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HomeMy WebLinkAbout06-0297 JIII'I R.j. MARZEUA&ASSOCIATES, P.c. BY: Zachary D. Campbell, Esquire Pennsylvania Supreme Court I.D. No. 93177 Email: zcampbell@rjmarzella.com 3513 North Front Street Harrisburg, PA 17110 Telephone: (717) 234-7828 Facsimile: (717) 234-6883 IN THE COURT OF COMMON PLEAS CUMBERlAND COUNTY, PENNSYLVANIA Attorneys for Plaintiff, Robin and john Banks No, {).CJ1 2006 Civil Action (X) Law ( ) Equity ROBIN BANKS AND JOHN BANKS 835 Grantham Road Grantham, PA 17027 SUSAN ROSSO, D.P.M. 3600 Trindle Road Camp Hill, PA 17011 and versus JOHN D. GILFERT, D.P.M 3600 Trindle Road Camp Hill, PA 17011 and ZLOTOFF, GILFERT & GOLD, P.c. 3600 Trindle Road Camp Hill, PA 17011 Plaintiff & Address Defendant(s) & Address(es) PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY OF SAID COURT: Please issue Writ of Summons in the above-captioned action. ~ ..A.- Writ of Summons shall be issued and fOlwarded tot ) Attorney (X) Sheriff Zachary D. Camobell. Esquire 3513 North Front Street Harrisburg, PA 17110 (717) 234-7828 Names/Addressrrelephone No. of Attorney supreJJC1urtlDNO.93177 Date: I I~ zoo<.:. WRIT OF SUMMONS TO THE ABOVE NAMED DEFENDANTS: YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF HAS COMMENCED AN ACTION AGAINST YOU. f5(C~~ Prothonotary Date: h-13. CJa:J(p by ( ) Check here if reverse is used for additional information. Depu 2 t....." , , () ,...... -it ~ n ~ ..-j :\f- ~ ~ '" 'fl C') ........... ~ ...> --=> .. ~ I;"" ~ .,,- vl ~ .. V-l "-" ~ J - ~ - . SHERIFF'S RETURN - REGULAR CASE NO: 2006-00297 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND BANKS ROBIN ET AL VS ROSSO SUSAN DPM ET AL CPL. TIMOTHY REITZ Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon ROSSO SUSAN DPM the DEFENDANT at 1620:00 HOURS, on the 18th day of January , 2006 at 3600 E TRINDLE ROAD CAMP HILL, PA 17011 by handing to SUSAN HERBSTER, SUPERVISOR, ADULT IN CHARGE 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 Service Postage Surcharge So Answers: 18.00 13.20 .39 10.00 .00 41.59 - ' ;~-/-:;~;.<..., 1--:;r;: ,;..?.,.,:...'10"...,. "".P"~~' ...-.;....' R. Thomas Kline ,_ _.,;:~-~.:_...,..--c;""".t' 01/18/2006 RJ MARZELLA Sworn and Subscribed to before By: .~ "} '7,,/~ - .L/<.// ,",./ 1;~ " DeputY SneriYf , . --- ! me this "" O(.:l day of \/~ 'c' .. ocr A.D. CASE NO: 2006-00297 P SHERIFF'S RETURN - REGULAR . COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND BANKS ROBIN ET AL VS ROSSO SUSAN DPM ET AL CPL. TIMOTHY REITZ Sheriff or Deputy Sheriff of Cumberland County,pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS GILFERT JOHN D DPM the was served upon DEFENDANT , at 1620:00 HOURS, on the 18th day of January 2006 at 3600 TRINDLE ROAD CAMP HILL, PA 17011 SUSAN HERBSTER, SUPERVISOR, by handing to ADULT IN CHARGE 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 Service Affidavit Surcharge 6.00 .00 .00 10.00 .00 16.00 Sworn and Subscribed to before me this '" 025 - day of So Answers: ~.~.;:r""'-<::) 1 ,,~>~~-.:;~,~ ''', .~r R. Thomas Kline 01/19/2006 RJ MARZELLA By' .-" - . 2' -" ........". . -r - ./1 i ,/ /// -j ~.. r?'/ . ~// S D puty She~ff . SHERIFF'S RETURN - REGULAR CASE NO: 2006-00297 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND BANKS ROBIN ET AL VS ROSSO SUSAN DPM ET AL CPL. TIMOTHY REITZ Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon ZLOTOFF GILFERT & GOLD PC the DEFENDANT , at 1620:00 HOURS, on the 18th day of January ,2006 at 3600 TRINDLE ROAD CAMP HILL, PA 17011 by handing to SUSAN HERBSTER, SUPERVISOR, ADULT IN CHARGE 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: So Answers: Docketing 6.00 ".;..' . Service .00 1 Affidavit .00 Surcharge 10.00 R. Thomas Kline .00 16.00 01/19/2006 RJ MARZELLA Sworn and Subscribed to before By: _/ , ,1 y. --'- j ."71 ,/1 --t 044// ,;7'-- ,:["v/ v DevGty Sher~f me this - J.::f~ day of i "--.~ .1/JOL A.D. U rk.J - . Marc T. Levin, Esquire Attorney ID. No. 70294 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Defendants ROBIN BANKS AND JOHN BANKS Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW NO. No. 297-2006 SUSAN ROSSO, D.P.M., JOHN D. GILFERT, D.P.M., and ZLOTOFF, GILFERT & GOLD, P.c. Defendants PRAECIPE FOR RULE TO FILE COMPLAINT TO THE PROTHONOTARY: Kindly issue a Rule upon Plaintiff to file a Complaint within twenty (20) days or suffer a judgment of non pros. Respectfully submitted, Date: /-<7(01/ By: " Marc T. Lev Attorney J.D. 70294 Attorneys for Defendants RULE TO FILE A COMPLAINT TO: Zachary D. Campbell, Esquire R.I. Marzella & Associates, P.c. 3513 North Front Street Harrisburg, P A 17110 You are hereby ruled to file a Complaint within twenty (20) days of receipt of this Rule or suffer ajudgment of non pros. ~ Dated...... Ja A.J ~ r) 1.:2 D(J b 594226.1 . - CERTIFICATE OF SERVICE I hereby certify that on this :< 1 ilJday ofJanuary, 2006, a true and correct copy of the foregoing Praecipe for Rule to File Complaint was served by means of United States mail, first class, postage prepaid, upon the following: Zachary D. Campbell, Esquire R. J. Marzella & Associates, P.c. 3513 North Front Street Harrisburg, PA 17110 ~YI.,'t~ Teresa H. Laughead (') ~-;. ~"'" r' ::.:.\ -< ....., = r~"-:-.:l c..~ o -01 :r-n rn~.~ 'af~; :"nCl ~-~~ ~~; ::)c5 (:)rn ~--l. :':0 ""< '- ~-10 ~ u> o " =t: w N (.n \ Marc T. Levin, Esquire Attorney LD. No. 70294 RHOADS & SINON LLP One South Market Square, J 2th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-573 I Attorneys for Defendants ROBIN BANKS AND JOHN BANKS Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION -- LAW NO. No. 297-2006 SUSAN ROSSO, D.P.M., JOHN D. GILFERT, D.P.M., and ZLOTOFF, GILFERT & GOLD, P.C. Defendants PRAECIPE FOR ENTRY OF APPEARANCE OF MARC T. LEVIN TO THE PROTHONOTARY: Kindly enter the appearance of Marc T. Levin, Esquire and Rhoads & Sinon LLP as counsel for Defendants, Susan Rosso, D.P.M., John D. Gilfert, D.P.M. and Zlotoff, Gilfert & Gold, P.c., in the above-captioned matter. Respectfully submitted, By: RHOADS & S1NO'27 ~~ "= T. r.."i" . One South Market Square P. O. Box 1146 Harrisburg, P A 17108-1146 (717) 233-5731 Attorneys for Defendants 594222.1 ( CERTIFICATE OF SERVICE I hereby certify that on this.d..L day of January, 2006, a true and correct copy of the foregoing Praecipe for Entry of Appearance was served by means of United States mail, first class, postage prepaid, upon the following: Zachary D. Campbell, Esquire R. J. Marzella & Associates, P.c. 3513 North Front Street Harrisburg, PAl 711 0 ~u~ it~ (') <;;'. 1'-,:) ("::::'i C,';) cr" '- ?:: - (.., c;:.l o -n :1 t-0f9 -r)(\1 ...J<;:' ;,:)c-' ~:,j..\ --;;~'C) /.rr1 o -~-\ ~::? ':'1 "'" -,'" ......"'. 0' r0 L~\ - Marc T. Levin, Esquire Attorney I.D. No. 70294 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, P A 171 08-1146 (717) 233-5731 Attorneys for Defendants ROBIN BANKS AND JOHN BANKS Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW NO. 297-2006 SUSAN ROSSO, D.P.M., JOHN D. GILFERT, D.P.M., and ZLOTOFF, GILFERT & GOLD, P.c. Defendants PETITION TO ALLOW THE APPEARANCE OF LARRY M. W ARANCH. ESOUlRE PRO HAC VICE NOW COMES Defendants Susan Rosso, D.P.M., John D. Gilfert, D.P.M. and Zlotoff, Gilfert & Gold, P.C., a professional corporation, by and through their attorney, Marc T. Levin, Esquire of Rhoads & Sinon LLP. and respectfully petition this Court to allow the appearance of Larry M. Waranch, Esquire, pro hac vice and in support thereof, aver as follows: 1. Larry M. Waranch, Esquire, is a duly licensed attorney in the state of Maryland since 1978 and in Washington, DC, since 1985. 2. Mr. Waranch is a member of the law firm ofWaranch & Brown, LLC, is in good standing with each of the Courts above, has never been disciplined, and does not have any disciplinary actions pending against him. 594232.1 3. Mr. Waranch has been retained by Defendants to defend them against the claims of Plaintiffs in the above-captioned action. 4. Marc T. Levin, Esquire, is an attorney with the law firm of Rhoads & Sinon LLP, and is licensed to practice law in the Commonwealth of Pennsylvania, License No. 70294, has never been disciplined by the Commonwealth of Pennsylvania and does not have any pending disciplinary actions against him. 5. Mr. Levin will act as local counsel and adviser to the lawyers of Waranch & Brown, LLC, and counsel them on the Rules of Court for the Court of Common Pleas for Cumberland County, Pennsylvania, the Pennsylvania Rules of Civil Procedure and the corresponding case law. 6. The undersigned hereby certifies that as evidenced by his signature below that he has sought the concurrence of Plaintiffs counsel, Zachary D. Campbell, and he has concurred in the instant Petition to allow the appearance of Larry M. Waranch, Esquire, pro hac vice. WHEREFORE, your Petitioners, Defendants Susan Rosso, D.P.M., John D. Gilfert, D.P.M. and Zlotoff, Gilfert & Gold, P.c., a professional corporation, respectfully request that this Honorable Court allow the entry of Appearance of Larry M. Waranch, Esquire, for the herein matter and before this Honorable Court pro hac vice. Respectfully submitted, RHOADS & SINON LLP By: : /L'l( Marc T. Levin Attorney I.D. 70294 One South Market Square P. O. Box 1146 Harrisburg, P A 17108-1146 (717) 233-5731 Attorneys for Defendants 2 Feb. 5 2006 358PM No. 1}877 J o I VERIFICATION Larry M. Waranch, deposes and says, subject to the penalties of 18 Pa. C.S. S4904 relating to unsworn falsification to authorities, that he makes this verification by its authority and that the facts set forth in the Petition to Allow the Appearance of Larry M. Waranch, Esquhe pro hac vice are true and correct to the best of his knowledge, information and belief. 'L I b!oL ~ A .[J~_e L M. aranch Date 4 CERTIFICATE OF SERVICE I hereby certify that on this '11iJ day of 1 ~~ , 2006, a true and correct copy of the foregoing Motion to Appear Pro Hac Vice was served by means of United States mail, first class, postage prepaid, upon the following: Zachary D. Campbell, Esquire R. J. Marzella & Associates, P.c. 3513 North Front Street Harrisburg, PAl 7110 ~Ugh: 'of~ " ""\1 .-:~ t;"\ --<'\ \",1\ C.J , C.) () .-..'. r} (.1"1 C.: " ",.; ':::(:, do y ROBIN BANKS AND JOHN BANKS Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW NO. No. 297-2006 SUSAN ROSSO, D.P.M., JOHN D. GILFERT, D.P.M., and ZLOTOFF, GILFERT & GOLD, P.C. Defendants ORDER AND NOW this J$:- day of February 2006, the Petition to allow the appearance of Larry M. Waranch, Esquire, pro hac vice is GRANTED in the above-captioned matter. ;7.-- /. ,/ ~~'- ----... J ---- . 0") --- r:~~ o . - C~:: c) f:f:I f{ iO' if ~J :-\~ ~.c; ~ . . . R. J. MARZELlA & ASSOCIATES, P.C. BY: Zachary D. Campbell, Esquire Pennsylvania Supreme Court J.D. No. 93177 3513 North Front Street Harrisburg, PA 17110 Telephone: (717) 234-7828 Facsimile: (717\ 234-6883 Attorneys for Robin and John Banks IN THE COURT OF COMMON PLEAS CUMBERlAND COUNTY, PENNSYLVANIA ROBIN BANKS and JOHN BANKS Plaintiff, DOCKET NO. 297-2006 MEDICAL MALPRACTICE ACTION v. SUSAN ROSSO, D.P.M., and ZLOTOFF, GILFERT & GOLD, P.c. Defendants, JURY TRIAL DEMANDED COMPlAINT 1. Robin Banks. Plaintiff, is an adult individual and is a resident of Grantham, Cumberland County, Pennsylvania. 2. Defendant Susan Rosso, D.P.M. (hereinafter, Defendant Rosso) is a podiatrist licensed to practice podiatry in the Commonwealth of Pennsylvania and at all relevant times herein was engaged in the practice of podiatry in Camp Hill, Cumberland County, Pennsylvania. Docket No. 297-2006 3. Defendant Zlotoff, Gilfert & Gold, P.c. (hereinafter, Defendant ZGG) is a Professional Corporation with offices and facilities in Camp Hill, Cumberland County, Pennsylvania. 4. At all relevant times herein Defendant Rosso, all podiatrists, surgeons, interns, residents, anesthesiologists, nurse anesthetist, medical support staff, and office staff were the agents, apparent agents, servants, and/or employees of the Defendant ZGG and were acting within the course and scope of employment when providing professional medical services to Robin Banks. 