 16, 2006. ' Plaintiffs Amended Complaint, para. 19, filed October 16, 2006. 8 N.T. 63-64, Deposition of Plaintiff, March 6, 2008 (attached to Defendant's Motion for Summary Judgment as Ex Q. 9 N.T. 67, Deposition of Plaintiff, March 6, 2008 (attached to Defendant's Motion for Summary Judgment as Ex. C). 10 N.T. 94, Deposition of Plaintiff, March 6, 2008 (attached to Defendant's Motion for Summary Judgment as Ex. Q. 11 Deposition of Plaintiff, March 6, 2008 (letter attached to Defendant's Motion for Summary Judgment as Ex. A). i period in question, according to Plaintiff." A letter to the Office of the Attorney General from Tricare dated December 16, 2003, also confirmed its coverage of Plaintiff's spouse, according to Plaintiff's deposition testimony. 13 As previously noted, the present litigation was commenced by Plaintiff on October 31, 2005. DISCUSSION Statement of the Law Summary judgment. Pennsylvania Rule of Civil Procedure 1035.2 provides as follows: After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law (1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or (2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. Statute of limitations-burden of proof and discovery rule. "Where the statute of limitations is at issue, the burden of proof falls on the plaintiff to demonstrate that the cause of action is not barred by the passage of time and that his or her failure to file the action in timely fashion is excusable." Jones v. Harleysville Mutual Ins. Co., 2006 PA Super 100, ¶11, 900 A.2d 855, 858 (citation omitted). The "discovery rule," with respect to operation of statutes of limitations, has been described as follows: 12 See Defendant's Answer in Opposition to Motion for Summary Judgment Presented by HCR Manorcare, Ex. B, filed October 15, 2008. 13 N.T. 109-10, Deposition of Plaintiff, March 8, 2008 (attached to Defendant's Motion for Summary Judgment as Ex. C); see Defendant's Answer in Opposition to Motion for Summary Judgment Presented by HCR Manorcare, Ex. C, filed October 15, 2008. 3 The discovery rule is an exception to the requirement that a complaining party must file suit within the statutory period. The discovery rule provides that where the existence of the injury is not known to the complaining party and such knowledge cannot reasonably be ascertained within the prescribed statutory period, the limitations period does not begin to run until the discovery of the injury is reasonably possible.... The statute begins to run in such instances when the injured party possesses sufficient critical facts to put him on notice that a wrong has been committed and that he need investigate to determine whether he is entitled to redress.... The party seeking to invoke the discovery rule bears the burden of establishing the inability to know that he or she has been injured by the act of another despite the exercise of reasonable diligence. Baselice v. Franciscan Friars Assumption BVM Province, Inc., 2005 PA Super 246, ¶13, 879 A.2d 270, 276 (citations omitted). With regard to the discovery rule, "the point at which the complaining party should reasonably be aware that he has suffered an injury is generally an issue of fact to be determined by the jury." E.J.M. v. Archdiocese of Philadelphia, 424 Pa. Super. 449, 455, 622 A.2d 1388, 1391 (1993). However, [w]here the facts are so clear that reasonable minds cannot differ ... the commencement of the limitations period can be determined as a matter of law.... Additionally, if a party has the means of discovery within his power but neglects to use them, his claim will still be barred. Baselice v. Franciscan Friars Assumption BVM Province, Inc., 2005 PA Super 246, 118, 879 A.2d 270, 277. In this context, once the running of the statute of limitations is properly tolled, only where the facts are so clear that reasonable minds cannot differ may the commencement of the limitations period be determined as a matter of law. Crouse v. Cyclops Industries, 560 Pa. 394, 404, 745 A.2d 606, 611 (2000) (emphasis in original). I Negligence. As a general rule, the statute of limitations for negligence actions is two years. Act of July 9, 1976, P.L. 586, §2, as amended, 42 Pa. C.S. §5524(7) (2008 Supp.). The discovery rule normally applies to negligence actions. See, e.g., Szpynda v. Pyles, 433 Pa. Super. 1, 639 A.2d 1181 (1994) (medical malpractice). Detrimental reliance. "Detrimental reliance is another name for promissory estoppel.... Under this theory, a promise which the promisor should reasonably 4 expect to induce action or forbearance on the part of the promisee and which does induce such action or forbearance is binding if injustice can be avoided only by enforcing the promise." Matarazzo v. Millers Mutual Group, Inc., 927 A.2d 689, 692 (Pa. Commw. 2007) (citations omitted). "The doctrine of promissory estoppel sounds in contract law and, like other contract actions, is subject to the four-year statute of limitations set forth at 42 Pa.C.S. § 5525." Id. As with negligence actions, the discovery rule has been applied to promissory estoppel actions. See Crouse v. Cyclops Industries, 560 Pa. 394, 745 A.2d 606 (2000). Application to Facts According to Plaintiff, acting in reliance on a negligent misrepresentation of Defendant he disposed of certain property unnecessarily on March 13, 2001, and suffered some economic loss as a result. Although he conceded in his deposition that he was aware as early as July 17, 2001, that it had been "unnecessary for [him] to have spent those assets .. because Manor Care should have been billing TRICARE," it is his position that the statutes of limitations did not begin to run on his negligence and promissory estoppel claims until Tricare's letter of December 16, 2003, "conclusively" showed that Defendant had made a mistake. 14 However, it appears clear to the court from Plaintiff's own testimony that he had been on notice by July 17, 2001, that his disposition of assets had been t unnecessary and that any advice or action on the part of Defendant to the contrary had been erroneous. By August 20, 2001, he had been expressly advised by a state hearing officer that he had a cause of action against Defendant. Under these circumstances, and given (a) the burden of proof upon Plaintiff with respect to statutes of limitations in general and the discovery rule in particular, (b) the necessity under the summary judgment rule for Plaintiff to produce evidence in 14 Plaintiff's Memorandum of Law in Opposition to Motion for Summary Disposition, at 6, submitted October 15, 2008. 5 accordance with this burden, and (c) the principle that the discovery rule will not delay the operation of a statute of limitations beyond the point that an injured party possesses sufficient critical facts to put him or her on notice that a wrong has been committed and that he or she needs to investigate to determine whether he or she is entitled to redress, the court is constrained to conclude that Plaintiffs action herein, filed on October 31, 2005, more than four years after the aforesaid events in 2001, is time-barred as a matter of law. For the foregoing reasons, the following order will be entered: ORDER OF COURT AND NOW, this 6th day of November, 2008, upon consideration of Defendant's motion for summary judgment, and for the reasons stated in the accompanying opinion, the motion is granted and Plaintiff's amended complaint is dismissed. BY THE COURT, S/ J. Wesley Oler Jr J. Wesley Oler, Jr., J. Richard R. Gan, Esq. 64 South Pitt Street Carlisle, PA 17013 Attorney for Plaintiff B. Craig Black, Esq. , Patricia Haas Corll, Esq. 1017 Mumma Road Suite 100 Wormleysburg, PA 17043 Attorneys for Defendant 6 .e eligible under Tricare and was enrolled in Medicare Part B. On Her Medicare Card is the following information: Hospital Insurance (Part A) and Medical Insurance (Part B) both were effective since 2-1-78. On February 15.2001, I met with Monica Shuleva of HCR Manor Care Admissions Office who completed the Admission Notice Packet listing all resources with back up documentation. Monica Shuleva forwarded the packet to the Cumberland County Assistance Office in Carlisle, PA. On March 2, 2001, I received a letter dated February 28, 2001 from Lynne Gordon of Department of Public Welfare, Cumberland County Assistance Office in Carlisle, PA (1-800- 269-0173) informing me that I would have to down spend $29,962.81 (Racbmin 1) to be eligible for Medicaid. I was to complete the Application for Nursing Home Assistance once our total assets had been down spent On March 13, 2001, I met with Lynne Gordon with the Application completed along with documentation of the down spend On March 24, 2001, Mira, was approved for Nursing Home Medical Assistance (Medicaid). On April 2, 2001, I mailed check # 1141(Enclasare 2) to the United States Treasury for $2,600.00 for estimated tax for 2001. This was for the tax on the interest of $13,513.09 when I cashed in our savings bonds. I found out later on my own I could have included the $2,600.00 in my down spend. I had not been advised of this. After Mira was living at HCR Manor Cane for a few months, I decided to check with Tricare to make sure the claims were being submitted and processed and that no problems were occurring. Them informed me that it had not received any claims and the Nursing Home should follow the corrm is procedures for Coordination of Bemef ts. The Coordination of Benefits is a process governing the payment of claims when a person has other health irmuaaae m addition to Tricare After talking to Tricam I ascertained that no claims were being submittal. I consulted the Tricare Manual and learned that Thcare should be paying for the claims from the Nursing Home and that we had not needed to go through the down spend pe+ocess (to be eligible for Medicaid). At this time I felt it had been very unfair that we had to down spend as it affected my wife and I. 1 requested a face to face hearing with my can wadrer, Lynne Gordon, bepurae of the cincumatanoes of misinformation and Coordination of Benefits being skipped. (Eaelaare 3) On June 26, 2001, I met with Nancy Japak who is Staff