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HomeMy WebLinkAbout06-4715s r GALFAND BERGER, LLP. BY: Debra A. Jensen, Esquire Attorney Identification No. 33598 1818 Market Street, Suite 2300 Philadelphia, Pennsylvania 19103 (215) 665-1600 Attorney for Plaintiff LINDA BERNHEIMER, Administratrix COURT OF COMMON PLEAS of the ESTATE OF MARTIN BERNHEIMER, DECEASED CUMBERLAND COUNTY 3772 Mt. Shadow Drive Fayetteville, PA 17222 Plaintiff VS. SHIPPENSBURG HEALTH CARE CENTER 121 Walnut Bottom Road Shippensburg, PA 17257 and LARRY COTTLE SHIPPENSBURG HEALTH CARE CENTER 121 Walnut Bottom Road Shippensburg, PA 17257 and PERINI SERVICES/SOUTH HAMPTON MANOR LIMITED PARTNERSHIP 2424 Paradise Church Road Hagerstown, MD 21740 and PERINI SERVICES, INC. 13601 Paradise Church Road Hagerstown, MD 21740 Defendants. NO. ()G -"471% CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE TO ISSUE WRIT OF SUMMONS TO THE PROTHONOTARY: Kindly issue WRIT OF SUMMONS IN CIVIL ACTION in the above- in the . y above-captioned matter. GALFAND BERGER, L.L.P. euak? BY: U gqx? DEBRA A. JENSE , ESQUIRE Date: a- I u -06 40Q vi ? t W t 'Y3lC' tyfr" r N 0 0I -o W u7 O n ? V ?rn (CV) Commonwealth of Pennsylvania County of Cumberland WRIT OF SUMMONS LINDA BERNHEIMER, ADMINSTRATRIX OF THE ESTATE OF MARTIN BERNHEIMER, DECEASED 3772 MT. SHADOW DRIVE FAYETTEVILLE, PA 17222 Plaintiff Court of Common Pleas Vs. No 064715 CIVIL TERM SHIPPENSBURG HEALTH CARE CENTER 121 WALNUT BOTTOM ROAD SHIPPENSBURG, PA17257 AND LARRY COTTLE SHIPPENSBURG HEALTH CARE CENTER 121 WALNUT BOTTOM ROAD SHIPPENSBURG, PA 17257 AND PERINI SERVICES/SOUTH HAMPTON MANOR LIMITED PARTNERSHIP 2424 PARADISE CHURCH ROAD HAGERSTOWN, MD 21740 AND PERINI SERVICES, INC. 13601 PARADISE CHURCH ROAD HAGERSTOWN, MD 21740 In CivilAction-Law Defendant To SHIPPENSBURG HEALTH CARE CENTER AND LARRY COTTLE SHIPPENSBURG HEALTH CARE CENTER AND PERINI SERVICES/SOUTH HAMPTON MANOR LIMITED PARTNERSHIP AND PERINI SERVICES, INC., You are hereby notified that LINDA BERNHEIMER, ADMINISTRATRIX OF THE ESTATE OF MARTIN BERNHEIMER, DECEASED the Plaintiff(s) has / have commenced an action in Civil Action-Law against you which you are required to defend or a default judgment maybe entered against you. (SEAL) Proth Date AUGUST 16, 2006 By Deputy Attorney: Name: DEBRA A. JENSEN, ESQUIRE Address: GALFAND BERGER, LLP 1818 MARKET STREET, SUITE 2300 PHILADELPHIA, PA 19103 Attorney for: Plaintiff Telephone: 215-665-1600 Supreme Court ID No. 33598 if LINDA BERNHEIMER, ADMINISTRATRIX OF THE ESTATE OF MARTIN BERNHEIMER, DECEASED, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 06-4715 V. CIVIL ACTION - LAW SHIPPENSBURG HEALTH CARE CENTER, LARRY COTTLE, PERINI SERVICES/SOUTH HAMPTON MANOR LIMITED PARTNERSHIP AND PERINI SERVICES, INC., Defendants JURY TRIAL DEMANDED ENTRY OF APPEARANCE Kindly enter our appearance on behalf of Defendants, Shippensburg Health Care Center, Larry Cottle, Perini Services/South Hampton Manor Limited Partnership and Perini Services, Inc., in the above-captioned. Respectfully submitted, McKissock & Hoffman, P.C. By; ZMp/.-R B. Cra' ack, Esquire I . D. o.* 6818 Laur M. Burnette, Esquire I.D. No.: 92412 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 (717) 540-3400 Dated: ?L `Dw Attorneys for Defendants, Shippensburg Health Care Center, Larry Cottle, Perini Services/South Hampton Manor Limited Partnership and Perini Services, Inc. C CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing Entry of Appearance upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, first-class postage prepaid, addressed as follows: Debra A. Jensen, Esquire Galfand Berger, LLP 1818 Market Street; Suite 2300 Philadelphia, PA 19103 (Counsel for Plaintiff) McKissock & Hoffman, P.C. Dated: 4 By: I.D. 6818 Laur M. Burnette, Esquire I.D. No.: 92412 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 (717) 540-3400 Attorneys for Defendants, Shippensburg Hea:th Care Center, Larry Cottle, Perini Services/South Hampton Manor Limited Partnership and Perini Services, Inc. f'?% ?_ YJ .i - ??? I N LINDA BERNHEIMER, ADMINISTRATRIX OF THE ESTATE OF MARTIN BERNHEIMER, DECEASED, Plaintiff No. 06-4715 V. SHIPPENSBURG HEALTH CARE CENTER, LARRY COTTLE, PERINI SERVICES/SOUTH HAMPTON MANOR LIMITED PARTNERSHIP AND PERINI SERVICES, INC., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE FOR RULE TO FILE A COMPLAINT Please issue a Rule directed to Plaintiff to file a Complaint in the above-captioned matter within twenty (20) days of service or suffer judgment Non Pros. Respectfully submitted, By: .. B. Cr Black, Esquire RULE AND NOW, this -/! - day of , 2006, upon consideration of Defendants' Praecipe For Rule To File A Complaint, a Rule is hereby granted upon Plaintiff to file a Complaint within twenty (20), days of service, or suit ;udgrne nt N-n Pros. % Rule issued this L? n `day of si9l±IM06. , < , d., Curt' Long, Pr notary N CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing Rule to File A Complaint upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, first-class postage prepaid, addressed as follows: Debra A. Jensen, Esquire Galfand Berger, LLP 1818 Market Street; Suite 2300 Philadelphia, PA 19103 (Counsel for Plaintiff) McKissock & Hoffman, P.C. I I Dated: By: 1. o.: 36818 La ren M. Burnette, Esquire I.D. No.: 92412 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 (717) 540-3400 Attorneys for Defendants, Shippensburg Health Care Center, Larry Cottle, Perini Services/South Hampton Manor Limited Partnership and Perini Services, Inc. r.._, t' -i1 ,, .._? - ?V LINDA BERNHEIMER, ADMINISTRATRIX OF THE ESTATE OF MARTIN BERNHEIMER, DECEASED, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 06-4715 V. CIVIL ACTION - LAW SHIPPENSBURG HEALTH CARE CENTER, LARRY COTTLE, PERINI SERVICES/SOUTH HAMPTON MANOR LIMITED PARTNERSHIP AND PERINI SERVICES, INC., Defendants JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I hereby certify that i am this day sewing a copy of the attached Ruie to Fiie Complaint upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, first-class postage prepaid, addressed as follows: Debra A. Jensen, Esquire Galfand Berger, LLP 1818 Market Street; Suite 2300 Philadelphia, PA 19103 (Counsel for Plaintiff) McKissock & Hoffman, P.C. By: it a B. Cr i !a sq 1. D. o .36818 Lauren M. Burnette, Esquire I.D. No.: 92412 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 (717) 540-3400 Dated:_.<, Z`,.,Zm Z! Tao6 Attorneys for Defendants, Shippensburg Health Care Center, Larry Cottle, Perini Services/South Hampton Manor Limited Partnership and Perini Services, Inc. LINDA BERNHEIMER, ADMINISTRATRIX OF THE ESTATE OF MARTIN BERNHEIMER, DECEASED, Plaintiff No. 06-4715 V. SHIPPENSBURG HEALTH CARE CENTER, LARRY COTTLE, PERINI SERVICES/SOUTH HAMPTON MANOR LIMITED PARTNERSHIP AND PERINI SERVICES, INC., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA t, CIVIL ACTION - LAW=;r R-_ JURY TRIAL DEMANDED PRAECIPE FOR RULE TO FILE A COMPLAINT CJ f,} Please issue a Rule directed to Plaintiff to file a Complaint in the above-captioned matter within twenty (20) days of service or suffer judgment Non Pros. Respectfully submitted, By:_ .. B. Cr Black, Esgwr^ e-"~-. RULE AND NOW, this ?ay of , 2006, upon consideration of Defendants' Praecipe For Rule To File A Complaint, a Rule is hereby granted upon Plaintiff to file a Complaint within twenty (20) days of service, or suffer judgment Non Pros. Rule issued this jr_ oay of , 2006. , L - - , , a.'L 4 Curti ong, Protho otary TRUE COPY FROM REt M IIt T wt , I fie um se"W hlm 'yid 06 dam of said at rmftla. Pd. --c : N 19, ., GALFAND BERGER, LLP. BY: Debra A. Jensen, Esquire Attorney Identification No. 33598 1818 Market Street, Suite 2300 Philadelphia, Pennsylvania 19103 (215) 665-1600 Attorney for Plaintiff LINDA BERNHEIMER, Administratrix COURT OF COMMON PLEAS of the ESTATE OF MARTIN BERNHEIMER, DECEASED CUMBERLAND COUNTY 3772 Mt. Shadow Drive Fayetteville, PA 17222 Plaintiff vs. SHIPPENSBURG HEALTH CARE CENTER 121 Walnut Bottom Road Shippensburg, PA 17257 and LARRY COTTLE SHIPPENSBURG HEALTH CARE CENTER 121 Walnut Bottom Road Shippensburg, PA 17257 NO. 06-4715 CIVIL ACTION -LAW and PERINI SERVICES/SOUTH HAMPTON MANOR LIMITED PARTNERSHIP 2424 Paradise Church Road Hagerstown, MD 21740 JURY TRIAL DEMANDED and : PERINI SERVICES, INC. 13601 Paradise Church Road Hagerstown, MD 21740 Defendants. PLAINTIFF'S COMPLAINT- CIVIL ACTION NOTICE You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by an attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. "AVISO" Le han demandado en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene veinte (20) dias de plazo de la demanda y notificacion para asentar una comparesencia escrita en persona o por su abogado y archivar con la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de so persona. Sea avisado que si usted no se detiende, la corte puede continuar la demands en contra soya y puede entrar una decision contra usted sin aviso o notificacion adicional por la cantidad de dinero de la demanda o por cualquier reclamacion hecha por el demandante. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE DE LLEVAR ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE PARA PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITO ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (800) 990-9108 (717) 249-3166 GALFAND BERGER, LLP. BY: Debra A. Jensen, Esquire Attorney Identification No. 33598 1818 Market Street, Suite 2300 Philadelphia, Pennsylvania 19103 (215) 665-1600 Attorney for Plaintiff LINDA BERNHEIMER, Administratrix COURT OF COMMON PLEAS of the ESTATE OF MARTIN BERNHEIMER, DECEASED CUMBERLAND COUNTY 3772 Mt. Shadow Drive Fayetteville, PA 17222 Plaintiff vs. SHIPPENSBURG HEALTH CARE CENTER 121 Walnut Bottom Road Shippensburg, PA 17257 and LARRY COTTLE SHIPPENSBURG HEALTH CARE CENTER 121 Walnut Bottom Road Shippensburg, PA 17257 and PERINI SERVICES/SOUTH HAMPTON MANOR LIMITED PARTNERSHIP 2424 Paradise Church Road Hagerstown, MD 21740 and NO. 06-4715 : CIVIL ACTION -LAW JURY TRIAL DEMANDED PERIM SERVICES, INC. 13601 Paradise Church Road Hagerstown, MD 21740 Defendants. COMPLAINT 1. Plaintiff, Linda Bernheimer, is an adult individual with a place of residence at 3772 Mt. Shadow Drive, Fayetteville, Pennsylvania. 2. Plaintiff is authorized to bring this survival claim as personal representative of the Estate of Martin Bernhiemer, deceased, (hereinafter "Plaintiff's Decedent") having been duly appointed Administratrix by order of the Franklin County Court of Common Pleas on April 28, 2006. 3. Defendant, Larry Cottle is a skilled nursing facility administrator licensed by the Department of Public Welfare of the Commonwealth of Pennsylvania with an office located at the address set forth above. 4. Defendant Cottle is hereinafter referred to as "Defendant Administrator." 5. Defendant, Shippensburg Healthcare Center ("Shippensburg") is a partnership, corporation, professional corporation, limited partnership, association, proprietorship and/or other legal entity duly organized and existing under the laws of the Commonwealth of Pennsylvania, engaged in the business of providing services as a skilled nursing facility duly licensed under the laws of the Commonwealth of Pennsylvania, with its place of business at the address set forth above. 6. Defendant, Perini Services/South Hampton Manor Limited Partnership ("Perini/South") is a partnership, corporation, professional corporation, limited partnership, association, proprietorship and/or other legal entity duly organized and existing under the laws of the Commonwealth of Pennsylvania, engaged in the business of providing services as a skilled nursing facility duly licensed under the laws of the Commonwealth of Pennsylvania, with its place of business at the address set forth above. 7. Defendant, Perini Services, Inc. ("Perini") is a partnership, corporation, professional corporation, limited partnership, association, proprietorship and/or other legal entity duly organized and existing under the laws of the Commonwealth of Pennsylvania, engaged in the business of 2 providing services as a skilled nursing facility duly licensed under the laws of the Commonwealth of Pennsylvania, with its place of business at the address set forth above. 8. Defendants, Shippensburg, Perini/South and Perini, are hereinafter collectively referred to as "Corporate Defendants". 9. Defendant Administrator and Corporate Defendants are hereinafter collectively referred to as "Defendants." 10. At all times relevant hereto, Defendants, in operating a skilled nursing facility within the Commonwealth of Pennsylvania were legally required to comply with all applicable federal and state statutes and regulations governing such facilities. 11. At all times relevant hereto, Defendants controlled, promulgated, regulated, effected and/or influenced expenditures, policies and procedures, allocations of financial resources, funding, staffing levels, staff training and staff supervision at Corporate Defendants' skilled nursing facility located at 121 Walnut Bottom Road, Shippensburg, Pennsylvania and also determined the budget and size of profits gleaned from the operations of that facility. 12. At all times material hereto, the Corporate Defendants acted by and through their agents, servants and/or employees, acting upon their business and within the course and scope of their employment, including but not limited to Defendant Administrator as well as other registered nurses, licensed practical nurses, nursing assistants, nurses aides, staff personnel and consultants whose identities are reflected in the personal care home records of Plaintiff's Decedent, which records are within the exclusive control of Corporate Defendants and whose identities are readily discernible to Corporate Defendants but are not readily discernible to Plaintiff absent formal discovery. 3 13. At all times material hereto, Corporate Defendants were engaged through their agents, servants, employees and those staff personnel hereinbefore and hereinafter identified, in rendering long term care services to the public, and thereby held themselves out to the public generally, and to Plaintiff's Decedent specifically, as being skilled in the provision of a safe, humane, comfortable and supportive residential setting for aged, blind and disabled dependent adults who require assistance beyond the basic necessities of food and shelter. 14. At all times material hereto, Defendant Administrator was an employee of Corporate Defendants and, as such, was, at all times relevant hereto, under the control of Corporate Defendants or Corporate Defendant's business. 15. At all times material hereto, Defendant Administrator was an independent contractor who through his acts, appearance and representations, and/or acts and representations of Corporate Defendants, inclusive of advertising, had apparent, implied or ostensible authority to act on behalf of the Corporate Defendants regarding the care of Plaintiff's Decedent who had good reason to believe, and did believe, that the Defendant Administrator possessed such authority, all of which caused him to justifiably rely upon such appearance of authority and to reasonably believe that Corporate Defendants would be bound by the acts and omissions of the Defendant Administrator. 16. As a direct result of the aforesaid, Defendants accepted the responsibility for the provision of a safe, humane, comfortable and supportive residential setting for Plaintiff's Decedent, and, in so doing, understood and assumed the duty to provide necessary facilities, care and oversight necessary for the protection of the Plaintiff's Decedent's health, safety and welfare. 17. As a direct result of the aforesaid, the Defendants had a duty to Plaintiff's Decedent to exercise ordinary care while he was a resident in Corporate Defendants' skilled nursing facility, 4 which duty included, but is not limited to: provision of a safe, humane, comfortable and supportive residential setting; provision of assistance beyond the basic necessities of food and shelter including assistance and/or supervision in matters such as dressing, bathing, diet, financial management, evacuation of the residence in the event of an emergency and the administration of medication; provision of encouragement and assistance needed to develop and maintain maximum independence and self-determination; provision of services directed to the avoidance of unnecessary institutionalization; and utilization of local agencies to assess the needs of all residents, including Plaintiff's Decedent so that necessary services and appropriate levels of care were identified and promptly secured. 18. At all times relevant hereto Defendants by their actions and inactions and in violation of their duties as owner, operator, administrator and managers of Corporate Defendants' long term care nursing facility located at 121 Walnut Bottom Road, Shippensburg, Pennsylvania, knowingly allowed, perpetuated and caused breaches and violations of their own policies and procedures, applicable standards of care as well as the requirements of federal and state regulations in their operations of the facility. 19. On or about April 23, 2004, and thereafter, Plaintiff's Decedent employed Defendants for compensation to provide skilled nursing services to him and he thereby came under the professional care and attention of Defendants. 20. On that date, Plaintiff's Decedent was 62 years old and suffered from, among other things but not limited to Diabetes, Parkinson's disease and confusion, thereby rendering him unable to live independently and requiring assistance and supervision in matters such as, but not limited to, activities of daily living, ambulation, dressing, bathing, diet, and administration of medication. 5 21. At the time of his admission to Defendants' long term care facility on April 23, 2004, Plaintiff's Decedent was evaluated and assessed by Defendants to be at high risk for falls. 22. At the time of his admission to Defendants' long term care facility on April 23, 2004, it was known by Defendants that Plaintiff's Decedent had a history of falls and required appropriate monitoring and implementation of fall prevention measures to ensure his safety. 23. From the time of his admission to Defendants' facility up to and including August 30, 2004, Plaintiff's Decedent was allowed to fall on at least four (4) separate occasions. On each such occasion Defendants knew, or should have known, that the procedures put in place to prevent Plaintiff's Decedent from falling were not sufficient and that thorough re-evaluation and implementation of other fall prevention measures was necessary. 24. From the time of his admission to Defendants' facility, Plaintiff's Decedent was known to attempt to ambulate and transfer without requesting the assistance of staff although it was unsafe for him to do so. 25. Notwithstanding Plaintiff's Decedent's prior history of falls, numerous falls while at Defendants' facility, and persistent attempts at self-ambulation and transfers, Defendants failed to put in place any appropriate or necessary interventions to prevent Plaintiff's Decedent from engaging in dangerous behavior and to prevent him from falling. 26. Despite Plaintiff's Decedent's compromised physical and mental condition, Defendants willfully, wantonly and maliciously ignored the danger posed by his fall risk and persistent attempts at self-ambulation and transfer. 27. On or about August 30, 2004, Plaintiff's Decedent was again allowed to fall, this time resulting in a displaced intertrochanteric fracture of his left hip. 6 28. Notwithstanding Plaintiff's Decedent's obvious injury and persistent complaints of severe pain, Defendants willfully, wantonly and with malicious disregard for his well being, failed to send him to the hospital until September 4, 2004 - - five (5) days after his unattended fall and displaced hip fracture. COUNT 1 - NEGLIGENCE PLAINTIFF V. DEFENDANTS 29. Plaintiff incorporates by reference paragraphs 1 through 28, inclusive, as if fully set forth herein at length. 30. The negligence of the Defendants herein consisted of the following specific acts and/or failures to act, and Defendants were negligent in the following respects: (a) failing to comply with applicable skilled nursing facility requirements and standards including, but not limited to, standards found within applicable federal and state statutes and regulations, pertaining to the health and welfare of all residents/patients and specifically Plaintiff's Decedent, in the Defendants' care, custody, and functional control; (b) failing to hire qualified staff, including but not limited to administrators, registered nurses, licensed practical nurses, nursing assistants, nurses aides, staffpersonnel and consultants who would reasonably ensure the well-being of the patients, specifically Plaintiff's Decedent; (c) failing to recognize and react to Plaintiff's Decedent's high risk of falling as evidenced by his history of falls and persistent attempts at self-ambulation and transfers; (d) failing to provide appropriate monitoring, care, assistance and oversight to Plaintiff's Decedent in regards to his fall risk, including but not limited to, appropriate fall prevention measures and care planning; (e) accepting and admitting residents or patients, specifically Plaintiff s Decedent, when Defendants knew, or in the exercise of reasonable care should have known, that Defendants' facility was not equipped to properly and professionally care for residents or patients persistently engaged in activities that put them at high risk for falling; 7 (f) failing to maintain the appropriate staff to patient ratios such that Plaintiff s Decedent could be provided with appropriate supervisory care; (g) failing to provide ongoing educational programs and service training for staff, (h) failing to provide appropriate and adequate orientation for staff at the Defendants' facility such that staff could be fully informed about the needs of each resident, including Plaintiff's Decedent, and prepared to address and provide for said residents' needs; (i) failing to periodically monitor and ascertain the performance of staff to reasonably ensure that they were properly caring for residents, including to ensure that they were checking on residents' welfare and well being on a regular basis, which monitoring might have resulted in the avoidance of Plaintiff's Decedent's injuries; (j) failing to have adequately trained and qualified staff including but not limited to administrators, registered nurses, licensed practical nurses, nursing assistants, nurses aides, staff personnel and consultants available at all times relevant hereto, to take reasonable measures to reasonably ensure the adequate supervision of residents or patients such as Plaintiff's Decedent, while knowing that such failure could lead to injury or death; (k) failing to have an adequate staff budget for the hiring, orientation, training and retention of necessary and qualified staff which would have supported adequate staffing levels of, including but not limited to, administrators, registered nurses, licensed practical nurses, nursing assistants, nurses aides, other staff personnel and consultants to ensure regular and periodic monitoring of patients/residents so as to prevent or timely detect behavior which placed such residents at high risk of falling; (1) failing to supervise the management of the Corporate Defendants in order to reasonably ensure quality care to residents/patients therein, such as Plaintiff's Decedent. (m) holding out expertise which induced Plaintiff's Decedent and his family to reasonably believe that adequate and proper care would in fact be provided when, in fact, such care was not provided, thus proximately causing Plaintiff's Decedent's injuries; (n) failing to possess and exercise the degree of professional learning, knowledge, skill and ability possessed by administrators, registered nurses, licensed practical nurses, nursing assistants, nurses aides, staff personnel and consultants which others in similar types of care facilities in the community ordinarily and regularly possessed 8 and utilized in the provision of a safe, humane, comfortable and supportive personal care facility; (o) failing to refer Plaintiff's Decedent to a hospital or other primary care facility immediately following his August 30, 2004 fall; (p) failing to notify Plaintiff's Decedent's family that they were unable to prevent him from engaging in dangerous behavior and from falling; (q) failing to provide Plaintiff s Decedent with appropriate assistance in his activities of daily living (r) failing to have adequate staffing, including administrators, registered nurses, licensed practical nurses, nursing assistants, nurses aides, staff personnel and consultants to meet Plaintiff's Decedent's needs from the time of his admission in April of 2004 until the time of his fall in August of 2004; 31. As a direct and proximate result of the negligence of Defendants herein, Plaintiff's Decedent was caused to suffer a severely fractured hip, resulting in significant long term mental and physical pain and suffering; the complete loss of his ability to ambulate for the remainder of his life; and substantial costs for medical care associated with his injury. WHEREFORE, Plaintiff demands judgment against Defendants herein for a sum in excess of the limits of arbitration, together with such other relief as this Honorable Court may deem fair and just. COUNT II - VICARIOUS LIABILITY PLAINTIFF v. CORPORATE DEFENDANTS 32. Plaintiff incorporates by reference paragraphs 1 through 31, inclusive, as if fully set forth herein at length. 