5. On or about November 20, 2002, Robin Banks was a 43-year-old woman when she began treating with Defendant Rosso. 6. InJuly 2003, Mrs. Banks went to Defendant Rosso for complaints of pain in her left second digit and Dr. Rosso also noted in the medical records that pain was worsening from hammertoe. 7. At this meeting, surgery was discussed with Mrs. Banks to correct the hammertoe, but she opted for more conservative treatment at that time. 8. Mrs. Banks was given a soft splint for her toe during the visit in July of 2003. 9. By December 2003, the pain in both her feet had become unbearable. 10. On or about January 6, 2004, Mrs. Banks returned to Defendant Rosso for complaints of pain in both her feet. 11. Defendant Rosso and Mrs. Banks discussed the surgery to correct the problems in her feet and decided to operate on both feet at the same time, since Mrs. 2 Docket No. 297.2006 Banks anticipated that she would be starting a new job within the next two months and she was told that she would have to be off her feet for approximately two weeks. 12. Defendant Russo specifically planned to perform arthoplasty on the second proximal interphalangeal joint on both feet, a "weil" osteotomy on the second metatarsal on both feet, and a metatarsophalangeal joint release on both feet. 13. Defendant Rosso scheduled the surgeries for January 15, 2004 at the West Shore Surgery Center. 14. On or about January 15, 2004, Mrs. Banks presented to the West Shore Surgery Center for the surgical procedures. 15. Prior to the surgery, Defendant Rosso informed Mrs. Banks that she was leaving on vacation immediately after surgery. 16. From a review ofthe operative report, it appears that Defendant Rosso operated on Mrs. Banks right foot first. 17. The surgery appeared to proceed with out complication until Defendant Rosso attempted to fixate the osteotomy site on Mrs. Banks' metatarsal. 18. Defendant Rosso attempted to fixate the osteotomy site with a "8mm 2.0 cortical screw." 19. However, Defendant Rosso could not fixate and get the screw to hold, so she removed the screw and abandoned the attempt. 20. At this point, Defendant Rosso continued with the operation without fixating the osteotomy site. 3 Docket No. 297.2006 21. After operating on the proximal phalanx, Defendant Rosso attempted to drive a "K-wire" through the phalanges. 22. Defendant Rosso then attempted to fixate the osteotomy site on Mrs. Banks' metatarsal, where she could not fixate the cortical screw, with K-wire. 23. Defendant Rosso stated in her operative report, "that it [K-wire] was then visualized entering the second metatarsal head and through the osteotomy site into the second metatarsal shaft. This provided good fixation of the second metatarsal osteotomy site." 24. However, Defendant Rosso failed to recognize the metatarsal at the osteotomy site was mal positioned and was not correctly lined up. 25. Defendant Rosso proceeded to close the incisions without attempting to properly align the metatarsal that was mal positioned and now was fixated in a twisted position. 26. Defendant Rosso then proceeded to operate on Mrs. Banks' left foot. 27. Defendant Rosso appeared to complete the same surgical procedures on Mrs. Banks' left foot without complications at the time. 28. Defendant Rosso was able to fixate the osteotomy ofthe second metatarsal with a "1 Omm 2.0" cortical screw on Mrs. Banks' left foot. 29. After the surgery, x-rays were obtained of both of Mrs. Banks' feet. 30. Although the mal alignment could clearly be seen on the x-rays, Defendant Rosso did not inform Mrs. Banks and simply rushed to leave for her vacation. 4 Docket No. 297-2006 31. Defendant Rosso came into the recovery room and said, "She couldn't get the screw to stay," but Mrs. Banks was unable to respond because she was coming out of anesthesia. 32. On or about January 16, 2004, Mrs. Banks called Defendant ZGG complaining of increasing pain in her right foot, and she reported that her right foot is "throbbing and pounding". 33. Mrs. Banks presented to Defendant ZGG on January 16, 2004, where Dr. John Gilfert treated her, since Defendant Rosso was on vacation. 34. Dr. Gilfert ordered x-rays of Mrs. Banks' feet. 35. The x-rays obtained on January 16, 2004, again clearly showed that the metatarsal in Mrs. Banks' right foot was set improperly and was in fact, misaligned. 36. Dr. Gilfert reviewed the x-rays, but he did not inform Mrs. Banks about the malalignment and he merely told Mrs. Banks that, "everything looks good for one day after surgery," and to follow-up with Dr. Rosso. 37. Dr. Gilfert informed Mrs. Banks that Defendant Rosso could not insert the screw into her right foot. 38. On or about January 28, 2004, Mrs. Banks called Defendant ZGG complaining of swelling and redness with a popping sensation in her toe. 39. On January 30, 2004, Mrs. Banks presented to Defendant Rosso for a scheduled follow-up visit to have the pins in her feet removed. 40. At that time, Defendant Rosso obtained new x-rays of both feet. 5 Docket No. 297-2006 41. Defendant Rosso reviewed the x-rays and stated her concern because she felt the bone at the right osteotomy site was "floating." 42. At no time during this visit, did Defendant Rosso inform Mrs. Banks that the second metatarsal in her right foot was malpositioned. 43. Defendant Rosso explained she wanted to keep the pin in Mrs. Banks' right foot because of the "floating" at the osteotomy site. 44. Mrs. Banks was concerned because she was scheduled to begin a new job in the coming weeks. 45. Defendant Rosso informed Mrs. Banks that she would take the pin out of her right foot and Mrs. Banks could just wear a walking cast instead. 46. Instead of pulling the pins out of the foot herself, Defendant Rosso ordered an unidentified nurse to perform the procedure. 47. When the unidentified nurse began to remove the pins, Mrs. Banks' immediately complained to the nurse that she was suffering from excruciating pain and the nurse simply responded, "is the pain in your head or your foot." 48. The nurses at Defendant ZGG then put a walking cast on Mrs. Banks' foot and she was ordered to keep this cast on for approximately four weeks. 49. Mrs. Banks' next appointment was scheduled for February 27, 2004. 50. At the follow-up appointment on February 27,2004, additional x-rays were obtained of Mrs. Banks' feet. 51. Mrs. Banks was still complaining of pain in her right foot. 6 Docket No. 297-2006 52. Defendant Rosso reviewed the x-rays and instructed Mrs. Banks to continue using the cast for another two weeks and then begin physical therapy; again, nothing was said or noted regarding the misaligned and mal positioned bone. 53. Defendant Rosso noted swelling in her feet and this time she did not note any "floating" of bone at the osteotomy site. 54. Instead, Defendant Rosso notes in the records that the x-rays revealed "bone callus" at the osteotomy sites of both feet. 55. Mrs. Banks was again ordered to stay in the cast boot for two additional weeks. 56. Mrs. Banks began physical therapy on or about March 22, 2004. 57. On or about March 26, 2004, Mrs. Banks returned to Defendant ZGG for another follow-up appointment. 58. Again, x-rays were obtained of Mrs. Banks' feet. 59. Defendant Rosso received the x-rays and again merely stated that "bone callus" formations were surrounding the osteotomy sites on both feet. 60. Although it was clear again on the x-rays ofthe right foot that the second metatarsal was malpositioned, Defendant Rosso did nothing. 61. On or about April 9, 2004, Mrs. Banks returned to Defendant Rosso because of an ingrown toenail and the continued pain in her feet. 62. At this appointment, Mrs. Banks made it clear that she was concerned because her toes still did not appear to touch the ground, and also she continued to have swelling and pain in her feet more then three months after the surgery. 7 Docket No. 297-2006 63. Defendant Rosso again stated that the pain and swelling was caused by the formation of post operative "bone calluses." 64. Defendant Rosso decided to inject steroids into Mrs. Banks' feet and have her return in two weeks to do the same injections again. 65. Defendant Rosso told Mrs. Banks, ifthat did not work, she should come in on a Friday with the day off, because "she was going to make those toes bend;" and that she may want to bring "earplugs," because of the sounds that her toes would make during the procedure. 66. Obviously upset and scared about the outcome of her surgeries on her feet, Mrs. Banks thought about obtaining a second opinion. 67. The physical therapist that Mrs. Banks had been treating with expressed to Mrs. Banks that the physical therapy was not helping her recover from her surgeries and Mrs. Banks requested a referral to another podiatrist for a second opinion and Mrs. Banks was given the name of Keystone Podiatry. 68. Mrs. Banks scheduled an appointment with Keystone Podiatry for April 23, 2004. 69. On or about April 23, 2004, Mrs. Banks met with Dr. David Todoroff at Keystone Podiatric Medical Associates. 70. Dr. Todoroff took x-rays of Mrs. Banks' feet and requested that she obtain her x-rays from Defendant ZGG and to schedule a follow-up for a later date. 71. Mrs. Banks also asked Dr. Richard Dabb, a plastic surgeon, to look at her feet and x-rays. 8 Docket No. 297-2006 72. Dr. Dabb reviewed the x-rays and performed a physical exam on Mrs. Banks on or about May 13, 2004. 73. Almost immediately, Dr. Dabb recognized the problem with Mrs. Banks' feet. 74. Dr. Dabb reviewed the x-rays and concluded that there was a malalignment to the right metatarsal. 75. Dr. Dabb referred Mrs. Banks to another podiatrist for an opinion, Dr. Don Chantiles. 76. By the time Mrs. Banks presented to Dr. Chantiles, almost 6 months after her initial surgery, she still had trouble standing and walking on her own, as well as walking without suffering constant pain. 77. On or about May 20, 2004, Dr. Chantiles reviewed the x-rays and he then also ordered his own x-rays. 78. Again, Mrs. Banks was complaining of severe pain and stiffness in her feet. 79. In his records, Dr. Chantiles notes that her right foot x-ray showed the mal positioning of the second metatarsal. 80. Dr. Chantiles wanted to correct Mrs. Banks' right foot first and he discussed performing a hammertoe arthoplasty and the necessity of reostromizing the second metatarsal and also performing an osteotomy on the third toe. 81. Dr. Chantiles performed the procedures on Mrs. Banks' right foot on or about July 9,2004, at the Surgical Center of York. 9 Docket No. 297-2006 82. He performed an AustinJaiken bunionectomy with internal fixation; revisional arthroplasty second digit right; and osteotomy on the second and third metatarsals ofthe right foot with internal fixation. 83. Fortunately, Dr. Chantiles was able to correct the mal alignment of the right second metatarsal. 84. On or about July 15, 2004, Mrs. Banks returned to Dr. Chantiles for a follow-up examination. 85. Mrs. Banks' clinical assessment noted that her condition is progressing as expected postoperatively and she was ordered to return to Dr. Chantiles' office on July 22, 2004. 86. On July 22, 2004, Mrs. Banks was told her recovery was going as planned and she was ordered to return in one week to follow-up. 87. On July 29,2004, her follow-up visit showed normal progression. 88. On August 5, 2004, during a follow-up visit, her condition was improving as expected and she was allowed to return to work on or about August 9, 2004. 89. On September 2"d and 3,d, 2004, Mrs. Banks was assessed by Dr. Chantiles. 90. Dr. Chantiles instructed her to stay off the foot as much as possible and he ordered her to continue to use a surgical shoe. 91. On or about September 27, 2004, Mrs. Banks followed-up again with Dr. Chantiles office. 92. At this time, her right foot felt much better and she had no complaints of pain and was ordered to return to follow-up in six weeks. 10 Docket No. 297-2006 93. On or about November 08, 2004, Mrs. Banks returned to Dr. Chantiles office. 