Assistant for Senator Jeffiey Piccolo I gave her the same packet (Eaclosurer 3? At the time that I wrote the Aftc1mient to the Notice to Applicant for a Haring dated June 26,2001 (refer to Enelosare 3). I was of thep belief that Teresa M. Crnjar--Pully, , the manager for the business office at the Nursing Home, had seam in the claims to Tricare. I latex found out that she had lied and that no paperwork had been submitted to Tricar+e. She latex was let go. On this basis I now refute certain statamemts I made in that attachme m On July 17, 2001,1 had a conference with my case worker, Lynne Gordon, about the z A r O MAN0878 N It Coordination of Benefits and that we should never have gone through the down spend process. Lynne Gordon said the Nursing Home was at fault. I requested my appeal to be fo warded to the Bureau of Hearing and Appeals. On August 20, 2001, I had a hearing with the Welfare Hawing Officer, Robert S. Rosen (717) 783 - 3950. Also present at the haft was my can worker, Lynne Gordon and her Nursing Home Unit Supervisor, Melanie Cohick. I discussed the Coordination of Benefits (Medicare Part A and Part B, Capital Blue Cross, Tricara (which wasn't used) and Medicaid Mira, exhausted bar 100 days coverage under Medicare Part A on March 24, 2001. The Nursing home bad firm the time of her admission February 10, 2001 until March 24, 2001 to forward the billing to Tricare. I had previously provided Tam M. Crnjar- Pully with copies of Mim's Medicare Summary Notices, Tricare Handbook, Decision Guide to Tricare Benefits, Sierra Military Health Services Precertification Referral Form, information on how to apply to be a provider for Tdcare and a letter from Mire's Orthopedic Surpoo, Dr. Ronald W. Lippe, M.D. I also explained the catastrophic cost "cap" (refer to Euclesum 4 for explanation on Tricarve catastrophic cap and deductible). With reference to the information in the Memo (Indonore 5) to Lynne Gordon dated July 18, 2001, which was given to me at the baring and the letter to Senator Piceols dated July 31, 2001, which I showed to the Welfare Hearing Officer, Ronald S. Rossi, which was mailed to me for my information (Zodbam 6) from Department of Public welfare, both letters are incorrect. Melanie Cohwk also informed the Welfare Haring Officer, Robert S. Rosen, that they updated their system in July 2001 to reflect the change in name from Champus to Tricare (Enclosure 51 I informed those pa?eaeat at the hawing that in 1998 the name had been changed. No comments were made. I was directed to pay the patient resource of $808.85 effective April 1, 2001 regardless of whether the Coordination of Bed was done or not and no to pay the Cost Share towards the Catastrophic Cap since I had already down spent. Mr. Rosen stated that I bad grounds for a law suit against the Nursing Hoene. I should have been informed and advised by Monica, Shuleva that since Mira also had Triahre cx vaW it would be to my benefit to request that a Resource Assessment be completed now as I might have to apply at a Inter date for Medicaid I wasn't given that opportunity until I found out later on my own The Department of Public Welfare, Cumberland County Assistance Office in Carlisle, PA. processed the Application believing that Medicaid was required. The fault was with HCR Manor Care and no one else. The process of Coordination of Benefits was not followed by the Nursing Hone. This is a prime example of not knowing their job and dwdore not providing the correct advice. While my wife was alive and in the Nursing Honwe, Min did not want me to complain to the audwribes about the problems we were having with the Nursing Home as she felt intimidated by possible retribution that the Nursing Home might arise to her while she was living there. I now would like to get, with your assistance, these problems resolved On August 21, 2001, I wrote check No 124 to HCR Manor Cam from my wife's account for $4,044.25 (Enebsm 7). The patient payments from her Social Security was $808.85 per month for April through August 2001. ' 3 MAN0879 1 ! Army Echoes Issue 3.5%pnPm 2005 It's illegal to :waive deductibles, cost-shares Beneficiaries who use TRICARE Standard and Extra are rWonsible, under law, for paying annual deductibles and cost-slimes associated with their case. The law states that health me providers may not waive TRICARE beneficiary de&L%bles or cost shares and requires providers to make reasonable eifurts to coiled these amomft Heaft cane providers who offer to waive deduct iblw and coat-shares or who advertise that they will do so may be investigated fix program abuse and suspended or excluded as xu6 rued providers.. According to Rose NL Sabo, Director, Program Inle rity, "TRICAR.B pmoh% is any scheme designed to waive a ms's deductible or cost share. One type of sche me coma in the form of a supplemental insurance program which covers copayments or deductibles only for Am or services provided by the entity offering the insurance. These programs: can be identifiedwhenOw `insurancepremirmn' paidbythe beneficiary a insignificant, and the pmrniums so low 11 drugs added to TRIO Eleven new moons have been added to the TRICARE Uniform Formulary while seven medica- tions have been moved to non-for n ilary status. The following modications have been added to the Uniform Formulary: Levitra? "F-5 Inhibitor); nystatin, clotrimazole, kele, miconazole, Mentax®, Nattin® (TopicalAntifimgsls); and Rebifti;l, Avonex®, Copaxona®, BetaseronO (Multiple Sclero- sis Disaase Modifying Drugs). The n?-&=&q medications include: Ylagra®, CialisO (MA-5 Inhibitors);. and ciclopirox, econaaole:, Oxista?, FrW=S Bxeldex 0 (TopicalAntifi? gals). TRICARE beneficiaries will pay S22 for up to a 30- or 90-day supply for non-f mulary medications, depending on whether they fill &--Prescription at a TRICARE Retail Network Pharmacy uRRx) (3.0- day) or through the TRICARE Mail Order Pharmacy (TMOP) (94-day). Beneficiaries will pay the higher of $22 or 20'/e in retail non-network pharmacies. The $22 copayment began Aug. 17, 2005 foram topical antifiingal medications and will begin Oct. 12, 2005 forPDE-5 Inhibitors. Patients using the newly designated son-formulary medications may want to ask their doctors if they could use a formulary alternative or try to establish medical necessity for using the drug. Formulary alternatives are available for these medications at a that they are not based upon actuarial risks, but instead are a sham used to disguise the routine waiver of copsyments and deductibles. Such a scam can result in excessive utilization of items and services." When Congress established beneficiary deductibles and cost shares, their intent was to make the benefi- ciary a financial partner with the government. The cost-share avoids waste of tuqwyer dollars. Benefi- ciaries who have a financial risk associated with their health care decisions are more likely to choose cost- effective treatment for their medical conditions. Beneficiaries can coi r t their local TRICARE Service Center for more information on deductibles and cost-shmm A list of Service Canters and We- phone numbers is at hojAyww. if They can also call the regional t 0ll-free numbers listed on page: 10 of every Army Edww If beneficiaries suspect pro- vider or insurance fined, they may report it by e-mail- ingfisudline(r ma.osd.miL l -,%-1 1 -`s't'y - '..a73 ARE formulary; 7 are off copay of either $3 or $9. If medical necessity is established focusing noarformulary meth adons, patients may qualify for the $9 c opayment for up to a 30-day TRRa supply or up to a 90-day TMOP supply. Military lreslnnent facilities (MTF) will no longer cagy these; or other non-formulary medications on theiclocal formulariea. Non-formularymedications may be available at MTFs only when medical neces- sityis established and the prescription was written by an.MTF provider. Medical necessity foams are avail- able at _ nonforimilIMm Eligible beneficiaries may fill prescriptions for non-formulary and covered medica- tions; through the TMOP and TRRx pharmacies. Beneficiaries may reduce out-of-pocket expenses by filling prescriptions through the TMOP where they may receive up to a 90-day supply of medicine for the same cost as a 30-day supply in the TRRX For TMOP information, go to 1;/Lwwartricare. DOD-TMOP, (866) 363-8667. For TTRx informa- tion, call customer service at (866) DOD-TRRX4 (866) 363-8779, or go to • "ill yIUM-r n ct &f*a For information about medications, availability and cost, use the Formulary Search Tool at httnJ/www trica_*pform ?iarv?h orQ/dod/ eyli 'oncenter P ,? t.a? z r O bas ?-e1?•r?? Quauts ??bP ?fie Ra?srm( ?at-llaaao tkrt-o?a,? q1,1101 It( 1?w- k ? UP K, was Kilo cft-e*Td I,ue, ?a ob- cek Gws ??-?113010? 4((s'(0 l CE m wA.o `!A' e '1 31(03 r u CS 0?"v i 411 101 CI 14; 7 03 ill, 101 dato ( was 91 ? ? wee 11,26 -Y Ci? WIL r.QCe j 6l bl W l1, IN101 a ua.e `Fiw 3r-7lo-5 (IA, c ucR Cu.? U ? std D tu'ta rtA?w. ,dQO aHO( tio," (o.? ?, a.qe b on -5/7/0 5. T.?h Qret?evh?tiC? CLuc4 p,„pQ UNi?i 4 FgSp1 g ye? 114.4q I /3(A`73 1 6653, zg f4h I (,j I/Alo, SD 2?Plre?Q fo ? Q-S?+Slnuce 5-4?t, 61 I(t at 11Y{IdL Aq mv-r .G IIAI? rn, jf,m o-9, 59q?. q? 9ja7/61- d¢srW -fa- ftwUrae k8 ro(r?e? s Payme4 /blip /ol -ekkod C.us4tf (al z ad e?iA ?l to Calf- "d I 04 cvw*-'oq e 0 P", Ccu?dj.a?'I Ca,.?e, red" wu 6? IV 13x.73 3o ?? A - o d " oe, (okI ofd. ? off e161 -6wd eJ7 31-716-3 Arr 44, -/6 Ht°N DST-. (0 1Z, MAN0727 z r 0 A ?S ?fe?;ll? Qtx6wd?Q??71?P ? RzreQ pttf-&T -7 q r • "wee 1 wao tt?cat fv at ? a 1C.-9(?lot Jq4 (0 -2, Poi uaa ?wP -fe- wa,? 4- fo ukw -lil , loq (0 7, n??- ? w(? Qeco,? ez ??,??gla1- S??S?o2 5Dd4-s! 31-7- ?SI-OZ- 8404, 1fo ?(? - `?(3o?aZ 5(tq02 &(?o y G/G?a 3 G z??: 9L ? . c.(at ' was ck 'eaP on 8??0 do ue,,?co( asca( on a re . UA, 11-44 4, f Ll ?rlr r-? ??L.,. tee. fo obf? uQ wn?{cK . ?Lllgja?L v 2- ?? ta?a3 a44fo, n Prey 9 16 ?v -X0 4(,b/03 G?qt? 3 r r a3 8 ??' l5L8 a? Is?cr? ? ?P ?, /?s? wNr(?, off', ?o ?3?