9 33. At all times relevant hereto, Corporate Defendants held out the agents, servants and employees of their facility to be skilled, able and competent in the capacity in which they were employed. 34. At all times relevant hereto, Corporate Defendants administered, directed, operated, controlled, monitored and supervised the daily activities of their agents, servants and employees throughout their business operations and had the duty, and did assume the duty, to assure their compliance with applicable federal and state laws and regulations, standards of care and the terms of any and all agreements between itself and Plaintiff's Decedent. 35. At all times relevant hereto, individuals whose acts and omissions are complained of by Plaintiff in this action were actual and/or ostensible agents of Corporate Defendants as defined by Capan v. Divine Providence Hospital, 287 Pa. Super. 364, 430 A.2d 647 (1980). 36. At all times relevant hereto, the agents, servants and employees of Corporate Defendants were acting within the course and scope of their employment and furthering the business of Corporate Defendants, under their actual control or right of control. The complete and correct identities of Corporate Defendants' agents, employees and servants are unknown to Plaintiff and this information is in the exclusive control of the Corporate Defendants. 37. Accordingly, Corporate Defendants are vicariously liable for the acts and/or omissions of their agents, servants and employees at all relevant times hereto, including the individual Defendants who were involved in the care of Plaintiff's Decedent and, to that extent, Plaintiff incorporates herein by reference subparagraphs 30 (a) through 30 (r) inclusive. 10 WHEREFORE, Plaintiff demands judgment against Corporate Defendants herein for a sum in excess of the limits of arbitration, together with such other relief as this Honorable Court may deem fair and just. COUNT III - CORPORATE LIABILITY PLAINTIFF v. CORPORATE DEFENDANTS 38. Plaintiff incorporates by reference paragraphs 1 through 37, inclusive, as if fully set forth herein at length. 39. The Corporate Defendants jointly, severally and/or in the alternative were negligent and careless and proximately caused Plaintiff's Decedent's injuries in that Corporate Defendants failed to: (a) select and retain competent and adequate staff; (b) maintain safe and adequate facilities and equipment; (c) oversee and monitor its administrators, registered nurses, licensed practical nurses, nursing assistants, nurses aides, staff personnel and consultants, some of whom may have been or were Defendants named herein, and all of whom were involved in the care of Plaintiff's Decedent; and, (d) promulgate and/or enforce appropriate rules and regulations, including but not limited to, those pertaining to the care and treatment of Plaintiff's Decedent. 40. As a direct and proximate result of the aforementioned actions and failures to act as set forth previously in this Complaint, Plaintiff's Decedent, Martin Bernheimer, suffered a severely fractured hip and other injuries described above. 11 WHEREFORE, Plaintiff demands judgment against Corporate Defendants herein for a sum in excess of the limits of arbitration, together with such other relief as this Honorable Court may deem fair and just. COUNT IV - SURVIVAL ACTION - 42 Pa.C.S. § 8302 PLAINTIFF v. DEFENDANTS 41. Plaintiff incorporates by reference paragraphs 1 through 40, inclusive, as if fully set forth herein at length. 42. The Administratrix of Plaintiff's Decedent's estate named herein brings this action on behalf of the Estate of Martin Bernheimer, Deceased, under and by virtue of the Act of 1976 July 9, P.L. 586, No. 142 §2, otherwise known as 42 Pa.C.S. § 8302, and 20 Pa.C.S. § 3371, and said Plaintiff hereby claims all benefits of the Pennsylvania "Survival Act" and "Actions Which Survive," respectively, on behalf of himself and any other persons entitled to recover under said Act. 43. Linda Bernheimer, as Administratrix of the Estate of her husband, Martin Bernheimer, Deceased, on behalf of his Estate, claims the damages suffered by said Estate by reason of the injuries inflicted upon the Plaintiff's Decedent causing his fractured hip and other injuries itemized above. 44. The aforementioned Administratrix also seeks, on behalf of the Plaintiff's Decedent's estate, damages for the cost of Plaintiff's Decedent's medical services, nursing, and hospital care provided to Plaintiff's Decedent. 12 WHEREFORE, Plaintiff demands judgment against Defendants herein for a sum in excess of the limits of arbitration, together with such other relief as this Honorable Court may deem fair and just. COUNT V - BREACH OF CONTRACT PLAINTIFF v. DEFENDANTS 45. Plaintiff incorporates by reference paragraphs 1 through 44, inclusive, as if fully set forth herein at length. 46. Defendants and Plaintiff's Decedent were parties to a written Admissions Agreement wherein Defendants agreed to provide Plaintiff's Decedent with, among other guarantees, personal care services, medical evaluation and screening, discharge to an appropriate facility if warranted by Plaintiff's Decedent's declining medical condition, and a "Resident Bill of Rights" that included, among other rights, the right to be treated with dignity and respect and the right to be free from abuse. 47. Said Admissions Agreement is in the sole possession of Defendants and not readily available to Plaintiff absent formal discovery. A true and correct copy cannot, therefore, be attached to this Complaint. 48. In the alternative, Defendants and Plaintiff's Decedent were parties to an oral Admissions Agreement wherein Defendants agreed to provide Plaintiff's Decedent with, among other guarantees, personal care services, medical evaluation and screening, discharge to an appropriate facility if warranted by Plaintiff's Decedent's declining medical condition, and a 13 "Resident Bill of Rights" that included, among other rights, the right to be treated with dignity and respect and the right to be free from abuse. 49. Such guarantees and rights were mandated not only by said Admissions Agreement but also under applicable federal and state statute and regulations. 50. In consideration for this agreement, a monthly fee was paid on behalf of Plaintiff's Decedent. 51. Defendants breached this contract by failing to provide the care and supervision required by the Admissions Agreement, community standards and federal and state statutes and regulations, which breach resulted in Plaintiff's Decedent's injuries hereinbefore described. WHEREFORE, Plaintiff demands judgment against Defendants herein for a sum in excess of the limits of arbitration, together with such other relief as this Honorable Court may deem fair and just. COUNT VI - PUNITIVE DAMAGES PLAINTIFF v. DEFENDANTS 52. Plaintiff incorporates by reference paragraphs 1 through 51, inclusive, as if fully set forth herein at length. 53. Defendants acted with reckless indifference to the interests of the Plaintiff's Decedent by malicious, wanton, willful and/or oppressive conduct, which conduct proximately caused his injuries and unnecessary physical and emotional pain and suffering. 54. The aforementioned conduct of Defendants entitles Plaintiff to an award of punitive damages. 14 WHEREFORE, Plaintiff demands judgment against Defendants herein for a sum in excess of the limits of arbitration including punitive damages together with such other relief as this Honorable Court may deem fair and just. GALFAND BERGER, L.L.P. n BY: DEBRA A. JENS . ESQUIRE 1818 Market Street, Suite 2300 Philadelphia, PA 19103 (215) 665-1600 Attorneys for Plaintiff 15 VERIFICATION I, Linda Bernheimer, hereby verify that the facts set forth in the foregoing Complaint are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are subject to the penalties of 18 Pa.C.S. § 4904 related to unsworn falsification to authorities. lck?OG LINDA BERNHEIMER Administratrix of the Estate of Martin Bernheimer CERTIFICATION OF SERVICE I do hereby certify that service of a true and correct copy of the Civil Action Complaint was made on the 31St day of October, 2006 to the following via First Class Mail, postage prepaid. B. Craig Black, Esquire 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 BY: DEBRA A. JENSEN, QUIRE Attorney for Plaintiff DATE: October 31, 2006 ?? (_? ? `? -- ..-A _ -T -?-p ?::? S? 1 ,?. ? .t} . ??. r" : ,.. _ r? , - ?, he ? ,?. "= ?S . C C„1 GALFAND BERGER, LLP. BY: Debra A. Jensen, Esquire Attorney Identification No. 33598 1818 Market Street, Suite 2300 Philadelphia, Pennsylvania 19103 (215) 665-1600 Attorney for Plaintiff LINDA BERNHEIMER, Administratrix COURT OF COMMON PLEAS of the ESTATE OF MARTIN BERNHEIMER, DECEASED CUMBERLAND COUNTY Plaintiff VS. SHIPPENSBURG HEALTH CARE CENTER and LARRY COTTLE SHIPPENSBURG HEALTH CARE CENTER and PERINI SERVICES/SOUTH HAMPTON MANOR LIMITED PARTNERSHIP and PERINI SERVICES, INC. Defendants NO. 06-4715 JURY TRIAL DEMANDED PRAECIPE TO RESINSTATE COMPLAINT TO THE PROTHONOTARY: Kindly reinstate the attached Complaint for the purpose of service only. GALFAND BERGER, L.L.P. BY bEMRA A. JENSE QUIRE 1818 Market Street, Suite 2300 Philadelphia, PA 19103 (215) 665-1600 Attorneys for Plaintiff P. CERTIFICATION OF SERVICE I do hereby certify that service of a true and correct copy of the Praecipe to Reinstate Complaint was made on the 21s' day of November, 2006 to the following via First Class Mail, postage prepaid. B. Craig Black, Esquire 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 BY: D RA A. 3ENSEN, ES IRE Attorney for Plaintiff DATE: November 21, 2006 pf-? e LINDA BERNHEIMER, ADMINISTRATRIX OF THE ESTATE OF MARTIN BERNHEIMER, DECEASED, Plaintiff V. No. 06-4715 CIVIL ACTION - LAW SHIPPENSBURG HEALTH CARE CENTER, LARRY COTTLE, PERINI SERVICES/SOUTH HAMPTON MANOR LIMITED PARTNERSHIP AND PERINI SERVICES, INC., Defendants JURY TRIAL DEMANDED NOTICE TO PLEAD To: Linda Bernheimer c/o Debra A. Jensen, Esquire Galfand Berger, LLP 1818 Market Street; Suite 2300 Philadelphia, PA 19103 You are hereby notified to plead to the enclosed Preliminary Objections pursuant to the Pennsylvania Rules of Civil Procedure within 20 days from service hereof. PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT AND NOW come Defendants', Shippensburg Health Care Center, Larry Cottle, Perini Services/South Hampton Manor Limited Partnership and Perini Services, Inc., by and through their attorneys, McKissock & Hoffman, P.C., and respectfully file the following Preliminary Objections to Plaintiff's Complaint, and in support thereof aver as follows: 1. On or about October 31, 2006, Plaintiff Linda Bernheimer, as Administratrix of the Estate of Martin Bernheimer, filed her Complaint in the Court of Common Pleas of Cumberland County; Pennsylvania. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA ' For purposes of clarity, all Defendants will be referred to collectively as "Defendants." Where applicable, Defendants Shippensburg Health Care Center, Perini Services/ South Hampton Manor Limited Partnership, and Perini Services, Inc. will be referred to collectively as "Corporate Defendants." ZI 2. In her Complaint, Plaintiff alleges that while a resident of Shippensburg Health Care Center, Plaintiff's decedent, Martin Bernheimer, was evaluated and assessed by Defendants to be at high risk for falls. 3. Despite this assessment, Plaintiff alleges that Plaintiff's decedent fell on at least four (4) separate occasions. The fourth fall allegedly resulted in a displaced intertrochanteric fracture of Plaintiff's decedent's left hip, which Plaintiff alleges went undiagnosed and untreated for a period of five (5) days. 4. Defendants now file the within Preliminary Objections to Plaintiff's Complaint and assert that, for the reasons more fully set forth herein, Plaintiff's Complaint should be dismissed with prejudice. PRELIMINARY OBJECTION IN THE NATURE OF A DEMURRER TO COUNT III - CORPORATE LIABILITY 5. Paragraphs 1 through 4 are hereby incorporated by reference as though more fully set forth herein. 6. In Count III of her Complaint, Plaintiff makes a claim for corporate negligence against Corporate Defendants. Specifically, Plaintiff avers as follows: 39. The Corporate Defendants jointly, severally and/or in the alternative were negligent and careless and proximately caused Plaintiff's Decedent's injuries in that Corporate Defendants failed to: (a) Select and retain competent and adequate staff; (b) Maintain safe and adequate facilities and equipment; (c) Oversee and monitor its administrators, registered nurses, licensed practical nurses, nursing assistants, nurses aides, staff personnel and consultants, some of whom may have been or were Defendants named herein, and all of whom were involved in the care of Plaintiff's Decedent, and 2 K (d) Promulgate and/or enforce appropriate rules and regulations, including but not limited to, those pertaining to the care and treatment of Plaintiff's Decedent. 40. As a direct and proximate result of the aforementioned actions and failures to act as set forth previously in this Complaint, Plaintiff's Decedent, Martin Bernheimer, suffered a severely fractured hip and other injuries described above. 7. The Pennsylvania Supreme Court, in establishing the doctrine of corporate liability and how it relates to hospital liability, defined the following duties that a hospital owes directly to its patients: (1) a duty to use reasonable care in the maintenance of safe and adequate facilities and equipment; (2) a duty to select and attain only competent physicians; (3) a duty to oversee all persons who practice medicine within its walls as to patient care: and (4) a duty to formulate, adopt, and enforce adequate rules and policies to ensure quality care for patients. Thompson, 591 A.2d at 707. 8. The theory of corporate negligence as adopted in Thompson v. Nason Hospital, 527 Pa. 330, 591 A.2d 703 (1991) applies only to hospitals. See e.g., Remshifski v. Kraus, No. 1845 Civ. 1992, slip op. (CCP, Monroe, Sept. 8, 1995). 9. As Plaintiff recognizes throughout her Complaint2, Defendants operate a skilled nursing facility, not a hospital. 10. Outside the context of Thompson and Shannon v. McNulty, 718 A.2d 828 (Pa. Super. 1998) (holding that an HMO who provides health care services can be liable under theories of corporate negligence), there have been no appellate court opinions that have expanded corporate negligence to other health care organizations. 2 For example, in Paragraph 5 of her Complaint, Plaintiff notes that Defendant Shippensburg Healthcare Center is "... engaged in the business of providing services as a skilled nursing facility duly licensed under the laws of the Commonwealth of Pennsylvania..." (Plaintiff's Complaint, Paragraph 5). Other references to Shippensburg Health Care Center as a "skilled nursing facility' are found, inter alia, in Paragraphs 6, 7, 10, 11 and 17. 3 r is 11. In fact, several trial court opinions in Pennsylvania have limited corporate negligence to hospitals and HMOs. See Brewer v. Geisinger Clinic, Inc., 45 Pa. D&C 4th 215 (2000); Dibble v. Penn State Geisinger Clinic, Inc. 42 Pa. D&C 4th 225 (1999); Dowhouer v. Judson, 45 Pa. D&C 4th 172 (2000); Remshifski v. Kraus, No. 1845 Civ. 1992, slip opinion (C.P. Monroe Co. Sept. 8, 1995). 12. Moreover, in the Federal Case of Milan v. American Vision Center, 34 F. Supp. 2d 279 (E.D. Pa. 1998), the Court applying Pennsylvania law refused to extend the doctrine of corporate liability to an optometrist's offices. 13. The Milan Court specifically relied on the Thompson Court's interpretation and held "Thompson sets a standard of care for hospitals, not necessarily for all health care organizations... The use of the language through Thompson similarly suggests that the Supreme Court believed itself to be crafting a rule of hospital liability, not health care organization liability generally...." Milan, 34 F.Supp. 2d 279. 14. As articulated in Shannon v. McNulty, the seminal issue is whether the defendant is responsible for the total healthcare of the patient. Id. 15. To date, the Pennsylvania appellate courts have yet to extend corporate liability to nursing homes. 16. Thus, Defendants assert that corporate liability should not extend to skilled nursing facilities, and specifically to Shippensburg Health Care Center, for the following reasons: (i.) The Pennsylvania Supreme Court in Thompson never indicated an intention to extend corporate liability any further than the hospital setting; (ii.) In the nursing home setting, the determination of whether long term care services are required is typically rendered by the resident's attending physician and the medical benefits provider (e.g. Medicare covered therapist); 4 l y (iii.) Ultimately, the care provider is ordered and/or overseen by the attending physician; (iv.) But for unique circumstances such as county run facilities, the attending physicians are independent contractors; (v.) Long term care residents have the right to choose their attending physician; (vi.) Long term care residents are free to seek placement at other facilities and, accordingly, they are neither constrained, nor compromised to remain at any specific facility; and (vii.) Nursing homes are already subject to comprehensive regulation, and accountable through regulating enforcement. 17. For all of these reasons, Count III of Plaintiff's Complaint should be dismissed for failure to state a claim for which relief may be granted. WHEREFORE, Defendants Shippensburg Health Care Center, Larry Cottle, Perini Services/South Hampton Manor Limited Partnership, and Perini Services, Inc. respectfully request that this Honorable Court grant their Preliminary Objection and dismiss Count III of Plaintiff's Complaint with prejudice. PRELIMINARY OBJECTION FOR FAILURE TO STATE A CLAIM FOR WHICH RELIEF MAY BE GRANTED TO COUNT III - CORPORATE LIABILITY 18. Paragraphs 1 through 18 are hereby incorporated by reference as though more fully set forth herein. 19. As was set forth more fully hereinabove, because the corporate negligence doctrine does not extend to skilled nursing facilities, Count III of Plaintiff's Complaint should be dismissed. However, even if this Honorable Court were to permit Count III to survive the above challenge, Count III must nevertheless be stricken with prejudice as Plaintiff fails to state a claim for which relief may be granted. 5 20. In order to successfully plead a claim for corporate negligence, in addition to the four (4) non-delegable duties discussed hereinabove, the Thompson court provided that in order to prove corporate negligence, Plaintiff must show that the hospital "had actual or constructive knowledge" of the defect or procedures which created the harm and that the hospital's negligence was "a substantial factor in bringing about the harm". Thompson v. Nason Hospital, 527 Pa. 330, 591 A.2d 703 (1991). 21. Count III of Plaintiff's Complaint completely fails to allege that Corporate Defendants had any knowledge, whether actual or constructive, of the defect or procedure which allegedly created harm to Plaintiff's decedent. Similarly, Plaintiff fails to allege that the negligence of Corporate Defendants was a substantial factor in bringing about harm to Plaintiff's decedent. 22. Absent such allegations, Plaintiff cannot adequately make a claim for corporate negligence. As such, Count III of Plaintiff's Complaint should be dismissed for failure to state a claim for which relief may be granted. WHEREFORE, Defendants Shippensburg Health Care Center, Larry Cottle, Perini Services/South Hampton Manor Limited Partnership, and Perini Services, Inc. respectfully request that this Honorable Court grant their Preliminary Objection and dismiss Count III of Plaintiff's Complaint with prejudice. PRELIMINARY OBJECTION IN THE NATURE OF A MOTION TO STRIKE FOR FAILURE TO COMPLY WITH LAW OR RULE OF COURT 23. Paragraphs 1 through 22 are hereby incorporated by reference as though more fully set forth herein. 24. Pa.R.C.P. 1028(a)(2) permits the filing of preliminary objections in the nature of a Motion to Strike for failing to conform to law or rule of court. 25. Further, Pa.R.C.P. 1019(a) requires that all material facts upon which a cause of action is based be stated in "a concise and summary form". 6 26. Pennsylvania is a fact pleading state. Miketic v. Baron, 675 A.2d 324 (Pa. Super. 1996). Under the Pennsylvania system of fact pleading, the pleader must define the issues; every act or performance essential to that end must be set forth in the Complaint. Santiago v. Pennsylvania Nat. Mut. Cas. Ins. Co., 613 A.2d 1235 (Pa. Super. 1992). 27. With regard to Pa.R.C.P. 1019(a), the Superior Court stated: The purpose of [1019(a)] is to require the pleader to disclose material facts sufficient to enable the adverse party to prepare his case. A complaint therefore must do more than give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests... It should formulate the issues by fully summarizing the material facts. Material facts' are 'ultimate facts', i.e. those facts essential to support the claim... Evidence from which such facts may be inferred not only need not but should not be alleged. . . Allegations will withstand challenge under 1019(a) if (1) they contain averments of all the facts the plaintiff will eventually have to prove in order to recover.... and (2) they are sufficiently specific so as to enable defendant to prepare his defense. Baker v. Rangos, 324 A.2d 498, 505-506 (Pa. Super. 1974). 28. Pennsylvania law requires a plaintiff to plead sufficient facts in order to give a defendant notice of what the plaintiff's claim is, and to adequately inform the defendant of the relevant issues. 29. In the instant matter, Plaintiff's Complaint is replete with averments which fail to comport with the specificity requirements set forth hereinabove. Plaintiff alleges as follows: 12. At all times material hereto, the Corporate Defendants acted by and through their agents, servants and/or employees, acting upon their business and within the course and scope of their employment, including but not limited to Defendant Administrator as well as other registered nurses, licensed practical nurses, nursing assistants, nurses aides, staff personal and consultants whose identities are reflected in the personal care home records of Plaintiff's Decedent... 7 17. ... The Defendants had a duty to Plaintiffs Decedent to exercise ordinary care while he was a resident in Corporate Defendants' skilled nursing facility, which duty included, but is not limited to: provision of a safe, humane, comfortable and supportive residential setting, provision of assistance beyond the basic necessities of food and shelter including assistance and/or supervision in matters such as dressing, bathing, diet, financial management, evacuation of the residence in the event of an emergency and the administration of medication; provision of encouragement and assistance needed to develop and maintain maximum independence and self- determination; provision of services directed to the avoidance of unnecessary institutionalization; and utilization of local agencies to assess the needs of all residents, including Plaintiff's Decedent so that necessary services and appropriate levels of care were identified and promptly secured. 20. ... Plaintiff's Decedent was 62 years old and suffered from, among other things but not limited to, Diabetes, Parkinson's disease and confusion, thereby rendering him unable to live independently and requiring assistance and supervision in matters such as, but not limited to, activities of daily living, ambulation, dressing, bathing, diet, and administration of medication. 30. The negligence of the Defendants herein consisted of the following specific acts and/or failures to act, and Defendants were negligent in the following respects: (a) failing to comply with applicable skilled nursing facility requirements and standards including, but not limited to, standards found within applicable federal and state statutes and regulations, pertaining to the health and welfare of all residents/patients and specifically Plaintiffs Decedent, in the Defendants' care, custody and functional control, a (b) failing to hire qualified staff, including but not limited to administrators, registered nurses, licensed practical nurses, nursing assistants, nurses aides, staff personnel and consultants who would reasonably ensure the well-being of the patients, specifically Plaintiff's Decedent, (d)failing to provide appropriate monitoring, care, assistance and oversight to Plaintiff's Decedent in regards to his fall risk, including but not limited to, appropriate fall prevention measures and care planning; (j) failing to have adequately trained and qualified staff including but not limited to administrators, registered nurses, licensed practical nurses, nursing assistants, nurses aides, staff personnel and consultants available at all times relevant hereto, to take reasonable measures to reasonably ensure the adequate supervision of residents or patients such as Plaintiff's Decedent, while knowing that such failure could lead to injury or death. (Emphasis added). 