94. She had no complaints of right foot pain and stated that her right foot was "feeling great now." 95. However, Mrs. Banks' left foot was in constant pain since the first surgery and she complained of pain in her left foot to Dr. Chantiles at the time. 96. Dr. Chantiles attempted to treat Mrs. Banks left foot conservatively with foam spacers and ordered her to return in eight weeks. 97. On or about January 17, 2005, Mrs. Banks returned for her last follow-up visit for her right foot and no major problems were noted. 98. By the fall of 2005, the pain in Mrs. Banks' left foot had become increasingly worse. 99. On or about November 7, 2005, Mrs. Banks again presented to Dr. Chantiles office with complaints of left foot pain. 100. At that time, surgery options were discussed and Mrs. Banks was scheduled to follow-up regarding the scheduling of surgery. 101. On or about November 29, 2005, Mrs. Banks presented to Dr. Chantiles and he reviewed x-rays that showed the large screw inserted during Mrs. Banks' surgery in her left foot. 102. Based on his review and examination, Dr. Chantiles discussed performing an aiken/austin bunionectomy left with internal fixation; osteotomy second metatarsal left to plantar flex; osteotomy three and four metatarsal left to dorsaflex; arthroplasty 11 Docket No. 297-2006 fifth digit left; possible tenotomy left fourth digit; removal of the screw in the left second metatarsal. 103. Specifically, Dr. Chantiles felt he must remove the screw placed in the second metatarsal by Defendant Rosso and perform another osteotomy at that site. 104. On or about December 16,2005, at Apple Hill Surgical Center, Dr. Chantiles performed akin/austin bunionectomy left; osteotomy third metatarsal left; removal of screw second metatarsal left; flexor tenotomy forth digit left; arthroplasty fifth digit left; partial osteotomy medial fifth digit left. 105. To date, Mrs. Banks is still recovering from her surgery to her left foot. 106. Defendant Rosso and Defendant ZGG are jointly and severely liable for the injuries and damages set forth herein. 107. Defendant Rosso and/or the other agents, apparent agents, servants and/or employees of Defendant ZGG did not take the appropriate action to prevent Mrs. Banks from requiring a second correction/revision surgery on her foot. 108. Plaintiff, Robin Banks, claims on her own behalf, damages, including but not limited to past and future medical expenses associated with her treatment, past and future pain and suffering, past and future loss of earning power and capacity, past and future loss of life's pleasures and enjoyment, past and future embarrassment and humiliation and for all other damages sustained by reason of the negligence described herein. 109. After discovery of the aforementioned malalignment of the right second metatarsal, Defendant Rosso and/or agents apparent agents, servants and/or employees 12 Docket No. 297-2006 of Defendant ZGG failed to take the appropriate measures to prevent and/or minimize the harm to Mrs. Banks, which could result from not recognizing and/or correcting the mal alignment. 110. As a direct and proximate result of Defendant ZGG and/or agents, apparent agents, servants, and/or employees of Defendant ZGG, and/or negligence of Defendant Rosso, Mrs. Banks has been forced to incur liability for medical treatment, medicines, hospitalizations, rehabilitation and similar miscellaneous expenses in an effort to restore her health and because of the nature of said injuries, Mrs. Banks is advised and therefore avers that she will be forced to incur similar medical expenses in the future and a claim is made therefore. 111. As a direct and proximate result of the Defendant ZGG and/or agents, apparent agents, servants, and/or employees of Defendant ZGG negligence, and/or negligence of Defendant Rosso, Mrs. Banks has undergone and will in the future undergo great physical and mentaVemotional pain and suffering, great inconvenience in carrying out her daily activities, a loss of life's pleasures and enjoyment and a claim in made therefore. 112. As a direct and proximate result of the Defendant ZGG and/or agents, apparent agents, servants, and/or employees of Defendant ZGG negligence, and/or negligence of Defendant Rosso, Mrs. Banks has been and in the future will be subject to great humiliation, embarrassment, and disfigurement and a claim is made therefore. 113. As a direct and proximate result of the Defendant ZGG and/or agents, apparent agents, servants, and/or employees of Defendant ZGG negligence, and/or 13 Docket No. 297-2006 negligence of Defendant Rosso, Mrs. Banks has sustained a loss of past and future earnings, and a claim is made therefore. 114. As a direct and proximate result ofthe Defendant ZGG and/or agents, apparent agents, servants, and/or employees of Defendant ZGG negligence, and/or negligence of Defendant Rosso, Mrs. Banks has suffered from the physical and emotional pain and suffering related to additional hospitalizations, physician office visits, rehabilitation, physical therapy, additional medications, and a claim is made therefore. 115. As a direct and proximate result ofthe Defendant's negligence, Plaintiff, John Banks has suffered a loss of intimacy, consortium, services, society, advice and companionship, and a claim is made therefore. COUNT) PROFESSIONAL NEGLIGENCE Robin Banks v. Susan Rosso. D.P.M. 116. Paragraphs 1 through 115 are incorporated herein by reference as though fully set forth at length. 117. Defendant, Susan Rosso, D.P.M. is jointly and severally liable to the Plaintiff, Robin Banks, for the injuries and damages alleged herein which were directly and proximately caused by the Defendant's negligence, gross negligence, with respect to Robin Banks, by: 14 Docket No. 297-2006 (a) failing to order and/or recommend a revision surgery and/or other surgical consult immediately after the surgical procedure on or about january 15, 2004. (b) failing to order and/or recommend corrective surgery on right foot anytime after january 15, 2004 surgery; (c) failing to contact Mrs. Banks with information that her feet were improperly operated on anytime after the surgery on january 15, 2004; (d) failing to admit Mrs. Banks to a hospital and/or other medical facility for additional care and/or treatment; (e) failing to relay adequate and/or proper and/or complete information to Defendant ZGG; (f) failing to order and/or recommend the appropriate and/or proper medical treatment, including but not limited to corrective and/or revision surgery on Mrs. Banks' right foot; (g) failing to order and/or recommend the appropriate and/or proper diagnostic testing, including but not limited to x-rays, magnetic resonance imaging, and/or other radiological studies; (h) failing to order, recommend, and/or perform the appropriate and/or proper treatment, including but not limited to setting the bones properly in Mrs. Banks' foot; 15 Docket No. 297-2006 (i) failing to timely diagnose Mrs. Banks' need for immediate and/or urgent and/or emergent treatment and/or care to address the improperly set bone in Mrs. Banks' right foot; Ol failing to order and/or recommend a second opinion and/or consultation with another podiatrist and/or surgeon and/or physician; (k) failing to properly operate on Mrs. Banks' foot and failing to properly align and set the bones in Mrs. Banks' right foot; (I) failing to promptly recognize the malalignment in Mrs. Banks' right foot and to promptly attempt to correct the malalignment; (m) improperly discharging Mrs. Banks in a medically unstable condition; (n) failing to provide Mrs. Banks with the appropriate discharge instructions after her surgeries on or January 15, 2004; (0) failing to adequately and timely address Mrs. Banks medical needs; (p) failing to recognize the malalignment on x-rays of Mrs. Banks' second metatarsal on her right foot; 118. Defendant Rosso is liable to the Plaintiff for the injuries and damages alleged herein as set forth in paragraphs 106 through 115 above, which are incorporated herein by reference as if set at length. WHEREFORE, Robin Banks, demands judgment against Defendant, Susan Rosso, D.P.M. for compensatory damages in the amount in excess of twenty-five thousand 16 Docket No. 297-2006 dollars, ($25,000.00), exclusive of interest and costs in an excess of any jurisdictional amount requiring compulsory arbitration. COUNT II VICARIOUS LIABILITY Robin Banks v. Zlotoff. Gilfert & Gold. P.c. 119. Paragraphs 1 through]] 5 and Count I ofthe Complaint are incorporated herein by reference as if set forth at length. 120. Defendant Zlotoff, Gilfert & Gold, P.c., all podiatrists, physicians, interns, residents, nurses, support staff, medical support staff and office support staff who participated in Robin Banks treatment, including but not limited to Defendant Rosso, their assistants and/or the agent, apparent agents, servants and/or employees, and/or anyone who saw Robin Banks from Defendant ZGG, were acting within the course and scope oftheir employment when providing professional medical services to Robin Banks. ]2]. Defendant ZGG, acting through its agents, apparent agents, servants and/or employees is jointly and severally liable to Plaintiff, Robin Banks, for the injuries and damages alleged herein which were directly and proximately caused by its negligence, with respect to Robin Banks, by: 17 Docket No. 297-2006 (a) failing to order and/or recommend a revision surgery and/or other surgical consult immediately after the surgical procedure on or about january 15, 2004. (b) failing to order and/or recommend corrective surgery on right foot anytime after january 15, 2004 surgery; (c) failing to contact Mrs. Banks with information that her feet were improperly operated on anytime after the surgery on january 15, 2004; (d) failing to admit Mrs. Banks to a hospital and/or other medical facility for additional care and/or treatment; (e) failing to relay adequate and/or proper and/or complete information to Defendant ZGG; (f) failing to order and/or recommend the appropriate and/or proper medical treatment, including but not limited to corrective and/or revision surgery on Mrs. Banks' right foot; (g) failing to order and/or recommend the appropriate and/or proper diagnostic testing, including but not limited to x-rays, magnetic resonance imaging, and/or other radiological studies; (h) failing to order, recommend, and/or perform the appropriate and/or proper treatment, including but not limited to setting the bones properly in Mrs. Banks' foot; 18 Docket No. 297-2006 . (i) failing to timely diagnose Mrs. Banks' need for immediate and/or urgent and/or emergent treatment and/or care to address the improperly set bone in Mrs. Banks' right foot; OJ failing to order and/or recommend a second opinion and/or consultation with another podiatrist and/or surgeon and/or physician; (k) failing to properly operate on Mrs. Banks' foot and failing to properly align and set the bones in Mrs. Banks' right foot; (I) failing to promptly recognize the malalignment in Mrs. Banks' right foot and to promptly attempt to correct the malalignment; (m) improperly discharging Mrs. Banks in a medically unstable condition; (n) failing to provide Mrs. Banks with the appropriate discharge instructions after her surgeries on or January] 5, 2004; (0) failing to adequately and timely address Mrs. Banks medical needs; (p) failing to recognize the malalignment on x-rays of Mrs. Banks' second metatarsal on her right foot; 122. Defendant ZGG is liable to the Plaintiff for the injuries and damages alleged herein and set forth in paragraphs 106 through 115 above which are incorporated herein by reference as if set forth at length. WHEREFORE, Robin Banks, demands judgment against Defendant, Zlotoff, Gilfert & Gold, P.c. for compensatory damages in an amount in excess of twenty-five thousand 19 Docket No. 297-2006 . dollars ($25,000.00), exclusive of interest and costs and in excess of any jurisdictional amount requiring compulsory arbitration. COUNT III Loss of Consortium lohn Banks v. Susan Rosso. D.P.M.. and Zlotoff, Gilfert & Gold. P.c. 123. Paragraphs 1 through 115 and Count I through Count III of the Complaint are incorporated herein by reference as if set forth at length. 