- care MAN0728 HCR ManorCare i 770 Market Street Camp Hill, Pennsylvania 17011 717-737.8551 17-737 -2189 Fax June 6, 2003 Attn: Nedra L. Brooks Commonwealth of PA Office of Attorney General Bureau of Consumer Protection Health Care Unit 14n' Floor, Strawberry Square Harrisburg, PA 17120 RE: Duane M. Donison, H-000521-2003 Dear Nedra Brooks: HCTZ•ManorCare This correspondence is in response to the letter we received from your office, dated May 27, 2003 for the above referenced individual. Enclosed please find an itemized statement as per your request for private and third party payers. Mira Donison was admitted to ManorCare Health Services of Camp Hill on February 10, 2001 with a partial Medicare Part A benefit remaining. After Medicare Part A benefits were exhausted, charges were billed to Mr. Donison privately until we received a Medical Assistance approval from the County Assistance Office. Although Mr. Donison was billed privately during this time period, he did not pay the facility while the Medical Assistance application was pending. The facility also attempted to bill TriCare, however, ManorCare Health Services was not a "certified" provider with TriCare and there was no guarantee that our facility would be reimbursed through TriCare. Therefore, it was recommended that Mr. Donison apply for Medical Assistance for Mira or be responsible for charges privately if TriCare failed to make payment to ManorCare Health Services. The spend down that occurred for Medical Assistance eligibility was at the direction of the County Assistance Office. They were aware our facility was attempting to bill TriCare and if TriCare would not pay, Medical Assistance would be billed. Submission of claims to TriCare for dates of service March 24, 2001 through and including August 31, 2001 began on September 18, 2001. The submission to TriCare was done after numerous phone calls to TriCare to become a "certified" provider. On September 25, 2001, those claims were returned to ManorCare Health Services stating "incorrect explanation of benefits". A claim was then put into Medicare's system for March 24, 2001 through March 31, 2001. Payment was then received from TriCare in An HCR Manor Care Company MAN0898 z n r 0 .11' February and March of 2002 for March 24, 2001 through December 31, 2001. When claims were resubmitted to TriCare for January 1, 2002 through April 30, 2002, on May 15, 2002, TriCare requested Medicare Explanation of Benefits for every month At that point, claims needed to be entered into Medicare's system for April 2001 through April 2002. The remainder of 2002 was submitted to Medicare throughout 2002 as well. On April 17, 2003, ManorCare Health Services received payment for January 2002 through March 2002. Once again, as you can see from the above information, our facility has spent a great deal of time trying to have claims processed appropriately. ManorCare Health Services is well aware of the timely filing limits with TriCare and have been workiag diligently to get the claims through Medicare's system. We have also solicited the help of our Provider Representative with Medicare to assist in the processing of the claims. Unfortunately, TriCare will only accept the Medicare Explanation of Benefits that are sent to the beneficiary. Therefore submission to TriCare was delayed until we received the Medicare Explanation of Benefits from the beneficiary. The Department of Public Welfare was billed for various months due to the 180 day time limit in the State of PA. Any monies that were paid by the Department of Public Welfare and which TriCare also paid us for, were reimbursed or are in the process of being reimbursed to the State. We are also in the process of refunding Mr. Donison, however, in the event that TriCare does not make payment for the remainder of the charges, Mr. Donison will be responsible for the monthly private portion. On April 7, 2003 the Cumberland County Assistance Office was notified via written communication that Mina Donison passed away on March 30, 2003. Verbal consent was given to the Business Office by both Mira and Duane Donison to open any Medicare correspondence (EOB's) through the mail. This information was pertinent for submitting claims to TriCare. If you have any questions, please contact me at the above number. Sincerely, 1019 Daniel W. Deitzel MAR, NHA Administrator ENCLOSURES MAN0899 HCl-31-E, AUTHORIZATION FOR PAYMENT OF BENEFITS RESIDENT'S NAME Mklvk^ ADMISSION DATE to rVIK 0 % SOC. SEC. NUMBER aXAz `3 t. %415 MEDICARE NUMBER U*, •3 t.- 14 15 - K I, 1Ai% NN .bbtztSntJ , authorize and request my insurance company, third party payer or governmental payer to pay directly to MICR Manor CaM&M Hill for nursing care benefits rendered to me or my named .dependent. The type of services requested are: skilled nursing facility / nursing facility / needed ancillary services. I also authorize the release of medical information necessary to process this claim. I understand that this authorization applies to those eligible charges for which I am covered by my insurance company's benefit or third party payer and that any additional and/or denied charges are entirely payable by me. A copy of this will serve as an original. Signature of Resident And /Or Legal Representative Date ?:1Wb o t Date (Copies to ResldenMegal Rdpresentafte and Center.) Re lftt Name: 10 Medkai Record Number: O l l ©i3 Is MAN0151 z r 0 a TOM CORBETT ATTORNEY GENERAL COMMONWEALTH OF PENNSYLVANIA OFFICE OF ATTORNEY GENERAL March 28, 2005 Health Care Section 10 Floor, Strawberry Square Harrisburg, PA 17120 717.705.6938 717.787.1190(Fax No.) Duane M. Donison 118 Lilac Drive Sherwood Park, Alberta Canada T8H 1 W 1 Re: Manor Care Camp Hill, H-000521-2003 Dear Mr. Donison: This office has attempted to mediate your complaint and effect a satisfactory resolution. We have resolved the billing issues between Manor Care and Thcare. We have confirmed with Manor Care that your account reflects a zero balance. All outstanding claims have been paid by Thcare and all duplicate payments have been retracted by Medical Assistance. However, at this time, it does not appear that further mediation efforts will be productive with regard to the spend down issues. Enclosed is a copy of the Department of Public Welfare, Cumberland County Assistance Office's ("CCAO') response to our January 28, 2005 letter sent on your behalf CCAO advised that you have already participated in a hearing where the hearing officer stated you would have to pursue these issues through a private legal action. Accordingly, you withdrew your appeal. Because CCAO has apparently stated its final position in this matter, we are unable to mediate your complaint further. If you decide not to accept the explanation and continue to pursue this complaint, you may wish to consult private counsel. If you are unsure how to proceed, you may wish to contact the Pennsylvania Bar Association's "Lawyer Referral" program (717.238.6807). As you know, this office is precluded from representing individual consumers in their private legal disputes. A copy of your complaint will remain on file for future reference. On behalf of Attorney General Tom Corbett, thank you for bringing this matter to our attention Sincerely yours, Sarah A. Rajca Consumer Protection Agent M n r 0 "? ItC=li-?113(t?l? .!?:36 Clt?«S -(Flt=?3 6f S ?18ti t, ?0 ?-. I.A T• t C A a! Norrart . ?? • 2193 suww N Dt"Immon 11/ L11N Rr" chm??tl Pk Albdete, W* MW COMMON ' T$ H 1 x+01 ft, pat t"t: Him N awasawn 4i E~ I Down Sioni"M t fta"WI I M4-94-41ti Mtsto] of br"" M MN & !+" Ma than Ntrab U. an Pr?vldar r Ilnraware•? ? N311 r now CISAM"ta Thra * VIG fer YGW r?r! 'Mdryl rNM WJW 90 #bew rafaMWW prarfir. Thft $n o dW rws utiw to road aWteUM U TRMM N.tio is fMw ANril 1,19 ! thrrr drrlw Si, 2M. 4r.Maatrbor !t. Z!#i,. Provident IN* 2118ndid VO Natllrnsl MfN1N Arrthtir4001-1l5rr Act an FA al Ybar Us*. Thtta 1461411MIUM has ft4ft iiparrtmt W -401aillone for all out" awake ft "Istaa 0 alf" - an%. ?rmretiw Cow Nils " lnaetlw nos to, na trartlfi?atiwr or Smiled Mondry ur'tialaatiarr aoranwiorrt / • C1a3ara Aaaaa?iab ?lIKSI TRIcw MCS mouton i "IA CPME7s) not 2"-%-i1% CKBV a hwu PUYs gi171lM MNd IV a wMrrw SHMRA WRITARY RRAM SOMWAS, Lt+ - MAN0967 A O oe b DUANE M. DONISON : IN THE COURT OF COMMON PLEAS OF Pro Se Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION --LAW HCR MANOR CARE Defendant : NO. 05-5626 CIVIL TERM CERTIFICATE OF SERVICE We, Duane M. Donison, Plaintiff and Jane A. Hart do certify that on November 24, 2008, a copy of Plaintiff's motion to overturn court decision to dismiss amended complaint was sent by first class mail to: Craig Black, Esquire 1017 Mumma Road, Suite 100 Wormleysburg, PA 17110 DUANPM. DONISON, PRO SE PLAINTIFF JANE A. HART 2 Marcella Way Carlisle, PA 17015-9485 (717) 240-0026 -- H (717) 422-3608 - C Dated ir, , r.,y .? '"i ->.e ?. ?°? C: ;; :,G t- -t B. CRAIG BLACK, ESQUIRE Attorney I.D. No. 36818 1017 Mumma Road, Suite 100 Wormleysburg, PA 17043 (717) 909-5170 Attorneys for Defendant, HCR ManorCare DUANE M. DONISON, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 05-5626 CIVIL ACTION - LAW HCR MANOR CARE, Defendant I JURY TRIAL DEMANDED ANSWER OF HCR MANOR CARE TO PLAINTIFF'S "MOTION TO OVERTURN COURT DECISION" AND NOW, this day of 2008, comes Defendant, HCR ManorCare, by and through its attorneys, The Chartwell Law Offices, LLP., and files this Reply to the Motion of Plaintiff to "Overturn Court Decision", seeking an Order by this Court vacating its November 6, 2008 Order granting Summary Judgment to Defendants and reinstating Plaintiff s Complaint. PREFACE In violation of Pennsylvania Rule of Civil Procedure 208.2, Plaintiff's "Motion to Overturn Court Decision" is not divided into paragraphs, numbered consecutively, but rather contains a narrative of what Plaintiff perceives to be pertinent facts underlying Plaintiffs claim and supporting Plaintiffs allegation that the Motion for Summary Judgment was "misleading to the Court". In an effort to reply to Plaintiffs Motion, Defendant's have endeavored to respond substantively in a paragraph format to the allegations contained in the Motion. In further support of its Answer to Plaintiffs Motion, Defendant hereby incorporates by reference its previously filed Motion for Summary Judgment and Brief in Support thereof, further which are of record in this matter. 