30. A complaint must not only give defendants notice of the nature of the plaintiff's claims and the grounds upon which they rest, but must identify the issues essential to his or her claims by stating those essential facts which support his or her allegations. Pa.R.C.P. 1019(a). 31. Such boilerplate averments prejudice Defendants in their attempt to prepare a defense inasmuch as Plaintiff's allegations are open-ended as to the identities of the various actors and may be subject to amplification and/or modification after the close of discovery, thereby precluding Defendants from preparing a knowing and intelligent defense to Plaintiff's claims. 32. Similarly, the vague identification of Plaintiff's decedent's pre-existing conditions, as well as the nature and extent of his personal care requirements, leaves Plaintiff's claims open-ended and subject to modification after the close of discovery. It is essentially impossible 9 for Defendants to promulgate a thorough and adequate defense without knowing the definitive nature and extent of Plaintiff's claims. 33. The same logic applies to Plaintiff's vague identification of the duties owed by Defendants to Plaintiff's decedent, as well as to Plaintiff's inadequate listing of the manners in which Defendants allegedly breached various duties. Absent more specific identification, any defense undertaken would unquestionably be inadequate, and Defendants would be forced to anticipate potential claims not specifically identified in Plaintiff's Complaint, but which would fall under the blanket language of "including but not limited to," as set forth in the paragraphs cited hereinabove. 34. Paragraphs 11 and 14 of Plaintiff's Complaint do not contain the factual specificity required by Pennsylvania law, nor are they supported by factual allegations elsewhere within the Complaint. See: Conner v. Allegheny Hospital, 501 Pa. 306, 461 A.2d 600 (1983); Accord. Laursen v. General Hospital of Monroe County, 259 Pa. Super. 150, 393 A.2d 761 (1981)(reversed on other grounds, 491 Pa. 244, 431 A.2d 35. As such Plaintiff's Complaint should be dismissed for failure to comply with law or rule of Court. WHEREFORE, Defendants Shippensburg Health Care Center, Larry Cottle, Perini Services/South Hampton Manor Limited Partnership, and Perini Services, Inc. respectfully request that this Honorable Court grant their Preliminary Objection and dismiss Plaintiff's Complaint with prejudice. PRELIMINARY OBJECTION IN THE NATURE OF A MOTION TO STRIKE FOR FAILURE TO COMPLY WITH LAW OR RULE OF COURT 36. Paragraphs 1 through 35 are hereby incorporated by reference as though more fully set forth herein. 10 37. In Count V of her Complaint, Plaintiff makes a claim for breach of contract. Essentially, Plaintiff alleges that Defendants and Plaintiff's Decedent were parties to a written contract which charged Defendants with certain duties owed to Plaintiff's Decedent. Plaintiff further alleges that Defendants breached said contract, which resulted in harm to Plaintiff's Decedent. (Plaintiff's Complaint, Paragraphs 45 - 51). 38. In order to successfully plead a claim for breach of contract, a plaintiff must plead each of the following elements: (1) the existence of a contract, including its essential terms; (2) a breach of a duty imposed by the contract; and (3) resultant damage. Presbyterian Medical Center v. Budd, 2003 PA Super 323, 832 A.2d 1066 (2003) (citing Corestates Bank, N.A. v. Cutillo, 1999 PA Super. 14, 723 A.2d 1053 (1999). 39. While each and every term of the contract need not be reproduced in the Complaint, it is necessary to set forth the essential elements of the contract in sufficient detail. Corestates Bank. N.A. v. Cutillo, 1999 PA Super. 14, 723 A.2d 1053 (1999). 40. Moreover, a claim must state with specificity whether the contract was written or oral. Where a claim is based upon a writing but said writing is not available for attachment to the Complaint, "it is sufficient to so state, together with the reason, and to set forth the substance [of the contract] in writing." Pa.R.C.P. 1019(i). 41. Instantly, Plaintiff alleges that Plaintiff's Decedent and Defendants were parties to a written Admissions Agreement wherein "Defendants agreed to provide Plaintiff's Decedent with, among other guarantees, personal care services, medical evaluation and screening, discharge to an appropriate facility if warranted by Plaintiff's Decedent's declining medical condition, and a `Resident Bill of Rights' that included, among other rights, the right to be treated with dignity and respect and the right to be free from abuse." (Plaintiff's Complaint, Paragraph 46). 42. Plaintiff then alleges that because a copy of the Admission Agreement is in the sole possession of Defendants, she cannot attach a copy to her Complaint absent formal discovery. In the alternative, Plaintiff alleges that the parties were bound by an oral agreement, 11 which had the same terms and obligations as those set forth in Paragraph 46 of Plaintiff's Complaint. 43. Notwithstanding Plaintiff's attempts to successfully plead a claim for breach of contract, Plaintiff has failed to set forth the terms of the contract with the specificity required to permit her claim to survive preliminary objections. 44. Plaintiff's overly broad, catch-all language, specifically the use of "among other guarantees," does not sufficiently state the alleged duties of Defendants as established by the Admission Agreement. Moreover, those terms which Plaintiff does identify in Paragraph 43 of her Complaint are nonetheless inadequately identified and described, and as such Plaintiff's attempt to describe the essential terms of the contract falls woefully short of the degree of specificity required by Pennsylvania precedent. Where a description of a contract "raises more questions than it answers," just as Plaintiff's instant description of the terms of the Admissions Agreement raises numerous questions about its contents, the description has not achieved the requisite degree of specificity. Snaith v. Snaith, 282 Pa. Super. 450, 422 A.2d 1379 (1980). 45. Similarly, Plaintiff's identical recitation of Defendants' duties and Plaintiff's decedent's rights under the alleged oral Admission Agreement falls well short of the requirement that the terms of a contract be described with specificity. Pa.R.C.P. 1019(i). 46. Additionally, Plaintiff makes the blanket allegation that Defendants breached the Admission Agreement by "failing to provide the care and supervision required by the Admissions Agreement, community standards and federal and state statutes and regulations..." (Plaintiff's Complaint, Paragraph 51). 47. Absent a more specific identification of the requirements of the Admissions Agreement, Defendants are unable to ascertain which requirements Defendants allegedly failed to meet. Similarly, Plaintiff's insufficient reference to "community standards and federal and state statutes and regulations" leaves Defendants only to speculate as to the true nature of Plaintiff's allegations. 12 - -11 48. Unquestionably, Plaintiff's Complaint fails to meet the degree of specificity required by the Pennsylvania Rules of Civil Procedure and Pennsylvania precedent. As such, Plaintiff's claim for breach of contract should be dismissed. WHEREFORE, Defendants Shippensburg Health Care Center, Larry Cottle, Perini Services/South Hampton Manor Limited Partnership, and Perini Services, Inc. respectfully request that this Honorable Court grant their Preliminary Objection and dismiss Count V of Plaintiff's Complaint with prejudice. PRELIMINARY OBJECTION IN THE NATURE OF A MOTION TO STRIKE COUNT VI - PUNITIVE DAMAGES 49. Paragraphs 1 through 48 are hereby incorporated by reference as though more fully set forth herein. 50. In Count VI of her Complaint, Plaintiff makes a claim for punitive damages. Specifically, Plaintiff alleges that "Defendants acted with reckless indifference to the interests of the Plaintiff's Decedent by malicious, wanton, willful and/or oppressive conduct, which conduct proximately caused his injuries and unnecessary physical and emotional pain and suffering." (Plaintiff's Complaint, Paragraph 53). 51. Pennsylvania Rules of Civil Procedure 1019(a) requires a party to formulate a concise summary of facts that serve as the basis for the cause of action. 52. Absent factual allegations supporting a claim of outrageous conduct, or conduct with evil motive or reckless indifference to the rights of others, plaintiffs cannot, as a matter law, sustain a claim for punitive damages against objecting defendants. Chambers v. Montgomery, 411 Pa. 339, 192 A.2d 355 (1963); Feld v. Merriam, 506 Pa. 383, 485 A.2d 742 (1984). 53. In order to determine whether or not Defendants exhibited "willful or wanton conduct" to Plaintiff's decedent, this Honorable Court must analyze whether Defendants actually knew or had reason to know of facts which created a high risk of physical harm to the specific 13 L ? 7 plaintiff. See Field v. Philadelphia Electric Company, 388 Pa. Super. 400, 565 A.2d 1170, 1183 (1989). 54. Punitive damages cannot stand alone; they must stem from the actionable conduct of the Defendants. Thus, if no actual damages flow from the conduct giving rise to the punitive damage, an award is not appropriate. 55. Notwithstanding the numerous, albeit woefully vague, allegations of failures by Defendants, Plaintiff has failed to enumerate any specific conduct directed to Plaintiff's decedent that would constitute willful or wanton conduct on behalf of Defendants. At most, Plaintiff's averments as set forth in her theories of negligence, (i.e. failing to render proper nursing care), may only be interpreted as gross negligence, which is insufficient to support a claim for punitive damages. 56. Pennsylvania law does not allow for an award of punitive damages for mere inadvertence, mistake, error of judgment and the like which constitutes ordinary and/or gross negligence. Field v. Philadelphia Electric Company, supra. WHEREFORE, Defendants Shippensburg Health Care Center, Larry Cottle, Perini Services/South Hampton Manor Limited Partnership, and Perini Services, Inc. respectfully request that this Honorable Court grant their Preliminary Objection and dismiss Count VI of Plaintiff's Complaint with prejudice. PRELIMINARY OBJECTION IN THE NATURE OF A MOTION TO STRIKE FAILURE TO EFFECTUATE PROPER SERVICE OF PROCESS 57. Paragraphs 1 through 56 are hereby incorporated by reference as though more fully set forth herein. 58. Plaintiff commenced the instant action by filing a Praecipe for Writ of Summons on or about August 16, 2006. However, Plaintiff never had the Writ of Summons properly served upon Defendant Larry Cottle. 14 59. Pursuant to Pa.R.C.P. 400, absent specific exceptions which are inapplicable in this action, original process must be served by the sheriff. 60. To date, Defendant Cottle has not been served with a copy of the Writ in accordance with the mandates of the Rules of Civil Procedure. 61. At no time between August 16, 2006 and the filing of the instant objections did Plaintiffs attempt to have the Writ properly served upon Defendant Cottle. 62. In excess of thirty (30) days lapsed between Plaintiff formally commencing this action by the filing of the Writ of Summons. 63. Due to the passage of time in excess of thirty (30) days since the filing of Plaintiff's Writ with no action being taken by Plaintiff to properly serve such Writ in compliance with Pa.R.C.P. 400, Plaintiff's filing is deemed to have expired. See Witherspoon v. City of Philadelphia, 564 Pa. 388, 768 A.2d 1079 (2001). 64. In light of Plaintiff's failure to properly serve original process in conformity with Pa. R.C.P. 400 which resulted in the subsequent expiration of Plaintiff's filing, this matter should be dismissed for Plaintiff's failure to effectuate proper service upon Defendant Cottle. 65. A preliminary objection raising the improper service of a writ or complaint is proper under Pa.R.C.P. 1028(a). 15 a c , Respectfully submitted, McKissock & Hoffman, P.C. By: B. Crai lack, squire' I.D. 6818 Laur M. Burnette, Esquire I.D. No.: 92412 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 (717) 540-3400 WHEREFORE, Defendants Shippensburg Health Care Center, Larry Cottle, Perini Services/South Hampton Manor Limited Partnership, and Perini Services, Inc. respectfully request that this Honorable Court grant their Preliminary Objection and dismiss Plaintiff's Complaint with prejudice. Dated:-&/ A" ,? Z'0vG Attorneys for Defendants, Shippensburg Health Care Center, Larry Cottle, Perini Services/South Hampton Manor Limited Partnership and Perini Services, Inc. 16 w ! , do CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing Preliminary Objections to Plaintiff's Complaint upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, first-class postage prepaid, addressed as follows: Debra A. Jensen, Esquire Galfand Berger, LLP 1818 Market Street; Suite 2300 Philadelphia, PA 19103 (Counsel for PlainfiM McKissock & Hoffman, P.C. Dated: By: b. ur iacK, tsqume---... I.D. .. 36818 Lauren M. Burnette, Esquire I.D. No.: 92412 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 (717) 540-3400 Attorneys for Defendants, Shippensburg Health Care Center, Larry Cottle, Perini Services/South Hampton Manor Limited Partnership and Perini Services, Inc. 17 GALFAND BERGER, LLP. BY: Debra A. Jensen, Esquire Attorney Identification No. 33598 1818 Market Street, Suite 2300 Philadelphia, Pennsylvania 19103 (215) 665-1600 LINDA BERNHEIMER, Administratrix of the ESTATE OF MARTIN BERNHEIMER, DECEASED Plaintiff VS. SHIPPENSBURG HEALTH CARE CENTER, et al Defendants. Attorney for Plaintiff COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 06-4715 JURY TRIAL DEMANDED MOTION FOR ADMISSION PRO IIAC VICE I, Debra A. Jensen, Esquire, am a member in good standing of the bar of this Court. My bar number is 33598. I am moving the admission of Sidney Schupak, Esquire, to appear pro hac vice in this case as counsel for Plaintiff, Linda Bernheimer, Administratrix of the Estate of Martin Bernheimer, Deceased. I certify that: 1. The proposed admittee is a member in good standing of the bars of the following State Courts and/or United States Courts: District of Columbia (Certificate of Good Standing Attached as Exhibit "A") Maryland; 2. During the twelve months immediately proceeding this motion, the proposed admittee has been admitted pro hac vice in this Court zero (0) times. 3. The proposed admittee has never been disbarred, suspended, or denied admission to practice law in any jurisdiction. 4. The proposed admittee is familiar with the Code of Professional Responsibility, the Federal Rules of Civil and Criminal Procedure, the Federal Rules of Evidence, the Federal Rules of Appellate Procedure and the Local Rules of this Court, and understands that he shall be subject to the disciplinary jurisdiction of this Court. 5. The proposed admittee understands admission pro hac vice is for this case only and does not constitute formal admission to the bar of this Court. Respectfully submitted, GALFAND BERGER, L.L.P. BY: DEBRA A. JENSE , ESQUIRE CERTIFICATION OF SERVICE I do hereby certify that service of a true and correct copy of the Motion for Admission of Sidney Schupak, Esquire Pro Hac Vice was made on the 5th day of December, 2006 to the following via First Class Mail, postage prepaid. B. Craig Black, Esquire 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 BY: DEBRA A. JENSE ESQUIRE Attorney for Plaintiff DATE: December 5, 2006 ibif A Putrid of (01unthin (9mat of Meals 010MMi#tee on '?kamissirmq 500 ?nbiantt kbrme, . - 2iaum 4200 ushington, 20001 202 1879-2710 i, Nij 117NKS TON, --IR , Clef K .?? l.ii, ?i ?t.:..'._C `??- !1-'-m"tia Court of Appeals, do hereby certify that SIDNEY SCHUPAK was on the 1ST day of FEBRUARY, 1993 duly qualified and admitted as an attorney and counselor and entitled to practice before this Court and is, on the date indicated below, an active member in good standing of this Bar. In Testimony Whereof, I have hereunto subscribed my name and affixed the seal of this Court at the City of Washington, D.C., on October 24, 2006. GARLAND PINKSTON, JR., CLERK By: De uty Clerk C7 ? U -,` Fn - r t? a GALFAND BERGER, LLP. Attorney for Plaintiff BY: Debra A. Jensen, Esquire Attorney Identification No. 33598 1818 Market Street, Suite 2300 Philadelphia, Pennsylvania 19103 (215) 665-1600 LINDA BERNHEIMER, Administratrix of the ESTATE OF MARTIN BERNHEIMER, DECEASED Plaintiff vs. SHIPPENSBURG HEALTH CARE CENTER, et al Defendants. COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 06-4715 JURY TRIAL DEMANDED MOTION FOR ADMISSION PRO K4C VICE I, Debra A. Jensen, Esquire, am a member in good standing of the bar of this Court. My bar number is 33598. I am moving the admission of Brian Kinsley, Esquire, to appear pro hac vice in this case as counsel for Plaintiff, Linda Bernheimer, Administratrix of the Estate of Martin Bernheimer, Deceased. I certify that: 1. The proposed admittee is a member in good standing of the bars of the following State Courts and/or United States Courts: District of Columbia (Certificate of Good Standing attached as. Exhibit "A") Massachusetts 2. During the twelve months immediately proceeding this motion, the proposed admittee has been admitted pro hac vice in this Court 0 times. 3. The proposed admittee has never been disbarred, suspended, or denied admission to practice law in any jurisdiction. 4. The proposed admittee is familiar with the Code of Professional Responsibility, the Federal Rules of Civil and Criminal Procedure, the Federal Rules of Evidence, the Federal Rules of Appellate Procedure and the Local Rules of this Court, and understands that he shall be subject to the disciplinary jurisdiction of this Court. 5. The proposed admittee understands admission pro hac vice is for this case only and does not constitute formal admission to the bar of this Court. Respectfully submitted, GALFAND BERGER, L.L.P. BY: DEBRA A. JE. EN, ESQUIRE R? CERTIFICATION OF SERVICE I do hereby certify that service of a true and correct copy of the Motion for Admission of Brian Kinsley, Esquire Pro Hac Vice was made on the 5th day of December, 2006 to the following via First Class Mail, postage prepaid. B. Craig Black, Esquire 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 BY. ?4_ 0 DEBRA A. JENS , ESQUIRE Attorney for Plaintiff DATE: December 5, 2006 0 40 w ?w , Pistrid of (9olurabtn (court of ?yeals ( 0mmittee an ?l issimm 500 ? rtbiarm &lirenue, . - ?Inum 4200 Ptts4iugtan, P. & 20001 2021870-2710 I, GARLAND PINKSTON, JR., Clerk of the District of Columbia Court of Appeals, do hereby certiy that BRIAN KINSLEY was on the 6TH day of MAY, 2005 duly qualified and admitted as an attorney and counselor and entitled to practice before this Court and is, on the date indicated below, an active member in good standing of this Bar. in Testimony Whereof, I have hereunto subscribed my name and affixed the seal of this Court at the City of laclshing'4on, D.C., on i. c-'Cober 24, 2006. GARLAND PINKSTON, JR., C .JERK By: _ D put Clerk _ , .. 41"1 r? DEC 0 7 2006 ylF LINDA BERNHEIMER, Administratrix COURT OF COMMON PLEAS of the ESTATE OF MARTIN CUMBERLAND COUNTY BERNHEIMER, DECEASED NO. 06-4715 Plaintiff VS. JURY TRIAL DEMANDED SHIPPENSBURG HEALTH CARE CENTER, et al Defendants. ORDER AND NOW, this day of 2006, upon consideration of the Motion of Debra A. Jensen, Esquire to Admit Brian L. Kinsley, Esquire Pro Hac Vice, it is hereby ORDERED and DECREED that said Motion is GRANTED and Brian L. Kinsley, Esquire is hereby admitted as counsel for Plaintiff in this matter only. I CINO, i:",4 I'xd 8- 3'-,10 Sooz DEC 0 7 2006 rLINDA BERNHEIMER, Administratrix of the ESTATE OF MARTIN BERNHEIMER, DECEASED COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 06-4715 Plaintiff vs. JURY TRIAL DEMANDED SHIPPENSBURG HEALTH CARE CENTER, et al Defendants. ORDER AND NOW, this y, day of 2006, upon consideration of the Motion of Debra A. Jensen, Esquire to Admit Sidney Schupak, Esquire Pro Hac Vice, it is hereby ORDERED and DECREED that said Motion is GRANTED and Sidney Schupak, Esquire is hereby admitted as counsel for Plaintiff in this matter only. L? I' cJ c,- CC) W 3 C Q cl?j u V ' GALFAND BERGER, LLP BY: DEBRA A. JENSEN, ESQUIRE Identification No.: 33598 1818 Market Street, Suite 2300 Philadelphia, PA 19103 (215) 665-1600 LINDA BERNHEIMER, Administratrix for the Estate of Martin Bernheimer, Deceased Plaintiff, V. SHIPPENSBURG HEALTHCARE CENTER, et al. COURT OF COMMON PLEAS CUMBERLAND COUNTY No. 06-4715 CIVIL ACTION - LAW Defendants. JURY TRIAL DEMANDED PLAINITIFF'S ANSWER TO THE PRELIMINARY OBJECTIONS OF DEFENDANTS, SHIPPENSBURG HEALTH CARE CENTER, LARRY COTTLE, PERINI SERVICES/SOUTH HAMPTON MANOR LIMITED PARTNERSHIP AND PERINI SERVICES. INC. Plaintiff, Linda Bernheimer, Administratrix of the Estate of Martin Bernheimer, Deceased, by and through her attorneys, Galfand Berger, L.L.P., hereby responds to the Preliminary Objections of Defendants Shippensburg Healthcare Center, Larry Cottle, Perini Services/South Hampton Manor Limited Partnership and Perini Services, Inc. (hereinafter referred to as "Defendants") as follows: 1. Admitted. 2. Denied as stated. Plaintiff's Complaint is a complete document that speaks for itself. By way of further answer, see Plaintiff's Complaint attached and incorporated herein by reference as Exhibit "A". 3. Denied as stated. Plaintiffs Complaint is a complete document that speaks for itself. By way of further answer, see Plaintiffs Complaint attached and incorporated herein by reference as Exhibit "A". 4. Denied. Based on the foregoing it is requested that the Court deny the Defendants Preliminary Objections. 1. RESPONSE TO PRELIMINARY OBJECTION IF THE NATURE OF A DEMURRER TO COUNT III - CORPORATE LIABILITY 5. Plaintiff incorporates herein by reference his answers to Paragraphs 1 through 4 as if fully set forth at length. 6. Denied as stated. Plaintiff's Complaint is a complete document that speaks for itself. By way of further answer, see Plaintiff's Complaint attached and incorporated herein by reference as Exhibit "A". 7. Denied as stated. The holding of Thompson v. National Hospital 527 Pa. 330, 591 A.2d 703 (1991) speaks for itself. 8. Denied. Thom son v. National Hospital examined the applicability of corporate negligence as to hospitals. The Thompson Court in its analysis neither considered the theory of corporate negligence as to other healthcare corporations nor limited its applicability only to hospitals. 9. Denied as stated. Plaintiff's First Amended Complaint is writing and speaks for itself. 10. Denied. The averments contained in this paragraph are conclusions of law to which Pennsylvania Rules of Civil Procedure require no responsive pleading. 11. Denied. The averments contained in this paragraph are conclusions of law to which Pennsylvania Rules of Civil Procedure require no responsive pleading. By way of further answers, the Courts in Brewer v. Geising_er Clinic, Inc. 45, Pa. D&C 4th 215 (2000); Dibble v Penn State Geisinaer Clinic, Inc., 42 Pa. D&C 4th 225 (1999); Dowhouer v. Judson, 45 Pa. D&C 4th 172 (2000) after applying the analysis of Thompson 2 declined to extend the theory of corporate negligence to healthcare entities such as medical clinics but did not limit this theory of negligence only to hospitals and HMOs. 12. Denied as stated. The court Milan v. American Vision Center, 34 F. Supp. 2d 279 declined to expand the theory of corporate negligence to optometrist offices due to the limited role of such entities in the plaintiff's healthcare. 13. Denied as stated. The holding Milan v. American Vision Center, 34 F. Supp. 2d 279 of speaks for itself. 14. Denied as stated. Shannon v. McNulty determined the central conclusion in determining the applicability of corporate liability to HMO's was that such organizations "play central role[s] in the total healthcare of their patients." Shannon, 781 A.2d 828, 835. 15. Admitted in Part, Denied in Part. It is admitted that, to date, the Pennsylvania appellate courts have yet to specifically extend corporate liability to nursing homes. By way of further answer, courts in both the Third Circuit and in this Commonwealth have extended this doctrine to nursing homes. The court in Estate of Florence Silverman Aptekmanet al. v. City of Philadelphia, et at., 2001 U.S. Dist. LEXIS 19120 (November 21, 2001) held that "Given Shannon's interpretation of Thompson, and this Court's own review of Thompson, this Court concludes that under the right circumstances, the Pennsylvania Supreme Court may extend Thompson to other health organizations, including nursing homes." While it is true that the Estate of Silverman court is a federal court case, its decision certainly offers worthwhile guidance to the Pennsylvania state courts. Indeed, as the Estate of Silverman court noted: As defendant correctly notes, neither the Pennsylvania Supreme Court nor the Superior Court have extended the corporate liability doctrine to 3 nursing homes. "When presented with a novel issue of [state] law, or where applicable state precedent is ambiguous, absent or incomplete, [a federal court] must determine or predict how the highest state court would rule." Rolick v Collins Pine Co. 925 F.2d 661, 664 (3d Cir. 1991). And, as the court predicted, its rationale is gaining support in Pennsylvania state courts. As such, these decisions certainly offer guidance on this novel issue. For instance, in Wheeler v. Beverly, 121 Dauph. 