124. As a direct and proximate result of the conduct of the Defendants, Susan Rosso, D.P.M. and Zlotoff, Gilfert, & Gold, P.c. as described above, Plaintiff John Banks has been deprived of the care, companionship and services of his wife, Robin Banks, for all of which damages are claimed. WHEREFORE, John Banks, demands judgment against Defendants, Susan Rosso, D.P.M. and Zlotoff, Gilfert, & Gold, P.c. for compensatory and punitive damages in an amount in excess of twenty-five thousand dollars ($25,000.00), exclusive of interest and costs and in excess of any jurisdictional amount requiring compulsory arbitration. 20 Docket No. 297-2006 . . VERIFICATION We, Robin BOlnks Olnd John Banks, do hereby swear Olnd affirm that the facts and matters set forth in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that the statements made therein are made subject to the penalties of 18 POl. CS. 9 4904 relating to unsworn falsification to authorities. Dated, d /1..5/0 Ce ~, ,)rf:htl; obm Banks Dated: .;../t J'.ICJ(' J~~S 6 6--4' . Respectfully submitted, / B~ Za{; earn ell, Esquire Supreme ourt Identification No. 93177 Dated: ~2.000 Docket No. 297-2006 21 ~ CERTIFICATE OF SERVICE I, Nathan W. Ramsey, hereby certifY that a true and correct copy ofthe foregoing document was served upon counsel of record this 16th day of February, 2006, by depositing said copy in the United States Mail at Harrisburg, Pennsylvania, postage prepaid, First Class delivery, and addressed as follows: Larry Waranch, Esquire Waranch & Brown, LLC 1301 York Road, Suite 300 Lutherville, MD 21093 Counsel for Defendants MARC T. LEVIN RHOADS & SINON, LLP TwELFTH FLOOR ONE SOUTH MARKET SQUARE P.O. Box 1146 HARRISBURG, PA 17108-1146 Counsel for Defendants R.J. MARZELlA & AsSOCIATES, P.c. ~.~~ n t'"-.) r: , 0 , -n :~ ---ry I;~ (; , -r I f .J .\ ( 'I :.':-} ., .. R. J. MARZELLA & ASSOCIATES, P.c. BY: ZACHARY O. CAMPBELL, ESQUIRE PENNSYLVANIA SUPREME COURT 1.0. No. 93177 3513 NORTH FRONT STREET HARRISBURG, PA 17110-1438 TELEPHONE: (717) 234-7828 FACSIMILE: (717) 234-6883 EMAIL: ZCAMPBELLla>RIMARZELlA.COM AlTORNEYS FOR PlAINTIFF, ROBIN AND JOHN BANKS IN THE COURT OF COMMON PLEAS CUMBERLAND COUNlY, PENNSYLVANIA ROBIN BANKS, DOCKET No. 297 - 2006 PlAINTIFF MEDICAL MALPRACTICE ACTION VS. SUSAN Rosso, O.P.M.; JOHN D. GILFERT, D.P.M; AND ZWTOFF, GILFERT & GOLD, P.c., DEFENDANTS JURY TRIAL DEMANDED PRAECIPE TO DISCONTINUE ACTION AGAINT JOHN D. GILFERT, D.P.M. ONLY PURSUANT TO PA.R.C.P. 229 TO THE PROTHONOTARY: Please discontinue the above captioned action against john D. Gilfert, D.P.M. only. Respectfully submitted, R. J. MARzELlA & AsSOCIATES, P.c. DATED:~ CERTIFICATE OF SERVICE I, Nathan W. Ramsey, hereby certifY that a true and correct copy of the foregoing document was served upon counsel of record this 16th day of February, 2006, by depositing said copy in the United States Mail at Harrisburg, Pennsylvania, postage prepaid, First Class delivery, and addressed as follows: Larry Waranch, Esquire Waranch & Brown, LLC 1301 York Road, Suite 300 Lutherville, MD 21093 Counsel for Defendants MARC T. LEVIN RHOADS & SINON, LLP TwELFrH FLOOR ONE SOUTH MARKET SQUARE P.O. Box 1146 HARRISBURG, PA 17108-1146 Counsel for Defendants R.J. MARzELlA & AsSOCIATES, P.c. "A~ NAHAN W. SEY " p' :--j (,,',,: c:,; .;';. ~'i r.--.:, . R. J. MARZELLA & ASSOCIATES, P.c. BY: ZAcHARY D. CAMPBEll, ESQUIRE PENNSYLVANIA SUPREME COURT I.D. No. 93177 3513 NORTH FRONT STREET HARRISBURG, PA 17110-1438 TELEPHONE: (717) 234-7828 FACSIMILE: (717) 234-6883 EMAIL: ZCAMPBELL(cVRIMARZELlA.COM ArrORNEYS FOR PlAINTIFF, ROBIN AND JOHN BANKS IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA ROBIN BANKS, DOCKET No. 297 - 2006 PlAINTIFF MEDICAL MALPRACTICE ACTION Vs. SUSAN Rosso, D.P.M.; AND ZLOTOFF, GILFERT & GOLD, P.c., DEFENDANTS JURY TRIAL DEMANDED CERTIFICATE OF MERIT AS TO SUSAN ROSSO, D.P.M. I, Zachary D. Campbell, attorney for Plaintiffs, Robin Banks and John Banks, hereby, certify that: ~ an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by this defendant in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm; AND o the claim that the defendant deviated from an acceptable professional standard is also based solely on allegations that other licensed professionals for whom the defendant is responsible deviated from an acceptable professional standard and an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by the other licensed professionals in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm. Respectfully submitted, R. J. MARZEllA & AsSOCIATES, P.c. By: DATED: ~'200G, CERTIFICATE OF SERVICE I, Nathan W. Ramsey, hereby certifY that a true and correct copy of the foregoing document was served upon counsel of record this 16th day of February, 2006, by depositing said copy in the United States Mail at Harrisburg, Pennsylvania, postage prepaid, First Class delivery, and addressed as follows: Larry Waranch, Esquire Waranch & Brown, LLC 130 1 York Road, Suite 300 Lutherville, MD 21093 Counsel for Defendants MARCT. LEVIN RHOADS & SINON, LLP TwELFfH FLOOR ONE SOUTH MARKET SQUARE P.O. Box 1146 HARRISBURG, PA 17108-1146 Counsel for Defendants R. J. MARzEllA & AsSOCIATES, P.c. B" h~ ~THANW. MSEY ~~:, (~'! L'-) ;;:-11 "" C' C' (':"'. ',<) u' rv . R. J. MARZELLA & ASSOCIATES, P.c. BY: ZACHARY D. CAMPBELL, ESQUIRE PENNSYLVANIA SUPREME COURT 1.0. No. 93177 3513 NORTH FRONT STREET HARRISBURG, PA 17110-1438 TELEPHONE: (717) 234-7828 FACSIMILE: (717) 234-6883 EMAIL: ZCAMPBELL(aJRIMARZELlA.COM ArrORNEYS FOR PLAINTIFF, ROBIN AND JOHN BANKS IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA ROBIN BANKS, DOCKET No. 297 - 2006 PLAINTIFF MEDICAL MALPRACfICE ACfION VS. SUSAN Rosso, D.P.M.; AND ZLOTOFF, GILFERT & GOLD, P.c., DEFENDANTS JURY TRIAL DEMANDED CERTIFICATE OF MERIT AS TO ZLOTOFF, GILFERT, & GOLD. P.c. I, Zachary D. Campbell, attorney for Plaintiffs, Robin Banks and John Banks, hereby, certify that: if an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by this defendant in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm; AND ~ [!(' the claim that the defendant deviated from an acceptable professional standard is also based solely on allegations that other licensed professionals for whom the defendant is responsible deviated from an acceptable professional standard and an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by the other licensed professionals in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm. Respectfully submitted, R. J. MARZELlA & AsSOCIATES, P.c. By: DATED: 2(," ~~b . . CERTIFICATE OF SERVICE I, Nathan W. Ramsey, hereby certifY that a true and correct copy of the foregoing document was served upon counsel of record this 16th day of February, 2006, by depositing said copy in the United States Mail at Harrisburg, Pennsylvania, postage prepaid, First Class delivery, and addressed as follows: Larry Waranch, Esquire Waranch & Brown, LLC 1301 York Road, Suite 300 Lutherville, MD 21093 Counsel for Defendants MARC T. LEVIN RHOADS & SINON, LLP TwELFTH FLOOR ONE SOUTH MARKET SQUARE P.O. Box 1146 HARRISBURG, PA 17108-1146 Counsel for Defendants R. J. MARZELL<\ & AsSOCIATES, P.c. "'~~< r~" c:') <,Y' .-~ -~ {'c:""l, _,_1,'1" c:', " " en r.....::' ~ Marc T. Levin, Esquire Attorney J.D. No. 70294 Cory A. Iannacone Attorney J.D. No. 200530 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, P A 17108- I 146 (717)233-5731 Attorneys for Defendants ROBIN BANKS AND JOHN BANKS Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW NO. 297-2006 SUSAN ROSSO, D.P.M., and ZLOTOFF, GILFERT & GOLD, P.C. Defendants JURY TRIAL DEMANDED DEFENDANTS' PRELIMINARY OBJECTIONS NOW COMES Defendants Susan Rosso ("Rosso") and Zlotoff, Gilfert & Gold ("ZGG") (collectively "Defendants"), by and through their counsel, Rhoads & Sinon LLP, and file the within Preliminary Objections and in support thereof aver as follows: I. DEMURRERlMOTION TO STRIKE PLAINTIFFS' CLAIMS FOR JOINT AND SEVERAL LIABILITY. I. Pursuant to paragraphs 106, 117, and 121, Plaintiffs attempt to hold Defendants Rosso and ZGG jointly and severally liable for the injuries and damages allegedly sustained by Plaintiffs. 2. Pursuant to Count II, Plaintiffs attempt to set forth the liability of ZGG as being vicarious liability for the acts of its alleged agents, servants, or employees. 599900.1 3. To the extent ZGG is found to have liability for the actions ofthe co-defendant Rosso, it cannot be found to be ajoint tort feasor with the co-defendant Rosso as ZGG's liability would be secondary to that ofthe physician. See Mamalis v. Atlas Van Lines, 522 Pa. 214, 560 A.2d 1380 (1989). 4. To the extent Plaintiffs assert joint liability of ZGG, Plaintiffs have failed to state a claim upon which relief can be granted. 5. Pursuant to Pa. R. Civ. P. 1028(a)(4), it is proper to strike from a complaint allegations which fail to state a claim upon which relief can be granted. WHEREFORE, Defendants Rosso and ZGG respectfully request that this Honorable Court strike all claims of joint liability as they relate to ZGG. II. MOTION TO STRIKEIMOTION FOR MORE SPECIFIC PLEADING 6. Pursuant to Paragraph 117, subparagraphs (a) - (P), Plaintiffs attempt to set forth those theories upon which liability against Rosso is premised. 7. The theories ofliability set forth in Paragraph 117, subparagraphs (f), (g), and (h) include the language "including but not limited to." 8. The phrase "including but not limited to" suggests that Plaintiffs have other theories ofliability which have remained unstated. 9. Pursuant to the Pa. R. Civ. P. 1019(a), it is necessary for a party to set forth in concise and summary form all facts which support its alleged claims of liability. -2- . . 10. Inclusion ofthe phrase, "including but not limited to" allow Plaintiffs to circumvent the bar of the statute of limitation by amending the pleading to more particularly plead those theories of liability which were not stated at the time of the initial pleading. See Conner v. Alleghenv General Hosp., 501 Pa. 306,461 A.2d 600 (1983). 11. Pursuant to Pa. R. Civ. P_ 1028(a)(2), it is appropriate to strike from a pleading, those averments which fail to conform to law or rule of court. WHEREFORE, Defendants Rosso and ZGG respectfully request that this Honorable Court strike the phrase, "including but not limited to" from Paragraph 117, subparagraphs (f), (g), and (h). III. DEMURRER/MOTION TO STRIKE PLAINTIFFS' CLAIM FOR PUNITIVE DAMAGES. 12. Pursuant to Count III (Loss of Consortium), Plaintiffs attempt to set forth a claim for punitive damages. 13. To properly plead a claim for punitive damages, it is necessary to plead facts which show that the defendant acted with malicious intent or reckless disregard. 14. Plaintiffs have failed to set forth appropriate facts to support a claim for punitive damages in the Complaint. 15. Pursuant to Pa. R. Civ. P. 1028(a)(2), it is proper to strike from a pleading allegations which fail to conform to law or rule of court. WHEREFORE, Defendants Rosso and ZGG respectfully request that this Honorahle Court strike Plaintiffs' claim for punitive damages. - 3 - . . IV. MOTION TO STRIKE/MOTION FOR MORE SPECIFIC PLEADING 16. In Count II (Vicarious Liability), Plaintiffs base the liability of ZGG upon the acts of "office support staff who participated in Robin Banks treatment, including but not limited to Defendant Rosso, their assistants and/or the agent, apparent agents, servants and/or employees, and/or anyone who saw Robin Banks from Defendant ZGG." 17. The phrase "including but not limited to" suggests that Plaintiffs have other theories of liability which have remained unstated. 18. Pursuant to the Pa. R. Civ. P. 1019(a), it is necessary for a party to set forth in concise and summary form all facts which support its alleged claims ofliability. 