1. To the extent that paragraph 1 under the heading "Facts" in Plaintiffs Motion to Overturn Court Decision refers to a CD-ROM of documents which was produced in connection with Defendant's responses to Plaintiff s Request for Production of Documents, it is averred that said CD-ROM containing documents requested by Plaintiffs counsel was produced to Plaintiff on March 2, 2007. Defendant raised in its Amended New Matter affirmative defense of the statute of limitations defense which was predicated upon Defendant's understanding that Plaintiff was aware as early as July 17, 2001 that Defendant should have been billing TRICARE rather than submitting said billings to Medicaid and that Plaintiff therefore had qualified for Medicaid benefits for his wife by the unnecessary disposition of assets. The documents referred to in paragraph 1 of Plaintiffs Motion refer to documents that were produced by the Defendant in response to Plaintiff s discovery. 2. It is admitted only that the Defendant waited for the completion of substantial discovery in this matter prior to filing the Motion for Summary Judgment pursuant to Pennsylvania Rule of Civil Procedure 1035.2. It is averred that the appropriate procedure was followed by the Defendant in seeking pre-trial disposition of this matter. 3. The averments in paragraph 3 of Plaintiffs Motion are characterizations and conclusions which bear no basis and fact. Said allegations are denied. Defendant further incorporated the averments of Paragraph 2 infra. 4. Denied. To the contrary, Defendant confirmed its belief during the March 6, 2008 deposition of Plaintiff that Plaintiff did in fact understand and knew as early as July 17, 2001 that Manor Care had billed Medicaid instead of TRICARE and that Plaintiffs decedent was TRICARE eligible. The remaining characterizations and aspersions set forth in paragraph 4 of Plaintiff's Motion to Overturn Court Decision are denied. 5. Denied. After reasonable investigation, Answering Defendant is of insufficient knowledge and information to form a belief as to the truth of the averments contained in paragraph 5 of Plaintiff's Motion. 6. The averments in paragraph 6 of Plaintiff's Motion constitute conclusions of law to which no responsive pleading is required. To the extent that said averments are factually specific and do not constitute conclusions of law, the allegations therein appear to allege that Plaintiff has failed to pay an appropriate deductible amount to HCR Manor Care and would be obligated to HCR Manor Care for such additional deductible amount. In as much as said deductibles were not sought as part of this litigation, said allegations are totally and completely irrelevant to the Court's holding with respect to the Motion for Summary Judgment. 7. The averments in paragraph 7 of Plaintiff's Motion constitute conclusions of law to which no responsive pleading is required. To the extent that said averments are factually specific and do not constitute conclusions of law, said averments are denied. Moreover, the averments in paragraph 7 of the Motion are completely and totally irrelevant to the Court's holding with respect to the application of the statute of limitations to Plaintiff's claim. 8. The averments in paragraph 8 of Plaintiff's Motion constitute conclusions of law to which no responsive pleading is required. To the extent that said averments are factually specific and do not constitute conclusions of law, said averments are denied. Moreover, the averments in paragraph 8 of the Motion are completely and totally irrelevant to the Court's holding with respect to the application of the statute of limitations to Plaintiff's claim. 9. Denied. Defendant only responded to a question by the Court as to when the Amended New Matter was filed. 10. Denied. It is admitted only that during the course of oral argument, the Court inquired as to when the Amended New Matter was filed in this matter and that Defendant replied with the approximate date that the Amended New Matter was filed raising the statute of limitations. It is admitted that Defendant asserted and asserts that the statute of limitations bans Plaintiff's claim. 11. Denied as stated. The averments in Plaintiff's Amended Complaint are in writing and speak for themselves. 12. Denied as stated. The averments in Plaintiff's Amended Complaint are in writing and speak for themselves. 13. Denied as stated. The averments in Plaintiff's Amended Complaint are in writing and speak for themselves. 14. Denied. The only Motions filed by Defendant in this matter are a Motion to Amend New Matter and the within Motion for Summary Judgment, the later of which lead to the Court's dismissal of Plaintiff's Complaint by its conclusion that Plaintiff's claims are barred by the statute of limitations. 15. The averments in paragraph 15 of Plaintiff's Motion are denied. Said averments are nothing more than characterizations and accusations made by the Plaintiff which are not substantiated by the record in this matter. 16. Admitted. 17. Denied. After reasonable investigation, the Answering Defendant is of insufficient knowledge and information to form a belief as to the truth of the averments of paragraph 17 of Plaintiff's Motion. Said allegations are therefore denied. By way of further response, Answering Defendant incorporates herein by reference the allegations in its Motion for Summary Judgment and it Brief in Support thereof. 18. Denied as stated. It is admitted only that Manor Care reimbursed the Department of Public Welfare for benefits provided to Plaintiff's decedent after TRICARE acknowledged responsibility for those charges. By way of further answer, the averments in paragraph 18 of Plaintiff's Motion are totally irrelevant to the issue of the application of the statute of limitation to Plaintiff's claim. 19. Denied. To the contrary, Plaintiff primarily focused its investigation upon whether or not Manor Care was TRICARE certified and should have accepted TRICARE's payment. 20. Admitted. It is admitted that Plaintiff has no valid claim for injury. 21. Denied. It is denied that Defendant engaged in any false statements including those serially set forth in paragraph 21 of Plaintiff's Complaint which is demarcated as "critical fact". To the contrary, on or about July 17, 2001, Plaintiff had sufficient information to put him on notice that a wrong may have been committed and that he need investigate to determine whether he was entitled to redress. Plaintiff failed to timely pursue his entitlement to recovery and the Court's Order dismissing Plaintiff's Complaint is therefore appropriate. 22. The averments in paragraph 22 of Plaintiff's Motion are denied. After reasonable investigation, Answering Defendant is of insufficient knowledge and information to form a belief as to the truth of the averments. In any eventuality, said averments do not in any way legally justify Plaintiff's delay in failing to timely pursue legal redress for his claimed injuries. 23. Denied. The averments in paragraph 23 can be neither admitted nor denied. Answering Defendant is of insufficient knowledge and information to form a belief as to the truth of the averments. Moreover, said averments are completely irrelevant to the Court's ruling with respect to timeliness of Plaintiff's Complaint and the application of the statute of limitations barring Plaintiff's claim. 24. The averments in paragraph 24 of Plaintiff's Complaint recite settlement discussions which are neither admissible nor part of the trial court record and have absolutely no relevance to the trial court's disposition of the Motion for Summary Judgment. 25. The averments in paragraph 25 are denied. Said averments have absolutely no bearing on the legal application of the statute of limitations to the within matter. 26. The averments in paragraph 26 constitutes a prayer for relief to which no responsive pleading is required. WHEREFORE,. Defendant respectfully requests that this Honorable Court affirm its prior decision granting Defendant's Motion for Summary Judgment. Dated: s, •ir? 60 ZaoB .0011 - Respectfully submitted, THE CHARTWELL LAW OFFICES, LLP B. CRAI LACK, E? Attorne . No. 36818 PATRI HAAS CORLL, ESQUIRE Attorney I.D. No: 59238 1017 Mumma Road, Suite 100 Wormleysburg, PA 17043 (717) 909-5170 Attorney for Defendant, HCR ManorCare CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing Answer of HCR Manor Care to Plaintiffs Motion to Overturn Court Decision upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, first-class postage prepaid, addressed as follows: Richard R. Gan, Esquire Gan Law Group 64 South Pitt Street Carlisle, PA 17013 Attorney for Plaintiff, Duane M. Donison Dated: a 2=s Respectfully Submitted: B. C BL , E Atto e .D. No. 36818 1017 Mumma Road, Suite 100 Wormleysburg, PA 17043 (717) 909-5170 Attorney for Defendant, HCR ManorCare ?? ? ?Tt ? f?? T w? t`?- ?C5 '} " + ???'? w,` ?? _: ? ,1 " t i„ `t .. ?'i DUANE M. DONISON : IN THE COURT OF COMMON PLEAS OF Pro Se Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION --LAW HCR MANOR CARE Defendant : NO. 05-5626 CIVIL TERM ENTRY OF APPEARANCE Kindly enter my appearance on my own behalf as Pro Se Plaintiff in the above-captioned matter. Respectfully submitted, Ey cyrl`2 `?.,1 amt DUANE M. DONISON, Da led PRO SE PLAINTIFF 2 Marcella Way Carlisle, PA 17015-9485 (717) 240-0026 - H (717) 422-3608 - C DUANE M. DONISON : PENNSYLVANIA SUPERIOR COURT Pro Se Plaintiff V. : CIVIL ACTION --LAW HCR MANOR CARE Defendant : NO. 05-5626 CIVIL TERM CERTIFICATE OF SERVICE I, Duane M. Donison, Plaintiff do hereby certify that a true and correct copy of Entry of Appearance was served on January 21, 2009 via US First Class Mail to: Craig Black, Esquire 1017 Mumma Road, Suite 100 Wormleysburg, PA 17110 DUANE M. DONISON, PRO SE PLAINTIFF 2 Marcella Way Carlisle, PA 17015-9485 (717) 240-0026 - H (717) 422-3608 - C Date C?'} c"?.s 7 w t DUANE M. DONISON Pro Se Plaintiff V. HCR MANOR CARE Defendant PENNSYLVANIA SUPERIOR COURT CIVIL ACTION --LAW : NO. b 5 lkr NOTICE OF APPEAL Notice is hereby given that the Plaintiff, Duane M. Donison Appeals to the Superior Court of Pennsylvania from the Order entered in this matter on this 6`h day of November, 2008. This Order has been entered in the docket as evidenced by the attached docket entry. Motion to Overturn Court Decision was filed by Plaintiff on the 24`h day of November, 2008. This motion has been entered in the docket as evidenced by the attached docket entry. Answer of HCR Manor Care to Plaintiff' s• Motion to Overturn Court Decision was filed by Defendant on the 81h day of December, 2008. This answer has been entered in the docket as evidenced by the attached docket entry. Plaintiff has not received a response to his Motion to Overturn Court Decision. The Court of Common Pleas of Cumberland County, Pennsylvania has not responded to the motion as evidenced by the attached docket. In earnest attempts, the Plaintiff has been unable to obtain answers concerning the lower court's reasoning for failure to respond. The lower courts failure to act disregards the Plaintiff's right to appeal in a timely manner. Plaintiff seeks rune pro tunc relief. Respectfully Submitted, DUANE M. DONISON, PRO SE PLAINTIFF 2 Marcella Way Carlisle, PA 17015-9485 (717) 240-0026 - H (717) 422-3608 - C I - '?'x Dat 2 DUANE M. DONISON Pro Se Plaintiff V. HCR MANOR CARE Defendant PENNSYLVANIA SUPERIOR COURT : CIVIL ACTION --LAW NO. 05-5626 CIVIL TERM CERTIFICATE OF SERVICE 1. Duane M. Donison, Plaintiff do hereby certify that a true and correct copy of Notice of Appeal was served on January 21, 2009 upon the following persons, via hand delivery and US First Class Mail: J. Wesley Oler, Jr., J. I Courthouse Square Carlisle, PA 17013 Craig Black, Esquire 1017 Mumma Road, Suite 100 Wormleysburg, PA 17110 DUANE M. DONISON, PRO SE PLAINTIFF 2 Marcella Way Carlisle, PA 17015-9485 (717) 240-0026 - H (717) 422-3608 - C Dated 1222'_501212009 Cumberland County Prothonotary's Office Page 1 PYS516 Civil Case Print 2005-05626 DONISON DUANE M (vs) HCR MANOR CARE Reference No..: Filed........: 10/31/2005 Case Type.....: WRIT OF SUMMONS Time.........: 10:39 Judgment...... .00 Execution Date 0/00/0000 Judge Assigned: OLER J WESLEY JR Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: Higher Crt 2.: ******************************************************************** ************ General Index Attorney Info DONISON DUANE M PLAINTIFF GAN RICHARD R 159 RINGNECK DRIVE HARRISBURG PA 17112 HCR MANOR CARE DEFENDANT BLACK B CRAIG 1700 MARKET STREET CANAVAN JOHN R CAMP HILL PA 17011 ******************************************************************************** * Date Entries ******************************************************************************** - FIRST ENTRY 10/31/2005 PRAECIPE FOR WRIT OF SUMMONS IN CIVIL ACTION-WRIT OF SUMMONS ISSUED ------------------------------------------------------------------- 11/04/2005 SHERIFF'S FILE RETURNED FILED. Case Type: WRIT OF SUMMONS Ret Type.: Regular Litigant.: HCR MANOR CARE Address..: 1700 MARKET STREET Ctyy/St/Z : CAMP HILL, PA 17011 Hnd To: DEBRA MARTINI RN ADMIN DIRECTOR OF NURSING Shf/D ty.: RONALD E HOOVER Date/ Time: 11/03/2005 1354:00 Costs....: $42.40 Pd By: 00/00/0000 ------------------------------------------------------------------- 11/23/2005 ENTRY OF APPEARANCE FOR DEFT - BY B CRAIG BLACK ESQ FOR DEFT ------------------------------------------------------------------- 3/14/2006 PRAECIPE FOR RULE TO FILE COMPLAINT AND RULE TO FILE A COMPLAINT BY CURTIS R LONG PROTHONOTARY ------------------------------------------------------------------- 3/16/2006 CERTIFICATE OF SERVICE - SERVING A COPY OF THE RULE TO FILE A COMPLAINT - BY B CRAIG BLACK ATTY ------------------------------------------------------------------- 4/03/2006 COMPLAINT - BY ANDREW J OSTROWSKI ATTY ------------------------------------------------------------------- 4/25/2006 PRELIMINARY OBJECTIONS OF DEFT-HCR MANORCARE-TO PLFF'S COMPLAINT - BY B CRAIG BLACK ATTY ------------------------------------------------------------------- 7/24/2006 PRAECIPE FOR LISTING CASE FOR ARGUMENT - PRELIMINARY OJECTIONS OF HCR MANOR CARE TO PLFF'S COMPLAINT - BY B CRAIG BLACK ATTY FOR DEFT ------------------------------------------------------------------- 9/27/2006 ORDER OF COURT - 09-27-06 - IN RE: ORDERD AS FOLLOWS: 1-DEFT'S PRELIMINARY OBJECTION BASED UPON PA RCP 1019 SA IT RELATES TO A WRITING IS SUSTAINED AND PLFF IS AFFORDED A PERIOD OF 20 DAYS WITHIN WHICH TO FILE AN AMENDED COMPLAINT COMPLYING WITH RULE 1019-IN THE ABSENCE OF A TIMELY AMENDMENT THE CLAIMS OF PLFF WILL BE CONCLUSIVELY PRESUMED TO BE NOT BASED UPON A WRITING AND 2-IN ALL OTHER RESPECTS-DEFT'S PRELIMINARY OBJECTIONS ARE DENIED - BY J WESLEY OLER J - COPIES MAILED 09-27-06 ------------------------------------------------------------------- 10/16/2006 AMENDED COMPLAINT - BY SHERI D COOVER ATTY FOR PLFF ------------------------------------------------------------------- 11/07/2006 ANSWER AND NEW MATTER OF HCR MANOR CARE TO PLFF'S AMENDED COMPLAINT - BY B CRAIG BLACK ATTY FOR DEFT ------------------------------------------------------------------- 12/20/2006 PLAINTIFF'S RESPONSE TO DEFT'S NEW MATTER - BY ANDREW J OSTROWSKI ATTY FOR PLFF ------------------------------------------------------------------- 10/05/2007 ENTRY OF APPEARANCE - BY B CRAIG BLACK ATTY FOR DEFT - THE CHARTWELL OFFICES LLP ------------------------------------------------------------------- 12221501212009 Cumberland County Prothonotary's Office Page PYS510 Civil Case Print 2005-05626 DONISON DUANE M (vs) HCR MANOR CARE Reference No..: Filed........: 10/31/2005 Case Type.....: WRIT OF SUMMONS Time.........: 10:39 Judgment...... 00 Execution Date 0/00/0000 Judge Assigned: OLER J WESLEY JR Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: Higher Crt 2.: 12/14/2007 MOTION TO WITHDRAW ATORNEY APPEARANCE - BY ANDREW J OSTROWSKI AND SHERI D COOVER ESQ ATTY FOR PLFF ------------------------------------------------------------------- 1/03/2008 APPEARANCE - ENTERED ON BEHALF OF PLFF - BY RICHARD R GAN ATTY FOR PLFF ------------------------------------------------------------------- 1/03/2008 ORDER - 1/3/08 IN RE: MOTION TO WITHDRAW ATTY APPEARANCE - MOTION TO WITHDRAW ANDREW OSTROWSKI AND SHERI D COOVER ESQ IS GRANTED - BY J WESLEY OLER JR J - COPIES MAILED 1/3/08 ------------------------------------------------------------------- 3/25/2008 ENTRY OF APPEARANCE FOR DEFT - BY B CRAIG BLACK ATTY FOR DEFT ------------------------------------------------------------------- 4/14/2008 MOTION FOR LEAVE TO AMEND NEW MATTER PURSUANT TO PA R C P 1033 - BY B CRAIG BLACK ATTY FOR DEFT ------------------------------------------------------------------- 4/14/2008 PRAECIPE FOR LISTING CASE FOR ARGUMENT - DEFT'S MOTION FOR LEAVE TO AMEND NEW MATTER PURSUANT TO PA R C P 1033 - BY PATRICIA HASS CORLL ATTY FOR DEFT ------------------------------------------------------------------- 4/23/2008 ORDER OF COURT - 4/22/08 IN RE: DEFT'S MOTION FOR LEAVE TO AMEND NEW MATTER PURSUANT TO PA R C P 1033 - A RULE IS HEREBY ISSUED UPON PLFF TO SHOW CAUSE WHY THE RELIEF REQUESTED SHOULD NOT BE GRANTED - RULE RETURNABLE WITHIN 20 DAYS OF SERVICE - BY J WESLEY OLER JR J - COPIES MAILED 4/23/08 ------------------------------------------------------------------- 5/01/2008 CERTIFICATE OF SERVICE - RULE UPON PLFF TO SHOW CAUSE WHY DEFT'S MOTION FOR LEAVE TO AMEND NEW MATTER PURSUANT TO PA R C P 1033 UPON RICHARD R GAN ATTY FOR PLFF - BY B CRAIG BLACK ATTY FOR DEFT ------------------------------------------------------------------- 5/12/2008 ANSWER TO MOTION FOR LEAVE TO AMEND NEW MATTER PURSUANT TO PA RCP 1033 - BY RICHARD R GAN ATTY FOR PLFF ------------------------------------------------------------------- 5/15/2008 ORDER OF COURT - 5/14/08 IN RE: DEFT'S MOTION FOR LEAVE TO AMEND NEW MATTER - DEFT'S MOTION IS GRANTED AND DEFT IS AFFORDED A PERIOD OF 14 DAYS FROM THE DATE OF THIS ORDER WITHIN WHICH TO FILE AMENDED MATTER ANSWER STRICKEN NFROMATTER THE 5/28/08 ACCORDANCE ARGUMMENT T COURT THE MOTION BY J WESLEY OLER JR J - COPIES MAILED 5/15/08 ------------------------------------------------------------------- 5/28/2008 AMENDED NEW MATTER OF HCR MANOR CARE TO PLFF'S AMENDED COMPLAINT - BY B CRAIG BLACK ATTY FOR DEFT ------------------------------------------------------------------- 6/13/2008 ANSWER TO AMENDED NEW MATTER PURSUANT TO PA RCP 1030 - BY RICHARD R GAN ATTY FOR PLFF ------------------------------------------------------------------- 8/11/2008 ENTRY OF APPEARANCE FOR DEFT - BY JOHN R CANAVAN ESQ ------------------------------------------------------------------- 8/11/2008 PRAECIPE FOR LISTING CASE FOR ARGUMENT - DEFTS MOTION FOR SUMMARY JUDGMENT - BY JOHN CANAVAN ATTY FOR DEFT ------------------------------------------------------------------- 8/11/2008 MOTION FOR SUMMARY JUDGMENT OF DEFT HCR MANORCARE - BY JOHN CANAVAN ATTY FOR DEFT ------------------------------------------------------------------- 10/15/2008 ANSWER IN OPPOSITION FOR SUMMARY JUDGMENT PRESENTED BY HCR MANORCARE - BY RICHARD R GAN ATTY FOR PLFF ------------------------------------------------------------------- 11/06/2008 OPINION AND ORDER OF COURT - DATED 11/6/08 - UPON CONSIDERATION OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND FOR THE REASON STATED IN THE ACCOMPANYING OPINION THE MOTION IS GRANTED AND PLAINTIFF'S AMENDED COMPLAINT IS DISMISSED - BY J WESLEY OLER JR J - COPIES MAILED 11/6/08 ------------------------------------------------------------------- 11/24/2008 MOTION TO OVERTURN COURT DECISION BEFORE OLER AND EBERT JJ - BY PLFF ------------------------------------------------------------------- 12/09/2008 ANSWER OF HCR MANOR CARE TO PLFFS MOTION TO OVERTURN COURT DECISION - BY B CRAIG BLACK ATTY FOR DEFT 2 1222150121200° Cumberland County Prothonotary's Office PYS51,0 Civil Case Print 2005-05626 DONISON DUANE M (vs) HCR MANOR CARE Reference No... Case Type.....: WRIT OF SUMMONS Judgment...... 00 Judge Assigned: OLER J WESLEY JR Disposed Desc.: ------------ Case Comments ------------- - - - - - - - - - - - - - - LAST ENTRY Page 3 Filed......... 10/31/2005 Time.......... 10:39 Execution Date 0/00/0000 Jury Trial.... Disposed Date. 0/00/0000 Higher Crt 1.: Higher Crt 2.: - - - - - - - - - - - - - - ******************************************************************************** * Escrow Information * Fees & Debits Bw*Bal***Pmts/Ad' End Bal *********************************** ****** ******************************* WRIT OF SUMMONS 35.00 35.00 .00 TAX ON WRIT .50 .50 .00 SETTLEMENT 5.00 5.00 .00 AUTOMATION FEE 5.00 5.00 .00 JCP FEE 10.00 10.00 .00 SUBPOENA 3.00 3.00 .00 - -------------- 58.50 ---------- --- 58.50 -------- .00 ******************************************************************************** * End of Case Information ******************************************************************************** TRUE C r, FROM RECORD In Testimony wh ,r:-of our at Carlisle, pay hand and the seal of said C This .... /....... day of........., ................ ....... prothonotary N `?, r-? ?_ G":s ? _?? c? ?: N ? b ,> . 'a ? ?; t' `? ? , ., ? , -- ='. .? ? ?. ? COMMONWEALTH OF PENNSYLVANIA Karen Reid Bramblett, Esq. Prothonotary James D. McCullough, Esq. Deputy Prothonotary -W V. Superior Court of Pennsylvania Middle District January 23, 2009 100 Pine Street. Suite 400 Harrisbure. PA 17101 717-772-1294 www. superior.court.state.pa. us Mr. Curtis R. Long Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 Re: 126 MDA 2009 Duane Donison, Appellant V. HCR Manor Care Dear Mr. Long: Enclosed please find a copy of the docket for the above appeal that was recently filed in the Superior Court. Kindly review the information on this docket and notify this office in writing if you believe any corrections are required. Appellant's counsel is also being sent a Docketing Statement, pursuant to Pa.R.A.P. 3517, for completion and filing. Please note that Superior Court Dockets are available on the Internet at the Web site address printed at the top of this page. Thank you. Very truly yours, James D. McCullough, Esq. Deputy Prothonotary KRC 10:38 A.M. Appeal Docket Sheet Docket Number: Page 1 of 2 January 23, 2009 126 MDA 2009 Superior Court of Pennsylvania Duane Donison, Appellant V. HCR Manor Care Initiating Document: Notice of Appeal Case Status: Active Case Processing Status: January 22, 2009 Awaiting Original Record Journal Number: Case Category: Civil CaseType: Civil Action Law Consolidated Docket Nos.: Related Docket Nos.: SCHEDULED EVENT Next Event Type: Receive Docketing Statement Next Event Type: Original Record Received Next Event Due Date: February 6, 2009 Next Event Due Date: March 23, 2009 COUNSEL INFORMATION Appellant Donison, Duane Pro Se: Appoint Counsel Status: IFP Status: No Appellant Attorney Information: Attorney: Donison, Duane M. Bar No.: Law Firm: Address: 2 Marcella Way Carlisle, PA 17015-9485 Phone No.: Fax No.: Receive Mail: Yes E-Mail Address: Receive E-Mail: No Appellee HCR Manor Care Pro Se: Appoint Counsel Status: IFP Status: Appellee Attorney Information: Attorney: Black, Bryan Craig Bar No.: 36818 Law Firm: Chartwell Law Offices, LLP Address: 1017 Mumma Rd Ste 100 Wormleysburg, PA 17043 Phone No.: (717)909-5170 Fax No.: (717)909-5173 Receive Mail: Yes E-Mail Address: cbiack@chartwelliaw.com Receive E-Mail: No 1/2312009 3023 10:38 A.M. Appeal Docket Sheet Docket Number: Paqe 2 of 2 January 23, 2009 126 MDA 2009 FEE INFORMATION Paid Fee Date Fee Name Fee Amt Amount Receipt Number 1/21/09 Notice of Appeal 60.00 60.00 2009SPRMD000063 TRIAL COURT/AGENCY INFORMATION Court Below: Cumberland County Court of Common Pleas County: Cumberland Division: Civil Date of Order Appealed From: November 6, 2008 Judicial District: 9 Date Documents Received: January 22, 2009 Date Notice of Appeal Filed: January 21, 2009 Order Type: Order Entered OTN: Judge: Oler, Jr., J. Wesley Lower Court Docket No.: 2005-05626 Judge ORIGINAL RECORD CONTENTS Original Record Item Filed Date Content/Description Date of Remand of Record: BRIEFS DOCKET ENTRIES Filed Date Docket Entry/Document Name Party Type Filed By January 22, 2009 Notice of Appeal Filed Appellant Donison, Duane January 23, 2009 Docketing Statement Exited (Civil) Middle District Filing Office Superior Court of Pennsylvania 1123/2009 3023 rya = _% ; c._ n - G'"; K COURT OF COMMON PLEAS OF CUMBERLAND COUNTY DUANE DONISON, Plaintiff File : 05-5626 V HCR MANORCARE, CIVIL ACTION-LAW JURY TRIAL DEMANDED Defendant MOTION TO WITHDRAW AS COUNSEL And now this 30TH day of JANUARY 2009, Richard R. Gan states as follows: 1. That I am currently attorney of record for Duane Donison in the above matter. 2. That this Honorable court recently issued an order granting motion for summary disposition, effectively dismissing his claims 3. That I met with Mr. Donison after entry of this order and advised I could no longer represent him as his case had been dismissed. 4. That notwithstanding this meeting and recommendation, Mr. Donison filed a motion for post trial relief on his own behalf and against my recommendations. 5. That Mr. Donison neither agrees with nor has followed the recommendations of this law firm. 6. That for all of the above reasons, I can no longer represent Mr. Donison. WHEREFORE, Counsel for Plaintiff respectfully requests this Honorable Court grant this motion to withdraw. Respectfully Submitted, GAN LAW GROUP Richard R. Gan 64 South Pitt Street Carlisle Pa 17013 717-2414300 717-243-5175 ID 68721 Dated DUANE DONISON IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA Plaintiff CIVEL ACTION - LAW V. NO. 05- 5626 HCR MANORCARE Defendant PROOF OF SERVICE BY FIRST CLASS MAIL I, Richard R. Gan, Esquire, do hereby certify that on January 30, 2009 a copy of Plaintiffs Motion to withdraw as Counsel was sent by first class mail to: Craig Black Esquire 1417 Mumma Road, Suite 100 Wormleysburg, Pa 17110 And Duane Donison 2 Marcella Way Carlisle, Pa 17015 Gan Law Group Dated: / C) Document #: 181832.1 Attorney I.D. No. 68721 64 South Pitt Street Carlisle, PA 17013 (717) 241-4300 f-.13 71 COURT OF COMMON PLEAS OF CUMBERLAND COUNTY DUANE DONISON, Plaintiff File : 05-5626 V HCR MANORCARE, CIVIL ACTION-LAW JURY TRIAL DEMANDED Defendant AMENDED MOTION TO WITHDRAW AS COUNSEL And now this 30TH day of JANUARY 2009, Richard R. Gan states as follows: 1. That I am currently attorney of record for Duane Donison in the above matter. 2. That this Honorable court recently issued an order granting motion for summary disposition, effectively dismissing his claims 3. That I met with Mr. Donison after entry of this order and advised I could no longer represent him as his case had been dismissed. 4. That notwithstanding this meeting and recommendation, Mr. Donison filed a motion for post trial relief on his own behalf and against my recommendations. 5. That Mr. Donison neither agrees with nor has followed the recommendations of this law firm. 6. That the Honorable Wesley J. Oler is assigned to this case and has ruled on many motions previously brought in this matter.**************** 7. That Counsel for the Defendant has been contacted regarding this request to withdraw and has no objection.************************** 8. That for all of the above reasons, I can no longer represent Mr. Donison. WHEREFORE, Counsel for Plaintiff respectfully requests this Honorable Court grant this motion to withdraw. Respectfully Submitted, GAN LAW GROUP G Richard R. Gan 64 South Pitt Street Carlisle Pa 17013 717-241-4300 717-243-5175 ID 68721 Dated o -•, ° I-n S, e'Ti F C1? "C} 1 Y }4 • • d Y DUANE M. DONISON, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. HCR MANOR CARE, Defendant CIVIL ACTION-LAW NO.05 CIVIL TERM IN RE: OPINION PURSUANT TO PA. R.A.C.P. 1925 OLER, J., February 9, 2009. In this civil case in which an insured sued a nursing home for allegedly advising him incorrectly in 2001 that his insurance would not cover his spouse's expenses at the facility, the plaintiff has filed an untimely' pro se appeal to the Pennsylvania Superior Court from an en banc order of this court granting the defendant's motion for summary judgment on the basis of the statute of limitations. The rationale for the court's ruling on the summary judgment motion is contained in an opinion which accompanied the order.2 Accordingly, the prothonotary is directed to transmit the record to the Pennsylvania Superior Court for purposes of its review of the appeal. %The order dismissing Plaintiff's complaint on the basis of the statute of limitations was issued and entered on November 6, 2008. The court declined to reconsider this order in response to a motion which was filed by plaintiff without the participation of his counsel of record. See Motion To Overturn Court Decision before Oler and Ebert, JJ., filed November 28, 2008. In this regard, the pro se motion was incompatible with Cumberland County Rule of Procedure 208.3(a)(8) (proscription on hybrid representation) and, on the merits, a mere expression of discontent with the court's legal analysis of the record. The appeal period from the court's order of November 6, 2008, thus expired on December 8, 2008. See Pa. R.A.P. 108 (date of entry of orders), 903(a) (time for appeal); Act of December 6, 1972, P.L. 1339, §3, 1 Pa. C.S. § 1908 (computation of time); City of Philadelphia v. Frempong, 865 Pa. Commw. 614, 618 (2005) ("the mere filing of an application for reconsideration has no effect on the running of the appeal period") (citation omitted). Defendant's notice of appeal was not filed until January 21, 2009. 2 See Opinion and Order of Court, November 6, 2008. BY THE COURT, v if`s' {??? i?`1'r•?;,?I'??.??I(A?'^ ZZ •Z Wd 6" 8311 Duane M. Donison 2 Marcella Way Carlisle, PA 17015-9485 Plaintiff, pro se Bryan Craig Black Chartwell Law Offices, LLP Suite 100 1017 Mumma Road Wormleysburg, PA 17042 Attorney for Defendant DUANE M. DONISON, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW HCR MANORCARE, Defendant NO. 05-5626 CIVIL TERM ORDER OF COURT AND NOW, this 9`h day of February, 2009, upon consideration of the Motion To Withdraw as Counsel and the Amended Motion To Withdraw as Counsel, a Rule is hereby issued upon Plaintiff and Defendant to show cause why the relief requested should not be granted. RULE RETURNABLE within 20 days of the date of this order. SERVICE OF THIS RULE is to be made by Plaintiff's counsel. BY THE COURT, ichard R. Gan, Esq. 64 South Pitt Street Carlisle, PA 17013 Attorney for Plaintiff A. Craig Black, Esq. 1017 Mumma Road Suite 100 Wormleysburg, PA 17043 Attorney for Defendant :rc pl? R . blvw le.. "bo mfrs 0 J Z 1 -.6 WV 0 1 933 60111 Ir i DUANE M. DONISON V. HCR MANORCARE, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff CIVIL ACTION - LAW NO. 05 5626 Defendant JURY TRIAL REQUESTED PROOF OF SERVICE BY FIRST CLASS MAIL/SERVICE OF RULE/ ORDER I, Richard R. Gan, Esquire, do hereby certify that on February 17, 2009 a copy of this courts order of February 9"', 2009 in the above matter was served on counsel for Defendant in the above referenced matter and Plaintiff Duane Donison. Service was made to: B. Craig Black, Esq 1017 Mumma Road Suite 100 Wormleysburg, PA 17043 Duane Donison 2 Marcella Way Carlisle, PA 17015 Gan Law Group Document #: 181831.1 Attorney 1.0. NO. 05 /L 1 64 South Pitt Street Carlisle, PA 17013 (717) 241-4300 w r ,. DUANE M. DONISON, Plaintiff V. HCR MANORCARE, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 05-5626 CIVIL TERM ORDER OF COURT AND NOW, this 91h day of February, 2009, upon consideration of the Motion To Withdraw as Counsel and the Amended Motion To Withdraw as Counsel, a Rule is hereby issued upon Plaintiff and Defendant to show cause why the relief requested should, not be granted. J. Richard R. Gan, Esq. outh Pitt Street Carlisle, PA 17013 Attorney for Plaintiff B. Craig Black, Esq. 1017 Mumma Road Suite 100 Wormleysburg, PA 17043 Attorney for Defendant v, :rc i rrl Fes! . ,? ?`.. 7: ? k: DUANE M. DONISON : IN THE COURT OF COMMON PLEAS OF Pro Se Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION --LAW HCR MANOR CARE Defendant : NO. 05-5626 CIVIL TERM ANSWER TO SHOW CAUSE On this 2& day of February, 2009, Pro Se Plaintiff, Duane M. Donison, files this reply to show cause why relief should not be granted by Order of Court, February 9, 2009. 1. Attorney of Record, Richard R. Gan, presented a letter dated November 17, 2008, to Plaintiff referenced: "Conclusion of Representation". (Attached), personally ending his services. 2. Although Plaintiff repeatedly, since November 2008, had been asking Attorney Gan to enter his withdraw, he did not enter his motion to withdraw January 30, 2009. 3. By law, a Plaintiff has a right to appeal a court decision. 4. Attorney of Record disagrees with Plaintiff and resolved to conclude representation. 5. Attorney of Record's failure to enter his withdraw in a timely manner had resulted in Plaintiff's appearance of acting in Hybrid Representation and has complicated Plaintiff's right to proceed Pro Se. 6. Plaintiff can show no cause as to why the relief requested by counsel of record should not be granted. DUANE M. DONISON, PRO SE PLAINTIFF 2 Marcella Way Carlisle, PA 17015-9485 (717) 240-0026 - H (717) 422-3608 - C Dated I . . DUANE M. DONISON Pro Se Plaintiff V. HCR MANOR CARE Defendant PENNSYLVANIA SUPERIOR COURT CIVIL ACTION --LAW NO. 05-5626 CIVIL TERM CERTIFICATE OF SERVICE 1. Duane M. Donison, Plaintiff do hereby certify that a true and correct copy of A Superior Court Docketing Statement was served on February 20, 2009 upon the following person(s), via US First Class Mail: Richard R. Gan, Esq. 64 South Pitt Street Carlisle, PA 17013 Craig Black, Esquire 1017 Mumma Road, Suite 100 Wormleysburg, PA 17110 Richard R. Gas, Esgaire GAN LAW GROUP 64 SOUTH KIT MEET CARLLSI.E, PENNSYLVANIA 17013 1 1 PHONE (717) 241-300 FAX (717) 243-6175 Fmeii: Ganlawl Lcom Admined to WkWS= Bar Admood to New York Bar Admit6td to Pc=M ivank Bar November 17, 2008 Mr. Duane Domson / Ms Jane Hart 2 Marcella, Way Carlisle, Pa 17015 Re: Conclusion of Representation Dear Duane and Jane, I have enclosed various documents which I believe you wanted returned. I will also take this opportunity to express how honored I was to represent you in this matter. I find it terribly unfortunate that the result was not what we were seeking. However, your integrity and focus to doing the "correct" things in life is a model to emulate. There is no compromise for the truth and you are a living example of that. I consider both of you friends and again, thank you for permitting me to represent your. Have a peaceful and joyous holiday. C1 C-13 : ., r 'i 7 [ - (R,..) DUANE M. DONISON : IN THE. COURT OF COMMON PLEAS OF Pro Se Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA . V. : CIVIL ACTION --LAW HCR MANOR CARE Defendant : NO. 05-5626 CIVIL TERM ORDER OF COURT AND NOW, this day of , 2009, upon consideration of the Plaintiffs counsel's Amended Motion to Withdraw Attorney Appearance by Richard R. Gan, GAN LAW GROUP as Counsel is hereby GRANTED. ?? VID CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) To the Prothonotary of the Apellate Court to which the within matter has been appealed: Superior Court of PA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: Duane M. Donison VS. HCR Manor Care 2005-5626 Civil Term 126 MDA 2009 The documents comprising the record have been numbered from No.1 to 255, and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 03/4?/2009 Curti!-R. Long, P o otaryRegina Lebo An additional cony of this certificate is enclosed. Please sign and date copy, thereby acknowledging receipt of this record. Date Signature & Title PYS511 Cumberland County Prothonotary's Office Page 1 Civil Case Print 2005-05626 DONISON DUANE M (vs) HCR MANOR CARE Reference No... Filed........: 10/31/2005 Case Ty e.....: WRIT OF SUMMONS Time.........: 10:39 Judgmen ......: 00 Execution Date 0/00/0000 Judge Assigned: OLER J WESLEY JR Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ----- - - - - - - Higher Crt 1.: 126 MD 2009 Higher Crt 2.: ******************************************************************************** General Index Attorney Info DONISON DUANE M PLAINTIFF GAN RICHARD R 159 RINGNECK DRIVE PRO SE HARRISBURG PA 17112 HCR MANOR CARE DEFENDANT BLACK B CRAIG 1700 MARKET STREET CANAVAN JOHN R CAMP HILL PA 17011 * Date Entries ******************************************************************************** - - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - - 10/31/2005 PRAECIPE FOR WRIT OF SUMMONS IN CIVIL ACTION-WRIT OF SUMMONS ISSUED ------------------------------------------------------------------- 11/04/2005 SHERIFF'S FILE RETURNED FILED. Case Type- WRIT OF SUMMONS Ret Type.: Regular Litigant.: HCR MANOR CARE Address..: 1700 MARKET STREET Ctyy/St : CAMP HILL PA 17011 Hnd To: DEBRA MARTINI RN ADMIN DIRECTOR OF NURSING Shf/D ty.: RONALD E HOOVER Date/Time: 11/03/2005 1354:00 Costs....: $42.40 Pd By: 00/00/0000 ------------------------------------------------------------------- 3- y 11/23/2005 ENTRY OF APPEARANCE FOR DEFT - BY B CRAIG BLACK ESQ FOR DEFT ------------------------------------------------------------------- S-4- 3/14/2006 PRAECIPE FOR RULE TO FILE COMPLAINT AND RULE TO FILE A COMPLAINT BY CURTIS R LONG PROTHONOTARY -------------------------------------------------------------'------ 7 3/16/2006 CERTIFICATE OF SERVICE - SERVING A COPY OF THE RULE TO FILE A COMPLAINT - BY B CRAIG BLACK ATTY ------------------------------------------------------------------- 4/03/2006 COMPLAINT - BY ANDREW J OSTROWSKI ATTY ------------------------------------------------------------------- 17-a? 4/25/2006 PRELIMINARYBOBJECTIONS OF DEFT-HCR MANORCARE-TO PLFF'S COMPLAINT - BY 2 CRAIG ATTY -------------------------------------------------------------------- 7/24/2006 HCRECMANORFCCAREITOIPLFFASEC MPLAINTM- BY BPCRAIGIBLACKOATTYIFOR OF DEFT ------------------------------------------------------------------- .J7,2 9/27/2006 ORDER DEFTCS 09-27-06 - IN RE: BASED UPON PA RCP FOLLOWS: 1019 SA IT RELATES TO A WRITING IS SUSTAINED AND PLFF IS AFFORDED A PERIOD OF 20 DAYS WITHIN WHICH TO FILE AN AMENDED COMPLAINT COMPLYING WITH RULE 1019-IN THE ABSENCE OF A TIMELY AMENDMENT THE CLAIMS OF PLFF WILL BE CONCLUSIVELY PRESUMED TO BE NOT BASED UPON A WRITING AND 2-IN ALL OTHER RESPECTS-DEFT'S PRELIMINARY OBJECTIONS ARE DENIED - BY J WESLEY OLER J - COPIES MAILED 09-27-06 ------------------------------------------------------------------- ?3.5-0 1011612006 AMENDED COMPLAINT - BY SHERI D COOVER ATTY FOR PLFF ------------------------------------------------------------------- 11/07/2006 ANSWER AND NEW MATTER OF HCR MANOR CARE TO PLFF'S AMENDED COMPLAINT - BY B CRAIG BLACK ATTY FOR DEFT ------------------------------------------------------------------- 12/20/2006 PLAINTIFF'S RESPONSE TO DEFT'S NEW MATTER - BY ANDREW J OSTROWSKI ATTY FOR PLFF ----- ------------ ------------- ------ ----- --------- ------ (?5'w7 10/05/2007 CHAR - -TWELLAOFFA?CLLP BY B CRAIG BLACK ATTY FOR DEFT - THE - - - - - - - - - WITHDRAW OF APPEARANCE ON BEHALF OF DEFENDANT B CRAIG BLACK ESQ MCKISSOCK & HOFFMAN P C PYS511 Cumberland County Prothonotary's Office Page 2 Civil Case Print 2005-05626 DONISON DUANE M (vs) HCR MANOR CARE Reference No... Filed........: 10/31/2005 Case T e.....: WRIT OF SUMMONS Time.........: 0:39 Judgment......: 00 Execution Date 0/00/0000 Judge Assigned: OLER J WESLEY JR Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: 126 MD 2009 Higher Crt 2.: ------------------------------------------------------------------- 7/ 12/14/2007 MOTIONDTOOWITHDRAW ATOYNFORAPPPEARANCE - BY ANDREW J OSTROWSKI AND ------------------------------------------------------------------ 1/03/2008 APPEARANCE - ENTERED ON BEHALF OF PLFF - BY RICHARD R GAN ATTY FOR PLFF -------------------------------------------------------------------E: MOTION TO 1/03/2008 TO ER - //1/3WITHDRAW/ANDREW08 IN ANDWSHERIID AOOVERPESQRISCGRANTEDI- BY J WESLEY OLER JR J - COPIES MAILED 1/3/C08 ------- ------------------------------------------------------------ 7?3 3/25/2008 ENTRY OF APPEARANCE FOR DEFT - BY B CRAIG BLACK ATTY FOR DEFT ---------------'---------------------------------------------------- 7S 4/14/2008 MOTION FOR BLEAVE LACK TOTAMEND NEW MATTER PURSUANT TO PA R C P 1033 - BY B CRAIG AT FOR ------------------------------------------------------------------- 4/14/2008 PRAECIPE FOR LISTING CASE FOR ARGUMENT - DEFT'S MOTION FOR LEAVE TO AMEND NEW MATTER PURSUANT TO PA R C P 1033 - BY PATRICIA HASS CORLL ATTY FOR DEFT ------------------------------------------------------------------- ,g,-) 4/23/2008 ORDER OF COURT - 4122/08 IN RE: DEFT'S MOTION FOR LEAVE TO AMEND NEW MATTER PURSUANT TO PA R C P 1033 - A RULE IS HEREBY ISSUED UPON PLFF TO SHOW CAUSE WHY THE RELIEF REQUESTED SHOULD NOT BE GRANTED - RULE fETURNABLE W?TH?N 20 DAYS OF SERVICE - BY J WESLEY OLER JR J - COP ES MAILED 4 23 08 ------------------------------------------------------------------- q3 5/01/2008 CERTIFICATE OF SERVICE - RULE UPON PLFF TO SHOW CAUSE WHY DEFT'S MOTION FOR LEAVE TO AMEND NEW MATTER PURSUANT TO PA R C P 1033 UPON RICHARD R GAN ATTY FOR PLFF - BY B CRAIG BLACK ATTY FOR DEFT ------------------------------------------------------------------- gq.g,V 5/12/2008 AN33ER TO MOTION FOORGALEE VE TOFAMENDFNEW MATTER PURSUANT TO PA RCP 10 - BY ------------------------------------------------------------------- AP 5/15/2008 ORDER OF COURT - 5/14/08 IN RE: DEFT'S MOTION FOR LEAVE TO AMEND NEW MATTER - DEFT'S MOTION IS GRANTED AND DEFT IS AFFORDED A PERIOD OF 14 DAYS FROM THE DATE OF THIS ORDER WITHIN WHICH TO FILE AN AMENDED ANSWER WITH NEW MATTER IN ACCORDANCE WITH THE MOTION - THWESLAYTOLERSJRTJICKCOPIESMMAILED/28/08 8 ARGUMENT COURT LIST - BY ------------------------------------------------------------------- (,??- J?p 5 / 2 8 / 2 0 0 8 AMEND ECRAIG D NEWBMAATTERTOF FOR DMA TOR CARE TO PLFF ' S AMENDED COMPLAINT - ------------------------------------------------------------------- [ 7 %IIG? 6/13/2008 R ANS GWERATOT FOR YAMENDEDFFEW MATTER PURSUANT TO PA RCP 1030 - BY RICHARD ------------------------------------------------------------------- 8/11/2008 ENTRY OF APPEARANCE FOR DEFT - BY JOHN R CANAVAN ESQ ------------------------------------------------------------------- 8/11/2008 PRAECIPE FOR LISTING CASE FOR ARGUMENT - DEFTS MOTION FOR SUMMARY JUDGMENT - BY JOHN CANAVAN ATTY FOR DEFT ------------------------------------------------------------------- ©y 8/11/2008 MOTIONNFOR S FORDEFTDGMENT OF DEFT HCR MANORCARE - BY JOHN ------------------------------------------------------------------- /? y X?10/15/2008 MMAANWORCARE - BYYSRICHARDOR GAN ATTY FORMPLFFPRESENTED BY HCR ------------------------------------------------------------------- IDERAT 1j06j2008 DEFENDANTT''S MOTTIONOFOR -MMARYDAJUDGMTED FOROTHEOREASONN STATEDF IN THE ACCOMPANYING OPINION THE MOTION IS GRANTED AND PLAINTIFF'S AMENDED COMPLAINT IS DISMISSED - BY J WESLEY OLER JR J - COPIES MAILED 11/6/08 ------------------------------------------------------------------- /011/24/200$ MOTION TO OVERTURN COURT DECISION BEFORE OLER AND EBERT JJ - BY ------------------------------------------------------------------- 12/09/2008 ANSWER OF HCR MANOR CARE TO PLFFS MOTION TO OVERTURN COURT DECISION - BY B CRAIG BLACK ATTY FOR DEFT PY6bII uumperlana youncy eroznonor-ary-s uzLi.ce rdye .3 Civil Case Print 2005-05626 DONISON DUANE M (vs) HCR MANOR CARE Reference No..: Filed........: 10/31/2005 Case Type.. WRIT OF SUMMONS Time.........: 0:39 Judgment......: 00 Execution Date 0/000000 Judge Assigned: OLER J WESLEY JR Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: 126 MDA 2009 Higher Crt 2.: ------------------------------------------------------------------- ??7 X5'1/21/2009 ENTRY OF APPEARANCE FOR PLFF - BY PLFF ------------------------------------------------------------------- 9,99',-ROy1/21/2009 NOTICE OF APPEAL TO SUPERIOR COURT - BY PLFF ------------------------------------------------------------------- ,23S`..a3'71/26/2009 SUPERIOR COURT OF PA NOTICE OF APPEAL DOCKETING TO # 126 MDA 2009 ------------------------------------------------------------------- "?3 a1/30/2009 MOTION-TO-WITHDRAW AS COUNSEL - BY RICHARD R GAN ATTY FOR PLFF ---------------------------------------------------- 2/04/2009 AMENDED MOTION TO WITHDRAW AS COUNSEL - BY RICHARD R GAN ATTY FOR PLFF ---------/---------------------------------------------------------- 2/09/2009 WESLEY OLER/0JR COPIES MAILED 9 JN-RE: OPINION PU 279?pgT0 PA RACP 1925 - BY J ------------------------------------------------------------------- 2/10/2009 ORDER OF COURT - 2/9109 IN RE: AMENDED MOTION TO WITHDRAW AS COUNSEL - A RULE IS HEREBY ISSUED UPON PLFF AND DEFT TO SHOW CAUSE WHY THE RELIEF REQUESTED SHOULD NOT BE GRANTED - RULE RETURNABLE 20 DAYS OF THE DATE OF THIS ORDER - BY J WESLEY OLER JR J - COPIES. MAILED 2/10/09 2 /117/2009 PROOF OF SERVICE BY FIRST CLASS MAIL SERVICE OF RULE/ORDER UPON -------------------------------------- DEFTS COUNSEL - BY RICHARD R GAN ATTY FOR PLFF ------------------------------------------------------------------- _ 2S4 2/20/2009 ANSWER TO SHOW CAUSE - BY PLFF ------------------------------------------------------------------- COPIES MAILED WITHDRAW 2N 6/09 ?? / 2/26/2009 MORDER OTTIONOISCGRANTED2-2 //BYOJ WESLEY OLERDJR MOTION TO ------------------------------------------------------------------- 3/13/2009 NOTICE OF DOCKET ENTRIES MAILED TO DUANE M DONISON AND B CRAIG BLACK ESQ AND PATRICIA HASS CORLL ESQ - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - ******************************************************************************** * Escrow Information * Fees & Debits Beg Bal Pmts*** /Add End Bal ******************************** ******** *** ******************************* WRIT OF SUMMONS 35.00 35.00 .00 TAX ON WRIT .50 .50 .00 SETTLEMENT 5.00 5.00 .00 AUTOMATION FEE 5.00 5.00 .00 JCP FEE 10.00 10.00 .00 SUBPOENA 3.00 3.00 .00 APPEAL HIGH CT 48.00 48.00 ---------- --- .00 --------- -------------- 106.50 106.50 .00 ******************************************************************************** * End of Case Information ******************************************************************************** In Testimony whereof, I u ; rr,y hand and the seal of said Court at Card: i2, Pa. This........ day of...l?........?., .......... x ... ?1... `.?.i Prothonotary Superior Court of Pennsylvania Karen Reid BrambleM Esq. Middle District Prothonotary March 18, 2009 Certificate of Remittal/Remand of Record TO: Mr. Curtis R. Long Prothonotary RE: Donison, D. v. HCR Manor Care No. 126 MDA 2009 Trial Court/Agency Dkt. Number: 2005-05626 Trial Court/Agency Name: Cumberland County Court of Common Pleas Intermediate Appellate Court Number: 100 Pine Street. Suite 400 Harrisburg, PA 17101 717-772-1294 www.superior.court.state.pa.us Annexed hereto pursuant to Pennsylvania Rules of Appellate Procedure 2571 and 2572 is the entire record for the above matter. Contents of Original Record: Original Record Item Part w/envelope attached Filed Date Description March 16, 2009 1 Date of Remand of Record: APR 2-1 2009 ORIGINAL RECIPIENT ONLY - Please acknowledge receipt by signing, dating, and returning the enclosed copy of this certificate too ffice. y cipients (noted below) need not acknowledge receipt. Signature Printed Name Date /krc FILED- jApy A,wir" do-- 'R 28 Pik 12-.0 6 pEt i...?. .. ?.r. t??t.? THE 2999 ar"28 ? N Its- 06 S C' ? a w - Duane Donison IN THE SUPERIOR COURT OF PENNSYLVANIA (C.P. Cumberland County V. No. 2005-05626) No. 126 MDA 2 09 HCR Manor Care Filed: March , 2009 ORDER Appellee, defendant below, has filed a motion to quash this appeal filed by plaintiff below from the order entered November 6, 2008 granting appellee's motion for summary judgment and dismissing appellant's amended complaint. Appellant filed a motion for reconsideration, entitled Motion to Overturn Court Decision, on November 24, 2008. Appellant filed his notice of appeal on January 21, 2009. Appellant has filed an answer to the motion to quash. An appeal must be filed within 30 days after entry of the order from which the appeal is taken. See Pa.R.A.P. 903(a). The 30 day appeal period is strictly construed. This court has no jurisdiction to excuse the failure to file a timely notice of appeal. Valley Forge Center Associates v. Rib-It/K.P., Inc., 693 A.2d 242 (Pa. Super. 1997); see also Pa.R.A.P. 105(b) (court may not enlarge time for filing notice of appeal). A motion for reconsideration does not toll the appeal period unless the trial court enters an order expressly granting reconsideration within 30 days of the appealable order. Cheathem v. Temple University Hospital, 743 A.2d 518 (Pa. Super. 1999). Accordingly, as there is no indication that the trial court expressly granted appellant's motion for reconsideration, the motion to quash this appeal is hereby GRANTED. I Per Curiam TRUE COPY FROM RECORD Attest: APR 2 7 209 Prothonotary Superior Court of PA - l flMe District OF THE 2009 APP% 28 Pili 0 G, T • CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) To the Prothonotary of the Apellate Court to which the within matter has been appealed: Superior Court of PA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript. of the proceedings, if any, and the docket entries in the following matter: Duane M. Donison vs. HCR Manor Care 2005-5626 Civil Term • 126 MDA 2009 The documents comprising the record have been numbered from No.l to 255, and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 03J1.~/2009 . -- Curti R. Long~Pro onota' Regina Lebo An additional cony of this certificate is enclosed. Please sign and date copy, thereby acknowledging receipt of this record. Received in Superior Court Date Signature & Title MAR 1 ~ LU~J~ . MIDDLE . CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) To the Prothonotary of the Apellate Court to which the within matter has been appealed: Superior Court of PA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the pruceediilgs, if any, and the docket entries in the foliowiug matter: Duane M. Donison vs. HCR Manor Care 2005-5626 Civil Term 126 MDA 2009 The documents comprising the record have been numbered from No.l to 255, and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 03/ 12009 . .__ ,'' ,~ ~ ._ Curtis R. Lon , Protho otary Regina Lebo An additional copy of this certificate is enclosed. Please sign and date copy, thereby acknowledging receipt of this record. 1 ~ ~cr~, ~ q ~1~c~r~C' Date Signature & •