285 (2002) the Court applied the doctrine of corporate negligence to a nursing home, holding that: As the parties to this action have pointed out, the Superior Court has extended the application of corporate negligence doctrine to include both hospitals, and HMOs. Shannon v. McNulty, 718 A.2d 828 (Pa. Super. 1998). In Shannon, the court found that the defendant provided medical advise [sic] through its phone hotline and interjected itself into the medical decisions involving the plaintiff's care. Id. at 836. Following the reasoning in Thompson, the court stated that the root of corporate liability lies in whether or not the healthcare provider renders "total health care of its patients." Id. at 835. The court held that under the facts in this case, since the defendant did render such care, the doctrine of corporate negligence applied. Id. at 836. 16. Denied. The averments contained in this paragraph are conclusions of law to which the Pennsylvania Rules of Civil Procedure require no responsive pleading. By way of further answer, in ¶ 39(a) of her Complaint, Plaintiff alleges that Defendant failed to "select and retain only competent staff' and in ¶ 39(c) Plaintiff alleges that Defendant failed to "oversee and monitor its administrators, registered nurses, licensed practical nurses, nursing assistants, nurses aides, staff personnel and consultants, some of whom may have been or were Defendants named herein, and all of whom were involved in the care of Plaintiff's Decedent." As Defendants note in ¶ 7, Thompson, categorizes healthcare facilities' duties into four (4) general areas. Plaintiff's allegations fall squarely within Thompson's general requirements in that they pertain to selecting and retaining 4 staff and overseeing individuals and employees who care for the needs of patients at Defendants' facility. 17. Denied. Corporate liability as to nursing homes is a claim for which relief may be granted and as such Defendant's Motion to Dismiss Count III of Plaintiff's Complaint should not be granted. II. RESPONSE TO STRIKE CORPORATE NEGLIGENCE ALLEGATIONS FOR FAILURE TO STATE A CLAIM FOR WHICH RELEIF MAY BE GRANTED. 18. Plaintiff incorporates herein by reference his answers to Paragraphs I through 17 as if fully set forth at length. 19. Denied. Corporate negligence as to nursing homes is a claim for which relief may be granted and Plaintiff has properly pled her claim for corporate negligence in compliance with the Pennsylvania Rules of Civil Procedure. 20. Denied as stated. The holding of Thompson v. National HoMita1527 Pa. 330, 591 A.2d 703 (1991) speaks for itself. 21. Denied. The averments contained in this paragraph are conclusions of law to which the Pennsylvania Rules of Civil Procedure require no responsive pleading. By way of further answer, the complaint must be read as a whole, considering each averment and in light of every other averment. Yacoub v. Lehigh Medical Associates, 805 A.2d 579 (Pa. Super 2002). When read as whole, as required by Pennsylvania law, Plaintiff's complaint is in fact, very specific and direct in her allegations of corporate negligence as to the Defendants and clearly sets forth the Defendant's knowledge of the defects or procedures that caused the Plaintiff's Decedent's harm, the Defendant's participation in 5 creating such mechanism of harm and that as a direct result of the Defendants actions/omissions Plaintiff's Decedent suffered harm. 22. Denied. Plaintiff has adequately made her claim for corporate negligence in compliance with the Pennsylvania Rules of Civil Procedure and as such Count III should not be dismissed. III. RESPONSE TO MOTION TO STRIKE PLAINTIFF'S COMPLAINT FOR LACK OF SPECIFICITY 23. Plaintiff incorporates herein by reference his answers to Paragraphs 1 through 22 as if fully set forth at length. 24. Denied as stated. Pennsylvania Rule of Civil Procedure 1028 speaks for itself. 25. Denied as stated. Pennsylvania Rule of Civil Procedure 1019 speaks for itself. 26. Denied as stated. Mitketic v. Baron 675 A.2d 324 (Pa. Super 1996) speaks for itself and Santiago v. Pennyslvania Nat. Mut. Cas. Ins. Co., 613 A.2d 1235 (Pa. Super. 1992) speaks for itself. 27. Denied as stated. Baker v. Rangos, 324 A.2d 498 (Pa. Super. 1974) speaks for itself. 28. Denied. The averments contained in this paragraph are conclusions of law to which the Pennsylvania Rules of Civil Procedure require no responsive pleading. By way of further answer, pursuant to Pa.R.C.P. § 1019, to satisfy the Pennsylvania fact pleading requirements, plaintiff must state "material facts on which a cause of action or defense is based ...in a concise and summary form." 6 29. Denied as stated. Plaintiff's Complaint is in all respects properly pled. By way of further answer, the Plaintiff's Complaint is a complete document which speaks for itself. See Plaintiff's Complaint attached and incorporated herein by referenced as Exhibit "A". 30. Denied as stated. Pennsylvania Rule of Civil Procedure 1019 speaks for itself. 31. Denied. Plaintiffs Complaint is in all respects properly pled. Plaintiffs' allegations are highly specific and sufficiently identify agents, servants and/or employees of the moving Defendants. By way of further answer, it is not necessary for the Plaintiff to plead evidence in the complaint that can be established through discovery. U.B.F.C.S.D. & D.W. v. Watkins, 207 A.2d 776 (Pa. Super. 1965). Under the Pennsylvania law, to plead an agency relationship, it is not necessary to plead all the various details of the alleged relationship. Ettinger v. Triangle Pacific Corporation, 799 A.2d 95, 109 (Pa. Super. 2002), quoting, Alumni Association v. Sullivan, 535 A. 2d 1095, 1100 n.2 (Pa. Super. 1987), aff d, 572 A.2d 1209 (Pa. 1990). It is sufficient to identify the agent by (1) name or appropriate description; and (2) set forth the agent's authority, and state how the tortuous acts of the agent either fall within the scope of that authority, or if unauthorized were ratified by the principal. Id., see also Yacoub, 805 A.2d at 588. Plaintiffs comply fully with the requirements of Pennsylvania law in identifying the unnamed agents of Defendants and place Defendants on notice of the claims against them. Moreover Defendants have exclusive access to medical records, staffing charts, payroll records, employee lists and other personnel information. All of these materials identify those agents of Defendants who provided care to Plaintiff's Decedent. 7 32. Denied. Plaintiffs Complaint is in all respects properly pled. Plaintiffs' complaint avers highly specific factual allegations that sufficiently identify the Plaintiff's decedent's pre-existing conditions and extent of personal care requirements. By way of further response, when read in its entirety, Plaintiff's Complaint is more than sufficiently specific to alert Defendants to the Plaintiff's claims. It is simply not credible that the Defendants do not know the theories or facts upon which the Plaintiff is proceeding. Moreover, this Complaint was only filed a few months ago. In the months to come, Defendants will be able to take ample discovery from the Plaintiff. Defendants may employ Interrogatories, Requests for Production of Documents, Depositions, Requests for Admissions, and other tools of discovery in order to flesh out the Plaintiff's allegations where necessary. Plaintiff has brought a negligence action by way of the present Complaint. Defendants have, presumably, maintained accurate and contemporaneous records of the treatment, care, medical conditions and/or personal care requirements provided to Mr. Bemheimer at its facilities. Plaintiff has no way to obtain further information from Defendants without the aid of discovery in this action. Pennsylvania Courts recognize that defendants in negligence cases are by nature in a position of superior knowledge concerning the facts and circumstances giving rise to a plaintiff's suit. Courts have responded by granting plaintiffs considerable latitude in their pleading. Indeed, at the time a lawsuit is filed, the defendant is in far more control of the relevant information, as compared to the innocent plaintiff, pertaining to the care it provided or failed to provide. In such a case as this, it is the long-term care facility that provided medical care and treatment to the Plaintiff. Therefore, it is most appropriate in the context of a negligence case to allow plaintiff more time to present detailed reasons 8 once the defendant is put on notice that there was an injury and that it is being held responsible. 33. Denied. Plaintiffs Complaint is in all respects properly pled. Plaintiff's Complaint avers highly specific factual allegations which specifically identify the ways in which the Defendants were negligent and apprises the Defendants fully of the claims against them. The complaint must be read as a whole, considering each averment, in light of every other averment. Yacoub v. Lehigh Medical Associates, 805 A.2d 579 (Pa. Super. 2002). When read as a whole, as required by Pennsylvania law, Plaintiffs' complaint is highly specific and goes beyond the requirements of the Rules. Plaintiff has no way to obtain further information from Defendants without the aid of discovery in this action. Pennsylvania Courts recognize that defendants in negligence cases are by nature in a position of superior knowledge concerning the facts and circumstances giving rise to a plaintiff's suit. Courts have responded by granting plaintiffs considerable latitude in their pleading. 34. Denied. Plaintiffs Complaint is in all respects properly pled. At the time a lawsuit is filed, the defendant is in far more control of the relevant information, as compared to the innocent plaintiff, pertaining to the Defendants corporate structure and/or policies. In such a case as this, it is the Defendants that controls the records and access to their personnel, and plaintiff is unable to obtain information from them absent a formal deposition. Therefore, it is most appropriate in the context of a negligence case to allow plaintiff more time to present detailed reasons for its allegations in ¶ 11 and 14. 9 35. Denied. The averments contained in this paragraph are conclusions of law to which Pennsylvania Rules of Civil Procedure require no responsive pleading. By way of further answer, Plaintiff's complaint is in all respects properly pled. IV. RESPONSE TO MOTION TO STRIKE COUNT V- BREACH OF CONTRACT 36. Plaintiff incorporates herein by reference his answers to Paragraphs 1 through 35 as if fully set forth at length. 37. Denied as stated. By way of further answer, the Plaintiff's Complaint is a complete document which speaks for itself. See Plaintiff's Complaint attached and incorporated herein by referenced as Exhibit "A". 38. Denied as stated. The holding of Presbyterian Medical Center v. Budd 2003 PA Super 323, 832 A.2d 1066 (2003) speaks for itself. 39. Denied as stated. The holding of Corestates Bank, N.A. v. Cutillo 1999 PA Super 14, 723 A.2d 1053 (1999) speaks for itself. 40. Denied as stated. Pennsylvania Rule of Civil Procedure 1019(1) speaks for itself. By way of further answer, Plaintiff has alleged that a written contract between the parties was entered into and has properly pled the substance of the agreement as a copy of the contract is not available for attachment. 41. Denied as stated. By way of further answer, the Plaintiff's Complaint is a complete document which speaks for itself. See Plaintiff's Complaint attached and incorporated herein by referenced as Exhibit "A". 42. Denied as stated. By way of further answer, the Plaintiff's Complaint is a complete document which speaks for itself. See Plaintiff's Complaint attached and incorporated herein by referenced as Exhibit "A". 10 43. Denied. The averments contained in this paragraph are conclusions of law to which the Pennsylvania Rules of Civil Procedure require no responsive pleading. By way of further answer, the complaint must be read as a whole, considering each averment and in light of every other averment. Yacoub v. Lehight Medical Associates, 805 A.2d 579 (Pa. Super 2002). When read as whole, as required by Pennsylvania law, Plaintiff's complaint is in fact, very specific and direct in her allegations of breach of contract as to the Defendants and clearly sets forth not only the existence of a contract, but also sets forth its terms, that a breach of such contract occurred and that the Plaintiff's Decedent was injured as a result. 44. Denied. Plaintiffs Complaint is in all respects properly pled. By way of further answer, Plaintiff's Complaint satisfies the pleading requirements as established by Pennsylvania Law. It is not necessary that each term of the contract be reproduced in the Complaint. Rather, the elements of the contract must be set forth. Plaintiff has pled that a contract between the Plaintiffs decedent and the Defendants was entered into in the form of an Admission Agreement. As pled, per the contract, the Plaintiffs Decedent paid a monthly fee to the Defendants. In return, the Defendants agreed to provide the Plaintiffs Decedent with personal care services, medical evaluations and screening, to discharge the decedent to an appropriate facility if warranted and to treat the Plaintiffs decedent per the Resident's Bill of Rights. Defendants breached this contract by their actions/inactions in failing to take measures to prevent the Decedent from falling and as a result of this breach the Decedent sustained damages. Plaintiffs comply fully with the requirements of Pennsylvania law in setting forth the terms of the contract to place Defendants on notice of the claims against them. I1 45. Denied as stated. Plaintiff's Complaint is in all respects properly pled. Plaintiff's complaint properly pleads the existence of a contract, including its terms, the Defendant's breach of said agreement and the Plaintiff's Decedent's resulting damages. 46. Denied as stated. Byway of further answer, the Plaintiff's Complaint is a complete document which speaks for itself. See Plaintiff's Complaint attached and incorporated herein by referenced as Exhibit "A". 47. Denied. Plaintiff's Complaint is in all respects properly pled. 48. Denied. Plaintiff's Complaint is in all respects properly pled and as such, Plaintiff's claims for breach of contract should not be dismissed. V. RESPONSE TO MOTION TO STRIKE COUNT VI - PUNITIVE DAMAGES 49. Plaintiff incorporates herein by reference his answers to Paragraphs 1-48 as if fully set forth at length. 50. Denied as stated, Plaintiff's Complaint is a writing and speaks for itself. 51. Denied as stated. Pennsylvania Rule of Civil Procedure 1019(a) speaks for itself. 52. Denied as stated. Chambers v. Montgomery, 411 Pa. 339, 192 A.2d 355 (1963)and Feld v. Merriam, 506 Pa. 383, 485 A.2d 742 (1984) speak for themselves. 53. Denied as stated. Field v. Philadelphia Electric Company, 388 Pa. Super 400, 565 A.2d 1170 (1989) speaks for itself. 54. Admitted in Part and Denied in part. No independent cause of action for punitive damages exists in Pennsylvania; however, such damages are recoverable under Pennsylvania law. According to the Pennsylvania Supreme Court, "punitive damages 12 must be based on conduct which is malicious, wanton, reckless, willful, or oppressive." Feld v. Merriam, 506 Pa. 383, 395, 485 A.2d 742, 747-48 (1984). Such conduct has been plainly pled in the Complaint. Further, the allegations are sufficiently specific to notify Defendants that they are exposed to a claim for punitive damages. Shanks v. Alderson, 399 Pa. Super. 485, 491, 582 A.2d 883 (1990). A review of the twenty-eight (28) factual allegations establishes Plaintiff's claim for punitive damages and provides Defendants with the required specificity. 55. Denied. A review of the twenty-eight (28) factual allegations in the Complaint establishes Plaintiff's claim for punitive damages and provides Defendants with the required specificity. 56. Admitted in Part and Denied in Part. It is admitted that punitive damages are not awarded in ordinary negligence actions. However, the within case is not solely an ordinary negligence case and, a review of the twenty-eight (28) factual allegations in the Complaint establishes Plaintiff's claim for punitive damages and provides Defendants with the required specificity. VI. RESPONSE TO MOTION TO STRIKE FOR FAILURE TO EFFECTUATE PROPER SERVICE OF PROCESS 57. Plaintiff incorporates herein by reference his answers to Paragraphs 1 through 56 as if fully set forth at length. 58. Admitted in Part and Denied in Part. Plaintiff admits that a Praecipe for Writ of Summons was filed on or about August 16, 2006. As indicated by the Sheriff's Return attached hereto as exhibit "B" service of the Writ of Summons upon Defendant, Cottle was effectuated on August 23, 2006 at 8:47 a.m. At that date and time the Writ of 13 Summons was accepted by Cynthia Hartmen, the Administrator of Defendant Shippensburg Health Care Center. 59. Denied as stated. Pennsylvania Rule of Civil Procedure 400 speaks for itself. 60. Denied. On the contrary, Defendant Larry Cottle was served on August 23, 2006 with a copy of the Writ as evidenced by the executed Sheriffs Return. In light of such proper service, the instant matter should not be dismissed as to Defendant Cottle. 61. Denied. On the contrary, Defendant Larry Cottle was served with the Writ of Summons on August 23, 2006. 62. Denied as stated. 63. On the contrary, Defendant Larry Cottle was served on August 23, 2006 with a copy of the Writ as evidenced by the executed Sheriff's Return. In light of such proper service, the instant matter should not be dismissed as to Defendant Cottle. 64. Denied. Because Defendant was served with the Writ of Summons within the thirty-day period as prescribed by the Pennsylvania Rules of Civil Procedure, this matter should not be dismissed. 65. Denied as stated. Pennsylvania Rule of Civil Procedure 1028(a) speaks for itself. WHEREFORE, Plaintiff respectfully requests that the Court deny the Defendants' 14 Preliminary Objections and leave Plaintiff's Complaint undisturbed. Respectfully submitted, GALFAND BERGER, L.L.P. BY: 1?_/ DEBRA A. JEN EN. ESQUIRE 1818 Market Street, Suite 2300 Philadelphia, PA 19103 (215) 665-1600 Attorneys. for Plaintiff 15 CERTIFICATION OF SERVICE I do hereby certify that service of a true and correct copy of the Civil Action Complaint was made on the 12th day of December, 2006 to the following via First Class Mail, postage prepaid. B. Craig Black, Esquire 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 BY: lal?' Z( ?? DEBRA A. JEN , ESQUIRE Attorney for Plaintiff DATE: December 12, 2006 C ?X?'yrf ? GALFAND BERGER, LLI'. BY: Debra A. Jensen, Esquire Attorney Identification No. 33598 1818 Market Street, Suite 2300 Philadelphia, Pennsylvania 19103 (215) 665-1600 Attorney for Plaintiff LINDA BERNHEIMER, Admin.istratrix COURT OF COMMON PLEAS of the ESTATE OF MARTIN BERNHEIMER, DECEASED CUMBERLAND COUNTY 3772 Mt. Shadow Drive Fayetteville, PA 17222 Plaintiff vs. SHIPPENSBURG HEALTH CARE CENTER 121 Walnut Bottom Road Shippensburg, PA 17257 and LARRY COTTLE SHIPPENSBURG HEALTH CARE CENTER 121 Walnut Bottom Road Shippensburg, PA 17257 c? - Q -t NO. 06-4715 ? • .w:_ T IZ'1 rte-. 1 -` T-11 _T :_.. c n 0 Qll _< : CIVIL ACTION -LAW and PERINI SERVICES/SOUTH HAMPTON MANOR LIMITED PARTNERSHIP 2424 Paradise Church Road Hagerstown, MD 21740 and PERINI SERVICES, INC. 13601 Paradise Church Road Hagerstown, MD 21740 Defendants. : JURY TRIAL DEMANDED PLAINTIFF'S COMPLAINT- CIVIL ACTION NOTICE You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by an attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO Oil TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL H ELP. "AV1SO" Le han demandado en In Corte. Si usted yuiere defenderse de estas demandas eapuestas en las paginaS siguicntts, listed tiene veinte (20) dias de piaco de In demanda y notification parn asentar una comparesencia escrita en persona o por su abogado y archivar con N Corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sen avisado yue si usted no se deliende, la torte puede continuar la demanda en contra suya y Puede entrar una decision contra usted sin aviso o notification adicional por la cantidad de dinero de In demanda o por cualyuier reclamation hecha por el demandante. Usted puede perder dinero o propiedad a otros dercehos ingrortantes Para listed. USTED DEBE DE LLEVAR ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE PARA PAGAR TAL SERVICIO, VAVA EN PERSONA O LLAME POR TELEFONO .A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITO AIIAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASIS'rENCIA LEGAL. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (800) 990-9108 (717) 249-3166 GALFAND BERGER, LLP. BY: Debra A. Jensen, Esquire Attorney Identif cation No. 33598 1818 Market Street, Suite 2300 Philadelphia, Pennsylvania 19103 (215) 665-1600 Attorney for Plaintiff LINDA BERN-HEIMER, Administratrix COURT OF COMMON PLEAS of the ESTATE OF MARTIN BERNHEIMER, DECEASED CUMBERLAND COUNTY 3772 Mt. Shadow Drive Fayetteville, PA 17222 Plaintiff vs. SHIPPENSBURG HEALTH CARE CENTER 121 Walnut Bottom Road Shippensburg, PA 17257 and LARRY COTTLE SHIPPENSBURG HEALTH CARE CENTER 121 Walnut Bottom Road Shippensburg, PA 17257 and PERINI SERVICES/SOUTH HAMPTON MANOR LIMITED PARTNERSHIP 2424 Paradise Church Road Hagerstown, MD 21740 and PERINI SERVICES, INC. 13601 Paradise Church Road Hagerstown, MD 21740 Defendants. NO. 06-4715 CIVIL ACTION - LAW JURY TRIAL DEMANDED COMPLAINT Plaintiff, Linda Beniheimer, is an adult individual with a place of residence at 3772 Mt. Shadow Drive, Fayetteville, Pennsylvania. 2. Plaintiff is authorized to bring this survival claim as personal representative of the Estate of Martin Bernhiemer, deceased, (hereinafter "Plaintiff's Decedent") having been duly appointed Administratrix by order of the Franklin County Court of Common Pleas on April 28, 2006. 3. Defendant, Larry Cottle is a skilled nursing facility administrator licensed by the Department of Public Welfare of the Commonwealth of Pennsylvania with an office located at the address set forth above. 4. Defendant Cottle is hereinafter referred to as "Defendant Administrator." 5. Defendant, Shippensburg Healthcare Center ("Shippensburg") is a partnership, corporation, professional corporation, limited partnership, association, proprietorship and/or other legal entity duly organized and existing under the laws of the Commonwealth of Pennsylvania, engaged in the business of providing services as a skilled nursing facility duly licensed under the laws of the Commonwealth of Pennsylvania, with its place of business at the address set forth above. 6. Defendant, Perini Services/South Hampton Manor Limited Partnership ("Perini/South") is a partnership, corporation, professional corporation, limited partnership, association, proprietorship and/or other legal entity duly organized and existing under the laws of the Commonwealth of Pennsylvania, engaged in the business of providing services as a skilled nursing facility duly licensed under the laws of the Commonwealth of Pennsylvania, with its place of business at the address set forth above. 7. Defendant, Perini Services, Inc. ("Perini") is a partnership, corporation, professional corporation, limited partnership, association, proprietorship and/or other legal entity duly organized and existing under the laws of the Commonwealth of Pennsylvania, engaged in the business of 2 providing services as a skilled nursing facility duly licensed under the laws of the Commonwealth of Pennsylvania, with its place of business at the address set forth above. 8. Defendants, Shippensburg, Perini/South and Perini, are hereinafter collectively referred to as "Corporate Defendants". 9. Defendant Administrator and Corporate Defendants are hereinafter collectively referred to as "Defendants." 10. At all times relevant hereto, Defendants, in operating a skilled nursing facility within the Commonwealth of Pennsylvania were legally required to comply with all applicable federal and state statutes and regulations governing such facilities. 11. At all times relevant hereto, Defendants controlled, promulgated, regulated, effected and/or influenced expenditures, policies and procedures, allocations of financial resources, funding, staffing levels, staff training and staff supervision at Corporate Defendants' skilled nursing facility located at 121 Walnut Bottom Road, Shippensburg, Pennsylvania and also determined the budget and size of profits gleaned from the operations of that facility. 12. At all times material hereto, the Corporate Defendants acted by and through their agents, servants and/or employees, acting upon their business and within the course and scope of their employment, including but not limited to Defendant Administrator as well as other registered nurses, licensed practical nurses, nursing assistants, nurses aides, staff personnel and consultants whose identities are reflected in the personal care home records of Plaintiff's Decedent, which records are within the exclusive control of Corporate Defendants and whose identities are readily discernible to Corporate Defendants but are not readily discernible to Plaintiff absent formal discovery. 