19. Inclusion of the phrase, "including but not limited to" allow Plaintiffs to circumvent the bar of the statute of limitation by amending the pleading to more particularly plead those theories of liability which were not stated at the time ofthe initial pleading. See Conner v. Allegheny General Hoso., 501 Pa. 306, 461 A.2d 600 (1983). 20. Furthermore, Plaintiffs' failure to identify any individuals to whom they are referencing allow Plaintiffs to assert additional claims against ZGG for vicarious liability of individuals currently not named in the Complaint. 21. Pursuant to Pa. R. Civ. P. 1028(a)(2), it is appropriate to strike from a pleading, those averments which fail to conform to law or rule of court. - 4- . . WHEREFORE, Defendants Rosso and ZGG respectfully request that this Honorable Court strike from the Complaint any reference to any unnamed individuals as the basis for Plaintiffs' vicarious liability claim against ZGG. Respectfully submitted, By: RHOADS & SINON LLP ~l1L, I-?:- \ Marc T. Levin, Esquire Attorney I.D. No. 70294 Cory A. Iannacone Attorney I.D. No. 200530 One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Defendants - 5 - .. CERTIFICATE OF SERVICE I hereby certify that on this ..l.!!....... day of Yf 1LJ!..C..It.J , 2006, a true and correct copy of the foregoing Preliminary Objections were served by means of United States mail, first class, postage prepaid, upon the following: Zachary D. Campbell, Esquire R.I. Marzella & Associates, P.c. 3513 North Front Street Harrisburg, PA 17110-1438 (717) 234-7828 zcampbell@rjmarzella.com ~ '+I. '{OJJ~o.d p ~o-- ~ c t ..L -cJ r~)J ~ C) () \{~~~ ,3 -0 ~ b J -- b ?- ------- - ~ Marc T. Levin, Esquire Attorney LD. No. 70294 Cory A. Iannacone Attorney 1.0. No. 200530 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, P A 17108-1146 (717)233-5731 Attorneys for Defendants ROBIN BANKS AND JOHN BANKS Plaintiffs v. SUSAN ROSSO, D.P.M., and ZLOTOFF, GILFERT & GOLD, P.C. Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 297-2006 JURY TRIAL DEMANDED PRAECIPE FOR ENTRY OF APPEARANCE OF CORY A. IANNACONE TO THE CLERK: Kindly enter the appearance of Cory A. Iannacone, Esquire and Rhoads & Sinon LLP as counsel for Defendants, Susan Rosso, D.P.M. and Zlotoff, Gilfert & Gold, P.C. , in the above- captioned matter. Date: 3/;'1/()~ 600516.] Respectfully submitted, SINON ff /J ~ ---~ ory . nnacone Attorney I.D. 200530 One South Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorney for Defendants . CERTIFICATE OF SERVICE I hereby certify that on this J./.5i: day of March, 2006, a true and correct copy of the foregoing Praecipe for Entry of Appearance of Cory A. Iannacone was served by means of United States mail, first class, postage prepaid, upon the following: Zachary D. Campbell, Esquire R.I. Marzella & Associates, P.c. 3513 North Front Street Harrisburg, PA 17110-1438 ,f \// VJ~ ~ /V.UJ Teresa H. Laughead - C) C r-') ,.-;::J '.:::::t .~)., ~. S<) Sft ::;J ft'\ f"..j {'oJ -~."I ~ .C' C;J , , PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. CAPTION OF CASE (entire caption must be stated in full) ROBIN BANKS and JOHN BANKS (Plaintiff) VS. SUSAN ROSSO, D.P.M. and ZLCITOFF, GILFERT & GOLD, P. C. JURY TRIAL DEMANDED (Defendant) CIVIL ACTION - LAW No. 297 Term 2006 I. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demulTer to complaint, etc.): I Defendants Preliminary Objections to Complaint 2. Identify counsel who wili argue cases: (a) fOUJlcainatirffy: D. Campbell, E . R J M 11 Lan squlre, .. arze a & Associates, P.C. (Name and Address) 3513 North Front Street, Harrisburg, PA 17110-1438 (b) for defendant: Cory A. Iannacone, Esquire, Rhoads & Sinon, LLP (N aIDe and Address) One South Market Sq., 12th FIr., P.O. Box 1146, Harrisburg, PA 3. I wili notify all parties in writing within two days that this case has been listed for argllrnent. 1/108-1146 Cory A. Iannacone 4. Argument Court Date: May 17, 2006 ~ /? ~~ fiJ" ~ Cory A. Iannacone, Esquire Print your name Date 3/,;,/ /b& Defendants Attorney for .I . CERTIFICATE OF SERVICE I hereby certify that on this ~ j.5t day of March, 2006, a true and correct copy of the foregoing Praecipe for Listing Case for Argument was served by means of United States mail, first class, postage prepaid, upon the following: Zachary D. Campbell, Esquire R.I. Marzella & Associates, P.C. 3513 North Front Street Harrisburg, PA 17110-1438 ~w't~ Teresa H. Laughead r--..... (~j C~.:l .c:.--:-.:; -q c.(.... .. :;;~_1 "" r" , r-0 -::'1 -,;~ c;"! ." C"J ORfGfNAL R. J. MARZELLA & ASSOCIATES, P.c. BY: Zachary D. Campbell, Esquire Pennsylvania Supreme Court I.D. No. 93177 3513 North Front Street Harrisburg, PA 17110 Telephone: (717) 234,7828 Facsimile: 17171 234-6883 Attorneys for Robin and John Banks IN THE COURT OF COMMON PLEAS CUMBERLAND COUN1Y, PENNSYLVANIA ROBIN BANKS and JOHN BANKS Plaintiff, DOCKET NO. 297-2006 MEDICAL MALPRACTICE ACTION v. SUSAN ROSSO, D.P.M., and ZLOTOFF, GILFERT & GOLD, P.c. Defendants, JURY TRIAL DEMANDED PLAINTIFF'S RESPONSE TO DEFENDANTS' SUSAN ROSSO, D.P.M., AND ZLOTOFF, GILFERT & GOLD, P.c. PRELIMINARY OBJECTIONS AND NOW, comes the Plaintiffs, Robin Banks and john Banks, by and through her attorneys, R. J. Marzella & Associates, P.c., bring this instant Response in Opposition to Defendants' Preliminary Objections to Plaintiffs Complaint, and avers the following: 1. Admitted. 2. Admitted. 3. This allegation contains a conclusion of law to which no response is required. Docket No. 297-2006 4. Plaintiffs agree with Defendants' allegation, therefore, no response is required. 5. Plaintiffs agree with Defendants' allegation, therefore, no response is required. 6. Admitted. 7. Admitted. 8. Plaintiffs agree with Defendants' allegation, therefore, no response is required. 9. This allegation contains a conclusion oflaw to which no response is required. 10. This allegation contains a conclusion of Jaw to which no response is required. 11. This allegation contains a conclusion of law to which no response is required. 12. This allegation requires no response. 13. This allegation requires no response. 14. Plaintiffs agree with Defendants' allegation, therefore, no response is required. 15. Plaintiffs agree with Defendants' allegation, therefore, no response is required. 16. Admitted. Docket No. 297-2006 2 17. Denied. It is specifically denied that the phrase "including but not limited to" suggest that Plaintiffs have other theories of liability which have remained unstated. 18. This allegation contains a conclusion of law to which no response is required. 19. Denied. It is specifically denied that inclusion of the phrase, "including but not limited to" allow Plaintiffs to circumvent the bar of the statute of limitation by amending the pleading to more particularly plead those theories of liability which were not stated at the time ofthe initial pleading. 20. Denied. It is specifically denied that Plaintiffs failure to identity any individuals to whom they are referencing allow Plaintiffs to assert additional claims against zeG for vicarious liability of individuals currently not named in the Complaint. 21. This allegation contains a conclusion of law to which no response is required. WHEREFORE, Plaintiffs, Robin Banks and John Banks, respectfully request that this Honorable Court deny Defendants request to strike from the Complaint any reference to any unnamed individuals as the basis for Plaintiffs' vicarious liability claim against ZGG. Respectfully submitted, Dated: ~Z!f /oro m bell, Esquire ourt Identification No. 93177 3 Docket No. 297-2006 . CERTIFICATE OF SERVICE I, Nathan W. Ramsey, hereby certifY that a true and correct copy of the foregoing document was served upon counsel of record this 28th day of March, 2006, by depositing said copy in the United States Mail at Harrisburg, Pennsylvania, postage prepaid, First Class delivery, and addressed as follows: Larry Waranch, Esquire Waranch & Brown, LLC 1301 York Road, Suite 300 Lutherville, MD 21093 Counsel for Defendants MARCT. LEVIN RHOADS & SINON, LLP TwELFfH FLOOR ONE SOUTH MARKET SQUARE P.O. Box 1146 HARRISBURG, PA 17108-1146 Counsel for Defendants R. J. MARZEllA & ASSOCIATES, P.c. By: /7 ~- " NATHAN W. RAMSEY C) -(1 ---~ ~ ; J 1-;' C,) ~:-I 0 - , , ) I C"J ~.o --J < ~ R. J. MARZELlA & ASSOCIATES, P.c. BY: ZACHARY D. CAMPBELL, ESQUIRE PENNSYLVANIA SUPREME COURT I.D. No. 93177 3513 NORTH FRONT STREET HARRISBURG, PA 17110-1438 TELEPHONE: (717) 234-7828 FACSIMILE: (717) 234-6883 EMAlL: ZCAMPBELLla>RIMARZELlA.COM ArroRNEYs FOR PlAINTIFFS, ROBIN BANKS AND JOHN BANKS IN THE COURT OF COMMON PLEAS CUMBERlAND COUNTY, PENNSYLVANIA ROBIN BANKS AND JOHN BANKS, PlAINTIFF DOCKET No. 297 - 2006 MEDICAL MALPRACTICE ACTION VS. SUSAN Rosso, D.P.M.; AND ZLOTOFF, GILFERT & GOLD, P.c., DEFENDANTS JURY TRIAL DEMANDED STIPUlATION Plaintiffs, Robin and john Banks, by and through their counsel, Zachary D. Campbell, Esquire, and Defendants, Susan Rosso, D.P.M. and Zlotoff, Gilfert, & Gold, by and through their counsel, Marc T. Levin, Esquire, hereby stipulate as follows: 1. Counsel executing this Stipulation represent and warrant that they are authorized to do so on behalf of their clients. 2. Plaintiffs agree to strike the language of joint and several liability contained in paragraphs 106, 117, and 121 from the Complaint. . 3. Plaintiffs agree to strike the language "including but not limited to" contained in Paragraph 117, subparagraphs (t), (g), and (h). 4. Plaintiffs agree to strike the language in Count III of the Complaint pertaining to punitive damages and further agree to dismiss any and all claims for punitive damages. 3. The Defendants agree to withdrawal their Preliminary Objections to Plaintiffs Complaint regarding the above issues. 4. This Stipulation may be signed in counterparts and is effective when signed by respective counsel. IN WITNESS WHEREOF, the parties by and through their counsel have caused this Stipulation to be executed and intend to be legally bound thereby. R. J. Marzella & Associates, P.C. Dated: ~~c.. Dated: ?!n!oc, Rhoads & Sinon, LLP 'liE fL. Marc T. Levin, Esquire Attorney Identification No. 70294 Counsel for Defendants J CERTIFICATE OF SERVICE I, Nathan W. Ramsey, hereby certifY that a true and correct copy of the foregoing document was seIVed upon counsel of record this 31th day of March, 2006, by depositing said copy in the United States Mail at Harrisburg, Pennsylvania, postage prepaid, First Class delivery, and addressed as follows: Larry Waranch, Esquire Waranch & Brown, LLC 1301 York Road, Suite 300 LutheIVilIe, MD 21093 Counsel for Defendants MARC T. LEVIN RHOADS & SINON, LLP TwELFTH FLOOR ONE SOUTH MARKET SQUARE P.O. Box 1146 HARRISBURG, PA 17108-1146 Counsel for Defendants R.J. MARzEUA & AsSOCIATES, P.c. By: h ~V N....ffli\N W. RAMSEY , r~ , --i 1 ._1 , ." -:') C>) r::' _~'J OJ .< #3 ROBIN BANKS AND JOHN BANKS : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. SUSAN ROSSO, D.P.M., and : NO. 2006 - 0297 CIVIL TERM ZLOTOFF, GlLFERT & GOLD, P.C. IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS BEFORE BAYLEY. GUIDO, JJ. ORDER OF COURT AND NOW, this 22ND day ofMA Y, 2006, after having reviewed the briefs filed by the parties and having heard argument thereon, Defendants' remaining preliminary objection is OVERRULED. Edward E. Guido, J. ~chary D. Campbell, Esquire 3513 North Front Street Harrisburg, Pa. 1711 0 ~arc T. Levin, Esquire Cory A. Iannacone, Esquire One South Market Street P.O. Box 1146 Harrisburg, Pa. 17108 ~ /rY Ijc)) o :sld \;/1[',]'-//\1,,\ z.;y, !f'J~1d ! il. !I"'.;~ ;.