3 1 3. At all times material hereto, Corporate Defendants were engaged through their agents, servants, employees and those staff personnel hereinbefore and hereinafter identified, in rendering long term care services to the public, and thereby held themselves out to the public generally, and to Plaintiff's Decedent specifically, as being skilled in the provision of a safe, humane, comfortable and supportive residential setting for aged, blind and disabled dependent adults who require assistance beyond the basic necessities of food and shelter. 14. At all times material hereto, Defendant Administrator was an employee of Corporate Defendants and, as such, was, at all times relevant hereto, under the control of Corporate Defendants or Corporate Defendant's business. 15. At all times material hereto, Defendant Administrator was an independent contractor who through his acts, appearance and representations, and/or acts and representations of Corporate Defendants, inclusive of advertising, had apparent, implied or ostensible authority to act on behalf of the Corporate Defendants regarding the care of Plaintiff's Decedent who had good reason to believe, and did believe, that the Defendant Administrator possessed such authority, all of which caused him to justifiably rely upon such appearance of authority and to reasonably believe that Corporate Defendants would be bound by the acts and omissions of the Defendant Administrator. 16. As a direct result of the aforesaid, Defendants accepted the responsibility for the provision of a safe, humane, comfortable and supportive residential setting for Plaintiff's Decedent, and, in so doing, understood and assumed the duty to provide necessary facilities, care and oversight necessary for the protection of the Plaintiff's Decedent's health, safety and welfare. 17. As a direct result of the aforesaid, the Defendants had a duty to Plaintiff's Decedent to exercise ordinary care while he was a resident in Corporate Defendants' skilled nursing facility, 4 which duty included, but is not limited to: provision of a safe, humane, comfortable and supportive residential setting; provision of assistance beyond the basic necessities of food and shelter including assistance and/or supervision in matters such as dressing, bathing, diet, financial management, evacuation of the residence in the event of an emergency and the administration of medication; provision of encouragement and assistance needed to develop and maintain maximum independence and self-determination; provision of services directed to the avoidance of unnecessary institutionalization; and utilization of local agencies to assess the needs of all residents, including Plaintiff's Decedent so that necessary services and appropriate levels of care were identified and promptly secured. 18. At all times relevant hereto Defendants by their actions and inactions and in violation of their duties as owner, operator, administrator and managers of Corporate Defendants' long term care nursing facility located at 121 Walnut Bottom Road, Shippensburg, Permsylvania, knowingly allowed, perpetuated and caused breaches and violations of their own policies and procedures, applicable standards of care as well as the requirements of federal and state regulations in their operations of the facility. 19. On or about April 23, 2004, and thereafter, Plaintiff's Decedent employed Defendants for compensation to provide skilled nursing services to him and he thereby came under the professional care and attention of Defendants. 20. On that date, Plaintiff's Decedent was 62 years old and suffered from, among other things but not limited to Diabetes, Parkinson's disease and confusion, thereby rendering him unable to live independently and requiring assistance and supervision in matters such as, but not limited to, activities of daily living, ambulation, dressing, bathing, diet, and administration of medication. 5 21. At the time of his admission to Defendants' long term care facility on April 23, 2004, Plaintiffs Decedent was evaluated and assessed by Defendants to be at high risk for falls. 22. At the time of his admission to Defendants' long term care facility on April 23, 2004, it was known by Defendants that Plaintiff's Decedent had a history of falls and required appropriate monitoring and implementation of fall prevention measures to ensure his safety. 23. From the time of his admission to Defendants' facility up to and including August 30, 2004, Plaintiff's Decedent was allowed to fall on at least four (4) separate occasions. On each such occasion Defendants blew, or should have known, that the procedures put in place to prevent Plaintiff's Decedent from falling were not sufficient and that thorough re-evaluation and implementation of other fall prevention measures was necessary. 24. From the time of his admission to Defendants' facility, Plaintiff's Decedent was known to attempt to ambulate and transfer without requesting the assistance of staff although it was unsafe for him to do so. 25. Notwithstanding Plaintiff's Decedent's prior history of falls, numerous falls while at Defendants' facility, and persistent attempts at self-ambulation and transfers, Defendants failed to put in place any appropriate or necessary interventions to prevent Plaintiff's Decedent from engaging in dangerous behavior and to prevent him from falling. 26. Despite Plaintiff's Decedent's compromised physical and mental condition, Defendants willfully, wantonly and maliciously ignored the danger posed by his fall risk and persistent attempts at self-ambulation and transfer. 27. On or about August 30, 2004, Plaintiff's Decedent was again allowed to fall, this time resulting in a displaced intertrochanteric fracture of his left hip. 6 28. Notwithstanding Plaintiff's Decedent's obvious injury and persistent complaints of severe pain, Defendants willfully, wantonly and with malicious disregard forhis well being, failed to send him to the hospital until September 4, 2004 - - five (5) days after his unattended fall and displaced hip fracture. COUNT 1 - NEGLIGENCE PLAINTIFF V. DEFENDANTS 29. Plaintiff incorporates by reference paragraphs 1 tlu-ough 28, inclusive, as if fully set forth herein at length. 30. The negligence of the Defendants herein consisted of the following specific acts and/or failures to act, and Defendants were negligent in the following respects: (a) failing to comply with applicable skilled nursing facility requirements and standards including, but not limited to, standards found within applicable federal and state statutes and regulations, pertaining to the health and welfare of all residents/patients and specifically Plaintiff's Decedent, in the Defendants' care, custody, and functional control; (b) failing to hire qualified staff, including but not limited to administrators, registered nurses, licensed practical nurses, nursing assistants, nurses aides, staff personnel and consultants who would reasonably ensure the well-being of the patients, specifically Plaintiff's Decedent; (c) failing to recognize and react to Plaintiff's Decedent's high risk of falling as evidenced by his history of falls and persistent attempts at self-ambulation and transfers; (d) failing to provide appropriate monitoring, care, assistance and oversight to Plaintiff s Decedent in regards to his fall risk, including but not limited to, appropriate fall prevention measures and care planning; (e) accepting and admitting residents or patients, specifically Plaintiff's Decedent, when Defendants knew, or in the exercise of reasonable care should have known, that Defendants' facility was not equipped to properly and professionally care for residents or patients persistently engaged in activities that put them at high risk for falling; 7 (fj failing to maintain the appropriate staff to patient ratios such that Plaintiff- s Decedent could be provided with appropriate supervisory care; (g) failing to provide ongoing educational programs and service training for staff, (h) failing to provide appropriate and adequate orientation for staff at the Defendants' facility such that staff could be fully informed about the needs of each resident, including Plaintiffs Decedent, and prepared to address and provide for said residents' needs; (1) failing to periodically monitor and ascertain the performance of staff to reasonably ensure that they were properly caring for residents, including to ensure that they were checking on residents' welfare and well being on a regular basis, which monitoring might have resulted in the avoidance of Plaintiff's Decedent's injuries; (j) failing to have adequately trained and qualified staff including but not limited to administrators, registered nurses, licensed practical nurses, nursing assistants, nurses aides, staff persormel and consultants available at all times relevant hereto, to take reasonable measures to reasonably ensure the adequate supervision of residents or patients such as Plaintiffs Decedent, while knowing that such failure could lead to injury or death; (k) failing to have an adequate staff budget for the hiring, orientation, training and retention of necessary and qualified staff which would have supported adequate staffing levels of, including but not limited to, administrators, registered nurses, licensed practical nurses, nursing assistants, nurses aides, other staff persomlel and consultants to ensure regular and periodic monitoring of patients/residents so as to prevent or timely detect behavior which placed such residents at high risk of falling; (1) failing to supervise the management of the Corporate Defendants in order to reasonably ensure quality care to residents/patients therein, such as Plaintiffs Decedent. (m) holding out expertise which induced Plaintiff s Decedent and his family to reasonably believe that adequate and proper care would in fact be provided when, in fact, such care was not provided, thus proximately causing Plaintiff's Decedent's injuries; (n) failing to possess and exercise the degree of professional learning, knowledge, skill and ability possessed by administrators, registered nurses, licensed practical nurses, nursing assistants, nurses aides, staff personnel and consultants which others in similar types of care facilities in the community ordinarily and regularly possessed 8 and utilized in the provision of a safe, 11Lllnane, comfortable and supportive personal care facility; (o) failing to refer Plaintiff's Decedent to a hospital or other primary care facility immediately following his August 30, 2004 fall; (p) failing to notify Plaintiffs Decedent's family that they were unable to prevent him from engaging in dangerous behavior- and from falling; (q) failing to provide Plaintiff's Decedent with appropriate assistance in his activities of daily living (r) failing to have adequate staffing, including administrators, registered nurses, licensed practical nurses, nursing assistants, nurses aides, staff personnel and consultants to meet Plaintiff's Decedent's needs from the time of his admission in April of 2004 until the time of his fall in August of 2004; 31. As a direct and proximate result of the negligence of Defendants herein, Plaintiff s Decedent was caused to suffer a severely fractured hip, resulting in significant long term mental and physical pain and suffering; the complete loss of his ability to ambulate for the remainder of his life; and substantial costs for medical care associated with his injury. WHEREFORE, Plaintiff demands judgment against Defendants herein for a sum in excess of the limits of arbitration, together with such other relief as this Honorable Court may deem fair and just. COUNT II - VICARIOUS LIABILITY PLAINTIFF v. CORPORATE DEFENDANTS 32. Plaintiff incorporates by reference paragraphs 1 through 31, inclusive, as if fully set forth herein at length. 9 33. At all times relevant hereto, Corporate Defendants held out the agents, servants and employees of their- facility to be skilled, able and competent in the capacity in which they were employed. 34. At all times relevant hereto, Corporate Defendants administered, directed, operated, controlled, monitored and supervised the daily activities of their agents, servants and employees throughout their business operations and had the duty, and did assume the duty, to assure their cornpliance with applicable federal and state laws and regulations, standards of care and the teens of any and all agreements between itself and Plaintiff's Decedent. 35. At all times relevant hereto, individuals whose acts and omissions are complained of by Plaintiff in this action were actual and/or ostensible agents of Corporate Defendants as defined by Cagan v. Divine Providence Hospital, 287 Pa. Super. 364, 430 A.2d 647 (1980). 36. At all times relevant hereto, the agents, servants and employees of Corporate Defendants were acting within the course and scope of their employment and furthering the business of Corporate Defendants, under their actual control or right of control. The cornplete and correct identities of Corporate Defendants' agents, employees and servants are unknown to Plaintiff and this information is in the exclusive control of the Corporate Defendants. 37. Accordingly, Corporate Defendants are vicariously liable for the acts and/or omissions of their agents, servants and employees at all relevant times hereto, including the individual Defendants who were involved in the care of Plaintiff's Decedent and, to that extent, Plaintiff incorporates herein by reference subparagraphs 30 (a) through 30 (r) inclusive. 10 WHEREFORE, Plaintiff demands judgment against Corporate Defendants herein for a sum in excess of the limits of arbitration, together with such other relief as this Honorable Court may deem fair and just. COUNT III - CORPORATE LIABILITY PLAINTIFF v. CORPORATE DEFENDANTS 38. Plaintiff incorporates by reference paragraphs 1 through 37, inclusive, as if fully set forth herein at length. 39. The Corporate Defendants jointly, severally and/or in the alternative were negligent and careless and proximately caused Plaintiff's Decedent's injuries in that Corporate Defendants failed to: (a) select and retain competent and adequate staff; (b) maintain safe and adequate facilities and equipment; (c) oversee and monitor its administrators, registered nurses, licensed practical nurses, nursing assistants, nurses aides, staff personnel and consultants, some of whom may have been or were Defendants named herein, and all of whom were involved in the care of Plaintiff's Decedent; and, (d) promulgate and/or enforce appropriate rules and regulations, including but not limited to, those pertaining to the care and treatment of Plaintiff s Decedent. 40. As a direct and proximate result of the aforementioned actions and failures to act as set forth previously in this Complaint, Plaintiff's Decedent, Martin Bernheimer, suffered a severely fractured hip and other injuries described above. 11 WHEREFORE, Plaintiff demands judgrvent against Corporate Defendants herein for a stun in excess of the limits of arbitration, together with such other relief as this Honorable Court may deem fair and just. COUNT IV - SURVIVAL ACTION - 42 Pa.C.S. § 8302 PLAINTIFF v. DEFENDANTS 41. Plaintiff incorporates by reference paragraphs I through 40, inclusive, as if fully set forth herein at length. 42. The Administratrix of Plaintiff's Decedent's estate named herein brings this action on behalf of the Estate of Martin Beriiheimer, Deceased, under and by virtue of the Act of 1976 July 9, P.L. 586, No. 142 §2, otherwise known as 42 Pa.C.S. § 8302, and 20 Pa.C.S. § 3371, and said Plaintiff hereby claims all benefits of the Perulsylvania "Survival Act" and "Actions Which Survive," respectively, on behalf of himself and any other persons entitled to recover under said Act. 43. Linda Bernheimer, as Administratrix of the Estate of her husband, Martin Ber, riheimer, Deceased, on behalf of his Estate, claims the damages suffered by said Estate by reason of the injuries inflicted upon the Plaintiff's Decedent causing his fractured hip and other injuries itemized above. 44. The aforementioned Administratrix also seeks, on behalf of the Plaintiff's Decedent's estate, damages for the cost of Plaintiff's Decedent's medical services, nursing, and hospital care provided to Plaintiff's Decedent. 12 WHEREFORE, Plaintiff demands judgment against Defendants herein for a sum in excess of the limits of arbitration, together with such other- relief as this Honorable Court may deem fair and dust. COUNT V - BREACH OF CONTRACT PLAINTIFF v. DEFENDANTS 45. Plaintiff incorporates by reference paragraphs 1 through 44, inclusive, as if fully set forth herein at length. 46. Defendants and Plaintiff's Decedent were parties to a written Admissions Agreement wherein Defendants agreed to provide Plaintiff's Decedent with, among other guarantees, personal care services, medical evaluation and screening, discharge to an appropriate facility if warranted by Plaintiff's Decedent's declining medical condition, and a "Resident Bill of Rights" that included, among other rights, the right to be treated with dignity and respect and the right to be free from abuse. 47. Said Admissions Agreement is in the sole possession of Defendants and not readily available to Plaintiff absent formal discovery. A true and correct copy caimot, therefore, be attached to this Complaint. 48. In the alternative, Defendants and Plaintiff's Decedent were parties to an oral Admissions Agreement wherein Defendants agreed to provide Plaintiff's Decedent with, among other guarantees, personal care services, medical evaluation and screening, discharge to an appropriate facility if warranted by Plaintiff's Decedent's declining medical condition, and a 13 "Resident Bill of Rights" that included, among other rights, the right to be treated with dignity and respect and the right to be free from abuse. 49. Such guarantees and rights were mandated not only by said Admissions Agreement but also under applicable federal and state statute and regulations. 50. In consideration for this agreement, a monthly fee was paid on behalf of Plaintiff's Decedent. 51. Defendants breached this contract by failing to provide the care and supervision required by the Admissions Agreement, community standards and federal and state statutes and regulations, which breach resulted in Plaintiff's Decedent's injuries hereinbefore described. WHEREFORE, Plaintiff demands judgment against Defendants herein for a sum in excess of the limits of arbitration, together with such other relief as this Honorable Court may deem fair and just. COUNT VI - PUNITIVE DAMAGES PLAINTIFF v. DEFENDANTS 52. Plaintiff incorporates by reference paragraphs 1 through 51, inclusive, as if fully set forth herein at length. 53. Defendants acted with reckless indifference to the interests of the Plaintiff's Decedent by malicious, wanton, willful and/or oppressive conduct, which conduct proximately caused his injuries and unnecessary physical and emotional pain and suffering. 54. The aforementioned conduct of Defendants entitles Plaintiff to an award of punitive damages. 14 WHEREFORE, Plaintiff demands judgment against Defendants herein for a sum in excess of the limits of arbitration including punitive damages together with such other relief as this Honorable Court may deem fair and just. GALFAND BERGER, L.L.P. C?? J BY: DEBRA A. JENSgN. ESQUIRE 1818 Market Street, Suite 2300 Philadelphia, PA 19103 (215) 665-1600 Atto7weys foi- Plaintiff 15 VERIFICATION I, Linda Bernheimer, hereby verify that the facts set forth in the foregoing Complaint are true and correct to the best of my Icnowledge, information and belief. I understand that false statements herein are subject to the penalties of 18 Pa.C.S. § 4904 related to unsworn falsification to authorities. C- r LINDA BERNHEIMER Administratrix of the Estate of Martin Bernheinier CERTIFICATION OF SERVICE I do hereby certify that service of a true and correct copy of the Civil Action Complaint was made on the 31st day of October, 2006 to the following via First Class Mail, postage prepaid. B. Craig Black, Esquire 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 BY: (h'282' L) DEBRA A. JENSEN,1?QUIRE Attorney for Plaintiff DATE: October 31, 2006 Exl??b?t [3 . SHERIFF'S RETURN - REGULAR CASE NO: 2006-04715 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND BERNHEIMER LINDA VS SHIPPENSBURG HEALTH CARE ET AL SHANNON SHERTZER , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon rC)TTT,R T,ARRV the DEFENDANT , at 0847:00 HOURS, on the 23rd day of August 2006 at SHIPPENSBURGH HEALTH CARE CTR 121 WALNUT BOTTOM ROAD SHIPPENSBURG, PA 17257 by handing to CYNTHIA HARTMAN, ADMINISTRATOR 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 6.00 Service .00 Affidavit .00 Surcharge 10.00 Sworn and Subscibed to before me this day of , So Answers: R. Thomas Kline 09/22/2006 GALFAND BERGER LLP By: De uty Sheriff A. D. r? ? CJ (' i t?l T4 t J j'ai SHERIFF'S RETURN - REGULAR `CASE NO: 2006-04715 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND BERNHEIMER LINDA VS SHIPPENSBURG HEALTH CARE ET AL SHANNON SHERTZER , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon SHIPPENSBURG HEALTH CARE CENTER the DEFENDANT , at 0847:00 HOURS, on the 23rd day of August 2006 at 121 WALNUT BOTTOM ROAD SHIPPENSBURG, PA 17257 by handing to CYNTHIA HARTMAN, ADMINISTRATOR 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 18.00 Service 15.84 ? '? 84 Postage 1.02 Surcharge 10.00 R. Thomas Kline 44.86./ 09/22/2006 1o1v/04 ? GALFAND BERGER LLP Sworn and Subscibed to By: 1 before me this day eputy She iff of A. D. SHERIFF'S RETURN - REGULAR 'CASE`NO: 2006-04715 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND BERNHEIMER LINDA VS SHIPPENSBURG HEALTH CARE ET AL SHANNON SHERTZER , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon COTTLE LARRY the DEFENDANT , at 0847:00 HOURS, on the 23rd day of August , 2006 at SHIPPENSBURGH HEALTH CARE CTR 121 WALNUT BOTTOM ROAD SHIPPENSBURG, PA 17257 by handing to CYNTHIA HARTMAN, ADMINISTRATOR 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 Service 6.00 .00 '4011 r ? ? Affidavit .00 D°'.d i •- Surcharge 10.00 R. Thomas Kline .00 16.00v` 09/22/2006 GALFAND BERGER LLP 4- Sworn and Subscibed to By: before me this day De uty Sheriff of A.D. SHERIFF'S RETURN - U.S. CERTIFIED MAIL 'CASE'NO: 2006-04715 P COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND BERNHEIMER LINDA VS. SHIPPENSBURG HEALTH CARE ET AL R. Thomas Kline , Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law served the within named DEFENDANT PERINI SERVICES/SOUTH HAMPTON _, MANOR LIMITED PARTNERSHIP by United States Certified Mail postage prepaid, on the 23rd day of August ,2006 at 0000:00 HOURS, at 2424 PARADISE CHURCH ROAD HAGERSTOWN, MD 21740 and attested copy of the attached WRIT OF SUMMONS with receipt card was signed by RETURNED TO OFFICE 00/00/0000 . Additional Comments: MAIL WAS RETURNED MARKED NO SUCH NUMBER. Additional Comments Sheriff's Costs: Docketing Service Affidavit Surcharge So an 6.00 4.64 R. Thomas Kline .00 Sheriff of Cumberland County 10.00 .00 20.64 ? !u'?uI UL Paid by GALFAND BERGER LLP Sworn and Subscribed to before me this day of a true Together The returned on on 09/22/2006 . A. D. SHERIFF'S RETURN - U.S. CERTIFIED MAIL 'CASE'NO: 2006-04715 P COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND BERNHEIMER LINDA VS. SHIPPENSBURG HEALTH CARE ET AL R. Thomas Kline , Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law served the within named DEFENDANT PERINI SERVTrRq TNr by United States Certified Mail postage prepaid, on the 23rd day of August ,2006 at 0000:00 HOURS, at C/O DOMINIC J PERINI 2424 PARADISE CHURCH ROAD HAGERSTOWN, MD 21740 a true and attested copy of the attached WRIT OF SUMMONS Together with receipt card was signed by RETURNED TO OFFICE 00/00/0000 . Additional Comments: MAIL WAS RETURNED MARKED NO SUCH NUMBER on Additional Comments Sheriff's Costs: Docketing 6.00 Service 4.64 Affidavit .00 Surcharge 10.00 So answ `'R. Thomas Klin4/ Sheriff of Cumberland County 2 0. 6 4?/ b Paid by GALFAND BERGER LLP on 09/22/2006 . Sworn and Subscribed to before me this day of A.D. The returned SHERIFF'S RETURN - U.S. CERTIFIED MAIL 'CASE'NO: 2006-04715 P COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND BERNHEIMER LINDA VS. SHIPPENSBURG HEALTH CARE ET AL R. Thomas Kline , Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law served the within named DEFENDANT PERINI SERVICES INC _, by United States Certified Mail postage prepaid, on the 23rd day of August ,2006 at 0000:00 HOURS, at 13601 PARADISE CHURCH ROAD HAGERSTOWN, MD 21740 a true and attested copy of the attached WRIT OF SUMMONS Together with The returned receipt card was signed by RETURNED - UNCLAIMED on 00/00/0000 . Additional Comments: Sheriff's Costs: So answer --.> ?G ?- Docketing 6.00 Service 4.64 R. Thomas Kline Affidavit .00 Sheriff of Cumberland County Surcharge 10.00 .00 n 20.64.' 101'1?b4 Paid by GALFAND BERGER LLP on 09/22/2006 Sworn and Subscribed to before me this day of A.D. SHERIFF'S RETURN - OUT OF COUNTY 'CASE'NO: 2006-04715 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND BERNHEIMER LINDA VS SHIPPENSBURG HEALTH CARE ET AL R. Thomas Kline Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT to wit: PERINI SERVICES/SOUTH HAMPTON MANOR LIMITED PARTNERSHIP but was unable to locate Them in his bailiwick. He therefore deputized the sheriff of PHILADELPHIA County, Pennsylvania, to serve the within WRIT OF SUMMONS On September 22nd , 2006 , this office was in receipt of the attached return from PHILADELPHIA Sheriff's Costs: So answers: Docketing 6.00 - -- 1-' "? Out of County 9.00 Surcharge 10.00 R. Thomas Kline Dep Philadelphia 116.00 Sheriff of Cumberland County .00 141.00 ? iol u?oG 9- 09/22/2006 GALFAND BERGER LLP Sworn and subscribe to before me this day of A. D. In The Court of Common Pleas of Cumberland County, Pennsylvania l t Linda Bernheimer etc Shippensburg Health Care Center et al SERVE: Perini Services/South Hampton Manor Limited Partnership No. 06-4715 civil Now, August 22, 2006 , I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Philadelphia County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, PA Affidavit of Service Now, U S{- ?)0 20 0(0, at o?- ?JO o'clock P- A served the within L?? S upon at by handing to (210 (StAtwvlp, a r1 CA n K) copy of the original (1 m yY? C'Y1..? and made known to L4,1 the contents thereof. So answers 4(2.fA +v rY? EAL M OF PENNSYLVANIA NOTARIAL SEAL SUSAN L, ROSENFELD, Notary Public City of Philadelphia, Phila. County My Commission Expires March 11, 2008 Sworn and subscribe before me this '?Jh- day o SCI ?a? + ?plc?? County, PA x COSTVw SERVICE $ MILEAGE AFFIDAVIT p ? .r.? in23'06 ? E 4 1 r COUNTY OF CUMBERLAND Office of The Sheriff 700S 1:L G 0002 1107 7695 21 1 Y9. PO 1 Courthouse Square Carlisle, Pennsylvania 17013 Perin' f soo 1360 Hag-. NIXIE 212 1 00 0911. RETURN TO SENDER UNCLAIMED UNABLE TO FORWARD MC: 17013'°039179 *3023-01002-2: =?? i `?` ?`i,?l??? 1,,,111,,,111??„?,II??II?„11,,,11,1,1,??„III,,,II,?i,l,,,l aeb COUNTY OF CUMBERLAND Office of The Sheriff 1 Courthouse Square Carlisle, Pennsylvania 17013 --I . . 11-1111111.111,111112 7005 1161) 0002 1107 7619 2s-o 6 -IW_". i=. 4j NS?v pEt?, Perini Services Inc ;` f t. f To c/o Dominic J. Perini Zd FU NOEq 2424 Paradise Church Road c.._ NWO SUCH N lt Hagerstowr - NIXIE 212 1 00 06r2 RETURN TO SENDER NO SUCH NUMBER UNABLE TO FORWARD BC: 17013330199 *0492-03314-21 a ..,Y:?u ?.. ?:. ??p, 1,,,111,,,111,,,,,,11„11,,,J1,,,11,11,,,,,,1•f1,1„i,),,,,i1 COUNTY OF CUMBERLAND Office of The Sheriff 1 Courthouse Square Carlisle, Pennsylvania 17013 9lbllillll??IIIbIIIIIINIIWaI? 7005 2,160 0002 1107 7602 r //.0 "4A REr,? a a Eton 19# Nom ENDER l tom. _ 7r'?ri h:r?ieAr+ GALFAND BERGER, LLP BY: DEBRA A. JENSEN, ESQUIRE Identification No.: 33598 1818 Market Street, Suite 2300 Philadelphia, PA 19103 (215) 665-1600 LINDA BERNHEIMER, Administratrix for the Estate of Martin Bernheimer, Deceased Plaintiff, V. SHIPPENSBURG HEALTHCARE CENTER, et al. Defendants. COURT OF COMMON PLEAS CUMBERLAND COUNTY No. 06-4715 CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE OF MERIT AS TO DEFENDANT, PERINI SERVICES/SOUTH HAMPTON MANOR LIMITED PARTNERSHIP I, Debra A. Jensen, certify that: l 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; OR the claim that this defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard and an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by the other licensed professionals in the treatment, practice or work that is the subject of the Complaint, fell outside acceptable professional standards and that such conduct was a cause in bring about the harm; OR D expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim against this defendant. Date `Z - I ` Lp U GALFAND BERGER, L.L.P. BY: `IIL/ DEBRA A. JENSEN, SQUIRE 1818 Market Street Suite 2300 Philadelphia, PA 19103 Attorney for Plaintiff 2 CERTIFICATION OF SERVICE I do hereby certify that service of a true and correct copy of the Certificate of Merit as to Defendant, Perini Services/South Hampton Manor Limited Partnership was made on the 19th day of December, 2006 to the following via First Class Mail, postage prepaid. B. Craig Black, Esquire 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 Sidney Schupak, Esquire Brian L. Kinsley, Esquire Ashcraft & Gerel, LLP 2000 L Street, NW Suite 400 Washington, DC 20036 BY: DEBRA A. JENSE , ESQUIRE Attorney for Plaintiff DATE: December 19, 2006 GALFAND BERGER, LLP BY: DEBRA A. JENSEN, ESQUIRE Identification No.: 33598 1818 Market Street, Suite 2300 Philadelphia, PA 19103 (215) 665-1600 LINDA BERNHEIMER, Administratrix for the Estate of Martin Bernheimer, Deceased COURT OF COMMON PLEAS CUMBERLAND COUNTY Plaintiff, V. SHIPPENSBURG HEALTHCARE CENTER, et al. Defendants. No. 06-4715 CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE OF MERIT AS TO DEFENDANT, LARRY COTTLE I, Debra A. Jensen, 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; OR ? the claim that this defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard and an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by the other licensed professionals in the treatment, practice or work that is the subject of the Complaint, fell outside acceptable professional standards and that such conduct was a cause in bring about the harm; OR r expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim against this defendant. Date (2 GALFAND BERGER, L.L.P. BY. DEBRA A. JENSEN, SQUIRE 1818 Market Street Suite 2300 Philadelphia, PA 19103 Attorney for Plaintiff 2 CERTIFICATION OF SERVICE I do hereby certify that service of a true and correct copy of the Certificate of Merit as to Defendant, Larry Cottle was made on the 19th day of December, 2006 to the following via First Class Mail, postage prepaid. B. Craig Black, Esquire 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 Sidney Schupak, Esquire Brian L. Kinsley, Esquire Ashcraft & Gerel, LLP 2000 L Street, NW Suite 400 Washington, DC 20036 BY: ? DEBRA A. JENSEN, SQUIRE Attorney for Plaintiff DATE: December 19, 2006 GALFAND BERGER, LLP BY: DEBRA A. JENSEN, ESQUIRE Identification No.: 33598 1818 Market Street, Suite 2300 Philadelphia, PA 19103 (215) 665-1600 LINDA BERNHEIMER, Administratrix for the Estate of Martin Bernheimer, Deceased COURT OF COMMON PLEAS CUMBERLAND COUNTY Plaintiff, V. SHIPPENSBURG HEALTHCARE CENTER, et al. Defendants. No. 06-4715 CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE OF MERIT AS TO DEFENDANT, SHIPPENSBURG HEALTH CARE CENTER I, Debra A. Jensen, 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; OR I the claim that this defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard and an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by the other licensed professionals in the treatment, ? practice or work that is the subject of the Complaint, fell outside acceptable professional standards and that such conduct was a cause in bring about the harm; OR expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim against this defendant. Date GALFAND BERGER, L.L.P. BY : rye-?-- DEBRA A. JENSEN, E UIRE 1818 Market Street Suite 2300 Philadelphia, PA 19103 Attorney for Plaintiff 2 CERTIFICATION OF SERVICE I do hereby certify that service of a true and correct copy of the Certificate of Merit as to Defendant, Shippensburg Health Care Center was made on the 19th day of December, 2006 to the following via First Class Mail, postage prepaid. B. Craig Black, Esquire 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 Sidney Schupak, Esquire Brian L. Kinsley, Esquire Ashcraft & Gerel, LLP 2000 L Street, NW Suite 400 Washington, DC 20036 BY: DEBRA A. JENSEN, ESQUIRE Attorney for Plaintiff DATE: December 19, 2006 _? GALFAND BERGER, LLP BY: DEBRA A. JENSEN, ESQUIRE Identification No.: 33598 1818 Market Street, Suite 2300 Philadelphia, PA 19103 (215) 665-1600 LINDA BERNHEIMER, Administratrix for the Estate of Martin Bernheimer, Deceased Plaintiff, V. COURT OF COMMON PLEAS CUMBERLAND COUNTY No. 06-4715 CIVIL ACTION - LAW SHIPPENSBURG HEALTHCARE CENTER, et al. : Defendants. JURY TRIAL DEMANDED CERTIFICATE OF MERIT AS TO DEFENDANT, PERINI SERVICES, INC. I, Debra A. Jensen, certify that: V 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; OR the claim that this defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard and an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by the other licensed professionals in the treatment, practice or work that is the subject of the Complaint, fell outside acceptable professional standards and that such conduct was a cause in bring about the harm; OR expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim against this defendant. Date l Z - 16, GALFAND BERGER, L.L.P. BY: A. JENSEN,TSQUIRE 1818 Market Street Suite 2300 Philadelphia, PA 19103 Attorney for Plaintiff 2 1 CERTIFICATION OF SERVICE I do hereby certify that service of a true and correct copy of the Certificate of Merit as to Defendant, Perini Services, Inc. was made on the 19th day of December, 2006 to the following via First Class Mail, postage prepaid. B. Craig Black, Esquire 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 Sidney Schupak, Esquire Brian L. Kinsley, Esquire Ashcraft & Gerel, LLP 2000 L Street, NW Suite 400 Washington, DC 20036 BY: 7? --? 0 - DEBRA A. JENSEN, SQUIRE Attorney for Plaintiff DATE: December 19, 2006 V Ift LINDA BERNHEIMER, ADMINISTRATRIX OF THE ESTATE OF MARTIN BERNHEIMER, DECEASED, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 06-4715 V. CIVIL ACTION - LAW SHIPPENSBURG HEALTH CARE CENTER, LARRY COTTLE, PERINI SERVICES/SOUTH HAMPTON MANOR LIMITED PARTNERSHIP AND PERINI SERVICES, INC., Defendants JURY TRIAL DEMANDED PRAECIPE FOR ENTRY OF JUDGMENT OF NON PROS PURSUANT TO RULE 1042.6 To the Prothonotary: Kindly enter judgment of non pros against Plaintiff, Linda Bernheimer, Administratix of the Estate of Martin Bernheimer, deceased, in the corporate liability claim asserted against Defendants, Shippensburg Health Care Center, Perini Services/South Hampton Manor Limited Partnership, and Perini Services, Inc. in Count III of Plaintiff's Complaint in the above referenced matter. I, B. Craig Black, Esquire, certify that the Plaintiff named above has asserted a professional liability claim against the Defendants named above who are licensed professionals, as defined by Pa.R.C.P. 1042.1(b)(1)(i) and (vii), that no certificate of merit as to Plaintiff's corporate negligence claim has been filed within the time required by Pa.R.C.P. 1042.3, and that there is no motion to extend the time for filing such certificate pending before the court. The Complaint in this action was filed on October 31, 2006, and more than sixty (60) days have elapsed without the filing of a certificate of merit or a motion seeking an extension of time for the filing of a certificate of merit as to Plaintiff's corporate negligence claim. Respectfully submitted, By: b. U a sqU' A rney .D. #: 36818 L Burnette, Esquire Attorney I.D. #: 92412 2040 Linglestown Road, Ste. 302 Harrisburg, PA 17110 (717) 540-3400 Date: January 2, 2007 Attorneys for Defendants Y CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing Praecipe for Entry of Judgment Non Pros upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, first-class postage prepaid, addressed as follows: Debra A. Jensen, Esquire Galfand Berger, LLP 1818 Market Street; Suite 2300 Philadelphia, PA 19103 (Counsel for Plaintiff) Brian Kinsley, Esquire Sidney Schupak, Esquire Ashcraft & Gerel, LLP Suite 400 2000 L. Street NW Washington, DC 20036 McKissock & Hoffman, P.C. By: ig ae , sq I. o.: 36818 L ren M. Burnette, Esquire I.D. No.: 92412 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 (717) 540-3400 Dated: January 2, 2007 Attorneys for Defendants, Shippensburg Health Care Center, Larry Cottle, Perini Services/South Hampton Manor Limited Partnership and Perini Services, Inc. N Zi C 1i N c:a C.a. A? t«? CD ?t 1 5' SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2006-04715 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND BERNHEIMER LINDA VS SHIPPENSBURG HEALTH CARE ET AL R. Thomas Kline Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT to wit: COTTLE LARRY but was unable to locate Him in his bailiwick. He therefore deputized the sheriff of FRANKLIN County, Pennsylvania, to serve the within WRIT OF SUMMONS On December 26th , 2006 this office was in receipt of the attached return from FRANKLIN Sheriff's Costs: So answers: Docketing 18.00 Out of County 9.00 Surcharge 10.00 R. Thomas K ' e Dep Franklin Co 86.00 Sheriff of Cumberland County Postage 3.33 126.33 ? I-03-07 12/26/2006 GALFAND BERGER LLP Sworn and subscribe to before me this day of , A. D. SHERIFF'S RETURN - OUT OF COUNTY -M CASE NO: 2006-04715 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND BERNHEIMER LINDA VS SHIPPENSBURG HEALTH CARE ET AL R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: COTTLE LARRY but was unable to locate Him in his bailiwick. He therefore deputized the sheriff of ADAMS serve the within WRIT OF SUMMONS County, Pennsylvania, to On December 26th , 2006 , this office was in receipt of the attached return from ADAMS Sheriff's Costs: So answers: - Docketing 6.00 Out of County 9.00 Surcharge 10.00 R- Thomas Klin Dep Adams County 30.00 Sheriff of Cumberland County .00 55 . 00 ? /1D-? 67 12/26/2006 ` GALFAND BERGER LLP Sworn and subscribe to before me this day of A. D. In The Court of Common Pleas'of Cumberland County, Pennsylvania Linda Bernheimer et al vs. Shippensburg Health Care Center et al SERVE: Larry Cottle No. 06-4715 civil Now, November 27 , 2006 , I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Franklin County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. ...tom--P Sheriff of Cumberland County, PA Affidavit of Service Now, , 20 , at o'clock M. served the within upon at by handing to a and made known to copy of the original the contents thereof. So answers, Sheriff of Sworn and subscribed before me this day of , 20 COSTS SERVICE $ MILEAGE AFFIDAVIT County, PA SHERIFF'S RETURN - NOT FOUND Cue??lr lots< ?o , av CASE NO: 2006-00272 T COMMONTWEALTH OF PENNSYLVANIA COUNTY OF FRANKLIN LINDA BERHEIMER ETAL VS LARRY COME ROBERT WOLLYUNG , Sheriff who being duly sworn according to law, says, that he made a diligent search and inquiry for the within named DEFENDANT , to wit: COTTLE LARRY but was unable to locate Him in his bailiwick. He therefore returns the COMP CIVIL ACTION the within named DEFENDANT COTTLE LARRY 6375 CHAMBERSBURG ROAD NOT FOUND , as to FAYETTEVILLE, PA 17222 NOT IN FRANKLIN COUNTY Sheriff's Costs: Docketing Service Affidavit Surcharge So ans r?s •-' D .00 .00 .00 RO ERT WOLLYUNG .00 ROBERT WOLLYUNG, Shetk`ff rl n .00 GALFAND 12/06/2006 Sworn and subscribed to before me this 4? day of beo-le n e- oZob(? A.D. ^ Notary Notarial Seal Richard D. McCarty, Notary Public Chambersburg Boro, Franklin County My Commission Expires Jan. 29, 2007 In The Court of Common Pleas of Cumberland County, Pennsylvania Linda Bernheimer et al vs. Shippensburg Health Care Center et al SERVE; Larry Cottle No. 06-4715 civil Now, December 7, 2006 , I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Adams County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Please mail return of Ai- Sheriff of Cumberland County, PA service to Cumberland County Sheriff. Thank you. Affidavit of Service Now, _ 20___, at o'clock M. served the within upon at by handing to a copy of the original and made known to the contents thereof. So answers, Sworn and subscribed before me this day of '20 Sheriff of County, PA COSTS SERVICE $ MILEAGE AFFIDAVIT A DATE RECEIVED MASON DIXON BUSINESS FORMS, INC. 33000026 DATE PROCESSED SHERIFF'S DEPARTMENT ADAMS COUNTY, PENNSYLVANIA COURTHOUSE, GETTYSBURG, PA 17325 INSTRUCTIONS: See "INSTRUCTIONS FOR SERVICE OF PROCESS BY SHERIFF SERVICE THE SHERIFF" on the reverse of the last (No. 5) copy of this form. Plesse PROCESS RECEIPT, and AFFIDAVIT OF RETURN type or print Wo*, insuring readability of all copies. Do not detach any copies. ACED ENV.# 1. PLAINTIFFS/ LINDA BERNEEIMER, Administratrix of the Estate of 2. COURT NUMBER MARTIN BERNHEIMER, Deceased 06-4715 6. ADDRESS (Street or RFD, Apartment No., City, Boro, Twp., State and ZIP CODE) AT The Village of Laurel Run (employment) 6375 Chambersburg Road, Fayetteville, PA 7. INDICATE UNUSUAL SERVICE: ? PERSONAL ? PERSON IN CHARGE ? DEPUTIZE ? CERT. MAIL ? REGISTERED MAIL ? POSTED ? OTHER Now, , I, SHERIFF OF ADAMS COUNTY, PA., do hereby deputize the Sheriff of County to execute this Writ and make return therof according to law. This deputation being made at the request and risk of the plaintiff. SHERIFF OF ADAMS COUNTY 6- SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE NOTE ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN-Any deputy sheriff levying upon or attaching any property under within writ may leave same without a watchman, in custody of whomever is found in possession, after notifying person of levy or attachment, without liability on the part of such deputy or the sheriff to any plaintiff herein for any loss, destruction or removal of any such property before sheriff's sale thereof. 9. SIGNATURE of ATTORNEY or other ORIGINATOR requesting service on behalf of: 10. TELEPHONE NUMBER 11. DATE Debra A. Jensen, Esq. K PLAINTIFF (215) 665-1600 ? DEFENDANT % rrwG oGa. n rn G r anGrnrr r'§s. r - vv Vow 1 VVn1 1 G vGa. re r nra a.mG 12. I acknowledge receipt of the writ SIGNATURE of Authorized ACED Deputy or Clerk and Title 13. Date Received 14. Expiration / I a n ate or complaint as indicated shove. 12/8/2006 DEC. 21. 2006 15. 1 hereby CERTIFY and RETURN that 19 have personally served, ? have served person in charge, ? have legal evidence of service as shown in "Remarks" (on reverse) ? have posted the above described property with the writ or complaint described on the individual, company, corporation, etc., at the address shown above or on the individual, company, corporation, etc., at the address inserted below by handinglor Posting a TRUE and ATTESTED COPY therof. 16. ? 1 herebv certify, and return a NOT FOUND because I am unable to locate the individual, company, corporation, etc., named above. (See remarks below) `PE 3. DEFENDANTS/ 4. TYPE OF WRIT OR COMPLAINT: _ SHIPPENSBURG HEALTH CARE CENTER, ET AL Reinstated Complaint RVE 5. NAME OF INDIVIDUAL, COMPANY, CORPORATION, ETC., TO SERVICE OR DESCRIPTION OF PROPERTY TO BE LEVIED, ATTACHED OR SOLD. 1* Larry Cottle 17. Name and title of individual served 18. A person of suftWe ape and di-mion Read Order Larry Cottle I tf+ =• = C1 d°" ``°'°" 19. Address of where served (complete only if different than shown above) (Street or RFD, Apartment No., City, Boro, Twp., 20. Date of Service 21. Time State and ZIP CODE) 12/12/2006 10:15AM 22. ATTEMPTS Date Milee Dep.lnt. Date MR" Dep.lnt. Deb Miles Dep.lnt. Date 111111111m Dep.int. Date Miles Dep.kd. M. Advance Costs 24. 25. 26. 27. Total Costs 28. 54111 't M REFUND 0.00 $30. d. ?2/18/0 4 $120.00 Ck. #15447 AFFIRMED and subscribed to before me this Lv ti r • " By Dap. Sheriff) (Please Print or Type) day of Jonath t ankert Signature of Sheriff 12/12/2006 12/12/2006 I SHERIFF OF ADAMS COUNTY MY COMMISSION EXPIRES • a - ( 1 ) The within upon , the within named defendant by mailing to by mail, return receipt requested, postage prepaid, on the a true and attested copy thereof at The return receipt signed by defendant on the is hereto attached and made a part of this return. ( ) ( 2) Outside the Commonwealth, pursuant to Pa. R.C.P. 405 (c) (1) (2), by mailing a true and attested copy thereof at in the following manner: { ) (a) to the defendant by ( ) registered ( } certified mail, return receipt requested, postage prepaid, addressee only on the said receipt being returned NOT signed by defendant, but with a notation by the Postal Authorities that Defendant refused to accept the same. The returned receipt and envelope is attached hereto and made a part of this return. And thereafter: ( } (b) To the defendant by ordinary mail addressed to defendant at same address, with the return address of the Sheriff appearing thereon, on the I further certify that after fifteen (15) days from the mailing date, I have not received said envelope back from.the Postal Authorities. A certificate of mailing is hereto attached as a proof of mailing. ( ) (3) By publication in the Adams County Legal Journal, a weekly publication of general circulation in the County of Adams, Commonwealth of Pennsylvania, and the Gettysburg Times, a daily newspaper published in the County of Adams, Commonwealth of Pennsylvania and having general circulation in said County for successive weeks of The Affidavits from said Adams County Legal Journal and Gettysburg Times, are hereto attached and made part of this return. { ) ( 4 ) By mailing to by mail, return receipt requested, postage prepaid, a true and attested copy thereof at The Authorities marked is hereto attached. ( } ( 5 ) Other on the returned by the Postal GALFAND BERGER, LLP. BY: Debra A. Jensen, Esquire Attorney Identification No. 33598 1818 Market Street, Suite 2300 Philadelphia, Pennsylvania 19103 (215) 665-1600 Attorney for Plaintiff LINDA BERNHEIMER, Administratrix COURT OF COMMON PLEAS of the ESTATE OF MARTIN BERNHEIMER, DECEASED CUMBERLAND COUNTY Plaintiff vs. SHIPPENSBURG HEALTH CARE CENTER and LARRY COTTLE SHIPPENSBURG HEALTH CARE CENTER and PERINI SERVICES/SOUTH HAMPTON MANOR LIMITED PARTNERSHIP and PERINI SERVICES, INC. Defendants. NO. 06-4715 JURY TRIAL DEMANDED PRAECIPE TO RESINSTATE COMPLAINT TO THE PROTHONOTARY: Kindly reinstate the attached Complaint for the purpose of service only. GALFAND BERGER, L.L.P. av, DEBRA A. JENSEN. VQUIRE 1818 Market Street, Suite 2300 Philadelphia, PA 19103 (215) 665-1600 Attorneys for Plaintiff ?> +7,; ? ??, "'- rr fi ? - ,,.,. -r=, ?, '??i+7 ? ?; `rs' __? ?.?, F,.,.) ?? ? fY .? "' ? ?J j-` !^Y... ?.I.? ?Y` _? CERTIFICATION OF SERVICE I do hereby certify that service of a true and correct copy of the Praecipe to Reinstate Complaint was made on the 10th day of January, 2007 to the following via First Class Mail, postage prepaid. B. Craig Black, Esquire 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 Brian L. Kinsley, Esquire Sidney Schupak, Esquire Ashcraft & Gerel, LLP 2000 L Street, NW Suite 400 Washington, DC 20036 BY: DEB A. JENSEN, ES IRE Attorney for Plaintiff DATE: January 10, 2007 f:? ? ? ?? ?`; -'? "?= 17 j ?? "'?- 1Rg ?„J - !.?J . ?, C:1 --? "C PRAECIPE FOR LISTING CASE FOR ARGUMENT TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the April 4, 2007 Argument Court. LINDA BERNHEIMER, ADMINISTRATRIX OF THE ESTATE OF MARTIN BERNHEIMER, DECEASED, Plaintiff V. SHIPPENSBURG HEALTH CARE CENTER, LARRY COTTLE, PERINI SERVICES/SOUTH HAMPTON MANOR LIMITED PARTNERSHIP AND PERINI SERVICES, INC., Defendants No. 06-4715 CIVIL ACTION - LAW JURY TRIAL DEMANDED State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Preliminary Objections of Defendants Shippensburg Health Care Center, Larry Cottle, Perini Services/South Hampton Manor Limited Partnership and Perini Services, Inc., to Plaintiff's Complaint 2. Identify counsel who will argue case: (a) for plaintiff: Debra A. Jensen, Esquire address: Galfand Berger, LLP 1818 Market Street; Suite 2300 Philadelphia, PA 19103 Brian Kinsley, Esquire Sidney Schupak, Esquire Ashcraft & Gerel, LLP Suite 400 2000 L. Street NW Washington, DC 20036 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA (b) for defendant: B. Craig Black, Esquire address: 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 3. 1 will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: April 4, 2007 Dated: January 29, 2007 Attorney [en, $hippensburg'` Health a Center, Larry Cottle, Perini Servic South Hampton Manor Limited Partnership and Perini Services, Inc. CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the Praecipe for Listing Case for Argument in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, first-class postage prepaid, addressed as follows: Debra A. Jensen, Esquire Galfand Berger, LLP 1818 Market Street; Suite 2300 Philadelphia, PA 19103 (Counsel for Plaintiff) Brian Kinsley, Esquire Sidney Schupak, Esquire Ashcraft & Gerel, LLP Suite 400 2000 L. Street NW Washington, DC 20036 McKissock & Hoffman, P.C. Dated: _JZ>-j By: C I. N .: 36818 en M. Burnette, Esquire I.D. No.: 92412 2040 Linglestown Road Suite ;302 Harrisburg, PA 17110 (717) 540-3400 Attorneys for Defendants, Shippensburg Health Care Center, Larry Cottle, Perini Services/South Hampton Manor Limited Partnership and Perini Services, Inc. ?-} r- ?? i': l v::3 :?? 1 { ? ? - ?y {_ 1 (?? ) i' ?..f ?? `Y ? A i ^3 ? -1?1 ..? ?? -? LINDA BERNHEIMER, Administratrix for the Estate of Martin Bernheimer, Deceased, PLAINTIFF V. SHIPPENSBURG HEALTHCARE CENTER, LARRY COTTLE, PERINI SERVICES/SOUTH HAMPTON MANOR LIMITED PARTNERSHIP AND : PERINI SERVICES, INC., DEFENDANTS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 06-4715 CIVIL TERM IN RE: PRELIMINARY OBJECTS OF DEFENDANTS TO PLAINTIFF'S COMPLAINT BEFORE BAYLEY, J. AND HESS, J. ORDER OF COURT AND NOW, this day of April, 2007, plaintiff having withdrawn its claims based on corporate negligence, all other preliminary objections of defendants to plaintiff's complaint, ARE DISMISSED. By Xrian L. Kinsley, Esquire Plaintiff J ,JB. Craig Black, Esquire For Defendants :sal Edgar B. B „?- ,._ r--; ? ?: ?' c'?) ?' a .? U. ? ? ? N ; R IL LINDA BERNHEIMER, ADMINISTRATRIX OF THE ESTATE OF MARTIN BERNHEIMER, DECEASED, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 06-4715 V. CIVIL ACTION - LAW SHIPPENSBURG HEALTH CARE CENTER, LARRY COTTLE, PERINI SERVICES/SOUTHAMPTON MANOR LIMITED PARTNERSHIP AND PERINI SERVICES, INC., Defendants JURY TRIAL DEMANDED NOTICE TO PLEAD To: Linda Bernheimer c/o Brian Kinsley, Esquire Sidney Schupak, Esquire Ashcraft & Gerel, LLP Suite 400 2000 L. Street NW Washington, DC 20036 You are hereby notified to file a written response to the enclosed New Matter pursuant to Pa.R.C.P. 1030 within 20 days from service. AND NOW this 2 3!0 day of 2007, comes Defendants, Shippensburg Health Care Center, Larry Cottle, Perini Services/Southampton Manor Limited Partnership and Perini Services, Inc., and files the following Answer and New Matter to Plaintiff's Complaint wherein the following is a statement: 1. Denied. After reasonable investigation, Answering Defendants are of insufficient knowledge and information to form a belief as to the truth of the averments contained in ¶1 of Plaintiff's Complaint. Strict proof, if relevant, is demanded upon the trial of the matter. 