~).,u"A!n. ,"\ 1\.1.1 ':: ~' , "'~il~: iv 9 S :2H!d 82 A ~W 900l 1U\!In:"V'~I'L"'''.ld :11" -'0 ^O'l_,..,d. i. v..... -'1tJ..:J 38!.:!30-G31!:l ROBIN BANKS and JOHN BANKS Plaintiff v. SUSAN ROSSO, D.P.M. and ZLOTOFF, GlLFERT & GOLD, P.C. Defendant - -------..... ! IN THE COURT OF COMMON PLEAS \ CUMBERLAND COUNTY, PENNSYLVANIA , ! I CIVIL ACTION - LAW , NO. 2006-0297 , I JURY TRIAL DEMANDED I i NOTICE TO PLEAD TO: Robin Banks and John Banks c/o Zachary D. Campbell, Esquire RI. Marzella & Associates, P.C. 3513 North Front Street Harrisburg, PA 17110 You are hereby notified to plead to the within Answer With New Matter of Defendants, Susan Rosso, D.P.M. and Zlotoff, Gilfert & Gold, P.C. to Plaintiffs' Complaint within twenty (20) days of service or a default judgment may be entered against you. Respectfully submitted, By: RHOADS & SINON LLP 'l11~~ /~-T- J Marc T. Levin Larry M. Waranch One South Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Defendants Susan Rosso, D.P.M. and Zlotoff, Gilfert & Gold, P.C. Marc T. Levin, Esquire Attorney I.D. No. 70294 Larry M. Waranch, Esquire RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 1710&.1146 (717) 233-573 I Attorneys for Defendants ROBIN BANKS and JOHN BANKS Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. , I CIVIL ACTION - LAW NO. 2006-0297 , I I JURY TRIAL DEMANDED i SUSAN ROSSO, D.P.M. and ZLOTOFF, GILFERT & GOLD, P.C. Defendant ANSWER WITH NEW MATTER OF DEFENDANTS SUSAN ROSSO, D.P.M. AND ZLOTOFF, GILFERT & GOLD, P.c. TO PLAINTIFFS' COMPLAINT AND NOW come Defendants Susan Rosso, D.P.M. and Zlotoff, Gilfert & Gold, P.C. by and through their counsel Rhoads & Sinon LLP by Marc T. Levin, Esquire and Waranch & Brown, LLC by Larry M. Waranch, Esquire and provide the following answers with new matter to Plaintiffs' Complaint as follows: I. Admitted upon information and belief. 2. Admitted. 3. Admitted. 4. Denied. The averments contained in this paragraph are denied as conclusions oflaw to which no affirmative responses are required. To the extent affirmative responses may be required, said averments are specifically and unequivocally denied and strict proof thereof demanded at the time of trial if deemed material. 616385.1 , 5. Denied. The avennents Contained in this paragraph are denied in confonnity with P.A.R.C.P. 1029 (e). 6. Denied. The averments contained in this paragraph are denied in conformity with PAR.C.P. 1029 (e). 7. Denied. The averments contained in this paragraph are denied in conformity with P.A.R.C.P. 1029 (e). 8. Denied. The averments contained in this paragraph are denied in conformity with P.A.R.C.P. 1029 (e). 9. Denied. The averments contained in this paragraph are denied in conformity with PAR.C.P. 1029 (e). 10. Denied. The avennents contained in this paragraph are denied in conformity with PAR.C.P. 1029 (e). 11. Denied. The avennents contained in this paragraph are denied in confonnity with P.A.R.C.P. 1029 (e). 12. Denied. The averments contained in this paragraph are denied in conformity with PAR.C.P. 1029 (e). 13. Denied. The averments contained in this paragraph are denied in conformity with PAR.C.P. 1029 (e). 14. Denied. The avennents contained in this paragraph are denied in confonnity with P.A.R.C.P. 1029 (e). 15. Denied. The avennents contained in this paragraph are denied in conformity with P.A.R.C.P. 1029 (e). -2- , 16. Denied. The averments contained in this paragraph are denied in conformity with P.A.R.C.P. 1029 (e). 17. Denied. The averments contained in this paragraph are denied in conformity with PAR.C.P. 1029 (e). 18. Denied. The avennents contained in this paragraph are denied in conformity with PAR.C.P. 1029 (e). 19. Denied. The averments contained in this paragraph are denied in conformity with PAR.C.P. 1029 (e). 20. Denied. The averments contained in this paragraph are denied in conformity with PAR.C.P. 1029 (e). 21. Denied. The averments contained in this paragraph are denied in conformity with PAR.C.P. 1029 (e). 22. Denied. The averments contained in this paragraph are denied in conformity with P AR.C.P. 1 029 (e). 23. Denied. The averments contained in this paragraph are denied in conformity with P.A.R.C.P. 1029 (e). 24. Denied. The avennents contained in this paragraph are denied in conformity with P.A.R.C.P. 1029 (e). 25. Denied. The averments contained in this paragraph are denied in conformity with PAR.C.P. 1029 (e). 26. Denied. The avennents contained in this paragraph are denied in conformity with P AR.C.P. 1 029 (e). -3- 27. Denied. The averments contained in this paragraph are denied in conformity with P.A.R.C.P. 1029 (e). 28. Denied. The averments contained in this paragraph are denied in conformity with PAR.C.P. 1029 (e). 29. Denied. The averments contained in this paragraph are denied in conformity with P.A.R.C.P. 1029 (e). 30. Denied. The averments contained in this paragraph are denied in conformity with PAR.C.P. 1029 (e). 31. Denied. The averments contained in this paragraph are denied in conformity with PAR.C.P. 1029 (e). 32. Denied. The averments contained in this paragraph are denied in conformity with PAR.C.P. 1029 (e). 33. Denied. The averments contained in this paragraph are denied in conformity with P.A.R.C.P. 1029 (e). 34. Denied. The averments contained in this paragraph are denied in conformity with P.A.R.C.P. 1029 (e). 35. Denied. The averments contained in this paragraph are denied in conformity with PAR.C.P. 1029 (e). 36. Denied. The averments contained in this paragraph are denied in conformity with PAR.C.P. 1029 (e). 37. Denied. The averments contained in this paragraph are denied in conformity with PAR.C.P. 1029 (e). - 4- 38. Denied. The averments contained in this paragraph are denied in conformity with PAR.C.P. 1029 (e). 39. Denied. The averments contained in this paragraph are denied in conformity with P.A.R.C.P. 1029 (e). 40. Denied. The averments contained in this paragraph are denied in conformity with P.A.R.C.P. 1029 (e). 41. Denied. The averments contained in this paragraph are denied in conformity with PAR.C.P. 1029 (e). 42. Denied. The averments contained in this paragraph are denied in conformity with PAR.C.P. 1029 (e). 43. Denied. The averments contained in this paragraph are denied in conformity with PAR.C.P. 1029 (e). 44. Denied. The averments contained in this paragraph are denied in conformity with PAR.C.P. 1029 (e). 45. Denied. The averments contained in this paragraph are denied in conformity with PAR.C.P. 1029 (e). 46. Denied. The averments contained in this paragraph are denied in conformity with PAR.C.P. 1029 (e). 47. Denied. The averments contained in this paragraph are denied in conformity with P.A.R.C.P. 1029 (e). 48. Denied. The averments contained in this paragraph are denied in conformity with PAR.C.P. 1029 (e). - 5- 49. Denied. The averments contained in this paragraph are denied in conformity with P.A.R.C.P. 1029 (e). 50. Denied. The averments contained in this paragraph are denied in conformity with P.A.R.C.P. 1029 (e). 51. Denied. The averments contained in this paragraph are denied in conformity with PAR.C.P. 1029 (e). 52. Denied. The averments contained in this paragraph are denied in conformity with P.A.R.C.P. 1029 (e). 53. Denied. The averments contained in this paragraph are denied in conformity with PAR.C.P. 1029 (e). 54. Denied. The averments contained in this paragraph are denied in conformity with P.A.R.C.P. 1029 (e). 55. Denied. The avennents contained in this paragraph are denied in conformity with P.A.R.C.P. 1029 (e)_ 56. Denied. The averments contained in this paragraph are denied in conformity with P.A.R.C.P. 1029 (e). 57. Denied. The avennents contained in this paragraph are denied in conformity with P.A.R.C.P. 1029 (e). 58. Denied. The avennents contained in this paragraph are denied in conformity with PAR.C.P. 1029 (e). 59. Denied. The avennents contained in this paragraph are denied in conformity with PAR.C.P. 1029 (e). -6- 60. Denied. The averments contained in this paragraph are denied in conformity with P.A.R.C.P. 1029 (e). 61. Denied. The averments contained in this paragraph are denied in conformity with PAR.C.P. 1029 (e). 62. Denied. The averments contained in this paragraph are denied in conformity with P.A.R.C.P. 1029 (e). 63. Denied. The averments contained in this paragraph are denied in conformity with P.A.R.C.P. 1029 (e). 64. Denied. The averments contained in this paragraph are denied in conformity with P.A.R.C.P. 1029 (e). 65. Denied. The averments contained in this paragraph are denied in conformity with PAR.C.P. 1029 (e). 66. Denied. The averments contained in this paragraph are denied in conformity with P.A.R.C.P. 1029 (e). 67. Denied. The averments contained in this paragraph are denied in conformity with PAR.C.P. 1029 (e). 68. Denied. The averments contained in this paragraph are denied in conformity with P.A.R.C.P. 1029 (e). 69. Denied. The averments contained in this paragraph are denied in conformity with PAR.C.P. 1029 (e). 70. Denied. The averments contained in this paragraph are denied in conformity with PAR.C.P. 1029 (e). -7- 71. Denied. The averments contained in this paragraph are denied in conformity with P.A.R.C.P. 1029 (e). 72. Denied. The averments contained in this paragraph are denied in conformity with P.A.R.C.P. 1029 (e). 73. Denied. The averments contained in this paragraph are denied in conformity with P.A.R.c.P. 1029 (e). 74. Denied. The averments contained in this paragraph are denied in conformity with P .A.R.C.P. 1 029 (e). 75. Denied. The avennents contained in this paragraph are denied in conformity with P.A.R.C.P. 1029 (e). 76. Denied. The averments contained in this paragraph are denied in conformity with P.A.R.C.P. 1029 (e). 77. Denied. The averments contained in this paragraph are denied in conformity with P.A.R.C.P. 1029 (e). 78. Denied. The averments contained in this paragraph are denied in conformity with P.A.R.C.P. 1029 (e). 79. Denied. The averments contained in this paragraph are denied in conformity with P .A.R.C.P. 1029 ( e). 80. Denied. The avennents contained in this paragraph are denied in conformity with P.A.R.c.P. 1029 (e). 81. Denied. The averments contained in this paragraph are denied in conformity with P.A.R.C.P. 1029 (e). - 8 - 82. Denied. The averments contained in this paragraph are denied in conformity with P.A.R.C.P. 1029 (e). 83. Denied. The averments contained in this paragraph are denied in conformity with P.A.R.c.P. 1029 (e). 84. Denied. The averments contained in this paragraph are denied in conformity with P.A.R.c.P. 1029 (e). 85. Denied. The averments contained in this paragraph are denied in conformity with P.A.R.C.P. 1029 (e). 86. Denied. The averments contained in this paragraph are denied in conformity with P.A.R.C.P. 1029 (e). 87. Denied. The averments contained in this paragraph are denied in conformity with P.A.R.c.P. 1029 (e). 88. Denied. The averments contained in this paragraph are denied in conformity with P.A.R.c.P. 1029 (e). 89. Denied. The averments contained in this paragraph are denied in conformity with P.A.R.c.P. 1029 (e). 90. Denied. The averments contained in this paragraph are denied in conformity with P .A.R.C.P. 1029 ( e). 91. Denied. The averments contained in this paragraph are denied in conformity with P.A.R.C.P. 1029 (e). 92. Denied. The averments contained in this paragraph are denied in conformity with P.A.R.C.P. 1029 (e). -9- 93. Denied. The averments contained in this paragraph are denied in conformity with P .A.R.C.P. 1 029 (e). 94. Denied. The averments contained in this paragraph are denied in conformity with PAR.C.P. 1029 (e). 95. Denied. The averments contained in this paragraph are denied in conformity with PAR.C.P. 1029 (e). 96. Denied. The averments contained in this paragraph are denied in conformity with P.A.R.C.P. 1029 (e). 97. Denied. The averments contained in this paragraph are denied in conformity with PAR.C.P. 1029 (e). 98. Denied. The averments contained in this paragraph are denied in conformity with P.A.R.C.P. 1029 (e). 99. Denied. The averments contained in this paragraph are denied in conformity with P.A.R.C.P. 1029 (e). 100. Denied. The averments contained in this paragraph are denied in conformity with PAR.C.P. 1029 (e). 101. Denied. The averments contained in this paragraph are denied in conformity with P.A.R.C.P. 1029 (e). 102. Denied. The averments contained in this paragraph are denied in conformity with PAR.C.P. 1029 (e). 103. Denied. The averments contained in this paragraph are denied in conformity with P.A.R.C.P. 1029 (e). - 10 - 104. Denied. The averments contained in this paragraph are denied in conformity with P.A.R.C.P. 1029 (e). 105. Denied. The averments contained in this paragraph are denied in confonnity with P.A.R.C.P. 1029 (e). 106. This paragraph has been stricken by agreement between the parties through their counsel as reflected in the stipulation filed on or about April 3, 2006 which is incorporated herein by reference. Therefore, no response is required. 107. Denied. It is specifically and unequivocally denied that Defendant Rosso and/or any agents, apparent agents, servants and/or employees of Defendant ZGG did not act appropriately with respect to Plaintiff Robin Banks' care and treatment. To the contrary, Defendant Rosso and/or the agents, apparent agents, servants and/or employees of Defendant ZGG acted properly and appropriately with respect to the care and treatment of Plaintiff Robin Banks. 108. Denied. To the extent this paragraph contains averments of proximate causation, it is a conclusion oflaw to which no affinnative response is required. To the extent an affirmative response may be required, said averments are denied and strict proof thereof demanded at the time of trial if deemed material. By way of further answer, to the extent this paragraph contains averments of the Plaintiffs alleged damages, it is denied, since after reasonable investigation, the Answering Defendants are without information sufficient to admit or deny the truth or falsity of the said averments and accordingly denies the same and demands strict proof thereof at the time of trial if deemed material. - 11 - 109. Denied. The averments contained in this paragraph are denied as conclusions oflaw to which no affirlhative responses are required. To the extent affirmative responses may be required, said averments are specifically and unequivocally denied and strict proof thereof demanded at the time of trial if deemed material. By way of further answer, the averments contained in this paragraph are denied in conformity with P.A.R.C.P. 1029 (e). 110. Denied. To the extent this paragraph contains averments of proximate causation, it is a conclusion oflaw to which no affirmative response is required. To the extent an affirmative response may be required, said averments are denied and strict proof thereof demanded at the time of trial if deemed material. By way of further answer, to the extent this paragraph contains averments ofthe Plaintiffs alleged damages, it is denied, since after reasonable investigation, the Answering Defendants are without information sufficient to admit or deny the truth or falsity of the said averments and accordingly denies the same and demands strict proof thereof at the time of trial if deemed material. 111. Denied. To the extent this paragraph contains averments of proximate causation, it is a conclusion of Jaw to which no affirmative response is required. To the extent an affirmative response may be required, said averments are denied and strict proof thereof demanded at the time of trial if deemed material. By way of further answer, to the extent this paragraph contains averments of the Plaintiffs alleged damages, it is denied, since after reasonable investigation, the Answering Defendants are without information sufficient to admit or deny the truth or falsity of the said averments and - 12- accordingly denies the same and demands strict proof thereof at the time of trial if deemed material. 112. Denied. To the extent this paragraph contains averments of proximate causation, it is a conclusion of law to which no affirmative response is required. To the extent an affirmative response may be required, said averments are denied and strict proof thereof demanded at the time of trial if deemed material. By way of further answer, to the extent this paragraph contains averments of the Plaintiff s alleged damages, it is denied, since after reasonable investigation, the Answering Defendants are without information sufficient to admit or deny the truth or falsity of the said averments and accordingly denies the same and demands strict proof thereof at the time of trial if deemed material. 113. Denied. To the extent this paragraph contains averments of proximate causation, it is a conclusion of law to which no affirmative response is required. To the extent an affirmative response may be required, said averments are denied and strict proof thereof demanded at the time of trial if deemed material. By way of further answer, to the extent this paragraph contains averments of the Plaintiff's alleged damages, it is denied, since after reasonable investigation, the Answering Defendants are without information sufficient to admit or deny the truth or falsity of the said averments and accordingly denies the same and demands strict proof thereof at the time of trial if deemed material. 114. Denied. To the extent this paragraph contains averments of proximate causation, it is a conclusion oflaw to which no affirmative response is required. To the extent an affirmative response may be required, said averments are denied and strict - 13 - proof thereof demanded at the time of trial if deemed material. By way of further answer, to the extent this paragraph contains averments of the Plaintiff s alleged damages, it is denied, since after reasonable investigation, the Answering Defendants are without information sufficient to admit or deny the truth or falsity of the said averments and accordingly denies the same and demands strict proof thereof at the time of trial if deemed material. 115. Denied. To the extent this paragraph contains averments of proximate causation, it is a conclusion oflaw to which no affirmative response is required. To the extent an affirmative response may be required, said averments are denied and strict proof thereof demanded at the time of trial if deemed material. By way of further answer, to the extent this paragraph contains averments of the Plaintiff John Banks alleged damages, it is denied, since after reasonable investigation, the Answering Defendants are without information sufficient to admit or deny the truth or falsity of the said averments and accordingly denies the same and demands strict proof thereof at the time of trial if deemed material. COUNT I PROFESSIONAL NEGLIGENCE Robin Banks v. Susan Ross, D.P.M. 116. Answering Defendants, Susan Rosso, D.P.M. and Zlotoff, Gilfert & Gold, P.C., incorporate by reference their responses to paragraphs 1 through 115 of the Complaint as if more fully set forth herein at length. - 14- 117. Denied. It is specifically and unequivocally denied that Defendant Susan Rosso, D.P.M. is liable to the Plaintiff Robin Banks for the injuries and damages alleged in Plaintiffs' Complaint. And it is further denied that the alleged injuries and damages suffered by Plaintiff Robin Banks were proximately caused by Defendant Susan Rosso, D.P.M.. And it is yet further denied that Defendant Susan Rosso, D.P.M. was negligent or grossly negligent with respect to Robin Banks as follows: (a)-(p) Denied. The averments contained in these subparagraphs are denied in conformity with P.A.R.C.P. 1029 (e), and are further denied since these subparagraphs are conclusions of law to which no affirmative responses are required. To the extent affirmative responses may be required, said averments are specifically and unequivocally denied and strict proof thereof is demanded at the time oftrial if deemed material. 118. Denied. To the extent this paragraph contains averments of proximate causation, it is a conclusion of law to which no affirmative response is required. To the extent an affirmative response may be required, said averments are denied and strict proof thereof demanded at the time of trial if deemed material. By way of further answer, to the extent this paragraph contains averments of the Plaintiff's alleged damages, it is denied, since after reasonable investigation, the Answering Defendants are without information sufficient to admit or deny the truth or falsity of the said averments and accordingly denies the same and demands strict proof thereof at the time of trial if deemed material. Answering Defendant incorporates her responses to Paragraphs 106 - 15 - through 115 above, which are incorporated herein by reference as if more fully set forth at length. WHEREFORE, Answering Defendants, Susan Rosso, D.P.M. and Zlotoff, Gilfert & Gold, P.C., respectfully request this Honorable Court to enter judgment in its favor and against the Plaintiffs, and that the Answering Defendants be awarded appropriate costs and fees and any other relief deemed proper by this Court. COUNT II VICARIOUS LIABILITY Robin Banks v. Zlotoff, GilCert & Gold, P.C. 119. Answering Defendants, Susan Rosso, D.P.M. and Zlotoff, Gilfert & Gold, P.C., incorporate by reference their responses to paragraphs 1 through 118 of the Complaint as if more fully set forth herein at length. 120. Denied. The averments contained in this paragraph are denied as conclusions oflaw to which no affirmative responses are required. To the extent affirmative responses may be required, said averments are specifically and unequivocally denied and strict proof thereof demanded at the time of trial if deemed material. 121. Denied. It is specifically and unequivocally denied that Defendant Zlotoff, Gilfert & Gold, P .C. and any of its agents, apparent agents, servants and/or employees is liable to the Plaintiff Robin Banks for the injuries and damages alleged in Plaintiffs' Complaint. And it is further denied that the alleged injuries and damages suffered by Plaintiff Robin Banks were proximately caused by Defendant Zlotoff, Gilfert & Gold, P .C. and any of its agents, apparent agents, servants and/or employees. And it is - 16- yet further denied that Defendant Zlotoff, Gilfert & Gold, P.c. and any of its agents, apparent agents, servants and/or employees was negligent or grossly negligent with respect to Robin Banks as follows: (a) -(p) Denied. The averments contained in these subparagraphs are denied in conformity with PAR.C.P. 1029 (e), and are further denied since these subparagraphs are conclusions of law to which no affirmative responses are required. To the extent affirmative responses may be required, said averments are specifically and unequivocally denied and strict proof thereof is demanded at the time of trial if deemed material. 122. Denied. To the extent this paragraph contains averments of proximate causation, it is a conclusion oflaw to which no affirmative response is required. To the extent an affirmative response may be required, said averments are denied and strict proof thereof demanded at the time of trial if deemed material. By way of further answer, to the extent this paragraph contains averments of the Plaintiff s alleged damages, it is denied, since after reasonable investigation, the Answering Defendants are without information sufficient to admit or deny the truth or falsity of the said averments and accordingly denies the same and demands strict proof thereof at the time of trial if deemed material. Answering Defendants incorporate their responses to Paragraphs 106 through 115 above, which are incorporated herein by reference as if more fully set forth at length. - 17- WHEREFORE, Answering Defendants, Susan Rosso, D.P.M. and Zlotoff, Gilfert & Gold, P.C., respectfully request this Honorable Court to enter judgment in its favor and against the Plaintiffs, and that the Answering Defendants be awarded appropriate costs and fees and any other relief deemed proper by this Court. COUNT III LOSS OF CONSORTIUM John Banks v. Susan Ross, D.P.M. and Zlotoff, Gilfert & Gold, P.C. 123. Answering Defendants, Susan Rosso, D.P_M. and Zlotoff, Gilfert & Gold, P.C., incorporate by reference their responses to paragraphs 1 through 115 and Count I through Count III of the Complaint as ifmore fully set forth herein at length. 124. Denied. The averments contained in this paragraph are denied as conclusions oflaw to which no affirmative responses are required. To the extent affirmative responses may be required, said averments are specifically and unequivocally denied and strict proof thereof demanded at the time of trial if deemed material. WHEREFORE, Answering Defendants, Susan Rosso, D.P.M. and Zlotoff, Gilfert & Gold, P.C., respectfully request this Honorable Court to enter judgment in its favor and against the Plaintiffs, and that the Answering Defendants be awarded appropriate costs and fees and any other relief deemed proper by this Court. NEW MATTER OF DEFENDANTS SUSAN ROSSO, D.P.M. AND ZLOTOFF. GILFERT & GOLD. P.C. DIRECTED TO PLAINTIFFS 1. Plaintiffs have failed to state a claim upon which relief can be granted. - 18 - 2. Plaintiffs' claims are barred and/or limited by the applicable Statute of Limitations. 3. It is believed, and therefore averred, that the discovery will show that the Plaintiffs were negligent and that their negligence exceeded the negligence, if any, of the Answering Defendants, theceby barring them recovery by operation of the Pennsylvania Comparative Negligence Act. 4. It is believed, and therefore averred, that discovery will show that the Plaintiffs were negligent and that by virtue of their negligence, their claims may be limited by the operation of the Pennsylvania Comparative Negligence Act. 5. It is believed, and therefore averred, that discovery will show that the Plaintiffs voluntarily assumed a known risk thereby barring recovery by the operation of the Doctrine of Assumption of Risk. 6. Plaintiffs' injuries, if any, were sustained as a cesult of natural or unknown causes and not as the result of any action or inaction on behalf of the Answering Defendants. 7. At all times material hereto, Answering Defendants provided full, complete, proper, reasonable and adequate podiatric medical care and treatment in accordance with the applicable standard of care. 8. No conduct on the part of the Answering Defendants was a substantial factoc in causing or contributing to any harm which the Plaintiffs may have suffered. 9. If PlaintiffS suffered any damage, the damages were caused by the conduct of others over whom the Answering Defendants had no control oc right to control. - 19 - 10. All claims and causes of action pleaded against the Answering Defendants are barred by Plaintiffs' knowing and voluntary informed consent to the care in question. 11. Insofar as the Answering Defendants, any agent, servant or employee of the Answering Defendants or any person for whom it is or may be vicariously liable, elected a treatment modality which is recognized as proper but may differ from another appropriate treatment modality, then said Answering Defendants raise the "two schools of thought" defense. 12. To the extent they were required to do so, the Answering Defendants took all reasonable and necessary steps to make a proper and appropriate diagnosis and to the extent it may be detennined that that diagnosis was in error, the Answering Defendants assert that the error in diagnosis was a reasonable and legally justifiable error. WHEREFORE, Answering Defendants, Susan Rosso, D.P.M. and Zlotoff, Gilfert & Gold, P.C., respectfully requests this Honorable Court to enter judgment in its favor and against the Plaintiffs and that Answering Defendants be awarded appropriate costs and fees. Respectfully submitted, By: RH~~~~n:?!LP , Marc T. Levin Larry M. Waranch One South Market Square P. O. Box 1146 Harrisburg, PAl 71 08-1146 (717) 233-5731 Attorneys for Defendants Susan Rosso, D.P.M. and Zlotoff, Gilfert & Gold, P.C. - 20- VERIFICATION Susan Rosso, D.P.M., deposes and says, subject to the penalties of 18 Pa. C.S. 94904 relating to unsworn falsification to authorities, that she makes this verification by its authority and that the facts set forth in the Answer with New Matter to Plaintiffs' Complaint are true and correct to the best of her knowledge, information and belief. z\n'- ~e_ Date Susan sso, D.P.M. VERIFICATION John Gilfert, deposes and says, subject to the penalties of 18 Pa. C.S. ~4904 relating to unsworn falsification to authorities, that he makes this verification by its authority and that the facts set forth in the Answer with New Matter to Plaintiffs' Complaint are true and correct to the best of his knowledge, information and belief. f)tl?~6 Date . CERTIFICATE OF SERVICE I hereby certify that on this 17#' day of ~, 2006, a true and correct copy of the foregoing Answer with New Matter to Plaintiffs' Complaint was served by means of United States mail, first class, postage prepaid, upon the following: Zachary D. Campbell, Esquire R.J. Marzella & Associates, P.C. 3513 North Front Street Harrisburg, P A 17110 :itAiM- W. Y ()~ Teresa H. Laughead 0 ,..., ~ = c: c:::> ;;:;: C'" :t "... C. ...n~ (,l") N -0(;"\ :DO - S.~t~ -0 ::-1:: ~,~~ 0---- -.:,; __,rO ~~ r~~ -"'''' -Cjfl1 <.? -,,", "C( ~.. <.~) ::l ..........: - R.J. MARZELLA&ASSOClATES, P.c. BY: Zachary D. Campbell, Esquire Pennsylvania Supreme Court tD. No. 93177 3513 North Front Street Harrisburg, PA 17110 Telephone: (717) 234-7828 Facsimile: (717) 234-6883 Attorneys for Robin and John Banks IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA ROBIN BANKS and JOHN BANKS Plaintiff, DOCKET NO. 297-2006 MEDICAL MALPRACTICE ACTION v. SUSAN ROSSO, D.P.M., and ZLOTOFF, GILFERT & GOLD, P.c. Defendants, JURY TRIAL DEMANDED PlAINTIFF'S RESPONSE TO DEFENDANTS SUSAN ROSSO, D.P.M. AND ZLOTOFF, GILFERT & GOLD, P.c. NEW MATTER. 1. The allegation herein states a conclusion of law to which no response is required. To the extent that a response may be required, it is specifically denied that Plaintiffs have failed to state a claim upon which relief can be granted. 2. The allegation herein states a conclusion of law to which no response is required. To the extent that a response may be required, it is specifically denied that Plaintiffs claims are barred and/or limited by the applicable Statute of Limitations. 3. The allegation herein states a conclusion oflaw to which no response is Docket No. 297-2006 '. required. To the extent that a response may be required, it is specifically denied that the discovery will show that the Plaintiffs were negligent and that their negligence exceeded the negligence, if any, of the Moving Defendants, thereby barring them recovery by operation of the Pennsylvania Comparative Negligence Act. 4. The allegation herein states a conclusion oflaw to which no response is required. To the extent that a response may be required, it is specifically denied that discovery will show that the Plaintiffs were negligent and that by virtue of their negligence, their claims may be limited by the operation of the Pennsylvania Comparative Negligence Act. 5. The allegation herein states a conclusion oflaw to which no response is required. To the extent that a response may be required, it is specifically denied that the discovery will show that the Plaintiffs voluntarily assumed a known risk thereby barring recovery by the operation of the Doctrine of Assumption of Risk. 6. The allegation herein states a conclusion oflaw to which no response is required. To the extent that a response may be required, it is specifically denied that Plaintiffs injuries were sustained as a result of natural or unknown causes and not as the result of any action or inaction on behalf of the Moving Defendants. 7. The allegation herein states a conclusion oflaw to which no response is required. To the extent that a response may be required, it is specifically denied that at all times material hereto, Moving Defendants provided full, complete, proper, reasonable and adequate podiatric medical care and treatment in accordance with the applicable standard of care. 2 Docket No. 297-2006 '. 8. The allegation herein states a conclusion oflaw to which no response is required. To the extent that a response may be required, it is specifically denied that no conduct on the part of the Moving Defendants was a substantial factor in causing or contributing to any harm that the Plaintiffs may have suffered. 9. The allegation herein states a conclusion oflaw to which no response is required. To the extent that a response may be required, it is specifically denied that if Plaintiffs suffered any damage, the damages were caused by the conduct of others over whom the Moving Defendants had no control or right to control. 10. The allegation herein states a conclusion oflaw to which no response is required. To the extent that a response may be required, it is specifically denied that all claims and causes of action pleaded against the Moving Defendants are barred by Plaintiffs knowing and voluntary informed consent to the care in question. 11. The allegation herein states a conclusion of law to which no response is required. To the extent that a response may be required, it is specifically denied that insofar as the Moving Defendants, any agent, servant or employee of the Moving Defendants or any person for whom it is or may be vicariously liable, elected a treatment modality which is recognized as proper but may differ from another appropriate treatment modality, and it is denied that Moving Defendants are entitled to raise the defense "two schools of thought." 12. The allegation herein states a conclusion oflaw to which no response is required. To the extent that a response may be required, it is specifically denied that to the extent they were required to do so, the Moving Defendants took all reasonable and 3 Docket No. 297-2006 '. necessary steps to make a proper and appropriate diagnosis and to the extent it may be determined that the diagnosis was in error, and it is denied that the Moving Defendants may assert that the error in diagnosis was a reasonable and legally justifiable error. WHEREFORE, Plaintiffs, Robin Banks and John Banks respectfully requests this Honorable Court to enter judgment in their favor and against the Moving Defendants and that Plaintiff be awarded appropriate costs, fees, and damages. Respectfully submitted, By: , Esquire ourt Identification No. 93177 Dated: [f p~ b- 4 Docket No. 297-2006 , ~ CERTIFICATE OF SERVICE I, Nathan W. Ramsey, hereby certify that a true and correct copy of the foregoing document was served upon counsel of record this 23rd day of August, 2006, by depositing said copy in the United States Mail at Harrisburg, Pennsylvania, postage prepaid, First Class delivery, and addressed as foliows: Larry Waranch, Esquire Waranch & Brown, LLC 1301 York Road, Suite 300 Lutherville, MD 21093 Counsel for Defendants MARC T. LEVIN RHOADS & SINON, LLP TwELFTH FLOOR ONE SOUTH MARKET SQUARE P.O. Box 1146 HARRISBURG, PA 17108-1146 Counsel for Defendants R. J. MARzEllA & AsSOCIATES, P.c. / 22:---- By: /< NA~N;: I<1\MSEY "'...., (.-) ~:f1 ',.';J c...:..-~' r ".', , i --1 \L"\ Cq C> 'I' '" R. J. MARZELlA & ASSOCIATES, P.c. BY: Zachary O. Campbell, Esquire Pennsylvania Supreme Court 1.0. No. 93177 3513 North Front Street Harrisburg, PA 17110 Telephone: (717) 234-7828 Facsimile: (717) 234-6883 Attorneys for Robin and John Banks IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA ROBIN BANKS and JOHN BANKS Plaintiff, DOCKET NO. 297-2006 MEDICAL MALPRACTICE ACTION v. SUSAN ROSSO, D.P.M., and ZLOTOFF, GILFERT & GOLD, P.c. Defendants, JURY TRIAL DEMANDED PRAECIPE TO DISCONTINUE TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please mark the above-referenced action settled and discontinued, with prejudice as to Defendants, Susan Rosso, D.P.M. and Zlotoff, Gilfert & Gold, P.c. R.J. MARzELlA & AsSOCIATES, P.c. DATED: ~7 t;.. .. ........ CERTIFICATE OF SERVICE I, Nathan W. Ramsey, hereby certify that a true and correct copy ofthe foregoing document was served upon counsel of record this 26th day of February, 2007, by depositing said copy in the United States Mail at Harrisburg, Pennsylvania, postage prepaid, First Class delivery, and addressed as follows: Larry Waranch, Esquire VVaranch & Brown, LLC 1301 York Road, Suite 300 Lutherville, MD 21093 Counsel for Defendants MARC T. LEVIN RHOADS & SINON, LLP TwELFfH FLOOR ONE SOUTH MARKET SQUARE P.O. Box 1146 HARRISBURG, P A 17108-1146 Counsel for Defendants '-'C' rj~' ., f) ~; r--:>> = = --.. :x ~ I ~ -f X, -n flp -00 =-:~ I -,.Q :-?:ri 250 3m -I --,. :P .< ,,.. ~ C) o