1 2. The averments set forth in 12 of Plaintiff's Complaint constitute a conclusion of law to which no responsive pleading is required. To the extent that said averments do not constitute a conclusion of law and are factual in nature, said averments are denied. After reasonable investigation, Answering Defendants are of insufficient knowledge and information to form a belief as to the truth of the averments contained in ¶2 of Plaintiff's Complaint. Strict proof, if relevant, is demanded upon the trial of the of the matter. 3. Admitted in part, denied in part. It is admitted that Defendant, Larry Cottle, is a licensed nursing facility administrator. It is denied that said license is issued by the Department of Public Welfare of the Commonwealth of Pennsylvania. It is further denied that Mr. Cottle's address is as set forth in ¶3 of the Complaint. 4. The averments in ¶4 of Plaintiff's Complaint are a citation reference and as such, require no response. 5. Denied as stated. It is denied that Shippensburg Health Care Center (hereinafter "SHCC" is a partnership, corporation, professional corporation, limited partnership, association, proprietorship and/or other legal entity. It is admitted only that Defendant Shippensburg Health Care Center is a registered, fictitious name of a business entity organized and existing under the laws of the Commonwealth of Pennsylvania engaged in the business of providing services as a skilled nursing center, duly licensed under the laws of the Commonwealth of Pennsylvania with a business address at 121 Walnut Bottom Road, Shippensburg, PA 17257. The remaining averments in ¶5 of Plaintiff's Complaint are specifically denied. 2 • I 6. Denied as stated. It is denied that Perini Services/Southampton Manor Limited Partnership is a partnership, corporation, professional corporation, limited partnership, association, proprietorship and/or other legal entity. It is admitted only that Defendant Perini Services/Southampton Manor Limited Partnership is a registered limited partnership organized and existing under the laws of the Commonwealth of Pennsylvania. The remaining averments in $6 of Plaintiff's Complaint are specifically denied. By way of further answer, the correct address of the place of business of Perini Services/Southampton Manor is 1710 Underpass Way; Suite 200, Hagerstown, Maryland 21740. 7. Denied as stated. It is denied that Perini Services, Inc. is a limited partnership, corporation, professional corporation, limited partnership, association, proprietorship and/or other legal entity. It is admitted only that Defendant Perini Services, Inc. is a corporate entity organized and existing under the laws of the State of Maryland. The remaining averments in $7 of Plaintiff's Complaint are specifically denied. By way of further answer, the correct address of the place of business of Perini Services Inc. is 1710 Underpass Way; Suite 200, Hagerstown, Maryland 21740. 8. The averments in ¶8 of Plaintiff's Complaint are citation references to which no responsive pleadings is required. 9. The averments in ¶9 of Plaintiff's Complaint are citation references to which no responsive pleadings is required. 10. The averments in ¶10 of Plaintiff's Complaint constitute a conclusion of law to which no responsive pleading is required. To the extent that said averments are factually specific and do not constitute a conclusion of law, it is admitted only that Shippensburg Health Care Center is the registered name of Perini Services/Southampton Manor Limited Partnership and that said limited partnership operated a skilled nursing facility within the Commonwealth of Pennsylvania. Strict proof, if relevant, is demanded upon the trial of the matter. 3 i ? 11. Denied. The averments in $11 of Plaintiff's Complaint are denied. It is denied that all named Defendants "controlled, promulgated, regulated, affected and/or influenced expenditures, policies and procedures, allocations of financial resources, funding, staffing levels, staff training and staff supervision at Corporate Defendants' skilled nursing facility located at 121 Walnut Bottom Road, Shippensburg, PA and also determined the budget and size of profits gleaned from the operations of that facility". Strict proof, if relevant, is demanded upon the trial of the matter. 12. The averments set forth in ¶12 of Plaintiff's Complaint constitute conclusions of law to which no responsive pleading is required. To the extent that said averments do not constitute conclusions of law and are factually specific, same are denied. It is further averred that in the absence of specific identification of those individuals by whom Plaintiff believes that certain acts were or were not completed, it is impossible for Defendants to speculate as to the identity and/or capacity of said individuals in order to be able to conform with the requirements of Pa.R.C.P. 1029(e)(1). Strict proof, if relevant, is demanded upon the trial of the matter. 13. The averments set forth in $13 of Plaintiff's Complaint constitute conclusions of law to which no responsive pleading is required. To the extent that said averments do not constitute conclusions of law and are factually specific, same are denied. It is further averred that in the absence of specific identification of those individuals by whom Plaintiff believes that certain acts were or were not completed, it is impossible for Defendants to speculate as to the identity and/or capacity of said individuals in order to be able to conform with the requirements of Pa.R.C.P. 1029(e)(1). Strict proof, if relevant, is demanded upon the trial of the matter. Any inference arising from the allegations of ¶13 that Shippensburg Health Care Center engaged in any activity which violated its legal duties to Plaintiff or Plaintiff's decedent are specifically denied. 4 14. The averments in ¶14 of Plaintiff's Complaint constitute a conclusion of law to which no responsive pleading is required. It is admitted only that during the time frame of Plaintiff's decedent's residence at Shippensburg Health Care Center, between April 23, 2004 and September 2004, Defendant, Larry Cottle, was an employee of Shippensburg Health Care Center. Any other inferences arising from the averments in ¶14 of Plaintiff's Complaint are denied. Strict proof, if relevant, is demanded upon the trial of the matter. 15. The averments in 115 of Plaintiff's Complaint constitute a conclusion of law to which no responsive pleading is required. To the extent that said averments are factually specific and do not constitute a conclusion of law, same are denied. The averments of ¶14 of Defendants' Answer and New Matter, infra., are incorporated by reference as if more fully set forth at length. 16. The averments in ¶16 of Plaintiff's Complaint constitute a conclusion of law to which no responsive pleading is required. To the extent that said averments do not constitute a conclusion of law and are factually specific, said averments are denied. To the extent that the law imposes any duty upon all Defendants, said Defendants acted in accordance therewith in the provisions of a safe, humane, comfortable and supportive residential setting for Plaintiff's decedent. Strict proof, if relevant, is demanded upon the trial of the matter. 17. The averments in 117 of Plaintiff's Complaint constitute a conclusion of law to which no responsive pleading is required. To the extent that said averments are factually specific and do not constitute a conclusion of law, same are denied. To the contrary, Defendants, to the extent obligated by law, provided a safe, humane, comfortable and supportive residential setting for Plaintiff's decedent; provided assistance beyond the basic necessities of food and shelter, including assistance and/or supervision in matters such as dressing, bathing, diet, financial management, evacuation of the residence in the event of an 5 emergency and the administration of medication; provided encouragement and assistance needed to develop and maintain maximum independence and self determination; provided services directed to the avoidance of unnecessary institutionalization, and utilized local agencies to assist the needs of the resident, including Plaintiff's decedent so that necessary services and appropriate levels of care were identified and promptly secured. Strict proof, if relevant, is demanded upon the trial of the matter. 18. The averments in ¶18 of Plaintiff's Complaint constitute conclusions of law to which no responsive pleading is required. To the extent that said averments are factually specific and do not constitute conclusions of law, same are denied in accordance with Pa.R.C.P. 1029(e). By way of further response, it is averred that at all times relevant to Plaintiff's decedent's residence at Shippensburg Health Care Center, Defendants complied with all legal duties owed to Plaintiff's decedent. Strict proof, if relevant, is demanded upon the trial of the matter. 19. Admitted in part, denied in part. It is admitted only that on or about April 23, 2004 Plaintiff's decedent, Martin Bernheimer, became a resident of Shippensburg Health Care Center where he was admitted secondary to his personal need for skilled nursing services. 20. The averments in 120 of Plaintiff's Complaint constitute conclusions of law to which no responsive pleading is required. To the extent that said averments are factually specific and do not constitute conclusions of law and relate to Plaintiff decedent's physical and mental health conditions, same are admitted only to the extent consistent with the various medical records of Plaintiff's decedent compiled both at Shippensburg Health Care Center and by other medical service providers and health care providers who Plaintiff's decedent was treated and evaluated and which were provided to and available to Defendant's at the time of admission. The remaining averments of %0 are denied. Strict proof, if relevant, is demanded upon the trial of the matter. 6 21. Admitted in part, denied in part. It is admitted only that at the time of Plaintiff decedent's admission to SHCC, he was evaluated and assessed. The remaining characterizations as set forth in %1 of Plaintiff's Complaint are denied. 22. The averments in ¶22 of Plaintiff's Complaint constitute conclusions of law to which no responsive pleading is required. To the extent that said averments are factually specific and do not constitute conclusions of law, same are denied as stated. The history of Plaintiff's decedent's falls as provided at the time of admission is reflected in Plaintiff decedent's records from SHCC. Strict proof, if relevant, is demanded upon the trial of the matter. 23. The averments of ¶23 of Plaintiff's Complaint constitute conclusions of law to which no responsive pleading is required. To the extent that said averments are not conclusions of law and are factually specific, same are denied. To the contrary, Defendants implemented procedures and protocols to prevent Plaintiff's decedent from falling and implemented appropriate fall prevention measures to ensure the safety of Plaintiff's decedent to the extent permitted by the requisite standard of care and in accordance with both regulations and statutes of the United States and of the Commonwealth of Pennsylvania. The extent of decedent's falls which a resident of SHCC is documented in Plaintiff's decedent's chart and the averments of ¶23 of Plaintiff's Complaint are denied to the extent inconsistent therewith. Strict proof, if relevant, is demanded upon the trial of the matter. 24. Denied as stated. While it is admitted that Plaintiff's decedent ambulated and transferred without requesting the assistance of staff, Plaintiff's decedent was frequently admonished and advised to seek the assistance of staff in order to ambulate throughout the facility. Any occasion where Plaintiff's decedent ambulated and transferred without the assistance of staff was initiated by Plaintiff's decedent and was due solely to Plaintiff's decedent's failure to cooperate and comply with instructions provided to him by the facility and its staff. Strict proof if relevant, is demanded upon the trial of the matter. 7 25. Denied. To the contrary, Defendants utilized appropriate and necessary interventions to prevent Plaintiff's decedent from engaging in dangerous behavior and to prevent him from falling. To the extent that Plaintiff's decedent suffered any falls, it was due to Plaintiff's decedent's refusal to honor and abide by instructions and fall prevention measures implemented for his own safety by the facility and its staff. Strict proof, if relevant, is demanded upon the trial of the matter. 26. The averments in %6 of Plaintiff's Complaint constitute conclusions of law to which no responsive pleading is required. To the extent that said averments are factually specific and do not constitute conclusions of law, same are denied. It is denied specifically that Defendants "willfully, wantonly, and maliciously ignored the danger posed by Plaintiff's decedent's fall risk and persistent attempts at self ambulation and transfer'. By way of further answer, the averments set forth in ¶Js 23 through 25 of the foregoing Answer are incorporated herein by reference. Strict proof, if relevant, is demanded upon the trial of the matter. 27. Denied. It is denied that on August 30, 2004 Plaintiff's decedent 'Was again allowed to fall". To the contrary, Plaintiff's decedent fell after failing to abide by the fall prevention measures implemented at Defendants' facility for Plaintiff's decedent's own protection. It is admitted that on August 30, 2004 Plaintiff's decedent fell and it is admitted that ultimately the fall resulted in an injury which was diagnosed as a displaced intertrochanteric fracture of his left hip. Any inference arising from the averments of ¶27 of Plaintiff's Complaint to the effect that SHCC and/or its staff were negligent in the care rendered to Plaintiff's decedent are specifically denied. Strict proof, if relevant, is demanded upon the trial of the matter. 28. The averments in ¶28 of Plaintiff's Complaint constitute conclusions of law to which no responsive pleading is required. To the extent that said averments do not constitute 8 conclusions of law and are factually specific, same are denied. It is specifically denied that Defendants' acted `Willfully, wantonly and with malicious disregard for "Plaintiff's decedent', and failed to send him to the hospital until September 4, 2004 - five (5) days after his unattended fall and displaced hip fracture". To the contrary, Plaintiff's decedent had a hip x-ray which was interpreted by an independent contractor radiologist which showed no evidence of a displaced hip fracture. Moreover, Plaintiff's decedent was monitored on a constant basis to ensure that any injuries and complaints sustained as a result of the August 30, 2004 fall were appropriately assessed and addressed. Strict proof, if relevant, is demanded upon the trial of the matter. COUNT I - NEGLIGENCE PLAINTIFF v. DEFENDANTS 29. The averments in ¶¶s 1 through 28 of the foregoing Answer are incorporated by reference as if more fully set forth at length. 30(a-r). Denied. The averments in ¶30(a-r) of Plaintiff's Complaint are denied in accordance with Pa.R.C.P. 1029(e). Strict proof, if relevant, is demanded upon the trial of the matter. 31. The averments in ¶31 of Plaintiff's Complaint constitute a conclusion of law to which no responsive pleadings is required. To the extent that said averments are factually specific and do not constitute a conclusion of law, same are denied. After reasonable investigation, Answering Defendants are of insufficient knowledge and information to form a belief as to the truth of said averments. Strict proof, if relevant, is demanded upon the trial of the matter. 9 WHEREFORE, Defendants respectfully request this Honorable Court enter judgment in their favor, to dismiss Plaintiff's Complaint, with prejudice, and award such other relief as this Honorable Court deems fair and just. COUNT II - VICARIOUS LIABILITY PLAINTIFF v. CORPORATE DEFENDANTS 32. The averments in J$s 1 through 31 of the foregoing Answer, inclusive, are incorporated herein by reference as if more fully set forth at length. 33-37. The averments contained in ¶$s 33 through 37 of Plaintiff's Complaint constitute conclusions of law to which no responsive pleading is required. To the extent that said averments do not constitute conclusions of law and are factually specific, same are denied. It is noted that without exact identification of those individuals whom Plaintiff contends are the "agents, servants and employees of Defendants", Defendants' are incapable of making a specific identification as to whether or not said individuals were operating in the capacity of an agent, servant and/or employee of Defendants. Accordingly, an admission or denial of the vague allegations of the actions of unidentified individuals who may or may not be agents, servants and/or employees of Defendants is incapable of being made in accordance with Pa.R.C.P. 1029. Strict proof, if relevant, is demanded upon the trial of the matter. WHEREFORE, Defendants respectfully request that this Honorable Court enter judgment on behalf of Defendants, dismiss Plaintiff's Complaint, with prejudice, and award such other relief as this Honorable Court deems fair and just. 10 COUNT III - CORPORATE LIABILITY PLAINTIFF v. CORPORATE DEFENDANTS 38. The averments in ¶$s 1 through 37, inclusive, are specifically incorporated herein by reference as if set forth more fully at length. 39-40. The averments in ¶¶s 39 and 40, having been dismissed by virtue of Judgment Non Pros entered on January 2, 2007, said averments do not require a response. COUNT IV - SURVIVAL ACTION - 42 PA.C.S. § 8302 PLAINTIFF v. DEFENDANTS 41. The averments in ¶Ts 1 through 40 of Defendants Answer, inclusively, are incorporated by reference as if set forth more fully at length herein. 42-44. The averments in ¶js 42 through 44 of Plaintiff's Complaint constitute conclusions of law to which no responsive pleading is required. To the extent that said averments do not constitute conclusions of law and are factually specific, same are denied. It is denied that Plaintiff is entitled to recover any damages by virtue of any actions of named Defendants. It is further denied that any actions and/or omissions of named Defendants give 11 rise to any cause of action on behalf of Plaintiff. Strict proof, if relevant, is demanded upon the trial of the matter. WHEREFORE, Defendants respectfully request that this Honorable Court enter judgment on behalf of Defendants, dismiss Plaintiff's Complaint, with prejudice, and award such other relief as this Honorable Court deems fair and just. COUNT V - BREACH OF CONTRACT PLAINTIFF v. DEFENDANTS 45. Defendants hereby incorporate ¶¶s 1 through 44 of the foregoing Answer, inclusively, as if same were set forth more fully at length. 46. Admitted in part, denied in part. It is admitted that Defendant SHCC and Plaintiff were parties to a written Admissions Agreement. It is further admitted that appended to said Admission Agreement was a "Resident's Bill of Rights". The remaining averments of ¶46 of Plaintiff's Complaint which attempt to characterize the nature of said Admissions Agreement are specifically denied. By way of further answer, said Admission Agreement and Resident's Bill of Right speak for themselves. Strict proof, if relevant, is demanded upon the trial of the matter. 47. Denied. After reasonable investigation, Answering Defendants are of insufficient knowledge and information to form a belief as to the truth of the averments set forth in 147 of Plaintiff's Complaint. It is further denied that at this juncture that Plaintiff is not in possession of a copy of the Admissions Agreement between Plaintiff's decedent and SHCC. Strict proof, if relevant, is demanded upon the trial of the matter. 48. Denied. It is specifically denied that the Defendants and Plaintiff's decedent were parties to an oral Admissions Agreement and/or that the averments in ¶48 of Plaintiff's Complaint characterize any oral Admissions Agreement between Plaintiff's decedent and 12 Defendants. By way of further response, Defendants incorporate herein their answer to $46 of Plaintiff's Complaint, which averments are specifically incorporated herein by reference. Strict proof, if relevant, is demanded upon the trial of the matter. 49. The averments in ¶49 of Plaintiff's Complaint constitute conclusions of law to which no responsive pleading is required. 50. Denied as stated. It is denied that Defendants received a monthly fee on behalf of Plaintiff's decedent in connection with the terms and conditions of the Admission Agreement. It is admitted only that Defendant Shippensburg Health Care Center was compensated on a monthly basis for services rendered to Plaintiff's decedent on account of his residence and other personal services rendered to Plaintiff's decedent while he was a resident at Defendant Shippensburg Health Care Center. 51. The averments in ¶51 of Plaintiff's Complaint constitute conclusions of law to which no responsive pleading is required. To the extent that said averments do not constitute conclusions of law and are factually specific, same are denied. By way of further answer, Defendants aver that during the period of time that Plaintiff's decedent was a resident at Shippensburg Health Care Center, that Defendants complied with all provisions of the Admission Agreement, community standards and federal and state statutes and regulations with respect to Plaintiff's decedent and that any injuries sustained by Plaintiff's decedent were not as a result of any acts or omissions of Defendants. WHEREFORE, Defendants respectfully request that this Honorable Court enter judgment on behalf of Defendants, dismiss Plaintiff's Complaint, with prejudice, and award such other relief as this Honorable Court deems fair and just. 13 • r COUNT VI - PUNITIVE DAMAGES PLAINTIFF v. DEFENDANTS 52. The averments in %s 1 through 51 of the foregoing Answer, inclusively, are incorporated herein by reference as if set forth more fully at length. 53. The averments in ¶53 of Plaintiff's Complaint constitute a conclusion of law to which no responsive pleading is required. To the extent that said averments do not constitute a conclusion of law and are factually specific, same are denied. It is denied that Defendants acted with reckless indifference to the interests of Plaintiff's decedent, acted maliciously, wantonly, willfully and/or oppressively and/or that any conduct of Defendants either individually or jointly caused any injuries or unnecessary physical and emotional pain and suffering to Plaintiff's decedent. Strict proof, if relevant, is demanded upon the trial of the matter. 54. The averments in 154 of Plaintiff's Complaint constitute a conclusion of law to which no responsive pleading is required. To the extent that said averments are factually specific and do not constitute a conclusion of law, same are denied. It is denied that Plaintiff is entitled to any award of punitive damages or to any award for compensatory damages in this matter. WHEREFORE, Defendants respectfully request that this Honorable Court enter judgment on behalf of Defendants, dismiss Plaintiff's Complaint, with prejudice, and award such other relief as this Honorable Court deems fair and just. NEW MATTER 55. Paragraphs 1 through 54 of Defendants' Answer, inclusive, are incorporated herein as if more fully set forth at length. 14 56. The recovery of medical expenses paid by any third-party, including any insurance carrier, is barred pursuant to Section 605 of the Health Care Service Malpractice Act of 1975, as amended (Act of October 15, 1975; P.R. 390, No: 111 (40 Pa.S. §1301.605)). 57. Plaintiff's claims are barred by the applicable Statute of Limitations. 58. Plaintiff's injuries and losses, if any, were caused in whole or in part by persons or events outside of the control of Answering Defendants. 59. Plaintiff's injury and losses, if any, were caused in whole or in part by persons not a party to the within action. 60. Plaintiff's injuries, if any, were sustained as a result of natural and unknown causes and not as a result of any action or inaction on behalf of Answering Defendants. 61. At all times relevant hereto, Answering Defendants rendered care in an appropriate manner, within the standards of care applicable thereto and in compliance with all Statutes, Rules, Regulations, Protocols and/or Procedures applicable thereto. 62. Any acts and/or omissions of Answering Defendants were and are not the proximate cause or a substantial factor giving rise to Plaintiff's injuries and/or damages. 63. Plaintiff may have entered into a Release Agreement with other individuals or entities which has the effect of discharging any and all liability of Answering Defendants. 64. Plaintiff has failed to state a claim upon which relief can be granted. 65. All claims and causes of action pleaded against Answering Defendants are barred by Plaintiff's knowing and voluntary informed consent to the care in question. 15 66. Plaintiff's claims are barred by the doctrines of Comparative or Contributory negligence. Respectfully submitted, McKissock & Hoffman, P.C. By: B. C ig B ac c, I. o.: 36818 Lauren M. Burnette, Esquire I.D. No.: 92412 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 (717) 540-3400 Dated: Attorneys for Defendants, Shippensburg Health Care Center, Larry Cottle, Perini Services/Southampton Manor Limited Partnership and Perini Services, Inc. 16 6. A VERIFICATION I, B. Craig Black, Esquire, attorney for Defendant, Larry Cottle, verifies that the statements made in the foregoing Amended New Matter of Defendant, Larry Cottle, are true and correct to the best of my knowledge, information and belief, and makes these statements subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. B. Cra' ck, squire Date: 2 A tad ;r 21 Apr 17 07 11:55a Kathleen Perini 301-790-0738 p.2 4 a VERIFICATION I, Dominick Perini, hereby verify that the statements in Defendant's Answer and New Matter are true and correct to the best of my information, knowledge and belief. I understand that the statements are made subject to the penalties of PA.C.S. Section 4904, relating to the unsworn falsification to authorities. 12 Perini Services/Southampton nor Limited Partnership and Perini Services, Inc. BY: Dominick Perini Managing Partner - Perini Services/Southampton Manor Limited Partnership President - Perini Services, Inc. Dated: I 'll 4,J 6 7 ,a VERIFICATION I, Lin Tierson, hereby verify that the statements in Defendants' Answer and New Matter are true and correct to the best of my information, knowledge and belief. I understand that the statements are made subject to the penalties of PA.C.S. Section 4904, relating to the unsworn falsification to authorities. Lin Tierso cting Admirnstrator For Shippensburg Health Care Center Dated: 17 4, a 1 0, CERTIFICATE OF SERVICE I hereby certify that I am this day serving a copy of the foregoing Answer and New Matter upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, first-class postage prepaid, addressed as follows: Debra A. Jensen, Esquire Galfand Berger, LLP 1818 Market Street; Suite 2300 Philadelphia, PA 19103 (Counsel for Plaintiff) Brian Kinsley, Esquire Sidney Schupak, Esquire Ashcraft & Gerel, LLP Suite 400 2000 L. Street NW Washington, DC 20036 McKissock & Hoffman, P.C. By: B. Crai IadR, Mquire I.D. 36818 Lauren M. Burnette, Esquire I.D. No.: 92412 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 (717) 540-3400 Dated: Aaaz,x z,=;c Attorneys for Defendants, Shippensburg Health Care Center, Larry Cottle, Perini Services/Southampton Manor Limited Partnership and Perini Services, Inc. 20 C? ? p t r S?1 °_ C n ??! r LINDA BERNHEIMER, ADMINISTRATRIX OF THE ESTATE OF MARTIN BERNHEIMER, DECEASED, Plaintiff No. 06-4715 V. SHIPPENSBURG HEALTH CARE CENTER, LARRY COTTLE, PERINI SERVICES/SOUTHAMPTON MANOR LIMITED PARTNERSHIP AND PERINI SERVICES, INC., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW JURY TRIAL DEMANDED PLAINTIFF'S ANSWER TO NEW MATTER OF DEFENDANTS SHIPPENSBURG HEALTH CARE CENTER, LARRY COTTLE, PERINI SERVICES/SOUTHAMPTON MANOR LIMITED PARTNERSHIP AND PERINI SERVICES INC 56. Denied. The averments of this paragraph are conclusions of law to which no LAW OFFICES ASHCRAFT & GEREL, LLP SUITE 400 2000 L STREET, N.W. WASHINGTON. D.C. 20036 202-783-6400 FAX: 202-416-6392 SUITE 650 4900 SEMINARY ROAD ALEXANDRIA, VA 22311 703-931-5500 FAX: 703-820-0630 SUITE 1002 ONE CENTRAL PLAZA 11300 ROCKVILLE PIKE ROCKVILLE, MD 20852 301-770-3737 FAX: 301-881-6132 SUITE 301 METRO 400 BUILDING 4301 GARDEN CITY DRIVE LANDOVER, MD 20785 301-459-8400 FAX: 301 -459- 1 364 SUITE 1212 10 EAST BALTIMORE STREET BALTIMORE, MD 21202 response is required. However, effective March 20, 2002, Section 605 of the Health Care Service Malpractice Act of 1975, as amended (Act of October 15, 1975; P.R. 390, No. 111 (40 Pa.S. §1301.605)) was repealed. 57. Denied. The averments of this paragraph are conclusions of law to which no response is required. To the extent that this paragraph is deemed to be a factual averment, each and every averment is specifically denied. Strict proof is demanded at trial. 58. It is denied that Plaintiff s injuries and losses were caused in whole or in part by persons or events outside of the control of the Defendants. Strict proof is demanded at trial. 59. It is denied that Plaintiffs injuries and losses were caused in whole or in part by persons not a party to the within action. Strict proof is demanded at trial. 60. It is denied that Plaintiff s injuries were sustained as a result of natural and unknown causes and not as a result of any action or inaction on behalf of the Defendants. Strict 410-539-1122 FAX: 4 1 0-547- 1 26; r proof is demanded at trial. 61. Denied. The averments of this paragraph are conclusions of law to which no response is required. To the extent that this paragraph is deemed to be a factual averment, each and every averment is specially denied. Strict proof is demanded at trial. 62. It is denied that any acts and/or omissions of the Defendants were and are not the proximate cause or a substantial factor giving rise to Plaintiff's injuries and/or damages. Byway of further response, the averments of this paragraph are conclusions of law to which no response is required. To the extent that this paragraph is deemed to be a factual averment, each and every averment is specifically denied. Strict proof is demanded at trial. 63. It is denied that Plaintiff entered into a Release Agreement with other individuals LAW OFFICES ASHCRAFT & GEREL, LLP SUITE 400 2000 L STREET, N.W. WASHINGTON, D.C. 20036 202-783-6400 FAX: 202-416-6392 SUITE 650 4900 SEMINARY ROAD ALEXANDRIA, VA 22311 703-931-5500 FAX: 703-820-0630 SUITE 1002 ONE CENTRAL PLAZA 11300 ROCKVILLE PIKE ROCKVILLE, MD 20852 301-770-3737 FAX: 301-881-6132 SUITE 301 METRO 400 BUILDING 4301 GARDEN CITY DRIVE LANDOVER, MD 20785 301-459-8400 FAX: 301-459-1364 I SUITE 1212 10 EAST BALTIMORE STREET BALTIMORE, MO 21202 or entities which has the effect of discharging any and all liability of the Defendants. Strict proof is demanded at trial. 64. Denied. The averments of this paragraph are conclusions of law to which no response is required. To the extent that this paragraph is deemed to be a factual averment, each and every averment is specifically denied. 65. It is denied that all claims and causes of action pleaded against the Defendants are barred by Plaintiff's knowing and voluntary informed consent to the care in question. Strict proof is demanded at trial. 66. Denied. The averments of this paragraph are conclusions of law to which no response is required. To the extent that this paragraph is deemed to be a factual averment, each and every averment is specifically denied. Strict proof is demanded at trial. 4 1 0-539- 1 1 22 FAX: 410-547-1261 WHEREFORE, Plaintiff demands judgment against Defendants herein for a sum in. excess of the limits of arbitration including punitive damages together with such other relief as this Honorable Court may deem fair and just. Respectfully submitted, ASHC & GEREL By: r° rian L. insley Sidney Schupak 2000 L Street, N.W. Suite 400 Washington, DC 20036 (202) 783-6400 Attorneys for Plaintiff LAW OFFICES ASHCRAFT & GEREL, LLP SUITE 400 2000 L STREET, N.W. WASHINGTON, D.C. 20036 202-783-6400 FAX: 202-416-6392 SUITE 650 4900 SEMINARY ROAD ALEXANDRIA, VA 22311 703-931-5500 FAX: 703-820-0630 SUITE 1002 ONE CENTRAL PLAZA 11300 ROCKVILLE PIKE ROCKVILLE, MD 20852 301-770-3737 FAX: 30 1-88 1 -6 132 SUITE 301 METRO 400 BUILDING 4301 GARDEN CITY DRIVE LANDOVER, MD 20785 301-459-8400 FAX: 301-459-1364 SUITE 1212 IO EAST BALTIMORE STREET BALTIMORE, MD 21202 410-539-1122 FAX: 410-547-1261 VERIFICATION We, Sidney Schupak, Esquire, and Brian L. Kinsley, Esquire, hereby depose and say that we are the attorneys of record for the Plaintiff in the within action, that the facts set forth in the foregoing Reply to New Matter are true and correct to the best of our knowledge, information and belief and that this Affidavit is being made subject to the penalties of 18 Pa. C. S. A. §4904 relating to unsworn falsification to authorities. AK, DATED: L SLEY; Attorneys for Plaintiff CERTIFICATE OF SERVICE LAW OFFICES ASHCRAFT & GEREL, LLP SUITE 400 2000 L STREET, N.W. WASHINGTON, D.C. 20036 202-783-6400 FAX: 202-416-6392 SUITE 650 4900 SEMINARY ROAD ALEXANDRIA, VA 22311 703-931-5500 FAX: 703-820-0630 SUITE 1002 ONE CENTRAL PLAZA 11300 ROCKVILLE PIKE ROCKVILLE, MD 20852 301-770-3737 FAX: 301-881-6132 SUITE 301 METRO 400 BUILDING 4301 GARDEN CITY DRIVE LANDOVER, MD 20785 301-459-8400 FAX: 301-459-1364 SUITE 1212 10 EAST BALTIMORE STREET BALTIMORE, MD 21202 4 10-539-1 122 FAX: 410-547-1261 I hereby certify that a copy of the foregoing Plaintiff's Answer to New Matter of Defendants, Shippenburg Health Care Center, Larry Cottle, Perini Services/Southhampton Manor Limited Partnership and Perini Services, Inc. was mailed, postage prepaid, this I day of/V4-/ J 2007 to: B. Craig Black, Esq. McKissock & Hoffman, P.C. 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 Debra A. Jensen, Esq. Galfand Berger, LLP 1818 Market Street Suite 2300 Philadelphia, PA 19103 c•s v ? .r ? (';} ;`t"t ? ? ?7 ._?. ?..! W ? ??y ?"? y. (,}? i a LINDA BERNHEIMER, ADMINISTRATRIX OF THE ESTATE OF MARTIN BERNHEIMER, DECEASED, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 06-4715 V. SHIPPENSBURG HEALTH CARE CENTER, LARRY COTTLE, PERINI SERVICES/SOUTHAMPTON MANOR LIMITED PARTNERSHIP AND PERINI SERVICES, INC., Defendants CIVIL ACTION - LAW JURY TRIAL DEMANDED PRAECIPE TO SUBSTITUTE Plaintiff, by and through counsel, Brian L. Kinsley and Ashcraft & Gerel, LLP, hereby LAW OFFICES ASHCRAFT & GEREL, LLP SUITE 400 2000 L STREET, N.W. WASHINGTON, D.C. 20036 202-783-6400 FAX: 202-4 16-6392 SUITE 650 4900 SEMINARY ROAD ALEXANDRIA, VA 22311 703-931-5500 FAX: 703-820-0630 SUITE 1002 ONE CENTRAL PLAZA 11300 ROCKVILLE PIKE ROCKVILLE, MD 20852 301-770-3737 FAX: 301-881-6132 SUITE 301 METRO 400 BUILDING 4301 GARDEN CITY DRIVE LANDOVER, MD 20785 301-459-8400 FAX: 301 -459- 1 364 SUITE 1212 10 EAST BALTIMORE STREET BALTIMORE, MD 21202 substitute Plaintiff's Answer to New Matter of Defendant's Shippensburg Health Care Center, Larry Cottle, Perini Services/South Hampton Manor Limited Partnership and Perini Services, Inc., filed on May 4, 2007, with the enclosed Plaintiffs verified Answer to New Matter of the Defendants. Respectfully submitted, 410-539-1122 FAX: 4 10-547-1 261 2000 L Street, N.W. Suite 400 Washington, DC 20036 (202) 783-6400 Attorneys for Plaintiff CERTIFICATE OF SERVICE I hereby certify that a copy the foregoing Plaintiff's PraeciPa to Substitute was mailed postage prepaid, this r i day of , 2007 to: B. Craig Black, Esq. McKissock & Hoffman, P.C. 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 Debra A. Jensen, Esq. Galfand Berger, LLP 1818 Market Street Suite 2300 Philadelphia, PA 19103 LAW OFFICES ASHCRAFT & GEREL, LLP SUITE 400 2000 L STREET, N.W. WASHINGTON, D.C. 20036 202-783-6400 FAX: 202-4 1 6-6392 SUITE 650 4900 SEMINARY ROAD ALEXANDRIA, VA 22311 703-931-5500 FAX: 703-820-0630 SUITE 1002 ONE CENTRAL PLAZA 11300 ROCKVILLE PIKE ROCKVILLE, MO 20852 301 -770-3737 FAX: 301-881-6132 SUITE 301 METRO 400 BUILDING 4301 GARDEN CITY DRIVE LANDOVER, MD 20785 301-459-8400 FAX: 301-459-1364 SUITE 1212 10 EAST BALTIMORE STREET BALTIMORE, MD 21202 410-539-1122 FAX: 410-547-1261 LINDA BERNHEIMER, ADMINISTRATRIX OF THE ESTATE OF MARTIN BERNHEIMER, DECEASED, Plaintiff No. 06-4715 V. SHIPPENSBURG HEALTH CARE CENTER, LARRY COTTLE, PERINI SERVICES/SOUTHAMPTON MANOR LIMITED PARTNERSHIP AND PERINI SERVICES, INC., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW JURY TRIAL DEMANDED PLAINTIFF'S ANSWER TO NEW MATTER OF DEFENDANTS SHIPPENSBURG HEALTH CARE CENTER, LARRY COTTLE, PERINI SERVICES/SOUTHAMPTON MANOR LIMITED PARTNERSHIP AND PERINI SERVICES, INC. 56. Denied. The averments of this paragraph are conclusions of law to which no LAW OFFICES ASHCRAFT & GEREL, LLP SUITE 400 2000 L STREET, N.W. WASHINGTON, D.C. 20036 202-783-6400 FAX: 202-416-6392 SUITE 650 4900 SEMINARY ROAD ALEXANDRIA, VA 22311 703-931-5500 FAX: 703-820-0630 SUITE 1002 ONE CENTRAL PLAZA 11300 ROCKVILLE PIKE ROCKVILLE, MD 20852 301 -770-3737 FAX: 301 -861 -6 1 32 SUITE 301 METRO 400 BUILDING 4301 GARDEN CITY DRIVE LANDOVER, MD 20785 301-459-8400 FAX: 301-459-1364 I SUITE 1212 10 EAST BALTIMORE STREET BALTIMORE, MD 21202 response is required. However, effective March 20, 2002, Section 605 of the Health Care Service Malpractice Act of 1975, as amended (Act of October 15, 1975; P.R. 390, No. 111 (40 Pa. S. §1301.605)) was repealed. 57. Denied. The averments of this paragraph are conclusions of law to which no response is required. To the extent that this paragraph is deemed to be a factual averment, each and every averment is specifically denied. Strict proof is demanded at trial. 58. It is denied that Plaintiff's injuries and losses were caused in whole or in part by persons or events outside of the control of the Defendants. Strict proof is demanded at trial. 59. It is denied that Plaintiff's injuries and losses were caused in whole or in part by persons not a party to the within action. Strict proof is demanded at trial. 60. It is denied that Plaintiff's injuries were sustained as a result of natural and unknown causes and not as a result of any action or inaction on behalf of the Defendants. Strict 410-539-1122 FAX: 410-547-1261 proof is demanded at trial. 61. Denied. The averments of this paragraph are conclusions of law to which no response is required. To the extent that this paragraph is deemed to be a factual averment, each and every averment is specially denied. Strict proof is demanded at trial. 62. It is denied that any acts and/or omissions of the Defendants were and are not the proximate cause or a substantial factor giving rise to Plaintiffs injuries and/or damages. By way of further response, the averments of this paragraph are conclusions of law to which no response is required. To the extent that this paragraph is deemed to be a factual averment, each and every averment is specifically denied. Strict proof is demanded at trial. 63. It is denied that Plaintiff entered into a Release Agreement with other individuals LAW OFFICES ASHCRAFT & GEREL, LLP SUITE 400 2000 L STREET, N.W. WASHINGTON, D.C. 20036 202-783-6400 FAX: 202-416-6392 SUITE 650 4900 SEMINARY ROAD ALEXANDRIA, VA 22311 703-931-5500 FAX: 703-820-0630 SUITE 1002 ONE CENTRAL PLAZA 11300 ROCKVILLE PIKE ROCKVILLE, MD 20852 301-770-3737 FAX'. 301-881-6132 SUITE 301 METRO 400 BUILDING 4301 GARDEN CITY DRIVE LANDOVER, MD 20785 301-459-8400 FAX: 301 -459- 1 364 SUITE 1212 10 EAST BALTIMORE STREET BALTIMORE, MD 21202 or entities which has the effect of discharging any and all liability of the Defendants. Strict proof is demanded at trial. 64. Denied. The averments of this paragraph are conclusions of law to which no response is required. To the extent that this paragraph is deemed to be a factual averment, each and every averment is specifically denied. 65. It is denied that all claims and causes of action pleaded against the Defendants are barred by Plaintiff s knowing and voluntary informed consent to the care in question. Strict proof is demanded at trial. 66. Denied. The averments of this paragraph are conclusions of law to which no response is required. To the extent that this paragraph is deemed to be a factual averment, each and every averment is specifically denied. Strict proof is demanded at trial. 410-539-1122 FAX: 410-547-1261 WHEREFORE, Plaintiff demands judgment against Defendants herein for a sum in excess of the limits of arbitration including punitive damages together with such other relief as this Honorable Court may deem fair and just. Respectfully submitted, ASHCRAfT & GEREL Fay: Pfian L. Kintey Sidney Schupak 2000 L Street, N.W. Suite 400 Washington, DC 20036 (202) 783-6400 Attorneys for Plaintiff LAW OFFICES ASHCRAFT & GEREL, LLP SUITE 400 2000 L STREET, N.W. WASHINGTON. D.C. 20036 202-783-6400 FAX: 202-416-6392 SUITE 650 4900 SEMINARY ROAD ALEXANDRIA, VA 22311 703-931-5500 FAX: 703-820-0630 SUITE 1002 ONE CENTRAL PLAZA 11300 ROCKVILLE PIKE ROCKVILLE, MO 20852 301-770-3737 FAX: 301-881-6132 SUITE 301 METRO 400 BUILDING 4301 GARDEN CITY DRIVE LANDOVER, MD 20785 301-459-8400 FAX: 301 -459- 1 364 SUITE 1212 10 EAST BALTIMORE STREET BALTIMORE, MD 21202 VERIFICATION I, Linda Bernheimer, hereby verify that the facts set forth in the. foregoing Reply to New Matter are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are subject to the penalties of 18 Pa.C.S. § 4904 related to unsworn falsification to authorities. J 00 LINDA BERNHEIMER Administratrix of the Estate of Martin Bernheimer 410-539-1122 FAX: 410-547-1261 ill CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Plaintiff s Answer to New Matter of LAW OFFICES ASHCRAFT & GEREL, LLP SUITE 400 2000 L STREET, N.W. WASHINGTON, D.C. 20036 202-783-6400 FAX: 202-416-6392 SUITE 650 4900 SEMINARY ROAD ALEXANDRIA, VA 22311 703-931-5500 FAX: 703-820-0630 SUITE 1002 ONE CENTRAL PLAZA 11300 ROCKVILLE PIKE ROCKVILLE, MD 20852 301-770-3737 FAX: 301-881-5132 SUITE 301 METRO 400 BUILDING 4301 GARDEN CITY DRIVE LANDOVER, MD 20785 301-459-8400 FAX: 301-459-1364 I SUITE 1212 10 EAST BALTIMORE STREET BALTIMORE, MD 21202 Defendants Shippensburg Health Care Center, Larry Cottle, Perini Service/Southhampton 1^ Manor Limited Partnership and Perini Services, Inc. was mailed, postage prepaid, this day of 2007 to: B. Craig Black, Esq. McKissock & Hoffman, P.C. 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 Debra A. Jensen, Esq. Galfand Berger, LLP 1818 Market Street Suite 2300 Philadelphia, PA 19103 ria a445 R ey 410-539-1122 FAX: 410-547-1261 ` -z- . ' ; i f7 a Sa -\ t e, LINDA BERNHEIMER, ADMINISTRATRIX OF THE ESTATE OF MARTIN BERNHEIMER, DECEASED, Plaintiff V. SHIPPENSBURG HEALTH CARE CENTER, LARRY COTTLE, PERINI SERVICES/SOUTH HAMPTON MANOR LIMITED PARTNERSHIP AND PERINI SERVICES, INC., Defendants V. MOBILE X USA and FRANK L. D'AMELIO, M.D., Additional Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 06-4715 CIVIL ACTION - LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE hereby certify that I am this day serving a copy of the foregoing Withdrawal and Entry of Appearances, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of same in the United States Mail, first- class postage prepaid, addressed as follows: Debra A. Jensen, Esquire Galfand Berger, LLP 1818 Market Street; Suite 2300 Philadelphia, PA 19103 (Counsel for Plaintiff) LINDA BERNHEIMER, ADMINISTRATRIX OF THE ESTATE OF MARTIN BERNHEIMER, DECEASED, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. No. 06-4715 SHIPPENSBURG HEALTH CARE CENTER, LARRY COTTLE, PERINI SERVICES/SOUTHAMPTON MANOR LIMITED PARTNERSHIP AND PERINI SERVICES, INC., Defendants CIVIL ACTION - LAW JURY TRIAL DEMANDED WITHDRAWAL OF APPEARANCE Kindly withdraw our appearance on behalf of Defendants, Shippensburg Health Care Center, Larry Cottle, Perini Services/South Hampton Manor Limited Partnership and Perini Services, Inc., in the above-captioned. Respectfully submitted, McKissock & Hoffman, P.C. By: ?. B. Cr I c M. I.D o.• 6818 La n M. Burnette, Esquire I.D. No.: 92412 2040 Linglestown Road Suite 302 Harrisburg, PA 17110 (717) 540-3400 Dated: Attorneys for Defendants, Shi ppensburg Health Care Center, Larry Cottle, Perini Services/Southampton Manor Limited Partnership and Perini Services, Inc. Brian Kinsley, Esquire Sidney Schupak, Esquire Ashcraft & Gerel, LLP Suite 400 2000 L. Street NW Washington, DC 20036 Burns, White ickton, LLC By: William J. Mundy, Dated: Attorneys for Defendants, Shi ppensburg Health Care Center, Larry Cottle, Perini Services/South Hampton Manor Limited Partnership and Perini Services, Inc. C C) • i - Fri n k I- LINDA BERNHEIMER, ADMINISTRATRIX OF THE ESTATE OF MARTIN BERNHEIMER, DECEASED, Plaintiff V. SHIPPENSBURG HEALTH CARE CENTER, LARRY COTTLE, PERINI SERVICES/SOUTHAMPTON MANOR LIMITED PARTNERSHIP AND PERINI SERVICES, INC., Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 06-4715 CIVIL ACTION - LAW JURY TRIAL DEMANDED ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter the appearances of William J. Mundy and John M. Skrocki of Burns, White & Hickton, LLC as attorneys for defendants, Shippensburg Health Care Center, Larry Cottle, Perini Services/South Hampton Manor Limited Partnership and Perini Services, Inc., in the above-captioned. BURNS, WHITE & H)4TON, LLC BY: William JKIundy Identification No. 57679 BY: John M. Skrocki Identification No. 49071 1818 Market Street, 13th Floor Philadelphia, PA 19103 (215)246-2100 Date: November 16, 2007 ASHCRAFT & GEREL, LLP JOSEPH T. MUSSO, ESQ. I.D. No. 83075 2000 L Street N.W. Washington, D.C., 20036 (202)783-6400 LINDA BERNHEIMER, Administratrix for the Estate of Martin Bernheimer, Deceased 3772 Mt. Shadow Drive Fayetteville, PA 1722 Plaintiff, V, SHIPPENSBURG HEALTH CARE CENTER 121 Walnut Bottom Road Shippensburg, PA 17257 and LARRY COTTLE SHIPPENSBURG HEALTH CENTER 121 Walnut Bottom Road Shippensburg, PA 17257 and PF,RINI SERVICESi'SOUTH HAMPTON MANOR LIMITED PARTNERSHIP 2424 Paradise Church Road Hagerstown, MD 21740 and PERINI SERVICES, INC. 13601 Paradise Church Road Hagerstown, MD 21740 Defendants. Attorney for Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY Trial Division No. 06-4715 CERTIFICATION OF SERVICE I do hereby certify that service of a true and correct copy of the within Petition for Approval of Settlement was made on t `:- to interested parties named below by way of United States first class mail. John Skrocki, Esq. Burns, White & Hickton 1818 Market Street 13"' Floor Philadelphia, PA 19103 Attorney for Defendants ASHCRrAF & GEREL, LLP By: IMU'V60 for Plaintiff 0 XIX. The agreement to settle this case was based, in part, on Plaintiffs' and Plaintiffs' counsel's commitment to maintain the confidentiality of the terms of settlement. Therefore, Defendants and Plaintiffs jointly request that this Honorable Court order that all Court records containing the terms of settlement (including this Petition, the attached exhibits, the Settlement Agreement and General Release and the Order Approving Settlement) be placed under seal to be opened only upon further Order of Court for good cause shown. WHEREFORE, counsel requests this court approve the herein settlement and allocation. Respectfully submitted, ASHCRAFT & GEREL LLP. By: '( eph T. Musso, Esq. Attorney for the Plaintiff AFFIDAVIT OF COUNSEL COMMONWEALTH OF PENNSYLVANIA SS COUNTY OF CUMBERLAND Joseph T. Musso, Esquire being duly sworn according to law hereby certifies that: 1. I have been counsel for plaintiffs during the litigation of this matter. 2. The suit was vigorously contested by defendants and required procurement and review of multiple sets of medical records, extensive defendant document discovery and deposition as well as a lengthy mediation. 3. Plaintiff has now agreed to settle the matter with defendants for $85,000. 4. The agreed to settlement is fair and reasonable considering the defendants' defenses, the advanced age of the decedent, and the potential outcome of the litigation. 5. The expenses accumulated during the lawsuit have been necessary and reasonable considering the defendants' contest of the claim and the complexity of the matter. 6. The Contingent Fee Agreement between plaintiffs and counsel provides for a 40 fee from the gross settlement with deduction thereafter of the expenses of suit from plaintiffs' portion of the proceeds. See the attached Fee Agreement, Exhibit 3. 7. I request this Honorable Court to approve the settlement as set forth in the herein Petition and certify to the truth of all factual averments set forth herein. ASHCRAFT &?GEREL, LLP Bv: WEPiiffUSSO, ESQUIRE Attorney for the Estate of Martin Bernheimer Sworn to and Subscrjbed before me this ;1-4.r day of SNARUri I.10W&?, 2008. ..,M 9*a March 14, ZOI i c," ;,.?, .., a? ._, 5 ? ?_ x s- 1..-i +?„1 ' ?? .? 'i C_: -:.. .....,,., F y. ASHCRAFT & GEREL, LLP JOSEPH T. MUSSO, ESQ. 1. D. No. 83075 2000 L Street N.W. Washington, D.C., 20036 (202)783-6400 LINDA BERNHEIMER, Administratrix for the Estate of Martin Bernheimer, Deceased 3772 Mt. Shadow Drive Fayetteville, PA 1722 Plaintiff, V. Attorney for Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY Trial Division No. 06-4715 SHIPPENSBURG HEALTH CARE CENTER 121 Walnut Bottom Road Shippensburg, PA 17257 and LARRY COTTLE SHIPPENSBURG HEALTH CENTER 121 Walnut Bottom Road Shippensburg, PA 17257 : and PERINI SERVICES/SOUTH HAMPTON: MANOR LIMITED PARTNERSHIP 2424 Paradise Church Road Hagerstown, MD 21740 and PERINI SERVICES, INC. 13601 Paradise Church Road Hagerstown, MD 21740 Defendants. ORDER APPROVING SETTLEMENT In light of the parties' mutual agreement and intention to maintain the confidentiality of the terms of settlement it is further ORDERED that all court records containing the terms of settlement which include the Petition to Settle, exhibits attached thereto, the Settlement Agreement and General Release, and this Order Approving Settlement shall be placed under seal by the Prothonotary to be opened only upon further Order of Court for good cause shown. BY THE COURT: