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HomeMy WebLinkAbout06-4788IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION AL WHITE Number: FW-4186 No. UL'y7PF aLa 7Z, SCI Houtzdale PO Box 1000 Houtzdale, PA 16698-1000, Plaintiff, PRAECIPE FOR v. WRIT OF SUMMONS COMMONWEALTH OF PENNSYLVANIA 2520 Lisburn Road Camp Hill, PA 17011, DEPARTMENT OF CORRECTIONS 2520 Lisburn Road Camp Hill, PA 17011, SCI CAMP HILL 2520 Lisburn Road Filed on behalf of Plaintiff: Camp Hill, PA 17011, Al White Mr. Bilous, Unit Manager C-Block SCI Camp Hill 2520 Lisburn Road Counsel of Record for this Party: Camp Hill, PA 17011, Peter M. Suwak, Esquire First Shift Sergeant (Name Unknown) PA ID #23779 SCI Camp Hill 2520 Lisburn Road Pete's Surplus Building Camp Hill, PA 17011, P.O. Box 1 Washington, PA 15301 Second Shift Sergeant Childs Phone: 724-228-4885 SCI Camp Hill Fax: 724-228-7916 2520 Lisburn Road Camp Hill, PA 17011, Thomas J. Yucha, M.D. Orthopedic Institute of Pennsylvania 3399 Trindle Road Camp Hill, PA 17011, Defendants. IN THE COURT OF COMMON PLEAS OF CUMMBERLAND COUNTY, PENNSYLVANIA AL WHITE, CIVIL DIVISION Plaintiff, COMMONWEALTH OF PENNSYLVANIA; DEPARTMENT OF CORRECTIONS; SCI CAMP HILL; MR. BILOUS, as Unit Manager of C-Block at SCI Camp Hill; FIRST SHIFT SERGEANT (Name Unknown) at SCI Camp Hill; SECOND SHIFT SERGEANT CHILDS at SCI Camp Hill; and THOMAS J. YUCHA, M.D., Defendants. PRAECIPE FOR WRIT OF SUMMONS TO THE PROTHONOTARY OF SAID COURT: Please enter my appearance on behalf of Plaintiff and issue a Writ of Summons in Civil Action in the above case. / DATE: August 1 go-l-2006 Peter M. Suwak, Esquire PA ID# 23779 Pete's Surplus Building P.O. Box 1 Washington, PA 15301 Phone: (724) 228-4885 SUMMONS IN CIVIL ACTION TO: Defendants YOU ARE NOTIFIED THAT THE ABOVE-NAMED PLAINTIFF HAS COMMENCED AN ACTION AGAINST Y U. D By: Prothonotary Date: August -t ! , 2006 By: Deputy p "U LT C it ro ? GC7 ?' "r 7 ?d IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION AL WHITE, Plaintiff, V. COMMONWEALTH OF PENNSYLVANIA; DEPARTMENT OF CORRECTIONS; SCI CAMP HILL; MR. BILOUS, as Unit Manager of C-Block at SCI Camp Hill; FIRST SHIFT SERGEANT (Name Unknown) at SCI Camp Hill; SECOND SHIFT SERGEANT CHILDS at SCI Camp Hill; and THOMAS J. YUCHA, M.D., Defendants. No.06-4788 Civil Term PRAECIPE TO REISSUE WRIT OF SUMMONS TO THE PROTHONOTARY OF SAID COURT: Please reissue the writ of summons in the above-captioned matter. DATE: September / ?, 2006 Peter M. Suwak, Esquire Counsel for Plaintiff PA I.D. 423779 Pete's Surplus Building P.O. Box 1 Washington PA 15301 Phone: (724) 228-4885 d"Ci p tJz ot VR CRAIG A. STONE, ESQUIRE I.D. No. 15907 Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3502 Attorneys for Defendant Thomas J. Yucha, M.D. IN THE COURT OF COMMON PLEASE OF CUMBERLAND COUNTY, PENNSYLVANIA AL WHITE Plaintiff CIVIL DIVISION No: 06-4788 Civil Term V. THOMAS J. YUCHA, M.D., et al. Defendants ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter the appearance of the undersigned on behalf of the Defendant, Thomas J. Yucha, M.D., in the above-captioned case. , WARNER, By: Craig A, St e 7 4200 Mill Road, Suite B ID NOW-5;06 Harris A 17112 717-6Dated: 10 12 - 0(?' ,ow ?w CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing Entry of Appearance has been served upon the following known counsel and parties of record this )-L day of October, 2006, via first class mail, postage prepaid: Peter M. Suwak, Esquire Commonwealth of Pennsylvania Pete's Surplus Building Department of Corrections P.O. Box 1 2520 Lisburn Road Washington, PA 15301 SCI Camp Hill 2520 Lisburn Road Camp Hill, PA 17011 Camp Hill, PA 17011 Mr. Bilous, Unit Manager C-Block SCI Camp Hill 2520 Lisburn Road Camp Hill, PA 17011 First Shift Sergeant SCI Camp Hill 2520 Lisburn Road Camp Hill, PA 17011 Second Shift Sergeant Childs SCI Camp Hill 2520 Lisburn Road Camp Hill, PA 17011 \05 A\LIAB\CASTONE\LLPG\234394\SADOERFLER\16257\00000 r ? CRAIG A. STONE, ESQUIRE I.D. No. 15907 Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3502 Attorneys for Defendant Thomas J. Yucha, M.D. IN THE COURT OF COMMON PLEASE OF CUMBERLAND COUNTY, PENNSYLVANIA AL WHITE Plaintiff V. : THOMAS J. YUCHA, M.D., et al. CIVIL DIVISION No: 06-4788 Civil Term Defendants MARSH L, ENNEHEY, WARNER, COLEMAIN GGIN-. PRAECIPE FOR A RULE TO FILE COMPLAINT TO THE PROTHONOTARY: Kindly issue a Rule directing Plaintiff to file a Complaint in the above-referenced matter within twenty (20) days of service thereof or risk a judgment of non pros. By: Craig; .`Stone ID N91 15907 4200 Qrums Mill Road, Suite B Harrisburg, PA 17112 717-651-3500 Dated: It- U?° r I IN THE COURT OF COMMON PLEASE OF CUMBERLAND COUNTY, PENNSYLVANIA AL WHITE CIVIL DIVISION Plaintiff No: 06-4788 Civil Term V. THOMAS J. YUCHA, M.D., et al. Defendants RULE AND NOW, this _ day of ?,? p 2 2006, upon consideration of the foregoing Praecipe, Plaintiff is hereby ordered to file their Complaint within twenty (20) days hereof or suffer judgment of non pros. BY THE PROTHONOTARY: CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing PRAECIPE FOR A RULE TO FILE COMPLAINT has been served upon the following known counsel and parties of record this ' day of November, 2006, via United States First- Class Mail, postage prepaid: Peter M. Suwak, Esquire Pete's Surplus Building P.O. Box 1 Washington, PA 15301 SCI Camp Hill 2520 Lisburn Road Camp Hill, PA 17011 First Shift Sergeant SCI Camp Hill 2520 Lisburn Road Camp Hill, PA 17011 Commonwealth of Pennsylvania Department of Corrections 2520 Lisburn Road Camp Hill, PA 17011 Mr. Bilous, Unit Manager C-Block SCI Camp Hill 2520 Lisburn Road Camp Hill, PA 17011 Second Shift Sergeant Childs SCI Camp Hill 2520 Lisburn Road Camp Hill, PA 17011 MARSHAL1,4 DENNEHEY, WARNER, COLEMA & GOGrGIN By: '? i - ` C-i ? 1 ? c --i _ ?_? "r" ? -- CF? '" l T 7';. _' J _? --< Steven C. Gould Senior Deputy Attorney General Office of Attorney General Torts Litigation Section 15th Floor, Strawberry Square Harrisburg, PA 17120 Direct Dial: 717-783-8035 AL WHITE Plaintiff V. COMMONWEALTH OF PENNSYLANIA, DEPARTMENT OF CORRECTIONS; SCI CAMP HILL; MR. BILOUS, as Unit Manager of C-Block at SCI Camp Hill; FIRST SHIFT SERGEANT (name unknown) at SCI Camp Hill; SECOND SHIFT SERGEANT CHILDS at SCI Camp Hill; and THOMAS J. YUCHA, M.D. Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : No. 06-4788 -CIVIL TRIAL ENTRY OF APPEARANCE Please enter my appearance on behalf of Defendants, Commonwealth of Pennsylvania, Department of Corrections, SCI Camp Hill, and Mr. Bilous, in the above-captioned matter. Respect ully submitted, THOMAS W. CORBETT, JR. ATTORNEY GENERAL By: Steven C. Gould, #I.D. 8015 Senior Deputy Attorney General Dated: December 1, 2006 CERTIFICATE OF SERVICE I hereby certify that I am this day serving the Commonwealth Defendants' Entry of Appearance upon the person(s) and in the manner indicated below: SERVICE BY FIRST CLASS MAIL POSTAGE PREPAID ADDRESSED AS FOLLOWS: Peter M. Suwak, Esquire Pete's Surplus Building P.O. Box 1 Washington, PA 15301 (Counsel for Plaintiff) Craig A. Stone, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (Counsel for Yucha) By: Torts Litigation Section 15th Floor, Strawberry Square Harrisburg, PA 17120 717-783-8035 - Direct Dial Senior Deputy Attorney DATED: December 1, 2006 r ° o fi C7 -? r - rr. y {._. t`jf11 C.n SHERIFF'S RETURN - REGULAR CASE NO: 2006-04788 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND WHITE AL VS PENNSYLVANIA COMMONWEALTH OF GERALD WORTHINGTON , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon PENNSYLVANIA COMMONWEALTH OF the DEFENDANT , at 1544:00 HOURS, on the 2nd day of October at 55 UTLEY DRIVE CAMP HILL, PA 17011 by handing to KRISTINA A SUNDAY, CLERK, 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 18.00 8.80 Affidavit .00 Surcharge 10.00 R. Thomas Kline .00 36.80, 10/06/2006 /b/ff/UG 4- PETER SUWAK Sworn and Subscibed to By: before me this day Deputy She ff of A.D. 2006 CASE NO: 2006-04788 P SHERIFF'S RETURN - REGULAR COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND WHITE AL VS PENNSYLVANIA COMMONWEALTH OF GERALD WORTHINGTON , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon DEPARTMENT OF CORRECTIONS the DEFENDANT , at 1544:00 HOURS, on the 2nd day of October , 2006 at 55 UTLEY DRIVE CAMP HILL, PA 17011 KRISTINA A SUNDAY, CLERK by handing to ADULT IN CHARGE a true and attested copy of WRIT OF SUMMONS together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: So Answers: Docketing 6.00 Service .00 Affidavit .00 Surcharge 10.00 R. Thomas Kline .00 16.00 10/06/2006 p f?tlo4 L?, PETER SUWAK Sworn and Subscibed to By: before me this day Deputy Sh iff of A.D. CASE NO: 2006-04788 P SHERIFF'S RETURN - REGULAR COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND WHITE AL VS PENNSYLVANIA COMMONWEALTH OF GERALD WORTHINGTON , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS SCI CAMP HILL was served upon the DEFENDANT , at 1600:00 HOURS, on the 2nd day of October , 2006 at 2520 LISBURN ROAD CAMP HILL, PA 17011 by handing to IAN TAGGART, ADULT IN CHARGE SUPERINTENDENT ASSISTANT a true and attested copy of WRIT OF SUMMONS together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: So Answers: Docketing 6.00 Service 8.80 Affidavit .00 Surcharge 10.00 R. Thomas Kline .00 24.80 10/06/2006 PETER SUWAK /olJp/OL Sworn and Subscibed to By:_ 24L62ti before me this day Deputy Sh ff of A.D. SHERIFF'S RETURN - REGULAR CASE NO: 2006-04788 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND WHITE AL VS PENNSYLVANIA COMMONWEALTH OF GERALD WORTHINGTON , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon RTT,nTTS MR TTNTT MANAGER C-BLOCK the DEFENDANT , at 1600:00 HOURS, on the 2nd day of October , 2006 at 2520 LISBURN ROAD CAMP HILL, PA 17011 by handing to IAN TAGGART, ADULT IN CHARGE, SUPERINTENDENT ASSISTANT a true and attested copy of WRIT OF SUMMONS together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: So Answers: Docketing 6.00?a? ' Service .00 Affidavit .00 Surcharge 10.00 R. Thomas Kline .00 16.00./ 10/06/2006 IollQ16L + PETER SUWAK Sworn and Subscibed to By- -lei A before me this day Deputy Sh iff of A.D. SHERIFF'S RETURN - REGULAR CASE NO: 2006-04788 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND WHITE AL VS PENNSYLVANIA COMMONWEALTH OF GERALD WORTHINGTON , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon FIRST SHIFT SERGEANT (NAME UNKNOWN) the DEFENDANT , at 1600:00 HOURS, on the 2nd day of October , 2006 at 2520 LISBURN ROAD a true and attested copy of WRIT OF SUMMONS CAMP HILL, PA 17011 by handing to IAN TAGGART, ADULT IN CHARGE, SUPERINTENDENT ASSISTANT together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: So Answers: Docketing 6.00 Service .00 Affidavit .00 Surcharge 10.00 R. Thomas Kline .00 16.00/ 10/06/2006 / PETER SUWAK lb IQ 7? Sworn and Subscibed to By: before me this day Deputy Sh ff of A.D. SHERIFF'S RETURN - REGULAR CASE NO: 2006-04788 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND WHITE AL VS PENNSYLVANIA COMMONWEALTH OF GERALD WORTHINGTON , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon CHILDS SECOND SHIFT SERGEANT the DEFENDANT , at 1600:00 HOURS, on the 2nd day of October , 2006 at 2520 LISBURN ROAD CAMP HILL, PA 17011 by handing to IAN TAGGART, ADULT IN CHARGE, SUPERINTENDENT ASSISTANT a true and attested copy of WRIT OF SUMMONS together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: So Answers: Docketing 6.00 Service .00 Affidavit 00 Surcharge 10.00 R. Thomas Kline .00 16.00 10/06/2006 n 1011910L PETER SUWAK Sworn and Subscibed to By: ?? 9 JA before me this day Deputy Sh 'ff of A.D. CASE NO: 2006-04788 P SHERIFF'S RETURN - REGULAR COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND WHITE AL VS PENNSYLVANIA COMMONWEALTH OF GERALD WORTHINGTON , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within WRIT OF SUMMONS was served upon TUCHA THOMAS J MD the DEFENDANT , at 1015:00 HOURS, on the 4th day of October at ORTHOPEDIC INSTITUTE OF PENNA 3399 TRINDLE ROAD CAMP HILL, PA 17011 by handing to LEIGH BRADLEY, RECEPTIONIST, ADULT IN CHARGE a true and attested copy of WRIT OF SUMMONS together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: So Answers: Docketing 6.00 Service 12.32 Affidavit 00 Surcharge 10.00 R. Thomas Kline .00 28.32 10/06/2006 /b/n/k / `? PETER SUWAK Sworn and Subscib ed to By: before me this day Deputy S iff of A.D. 2006 CRAIG A. STONE, ESQUIRE I.D. No. 15907 Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3502 Attorneys for Defendant Thomas J. Yucha, M.D. IN THE COURT OF COMMON PLEASE OF CUMBERLAND COUNTY, PENNSYLVANIA AL WHITE V. CIVIL DIVISION Plaintiff No: 06-4788 Civil Term THOMAS J. YUCHA, M.D., et al. Defendants 10-DAY NOTICE OF INTENT TO TAKE JUDGMENT OF NON PROS To: Al White c/o Peter M. Suwak, Esquire Pete's Surplus Building P.O. Box 1 Washington, PA 15301 DATE OF NOTICE: December 26, 2006 IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO FILE A COMPLAINT IN THIS CASE. UNLESS YOU ACT WITHIN TEN DAYS OF THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR RIGHT TO SUE THE DEFENDANTS AND THEREBY LOSE PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE: 3166Cumberland County Bar Association, 2 Liberty Avenue, Carlisle, PA (717) 249- . MARSHAL ,1b NEHEY, WARNER, COLEMAN & C* * CRAIG A. S'?0'NE, 'QUIRE ID NO: 15907 4200 Crums Mill R ad, Suite B Harrisburg, PA 171 2 717-651-3500 Dated: . CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing 10-DAY NOTICE OF INTENT TO TAKE JUDGMENT OF NON PROS has been served upon the following known counsel and parties of record this Z? day of December, 2006, via United States First-Class Mail, postage prepaid: Peter M. Suwak, Esquire Pete's Surplus Building P.O. Box 1 Washington, PA 15301 Steven C. Gould, Esquire Senior Deputy Attorney General Office of Attorney General Torts Litigation Section 15th Floor, Strawberry Square Harrisburg, PA 17120 Y, WARNER, CRAIG A\STOI? E, ESQUIRE Dated: 12- 2-&P b \05_A\LIAB\CASTONE\LLPG\240924\SADOERFLER\ 16257\00115 C'j ?c IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION AL WHITE, Plaintiff, V. COMMONWEALTH OF PENNSYLVANIA; DEPARTMENT OF CORRECTIONS; SCI CAMP HILL; MR. BILOUS, as Unit Manager of C-Block at SCI Camp Hill; FIRST SHIFT SERGEANT (Name Unknown) at SCI Camp Hill; SECOND SHIFT SERGEANT CHILDS at SCI Camp Hill; and THOMAS J. YUCHA, M.D., Defendants. JURY TRIAL DEMANDED No.06-4788 Civil Term Type of Pleading: COMPLAINT Filed on behalf of Plaintiff: Al White Counsel of Record for this Parry: Peter M. Suwak, Esquire PA ID #23779 Pete's Surplus Building P.O. Box 1 Washington, PA 15301 Phone: 724-228-4885 Fax: 724-228-7916 Email: pmsuwakesancomcast.net IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION AL WHITE, Plaintiff, V. No.06-4788 Civil Term COMMONWEALTH OF PENNSYLVANIA; DEPARTMENT OF CORRECTIONS; SCI CAMP HILL; MR. BILOUS, as Unit Manager of C-Block at SCI Camp Hill; FIRST SHIFT SERGEANT (Name Unknown) at SCI Camp Hill; SECOND SHIFT SERGEANT CHILDS at SCI Camp Hill; and THOMAS J. YUCHA, M.D., Defendants. JURY TRIAL DEMANDED NOTICE You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and notice are served, by entering a written appearance personally or by 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 of relief requested by the Plaintiffs. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, CONTACT: Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17103 717-249-3166 800-990-9 t 08 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION AL WHITE, Plaintiff, V. No.06-4788 Civil Term COMMONWEALTH OF PENNSYLVANIA; DEPARTMENT OF CORRECTIONS; : SCI CAMP HILL; MR. BILOUS, as Unit Manager of C-Block at SCI Camp Hill; FIRST SHIFT SERGEANT (Name Unknown) at SCI Camp Hill; SECOND SHIFT SERGEANT CHILDS at SCI Camp Hill; and THOMAS J. YUCHA, M.D., Defendants. JURY TRIAL DEMANDED COMPLAINT AND NOW comes Plaintiff, Al White, by and through his counsel, Peter M. Suwak, Esquire, who files the following Complaint based upon the following: INTRODUCTION 1. Plaintiff Al White is an adult individual, a citizen of the United States, with an address of Number: FW-4186, SCI Houtzdale, P. O. Box 1000, Houtzdale, Clearfield County, Pennsylvania 16698-1000. 2. Defendant Commonwealth of Pennsylvania is a state entity. 3. Defendant Department of Corrections is a state agency within the Commonwealth of Pennsylvania. 4. Defendant SCI Camp Hill is a correctional facility for men located at 2520 Lisburn Road, Camp Hill, Cumberland County, Pennsylvania 17011. 5. Defendant Mr. Bilous is employed as a Unit Manager of C-Block with SCI Camp Hill located at 2520 Lisburn Road, Camp Hill, Cumberland County, Pennsylvania 17011. 6. Defendant First Shift Sergeant (Name Unknown) is employed by SCI Camp Hill located at 2520 Lisburn Road, Camp Hill, Cumberland County, Pennsylvania 17011. 7. Defendant Second Shift Sergeant Childs is employed by SCI Camp Hill located at 2520 Lisburn Road, Camp Hill, Cumberland County, Pennsylvania 17011. 8. Defendant Thomas J. Yucha, M.D. is a physician with an office located at Orthopedic Institute of Pennsylvania, 3399 Trindle Road, Camp Hill, Cumberland County, Pennsylvania 17011 who works through the Department of Corrections by agreement. STATEMENT OF FACTS 9. Plaintiff Albert White was incarcerated at SCI Camp Hill pending eventual assignment to SCI Houtzdale. 10. While at SCI Camp Hill, at cell Al-08 a water leak developed from the pipes. This condition lasted for at least four weeks. Despite repeated complaints no action was taken to repair the leak. 11. On or about August 18, 2004 Plaintiff slipped and fell in his cell on the water resulting from the uncontrolled leak sustaining an injury to his wrist. 12. On or about September 22, 2004 Plaintiff again slipped and fell on some water in his cell that was coming from the leak. On this occasion he injured his knee and re-injured his wrist. X-rays revealed a wrist fracture. Eventually the wrist was treated with a cast and pain medications. The cast was removed in approximately three weeks. 13. On or about October 10, 2004 the nurses at SCI Camp Hill halted the pain medication. Upon complaint to the Dr. Yucha, the doctor indicated that he was to remain on pain medication, particularly suggesting Tylenol 3 with Codeine. However, the pain medication was never renewed. No steps were taken by Defendant Doctor to insure the medication was provided. 14. During this period the pain was unbearable together with significant swelling and wrist throbbing rendering the Plaintiff unable to sleep. 15. Subsequently while suffering from the above condition, Plaintiff was transferred to SCI Houtzdale, a part of the state wide Department of Corrections. In view of the Plaintiff's condition he should have been placed on a medical hold, but nonetheless was transferred. 16. On or about February 3, 2005 Plaintiff complained to the medical department at SCI Houtzdale regarding his fractured right wrist and torn ligaments. The nurse at the institution declined to treat the inmate absent the payment of a two dollar fee and made no arrangement at that time for review by a doctor. This approach is consistent with the Department's policies. 17. Subsequently Plaintiff was seen by an orthopedic surgeon outside the institution, but provided through the institution. When the Plaintiff attempted to give the history of his injury, the doctor refused to listen. The doctor became angry, ordered him out of the office stating that he didn't care what happened or where it happened. White was taken away without medical treatment. It was determined that White required additional surgery to his wrist. However, White, no longer trusting the doctor who had ordered him out of his office without listening to a history requested another surgeon. The Department refused this request. To date Plaintiff White has received no further treatment for his fractured wrist which continues to cause significant pain and limitation of activity. 18. The above matters were grieved by Plaintiff Albert White by grievance nos. 108817 and 109558, which grievances were denied. 19. This complaint makes no allegation of professional medical negligence against Dr. Yucha, a medical professional. Since no allegation of professional medical negligence is hereby made within the meaning of Pa.R.C.P. 1042.3, no Certificate of Merit is required. The theory against Defendant Yucha is confined to a constitutional claim of deliberate indifference associated with the absence of pain medication. COUNT I - CIVIL RIGHTS VIOLATIONS 20. The averments of paragraphs 1 through 19 are hereby incorporated as though fully set forth at length. 21. This court's jurisdiction is invoked pursuant to 28 U.S.C. §1331. 22. Defendants, their agents and employees, especially Defendants Bilous, First Shift Sergeant (L.N.U.) and Sergeant Childs, with knowledge of Plaintiff's cell conditions, particularly the ongoing water leakage and/or with deliberate indifference to such condition, have acted or failed to act in such a way as to deprive Plaintiff of necessary and adequate confinement conditions appropriate to his condition, thereby endangering the Plaintiff's health and well-being. Such acts and omissions of the Defendants violate rights secured to the Plaintiff under the Fifth, Eighth, Ninth and Fourteenth Amendments. 23. Defendants, their agents and employees, with knowledge of Plaintiff's medical needs, and/or with deliberate indifference to such medical needs, have acted or failed to act in such a way as to deprive Plaintiff of necessary and adequate medical care and/or confinement conditions appropriate to his medical condition, thereby endangering the Plaintiff's health and well-being. Such acts and omissions of the Defendants violate rights secured to the Plaintiff under the Fifth, Eighth, Ninth and Fourteenth Amendments. 24. Defendants, knowing of the medical needs of the Plaintiff and with deliberate indifference to the inadequacies and deficiencies in the medical and other staffing and procedures at SCI Camp Hill and/or SCI Houtzdale have failed and neglected to establish and implement policies, practices and procedures designed to assure that plaintiff receive medical treatment and care and/or confinement conditions appropriate to his medical condition at the standards therefor in the Department of Corrections, or have adopted policies, practices and procedures which Defendants knew, or reasonably should have known, would be ineffective in delivering medical treatment and care at such standards, thereby endangering the Plaintiff's health and well-being in violation of rights secured to Plaintiff by the Fifth, Eighth, Ninth and Fourteenth Amendments to the United States Constitution. 25. Defendants, knowing of the medical needs of the Plaintiff and with deliberate indifference to such needs, have failed to instruct, supervise or train their employees and agents in such a manner as to assure the delivery of adequate medical care to Plaintiff and/or confinement conditions consistent with his medical condition, thereby endangering the Plaintiff's health and well-being in violation of the Fifth, Eighth, Ninth and Fourteenth Amendments to the United States Constitution. 26. The Defendants' actions and/or omissions were negligent and/or reckless and/or intentional. 27. The Defendants' actions and/or omissions were committed under color of law and/or pursuant to policies, customs, practices, rules, regulations, ordinances, statutes and/or usages of the State of Pennsylvania, the Department of Corrections and/or SCI Camp Hill and/or SCI Houtzdale. 28. These actions have served to deprive the Plaintiff of his civil rights, as previously outlined, under color of law, and hence violate the United States Constitution and are actionable under 42 U.S.C. §1983. 29. As a result of the aforementioned, Plaintiff has been damaged as follows: a. Medical bills in an amount to be determined. b Pain, suffering, inconvenience, loss of enjoyment of life, annoyance and other emotional distress. c Entitlement to punitive damages due to outlined outrageous conduct. d Declaration of violation of rights, as outlined. e. Entitlement to counsel fees and costs per 42 U.S.C. § 1988. WHEREFORE, Plaintiff demands judgment against Defendants, jointly, severally, and individually in an amount to be determined by the jury and costs and such other relief as the Court deems proper. JURY TRIAL DEMANDED. COUNT II - INTENTIONAL INFLICTION OF MENTAL DISTRESS 30. The averments of paragraphs 1 through 29 are hereby incorporated as though fully set forth at length. 31. The facts previously outlined constitutes the state tort of intentional infliction of mental distress. 32. As a result of the conduct, Plaintiff suffered damages as previously outlined in paragraph 29. WHEREFORE, Plaintiff demands judgment against Defendants, jointly, severally, and individually in an amount to be determined by the jury and costs and such other relief as the Court deems proper. JURY TRIAL DEMANDED. COUNT III - FAILURE TO PROVIDE ADEQUATE MEDICAL CARE AND/OR CONFINEMENT CONDITIONS CONSISTENT WITH PLAINTIFF'S MEDICAL CONDITION 33. The averments of paragraphs 1 through 32 are hereby incorporated as though fully set forth at length. 34. The facts previously outlined constitutes a state tort for the failure to provide adequate medical care and/or confinement conditions consistent with Plaintiff s medical condition in violation of the Pennsylvania Constitution, statutory and/or common law. 35. As a result of the conduct, Plaintiff suffered damages as previously outlined in paragraph 29. WHEREFORE, Plaintiff demands judgment against Defendants, jointly, severally, and individually in an amount to be determined by the jury and costs and such other relief as the Court deems proper. JURY TRIAL DEMANDED. Res ectfully submitted, Peter M. Suwak, Esquire Counsel for Plaintiff ATTORNEY'S VERIFICATION Under the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities, I, Peter M. Suwak, Esquire, counsel for the Plaintiff, Al White, state that the facts set forth in the foregoing Complaint are true and correct based upon information, knowledge and belief. This verification was signed by counsel due to unavailability of the Plaintiff. If necessary, a verification from the party will be furnished. Peter M. Suwak, Esquire Counsel for Plaintiff, Al White CERTIFICATE OF SERVICE I do hereby certify that a true and correct copy of the foregoing Complaint was served by U.S. First Class Mail, postage prepaid upon the following: Steven C. Gould, Senior Deputy Attorney General Office of Attorney General Torts Litigation Section 15`h Floor, Strawberry Square Harrisburg, PA 17120 (Counsel for Defendants Commonwealth of Pennsylvania, Department of Corrections, SCI Camp Hill and Mr. Bilous) Craig A. Stone, Esquire Marshall, Dennehey, Warner, Coleman & Goggin P.C. 4200 Crums Mills Road, Suite B Harrisburg, PA 17112 (Counsel for Defendant Dr. Yucha) Dated: January 4, 2007 By: Peter M. Suwak, Esquire Counsel for Plaintiff PA I.D. #23779 Pete's Surplus Building P.O. Box 1 Washington PA 15301 Phone: 724-228-4885 Fax: 724-228-7916 Email: pmsuwakesggcomcast.net C C=) ?i (T, tr?? r d S _. Steven C. Gould Senior Deputy Attorney General Office of Attorney General Torts Litigation Section 15th Floor, Strawberry Square Harrisburg, PA 17120 Direct Dial: 717-783-8035 AL WHITE Plaintiff V. COMMONWEALTH OF PENNSYLANIA, DEPARTMENT OF CORRECTIONS; SCI CAMP HILL; MR. BILOUS, as Unit Manager of C-Block at SCI Camp Hill; FIRST SHIFT SERGEANT (name unknown) At SCI Camp Hill; SECOND SHIFT SERGEANT CHILDS at SCI Camp Hill; and THOMAS J. YUCHA, M.D. Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 06-4788 -CIVIL TRIAL PRAECIPE FOR A RULE TO FILE COMPLAINT TO THE PROTHONOTARY: Please issue a Rule directing Plaintiff, Al White, to file a Complaint in the above-referenced matter within twenty (20) days from the date of service of Rule or suffer entry of judgment non pros. Respectfully submitted, THOMAS ORBE , Attorne e ral By: S EN C. GOULD, #80156 Senior Deputy Attorney General DATED: January 5, 2007 Steven C. Gould Senior Deputy Attorney General Office of Attorney General Torts Litigation Section 15`h Floor, Strawberry Square Harrisburg, PA 17120 Direct Dial: 717-783-8035 AL WHITE IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. COMMONWEALTH OF PENNSYLANIA, DEPARTMENT OF CORRECTIONS; SCI CAMP HILL; MR. BILOUS, as Unit Manager of C-Block at SCI Camp Hill; FIRST SHIFT SERGEANT (name unknown) At SCI Camp Hill; SECOND SHIFT SERGEANT CHILDS at SCI Camp Hill; and THOMAS J. YUCHA, M.D. No. 06-4788 -CIVIL TRIAL Defendants RULE TO FILE COMPLAINT TO: Plaintiff, Al White C/O: Peter M. Suwak, Esquire Pete's Surplus Building P.O. Box 1 Washington, PA 15301 A Rule is hereby entered upon you to file a Complaint in the above-referenced matter within twenty (20) days of service hereof or suffer judgment of non pros. DATED: Jv..J. 9r 2001 7 CERTIFICATE OF SERVICE I hereby certify that I am this day serving the foregoing Praecipe For A Rule To File Complaint upon the person(s) and in the manner indicated below: SERVICE BY FIRST CLASS MAIL POSTAGE PREPAID ADDRESSED AS FOLLOWS: Peter M. Suwak, Esquire Pete's Surplus Building P.O. Box 1 Washington, PA 15301 (Counsel for Plaintiff) Craig A. Stone, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (Counsel for Yucha) By: _ STEVEN C. COULD, IJ?#80156 Senior Deputy Attorney General Torts Litigation Section 15th Floor, Strawberry Square Harrisburg, PA 17120 717-783-8035 - Direct Dial DATED: January 5, 2007 r---o C) W f L..' CRAIG A. STONE, ESQUIRE I.D. No. 15907 Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3502 Attorney for Defendant Thomas J. Yucha, M.D. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA AL WHITE CIVIL DIVISION Plaintiff No: 06-4788 Civil Term V. THOMAS J. YUCHA, M.D., et al. Defendants PRELIMINARY OBJECTIONS OF DEFENDANT, THOMAS J. YUCHA, M.D., TO PLAINTIFF'S COMPLAINT Now comes the Defendant, Thomas J. Yucha, M.D., by and through his counsel, Marshall, Dennehey, Warner, Coleman & Goggin, and files the following Preliminary Objections to Plaintiffs Complaint and in support thereof avers as follows: 1. Plaintiff, Al White, instituted the within action by the filing of a Writ of Summons on or about August 21, 2006. 2. Thereafter, in Response to a Rule to File Complaint, Plaintiff filed his Complaint on or about January 5, 2007. A true and correct copy of Plaintiffs Complaint is attached hereto as Exhibit "A". 3. In his Complaint, Plaintiff sets forth 3 Counts apparently asserting the same claims against each of the several defendants: one Count claiming some unspecified Civil Rights violations, one Count claiming intentional infliction of mental distress, and one Count claiming a state tort failure to provide adequate medical care. 4. Defendant, Thomas Yucha, M.D., now brings these Preliminary Objections to Plaintiffs Complaint. I. Motion to Strike and/or Motion for More Specific Pleading for Failure to Plead Separate Counts against each Defendant The averments of paragraphs 1 through 4 of these Preliminary Objections are incorporated herein by reference as though fully set forth. 6. In his Complaint, Plaintiff sets forth three separate Counts, yet fails to plead whether each and every Defendant is somehow liable to Plaintiff concerning each of the asserted claims. 7. Pa.R.C.P. 1020 provides that each cause of action and any special damages related thereto asserted in a Complaint must be stated in a separate Count containing a demand for relief. 8. The various Defendants were involved at different times with Plaintiff, and Plaintiff makes no attempt to delineate with any true specificity the alleged acts or omissions of any of the Defendants, yet alone objecting Defendant, Dr. Yucha. 9. The Plaintiffs Complaint attempts to allege catch all allegations in each Count against all of the Defendants and fails to specifically enumerate the conduct of any Defendant which allegedly give rise to Plaintiffs claims. 10. As such, Plaintiffs Complaint lacks conformity to rule of law and therefore should be stricken. WHEREFORE, objecting Defendant, Dr. Yucha respectfully requests that Plaintiffs Complaint be stricken, or in the alternative, require the Plaintiff to file a more specific pleading 2 setting forth the alleged improper conduct of each Defendant in separate Counts in accordance with the Pa.R.C.P.1020. H. Demurrer And/Or Motion To Strike All Allegations Against Defendant, Dr. Yucha For Failure To State A Cause Of Action In Count I. 11. The averments of 1 through 10 of these Preliminary Objections are incorporated herein by reference as though fully set forth. 12. Pa.R.C.P. 1028(a)(3) permits a Defendant to preliminary object to a pleading that lacks sufficient specificity. 13. Pa.R.C.P. 1019(a) requires material facts to be pled to support a cause of action. The facts are to be set forth concisely and in summary form. 14. Pa.R.C.P. 1028(a)(4) permits a party to file a Demurrer where a pleading lacks legal sufficiency. 15. As pled, Count I of Plaintiffs Complaint lacks any allegations of any improper conduct which would give rise to a civil rights violation against moving Defendant, Thomas Yucha, M.D. Defendant incorporates herein by reference his complete argument as set forth at length in the accompanying Brief. 16. Count I of Plaintiffs Complaint fails to plead material facts in support of any claim against Dr. Yucha and therefore lacks legal sufficiency. WHEREFORE, objecting Defendant, Dr. Yucha respectfully requests that this Honorable Court enter the attached Order dismissing Count I of Plaintiffs Complaint, or in the alternative, require the Plaintiff to file a more specific pleading. III. Demurrer And/Or Motion To Strike All Allegations Against Defendant, Dr. Yucha For Failure To State A Cause Of Action In Count II. 17. The averments of 1 through 16 of these Preliminary Objections are incorporated herein by reference as though fully set forth. 3 18. Pa.R.C.P. 1028(a)(3) permits a Defendant to preliminary object to a pleading that lacks sufficient specificity. 19. Pa.R.C.P. 1019(a) requires material facts to be pled to support a cause of action. The facts are to be set forth concisely and in summary form. 20. Pa.R.C.P. 1028(a)(4) permits a parry to file a Demurrer where a pleading lacks legal sufficiency. 21. As pled, Count II of Plaintiffs Complaint lacks any allegations of any improper conduct which would give rise to an intentional infliction of emotional distress claim against moving Defendant, Thomas Yucha, M.D. Defendant incorporates herein by reference his complete argument as set forth at length in the accompanying Brief. 22. Count II of Plaintiffs Complaint fails to plead material facts in support of any claim against Dr. Yucha and therefore lacks legal sufficiency. WHEREFORE, objecting Defendant, Dr. Yucha respectfully requests that this Honorable Court enter the attached Order dismissing Count 11 of Plaintiffs Complaint, or in the alternative, require the Plaintiff to file a more specific pleading. IV. Demurrer And/Or Motion To Strike All Allegations Against Defendant, Dr. Yucha For Failure To State A Cause Of Action In Count III. 23. The averments of 1 through 22 of these Preliminary Objections are incorporated herein by reference as though fully set forth. 24. Pa.R.C.P. 1028(a)(3) permits a Defendant to preliminary object to a pleading that lacks sufficient specificity. 25. Pa.R.C.P. 1019(a) requires material facts to be pled to support a cause of action. The facts are to be set forth concisely and in summary form. 4 26. Pa.R.C.P. 1028(a)(4) permits a party to file a Demurrer where a pleading lacks legal sufficiency. 27. As pled, Count III of Plaintiffs Complaint lacks any allegations of any improper conduct which would give rise to any state tort law claim against moving Defendant, Thomas Yucha, M.D. Defendant incorporates herein by reference his complete argument as set forth at length in the accompanying Brief. 28. Count III of Plaintiffs Complaint fails to plead material facts in support of any claim against Dr. Yucha and therefore lacks legal sufficiency. 29. Within the Complaint, Plaintiff claims that he is not asserting a professional liability claim against Dr. Yucha pursuant to Pennsylvania Rule of Civil Procedure 1042.2. 30. However, Plaintiff is, in fact, attempting to assert a professional liability action in Count III, when he asserts that "the facts previously outlined constitute a state tort for the failure to provide adequate medical care ... " . See paragraph 34. 31. Plaintiff is attempting to assert a medical negligence claim against Dr. Yucha, and as such must comply with the rules concerning professional liability cases. 32. Pennsylvania Rule of Civil Procedure 1042.2 provides that in a Complaint in a professional liability case, the complaint "shall identify each defendant against whom the plaintiff is asserting a professional liability claim." 33. Rule 1042.2(b) further states that "A defendant may raise by preliminary objections the failure of the complaint to comply with subdivision (a) of this rule. 34. Accordingly, the Plaintiffs should be compelled to amend his Complaint in accordance with Pennsylvania Rule of Civil Procedure 1042.2, and if no certificate of merit is timely filed, then defendant, Dr. Yucha would be entitled to seek a non pros. 5 WHEREFORE, objecting Defendant, Dr. Yucha respectfully requests that this Honorable Court enter the attached Order dismissing Count III of Plaintiffs Complaint, or in the alternative require Plaintiff to plead this Count as a professional liability claim, or in the alternative, require the Plaintiff to file a more specific pleading. Respectfully submitted, MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN By: Craig A. Stone ID NO: 15907 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 717-651-3500 \05_A\LIAB\M WMCGUCKIN\LLPG\24403 9\KAGOCHENAUR\ 16257\00115 6 I j (? ?,?W6 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION AL WHITE, Plaintiff, V. COMMONWEALTH OF PENNSYLVANIA; DEPARTMENT OF CORRECTIONS; SCI CAMP HILL; MR. BILOUS, as Unit Manager of C-Block at SCI Camp Hill; FIRST SHIFT SERGEANT (Name Unknown) at SCI Camp Hill; SECOND SHIFT SERGEANT CHILDS at SCI Camp Hill; and THOMAS J. YUCHA, M.D., Defendants. JURY TRIAL DEMANDED No.06-4788 Civil Term Type of Pleading: COMPLAINT Filed on behalf of Plaintiff: Al White Counsel of Record for this Party: Peter M. Suwak, Esquire PA ID #23779 Pete's Surplus Building P.O. Box 1 Washington, PA 15301 Phone: 724-228-4885 Fax: 724-228-7916 Email: Rmsuwakesg. acomcast.net IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION AL WHITE, Plaintiff, V. No.06-4788 Civil Term COMMONWEALTH OF PENNSYLVANIA; DEPARTMENT OF CORRECTIONS; SCI CAMP HILL; MR. BILOUS, as Unit Manager of C-Block at SCI Camp Hill; FIRST SHIFT SERGEANT (Name Unknown) at SCI Camp Hill; SECOND SHIFT SERGEANT CHILDS at SCI Camp Hill; and THOMAS J. YUCHA, M.D., Defendants. JURY TRIAL DEMANDED NOTICE You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and notice are served, by entering a written appearance personally or by 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 of relief requested by the Plaintiffs. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, CONTACT: Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17103 717-249-3166 800-990-9108 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA AL WHITE, V. Plaintiff, CIVIL DIVISION No.06-4788 Civil Term COMMONWEALTH OF PENNSYLVANIA; DEPARTMENT OF CORRECTIONS; SCI CAMP HILL; MR. BILOUS, as Unit Manager of C-Block at SCI Camp Hill; FIRST SHIFT SERGEANT (Name Unknown) at SCI Camp Hill; SECOND SHIFT SERGEANT CHILDS at SCI Camp Hill; and THOMAS J. YUCHA, M.D., Defendants. JURY TRIAL DEMANDED COMPLAINT AND NOW comes Plaintiff, Al White, by and through his counsel, Peter M. Suwak, Esquire, who files the following Complaint based upon the following: INTRODUCTION 1. Plaintiff Al White is an adult individual, a citizen of the United States, with an address of Number: FW-4186, SCI Houtzdale, P. 0. Box 1000, Houtzdale, Clearfield County, Pennsylvania 16698-1000. 2. Defendant Commonwealth of Pennsylvania is a state entity. 3. Defendant Department of Corrections is a state agency within the Commonwealth of Pennsylvania. 4. Defendant SCI Camp Hill is a correctional facility for men located at 2520 Lisburn Road, Camp Hill, Cumberland County, Pennsylvania 17011. 5. Defendant Mr. Bilous is employed as a Unit Manager of C-Block with SCI Camp Hill located at 2520 Lisburn Road, Camp Hill, Cumberland County, Pennsylvania 17011. 6. Defendant First Shift Sergeant (Name Unknown) is employed by SCI Camp Hill located at 2520 Lisburn Road, Camp Hill, Cumberland County, Pennsylvania 17011. 7. Defendant Second Shift Sergeant Childs is employed by SCI Camp Hill located at 2520 Lisburn Road, Camp Hill, Cumberland County, Pennsylvania 17011. 8. Defendant Thomas J. Yucha, M.D. is a physician with an office located at Orthopedic Institute of Pennsylvania, 3399 Trindle Road, Camp Hill, Cumberland County, Pennsylvania 17011 who works through the Department of Corrections by agreement. STATEMENT OF FACTS 9. Plaintiff Albert White was incarcerated at SCI Camp Hill pending eventual assignment to SCI Houtzdale. 10. While at SCI Camp Hill, at cell Al-08 a water leak developed from the pipes. This condition lasted for at least four weeks. Despite repeated complaints no action was taken to repair the leak. 11. On or about August 18, 2004 Plaintiff slipped and fell in his cell on the water resulting from the uncontrolled leak sustaining an injury to his wrist. 12. On or about September 22, 2004 Plaintiff again slipped and fell on some water in his cell that was coming from the leak. On this occasion he injured his knee and re-injured his wrist. X-rays revealed a wrist fracture. Eventually the wrist was treated with a cast and pain medications. The cast was removed in approximately three weeks. 13. On or about- October 10, 2004 the nurses at SCI Camp Hill halted the pain medication. Upon complaint to the Dr. Yucha, the doctor indicated that he was to remain on pain medication, particularly suggesting Tylenol3 with Codeine. However, the pain medication was never renewed. No steps were taken by Defendant Doctor to insure the medication was provided. 14. During this period the pain was unbearable together with significant swelling and wrist throbbing rendering the Plaintiff unable to sleep. 15. Subsequently while suffering from the above condition, Plaintiff was transferred to SCI Houtzdale, a part of the state wide Department of Corrections. In view of the Plaintiff s condition he should have been placed on a medical hold, but nonetheless was transferred. 16. On or about February 3, 2005 Plaintiff complained to the medical department at SCI Houtzdale regarding his fractured right wrist and torn ligaments. The nurse at the institution declined to treat the inmate absent the payment of a two dollar fee and made no arrangement at that time for review by a doctor. This approach is consistent with the Department's policies. 17. Subsequently Plaintiff was seen by an orthopedic surgeon outside the institution, but provided through the institution. When the Plaintiff attempted to give the history of his injury, the doctor refused to listen. The doctor became angry, ordered him out of the office stating that he didn't care what happened or where it happened. White was taken away without medical treatment. It was determined that White required additional surgery to his wrist. However, White, no longer trusting the doctor who had ordered him out of his office without listening to a history requested another surgeon. The Department refused this request. To date Plaintiff White has received no further treatment for his fractured wrist which continues to cause significant pain and limitation of activity. 18. The above matters were grieved by Plaintiff Albert White by grievance nos. 108817 and 109558, which grievances were denied. 19. This complaint makes no allegation of professional medical negligence against Dr. Yucha, a medical professional. Since no allegation of professional medical negligence is hereby made within the meaning of Pa.R.C.P. 1042.3, no Certificate of Merit is required. The theory against Defendant Yucha is confined to a constitutional claim of deliberate indifference associated with the absence of pain medication. COUNT I - CIVIL RIGHTS VIOLATIONS 20. The averments of paragraphs 1 through 19 are hereby incorporated as though fully set forth at length. 21. This court's jurisdiction is invoked pursuant to 28 U.S.C. §1331. 22. Defendants, their agents and employees, especially Defendants Bilous, First Shift Sergeant (L.N.U.) and Sergeant Childs, with knowledge of Plaintiffs cell conditions, particularly the ongoing water leakage and/or with deliberate indifference to such condition, have acted or failed to act in such a way as to deprive Plaintiff of necessary and adequate confinement conditions appropriate to his condition, thereby endangering the Plaintiff's health and well-being. Such acts and omissions of the Defendants violate rights secured to the Plaintiff under the Fifth, Eighth, Ninth and Fourteenth Amendments. 23. Defendants, their agents and employees, with knowledge of Plaintiff's medical needs, and/or with deliberate indifference to such medical needs, have acted or failed to act in such a way as to deprive Plaintiff of necessary and adequate medical care and/or confinement conditions appropriate to his medical condition, thereby endangering the Plaintiffs health and well-being. Such acts and omissions of the Defendants violate rights secured to the Plaintiff under the Fifth, Eighth, Ninth and Fourteenth Amendments. 24. Defendants, knowing of the medical needs of the Plaintiff and with deliberate indifference to the inadequacies and deficiencies in the medical and other staffing and procedures at SCI Camp Hill and/or SCI Houtzdale have failed and neglected to establish and implement policies, practices and procedures designed to assure that plaintiff receive medical treatment and care and/or confinement conditions appropriate to his medical condition at the standards therefor in the Department of Corrections, or have adopted policies, practices and procedures which Defendants knew, or reasonably should have known, would be ineffective in delivering medical treatment and care at such standards, thereby endangering the Plaintiff's health and well-being in violation of rights secured to Plaintiff by the Fifth, Eighth, Ninth and Fourteenth Amendments to the United States Constitution. 25. Defendants, knowing of the medical needs of the Plaintiff and with deliberate indifference to such needs, have failed to instruct, supervise or train their employees and agents in such a manner as to assure the delivery of adequate medical care to Plaintiff and/or confinement conditions consistent with his medical condition, thereby endangering the Plaintiff s health and well-being in violation of the Fifth, Eighth, Ninth and Fourteenth Amendments to the United States Constitution. 26. The Defendants' actions and/or omissions were negligent and/or reckless and/or intentional. 27. The Defendants' actions and/or omissions were committed under color of law and/or pursuant to policies, customs, practices, rules, regulations, ordinances, statutes and/or usages of the State of Pennsylvania, the Department of Corrections and/or SCI Camp Hill and/or SCI Houtzdale. 28. These actions have served to deprive the Plaintiff of his civil rights, as previously outlined, under color of law, and hence violate the United States Constitution and are actionable under 42 U.S.C. §1983. 29. As a result of the aforementioned, Plaintiff has been damaged as follows: a. Medical bills in an amount to be determined. b Pain, suffering, inconvenience, loss of enjoyment of life, annoyance and other emotional distress. c Entitlement to punitive damages due to outlined outrageous conduct. d Declaration of violation of rights, as outlined. e. Entitlement to counsel fees and costs per 42 U.S.C. § 1988. WHEREFORE, Plaintiff demands judgment against Defendants, jointly, severally, and individually in an amount to be determined by the jury and costs and such other relief as the Court deems proper. JURY TRIAL DEMANDED. COUNT II - INTENTIONAL INFLICTION OF MENTAL DISTRESS 30. The averments of paragraphs 1 through 29 are hereby incorporated as though fully set forth at length. 31. The facts previously outlined constitutes the state tort of intentional infliction of mental distress. 32. As a result of the conduct, Plaintiff suffered damages as previously outlined in paragraph 29. WHEREFORE, Plaintiff demands judgment against Defendants, jointly, severally, and individually in an amount to be determined by the jury and costs and such other relief as the Court deems proper. JURY TRIAL DEMANDED. COUNT III - FAILURE TO PROVIDE ADEQUATE MEDICAL CARE AND/OR CONFINEMENT CONDITIONS CONSISTENT WITH PLAINTIFF'S MEDICAL CONDITION 33. The averments of paragraphs 1 through 32 are hereby incorporated as though fully set forth at length. 34. The facts previously outlined constitutes a state tort for the failure to provide adequate medical care and/or confinement conditions consistent with Plaintiff's medical condition in violation of the Pennsylvania Constitution, statutory and/or common law. 35. As a result of the conduct, Plaintiff suffered damages as previously outlined in paragraph 29. WHEREFORE, Plaintiff demands judgment against Defendants, jointly, severally, and individually in an amount to be determined by the jury and costs and such other relief as the Court deems proper. JURY TRIAL DEMANDED. 7 Res ctfully submitted, jvv? t4'? Peter M. Suwak, Esquire Counsel for Plaintiff ATTORNEY'S VERIFICATION Under the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities, I, Peter M. Suwak, Esquire, counsel for the Plaintiff, Al White, state that the facts set forth in the foregoing Complaint are true and correct based upon information, knowledge and belief. This verification was signed by counsel due to unavailability of the Plaintiff. If necessary, a verification from the parry will be furnished. l? Peter M. Suwak, Esquire Counsel for Plaintiff, Al White CERTIFICATE OF SERVICE I do hereby certify that a true and correct copy of the foregoing Complaint was served by U.S. First Class Mail, postage prepaid upon the following: Steven C. Gould, Senior Deputy Attorney General Office of Attorney General Torts Litigation Section 15th Floor, Strawberry Square Harrisburg, PA 17120 (Counsel for Defendants Commonwealth of Pennsylvania, Department of Corrections, SCI Camp Hill and Mr. Bilous) Craig A. Stone, Esquire Marshall, Dennehey, Warner, Coleman & Goggin P.C. 4200 Crums Mills Road, Suite B Harrisburg, PA 17112 (Counsel for Defendant Dr. Yucha) Dated: January 4, 2007 By: Peter M. Suwak, Esquire Counsel for Plaintiff PA I.D. #23779 Pete's Surplus Building P.O. Box 1 Washington PA 15301 Phone: 724-228-4885 Fax: 724-228-7916 Email: ymsuwakesg@comcast.net CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing of the foregoing has been served upon the following known counsel and parties of record this 26th day of January, 2007, via United States First-Class Mail, postage prepaid: Peter M. Suwak, Esquire Pete's Surplus Building P.O. Box 1 Washington, PA 15301 Steven C. Gould, Esquire Senior Deputy Attorney General Office of Attorney General Torts Litigation Section 15th Floor, Strawberry Square Harrisburg, PA 17120 MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN K_ <?? CRA A. STONE, ESQUIRE Dated: January 26, 2007 \05_AUA9\MWMCGUCKIMTRLD\244131 \MGWHITE\16257\00115 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA AL WHITE CIVIL DIVISION Plaintiff No: 06-4788 Civil Term V. THOMAS J. YUCHA, M.D., et al. Defendants ORDER AND NOW this day of , 2007, upon consideration of the Preliminary Objections of Thomas J. Yucha, M.D., to Plaintiffs Complaint, and any Response thereto, it is hereby ORDERED that the Preliminary Objections are GRANTED, and Plaintiffs Complaint is STRICKEN against Dr. Yucha. J. DATE: \05_A\LIAB\M WMCGUCKIN\TRLD\244085\MGWHITE\16257\00115 _? ?? __ .. E ""? ?~? ? i r o _, , ,?`_r ? ,- _ ..= , - .,3 ; -- . , ri cn_? _> _? y> ;? r?.? r Francis R. Filipi Senior Deputy Attorney General Office of Attorney General Litigation Section 15`h Floor, Strawberry Square Harrisburg, PA 17120 Direct Dial: 717-787-3874 AL WHITE Plaintiff V. COMMONWEALTH OF PENNSYLANIA, DEPARTMENT OF CORRECTIONS; SCI CAMP HILL; MR. BILOUS, as Unit Manager of C-Block at SCI Camp Hill; FIRST SHIFT SERGEANT (name unknown) at SCI Camp Hill; SECOND SHIFT SERGEANT CHILDS at SCI Camp Hill; and THOMAS J. YUCHA, M.D. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA No. 06-4788 - CIVIL TRIAL Defendants ENTRY OF APPEARANCE Please enter my appearance on behalf of Defendants Commonwealth of Pennsylvania, Department of Corrections, SCI Camp Hill, Mr. Bilous and Sergeant Chiles (corrected spelling of name), in the above-captioned matter. Dated: January 31, 2007 Respectfully submitted, THOMAS W. CORBETT, JR. ATTORNEY GENERAL Y: Francis R. Filipi, PA I.D. o. 18630 Senior Deputy Attorney General Susan L. Forney Chief Deputy Attorney General Chief, Litigation Section R y CERTIFICATE OF SERVICE I hereby certify that I am this day serving the Commonwealth Defendants' Entry of Appearance upon the person(s) and in the manner indicated below: SERVICE BY FIRST CLASS MAIL POSTAGE PREPAID ADDRESSED AS FOLLOWS: Peter M. Suwak, Esquire Pete's Surplus Building P.O. Box 1 Washington, PA 15301 (Counsel for Plaintiff) Craig A. Stone, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (Counsel for Yucha) Litigation Section 15th Floor, Strawberry Square Harrisburg, PA 17120 717-787-3874 - Direct Dial By. Francis R. Fihpi PA I.D. No. 18630 Senior Deputy Attorney General DATED: January 31, 2007 ` C > ? n CIO Francis R. Filipi Senior Deputy Attorney Genera Office of Attorney General Litigation Section 15`h Floor, Strawberry Square Harrisburg, PA 17120 Direct Dial: 717-787-3874 AL WHITE Plaintiff V. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA COMMONWEALTH OF PENNSYLANIA, No. 06-4788 - CIVIL TRIAL DEPARTMENT OF CORRECTIONS; SCI CAMP HILL; MR. BILOUS, as Unit Manager of C-Block at SCI Camp Hill; FIRST SHIFT SERGEANT (name unknown) at SCI Camp Hill; SECOND SHIFT SERGEANT CHILDS at SCI Camp Hill; and THOMAS J. YUCHA, M.D. Defendants PRELIMINARY OBJECTIONS FILED ON BEHALF OF DEFENDANTS COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF CORRECTIONS, SCI- MP HILL, MR BIr O AND SERGEANT HILE Defendants Commonwealth of Pennsylvania, Department of Corrections, SCI-Camp Hill, Mr. Bilous and Sergeant Chiles (corrected spelling of name) (collectively, Commonwealth Defendants), by their attorneys file the following Preliminary Objections to Plaintiff's Complaint: 1. On or about January 5, 2007, plaintiff filed his Complaint in response to rules to file a complaint. A true and correct copy of Plaintiff's Complaint is attached as Exhibit A. 2. The Complaint sets out three claims. Those claims are: Count I, a claim of violation of civil rights under the Fifth, Eighth, Ninth and Fourteenth Amendments IT 20-29); Count II, a claim defendants intentionally inflicted mental distress on plaintiff (¶¶ 30-32); and Count III, a claim defendants failed to provide adequate medical care IT 33-35). I. MOTION TO STRIKE FOR FAILURE TO CONFORM TO LAW PURSUANT TO PA.R.C.P.1028(a)(2). 3. This action against the Commonwealth Defendants is controlled by the Sovereign Immunity Act, 42 Pa. C. S. § 8501 et seq. 4. At all relevant times hereto, the Commonwealth Defendants were "Commonwealth Parties" within the meaning of section 8501 of the judicial Code, 42 Pa. C. S. § 8501. 5. Commonwealth parties are immune from suit except as specifically waived by the General Assembly. See, 1 Pa. C. S. § 2310; 42 Pa. C. S. § 8501 et seq. 6. The Pennsylvania Legislature, in relevant part, has created exceptions to sovereign immunity for "...damages arising out of a negligent act ...." See 42 Pa. C. S. § 8522(a). 7. Plaintiffs' Complaint, in Paragraph 26, sets forth that the "Defendants' actions and/or omissions were negligent and/or reckless and/or intentional." (See, Complaint ¶ 26). 8. Allegations of conduct that is alleged to be anything other than "negligent" constitute "scandalous or impertinent matter" in violation of Pa.R.C.P. 1028(a)(2). WHEREFORE, the Commonwealth Defendants respectfully request the Court strike "recklesss" and "intentional" from Plaintiffs Complaint pursuant to Pa.R.C.P. § 1028(a)(2). II. MOTION TO STRIKE PLAINTIFF'S CLAIM FOR PUNITIVE DAMAGES. 9. The Commonwealth Defendant hereby incorporates paragraphs 1-8 of these Preliminary Objections by reference as though set forth herein at length. 10. In Plaintiffs' Complaint, he requests punitive damages. (See, Complaint ¶ 29 (c)). 11. As Commonwealth parties within its definition found at section 8501, of the judicial Code, 42 Pa. C. S. § 8501, damages recoverable against the Commonwealth Defendants are specifically limited by the Sovereign Immunity Act, 42 Pa. C. S. § 8528(c). 12. Plaintiffs request for punitive damages are not enumerated as a recoverable damage against the Commonwealth Defendants at section 8528(c) of the judicial Code, 42 Pa. C. S. § 8528(c). 2 WHEREFORE, the Commonwealth Defendants respectfully request the Court to grant their preliminary objection and strike Plaintiffs' claim for relief for punitive damages. III. PRELIMINARY OBJECTION IN THE NATURE OF A MOTION TO STRIKE, PURSUANT TO PA.R.C.P. 1028(a)(2) FOR LACK OF CONFORMITY TO LAW OR RULE OF CONDUCT. 13. The Commonwealth Defendants hereby incorporate paragraphs 1-12 of these Preliminary Objections by reference as though set forth herein at length. 14. Plaintiff attempts to assert acts of negligence against the Commonwealth Defendants and Defendant Thomas J. Yucha, M.D., but fails to state each cause of action against each defendant in a separate count under a separate heading. 15. Plaintiff is required to set forth each cause of action against each defendant in a separate count under a separate heading. Pa.R.C.P. 1020. WHEREFORE, the Commonwealth Defendants respectfully request the Court dismiss Plaintiffs' Complaint, or in the alternative, require him to file an amended complaint setting forth each cause of action against each defendant in a separate count under a separate heading. IV. DEMURRER TO PLAINTIFF'S COMPLAINT FOR FAILING TO STATE A CAUSE OF ACTION UNDER THE EIGHTH AMENDMENT. 16. The Commonwealth Defendants hereby incorporate paragraphs 1-15 of these Preliminary Objections by reference as though set forth herein at length. 17. In order to state a viable § 1983 claim, the plaintiff must prove (1) that he was deprived of rights, privileges or immunities secured by the Constitution or laws of the United States due to (2) the conduct of a person acting under color of state law. Wlest P. Atkins, 487 U.S. 42, 48 (1988). 18. Allegations amounting to mere negligence in rendering medical treatment are insufficient to state a claim for inadequate medical care under the Eighth Amendment. Estelle V. Gamble, 429 U.S. 97, 106 (1976). 3 19. Furthermore, prison officials, who are not physicians, cannot be considered deliberately indifferent simply because they failed to respond to the medical complaints of a prisoner who was already being treated by medical personnel in the prison. Durmer n O'Canvll, 991 F.2d 64, 69 (3d Cit. 1993). 20. Plaintiff fails to allege any facts to support that the Commonwealth Defendants failed to provide adequate medical care which is guaranteed to the Plaintiff by the Eighth Amendment. WHEREFORE, the Commonwealth Defendants respectfully request the Court grant their demurrer pursuant to Rule 1028(a)(4) of the Pennsylvania Rules of Civil Procedure and dismiss his Eighth Amendment claim. V. DEMURRER TO PLAINTIFF'S COMPLAINT FOR FAILING TO STATE A CAUSE OF ACTION UNDER THE FOURTEENTH AMENDMENT DUE PROCESS CLAUSE. 21. The Commonwealth Defendants hereby incorporate paragraphs 1-20 of these Preliminary Objections by reference as though set forth herein at length. 22. A valid due process claim is asserted only when a plaintiff is deprived of a protected life, liberty or property interest. 23. Plaintiffs Complaint fails to state an interest that is protected by the Due Process Clause. WHEREFORE, the Commonwealth Defendants respectfully request the Court grant their demurrer pursuant to Rule 1028(a)(4) of the Pennsylvania Rules of Civil Procedure and dismiss his Fourteenth Amendment claim. VI. DEMURRER TO COUNT II OF PLAINTIFF'S COMPLAINT FOR FAILING TO STATE A CAUSE OF ACTION UNDER THE SOVEREIGN IMMUNITY ACT--NOT LIABLE FOR INTENTIONAL ACTS. 24. The Commonwealth Defendants hereby incorporate paragraphs 1-23 of these Preliminary Objections by reference as though set forth herein at length. 25. Plaintiffs Complaint sets forth intentional acts on the part of the Commonwealth 4 Defendants. (See, Complaint 126). 26. Plaintiff claims he suffered damages as a result of the Commonwealth Defendants' intentional acts. (See, Complaint ¶T 26 & 29). 27. As stated above, this action against the Commonwealth Defendants are controlled by the Sovereign Immunity Act, 42 Pa. C. S. § 8521 et seq. 28. When the Sovereign Immunity Act was drafted, liability based on intentional torts of Commonwealth parties was considered and rejected. The Joint State Government Commission set forth ten specific areas where sovereign immunity was not waived. The Commission stated: The task force specifically rejected waiving sovereign immunity for claims arising out of: (1) Intentional torts such as assault and battery, false imprisonment, false arrest, malicious prosecution, abuse of privacy, libel and slander, misrepresentation, deceit, interference with contract rights, fraud and the invasion of privacy. Commission Report, p. 15. 29. Accordingly, Plaintiffs allegations of intentional misconduct cannot form the basis for a civil action against the Commonwealth Defendants acting within the scope of their employment. WHEREFORE, the Commonwealth Defendants respectfully request the Court grant their demurrer pursuant to Rule 1028(a)(4) of the Pennsylvania Rules of Civil Procedure and dismiss Count II of Plaintiffs' Complaint. VII. DEMURRER TO COUNT I OF PLAINTIFF'S COMPLAINT FOR FAILING TO STATE A CAUSE OF ACTION UNDER 42 U.S.C. § 1983 - COMMONWEALTH AND ITS OFFICIALS WHEN SUED IN THEIR OFFICIAL CAPACITIES ARE NOT "PERSONS" UNDER THAT STATUTE. 30. The Commonwealth Defendants hereby incorporate paragraphs 1-29 of these Preliminary Objections by reference as though set forth herein at length. 31. Among the Commonwealth Defendants are the Commonwealth itself, the Pennsylvania Department of Corrections and the State Correctional Institution at Camp Hill. (See, Complaint J¶ 2, 3 & 4). In addition, it is unclear whether Plaintiff intended to sue Mr. Bilous and Sergeant Chiles in their 5 official capacity. Count I presents a claim against these defendants under 42 U.S.C. § 1983. In WIN V. Michigan, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989), the Supreme Court held that a state is not a "person" within the meaning of § 1983. The Supreme Court also held that state officials acting in their official capacity are also not "persons" under § 1983 because "a suit against a state official in his or her official capacity is not a suit against the official but rather a suit against the official's office." Id. 491 U.S. at 71. WHEREFORE, the Commonwealth Defendants respectfully request the Court grant their demurrer pursuant to Rule 1028(a)(4) of the Pennsylvania Rules of Civil Procedure and dismiss Count I as to the Commonwealth, the Pennsylvania Department of Corrections and the State Correctional Institution at Camp Hill and Mr. Bilous and Sergeant Chiles, to the extent Plaintiff sued these latter two in their official capacities. Respectfully submitted, THOMAS W. CORBETT, JR. ATTORNEY GENERAL By: Francis R. Filipi, PA I.D. No. 18630 Senior Deputy Attorney General Susan L. Forney Chief Deputy Attorney General Dated: February 8, 2007 Chief, Litigation Section 6 J (h)bifA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION AL WHITE, Plaintiff, V. No.06-4788 Civil Term COMMONWEALTH OF PENNSYLVANIA; Type of Pleading: DEPARTMENT OF CORRECTIONS; SCI CAMP HILL; MR. BILOUS, as Unit Manager COMPLAINT -- ofC=Bloc at 6 C1 amp SERGEANT (Name Unknown) at SCI Camp Hill; SECOND SHIFT SERGEANT CHILDS at SCI Camp Hill; and THOMAS J. YUCHA, M.D., Defendants. JURY TRIAL DEMANDED Filed on behalf of Plaintiff. Al White Counsel of Record for this Parry: Peter M. Suwak, Esquire PA ID #23779 Pete's Surplus Building P.O. Box 1 Washington, PA 15301 Phone: 724-228-4885 Fax: 724-228-7916 Email: pmsuwakesgaa,comcast.net IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION AL WHITE, Plaintiff, V. No.06-4788 Civil Term COMMONWEALTH OF PENNSYLVANIA; DEPARTMENT OF CORRECTIONS; SCI CAMP HILL; MR. BILOUS, as Unit Manager of C-Block at SCI Camp Hill; FIRST SHIFT SERGEANT (Name Unknown) at SCI Camp Hill; SECOND SHIFT SERGEANT CHILDS at SCI Camp Hill; and THOMAS J. YUCHA, M.D., Defendants. JURY TRIAL DEMANDED NOTICE You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and notice are served, by entering a written appearance personally or by 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 of relief requested by the Plaintiffs. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, CONTACT: Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17103 717-249-3166 800-990-9108 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION AL WHITE, Plaintiff, V. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF CORRECTIONS; SCI CAMP HILL; MR. BILOUS, as Unit Manager of C-Block at SCI Camp Hill; FIRST SHIFT SERGEANT (Name Unknown) at SCI Camp Hill; SECOND SHIFT SERGEANT CHILDS at SCI Camp Hill; and THOMAS J. YUCHA, M.D., Defendants. No.06-4788 Civil Term JURY TRIAL DEMANDED COMPLAINT AND NOW comes Plaintiff, Al White, by and through his counsel, Peter M. Suwak, Esquire, who files the following Complaint based upon the following: INTRODUCTION 1. Plaintiff Al White is an adult individual, a citizen of the United States, with an address of Number: FW-4186, SCI Houtzdale, P. 0. Box 1000, Houtzdale, Clearfield County, Pennsylvania 16698-1000. 2. Defendant Commonwealth of Pennsylvania is a state entity. 3. Defendant Department of Corrections is a state agency within the Commonwealth of Pennsylvania. 4. Defendant SCI Camp Hill is a correctional facility for men located at 2520 Lisburn Road, Camp Hill, Cumberland County, Pennsylvania 17011. 5. Defendant Mr. Bilous is employed as a Unit Manager of C-Block with SCI Camp Hill located at 2520 Lisburn Road, Camp Hill, Cumberland County, Pennsylvania 17011 6. Defendant First Shift Sergeant (Name Unknown) is employed by SCI Camp Hill located at 2520 Lisburn Road, Camp Hill, Cumberland County, Pennsylvania 17011. 7. Defendant Second Shift Sergeant Childs is employed by SCI Camp Hill located at 2520 Lisburn Road, Camp Hill, Cumberland County, Pennsylvania 17011. 8. Defendant Thomas J. Yucha, M.D. is a physician with an office located at Orthopedic Institute of Pennsylvania, 3399 Trindle Road, Camp Hill, Cumberland County, Pennsylvania 17011 who works through the Department of Corrections by agreement. STATEMENT OF FACTS 9. Plaintiff Albert White was incarcerated at SCI Camp Hill pending eventual assignment to SCI Houtzdale. 10. While at SCI Camp Hill, at cell Al-08 a water leak developed from the pipes. This condition lasted for at least four weeks. Despite repeated complaints no action was taken to repair the leak. 11. On or about August 18, 2004 Plaintiff slipped and fell in his cell on the water resulting from the uncontrolled leak sustaining an injury to his wrist. 12. On or about September 22, 2004 Plaintiff again slipped and fell on some water in his cell that was coming from the leak. On this occasion he injured his knee and re-injured his wrist. X-rays revealed a wrist fracture. Eventually the wrist was treated with a cast and pain medications. The cast was removed in approximately three weeks. 13. On or about'October 10, 2004 the nurses at SCI Camp Hill halted the pain medication. Upon complaint to the Dr. Yucha, the doctor indicated that he was to remain on pain medication, particularly suggesting Tylenol 3 with Codeine. However, the pain medication was never renewed. No steps were taken by Defendant Doctor to insure the medication was provided. 14. During this period the pain was unbearable together with significant swelling and wrist throbbing rendering the Plaintiff unable to sleep. 15. Subsequently while suffering from the above condition, Plaintiff was transferred to SCI Houtzdale, a part of the state wide Department of Corrections. In view of the Plaintiff s condition he should have been placed on a medical hold, but nonetheless was transferred. 16. On or about February. 3, 2005 Plaintiff complained to the medical department at SCI Houtzdale regarding his fractured right wrist and torn ligaments. The nurse at the institution declined to treat the inmate absent the payment of a two dollar fee and made no arrangement at that time for review by a doctor. This approach is consistent with the Department's policies. 17. Subsequently Plaintiff was seen by an orthopedic surgeon outside the institution, but provided through the institution. When the Plaintiff attempted to give the history of his injury, the doctor refused to listen. The doctor became angry, ordered him out of the office stating that he didn't care what happened or where it happened. White was taken away without medical treatment. It was determined that White required additional surgery to his wrist. However, White, no longer trusting the doctor who had ordered him out of his office without listening to a history requested another surgeon. The Department refused this request. To date Plaintiff White has received no further treatment for his fractured wrist which continues to cause significant pain and limitation of activity. 18. The above matters were grieved by Plaintiff Albert White by grievance nos. 108817 and 109558, which grievances were denied. 19. This complaint makes no allegation of professional medical negligence against Dr. Yucha, a medical professional. Since no allegation of professional medical negligence is hereby made within the meaning of Pa.R.C.P. 1042.3, no Certificate of Merit is required. The theory against Defendant Yucha is confined to a constitutional claim of deliberate indifference associated with the absence of pain medication. COUNT I - CIVIL RIGHTS VIOLATIONS 20. The averments of paragraphs 1 through 19 are hereby incorporated as though fully set forth at length. 21. This court's jurisdiction is invoked pursuant to 28 U.S.C. § 1331. 22. Defendants, their agents and employees, especially Defendants Bilous, First Shift Sergeant (L.N.U.) and Sergeant Childs, with knowledge of Plaintiff's cell conditions, particularly the ongoing water leakage and/or with deliberate indifference to such condition, have acted or failed to act in such a way as to deprive Plaintiff of necessary and adequate confinement conditions appropriate to his condition, thereby endangering the Plaintiff's health and well-being. Such acts and omissions of the Defendants violate rights secured to the Plaintiff under the Fifth, Eighth, Ninth and Fourteenth Amendments. 23. Defendants, their agents and employees, with knowledge of Plaintiff's medical needs, and/or with deliberate indifference to such medical needs, have acted or failed to act in such a way as to deprive Plaintiff of necessary and adequate medical care and/or confinement conditions appropriate to his medical condition, thereby endangering the Plaintiff's health and well-being. Such acts and omissions of the Defendants violate rights secured to the Plaintiff under the Fifth, Eighth, Ninth and Fourteenth Amendments. 24. Defendants, knowing of the medical needs of the Plaintiff and with deliberate indifference to the inadequacies and deficiencies in the medical and other staffing and procedures at SCI Camp Hill and/or SCI Houtzdale have failed and neglected to establish and implement policies, practices and procedures designed to assure that plaintiff receive medical treatment and care and/or confinement conditions appropriate to his medical condition at the standards therefor in the Department of Corrections, or have adopted policies, practices and procedures which Defendants knew, or reasonably should have known, would be ineffective in delivering medical treatment and care at such standards, thereby endangering the Plaintiffs health and well-being in violation of rights secured to Plaintiff by the Fifth, Eighth, Ninth and Fourteenth Amendments to the United States Constitution. 25. Defendants, knowing of the medical needs of the Plaintiff and with deliberate indifference to such needs, have failed to instruct, supervise or train their employees and agents in such a manner as to assure the delivery of adequate medical care to Plaintiff and/or confinement conditions consistent with his medical condition, thereby endangering the Plaintiff's health and well-being in violation of the Fifth, Eighth, Ninth and Fourteenth Amendments to the United States Constitution. 26. The Defendants' actions and/or omissions were negligent and/or reckless and/or intentional. 27. The Defendants' actions and/or omissions were committed under color of law and/or pursuant to policies, customs, practices, rules, regulations, ordinances, statutes and/or usages of the State of Pennsylvania, the Department of Corrections and/or SCI Camp Hill and/or SCI Houtzdale. 28. These actions have served to deprive the Plaintiff of his civil rights, as previously outlined, under color of law, and hence violate the United States Constitution and are actionable under 42 U.S.C. §1983. 29. As a result of the aforementioned, Plaintiff has been damaged as follows: a. Medical bills in an amount to be determined. b Pain, suffering, inconvenience, loss of enjoyment of life, annoyance and other emotional distress. c Entitlement to punitive damages due to outlined outrageous conduct. d Declaration of violation of rights, as outlined. e. Entitlement to counsel fees and costs per 42 U.S.C. § 1988. WHEREFORE, Plaintiff demands judgment against Defendants, jointly, severally, and individually in an amount to be determined by the jury and costs and. such other relief as the Court deems proper. JURY TRIAL DEMANDED. COUNT II - INTENTIONAL INFLICTION OF MENTAL DISTRESS 30. The averments of paragraphs 1 through 29 are hereby incorporated as though fully set forth at length. 31. The facts previously outlined constitutes the state tort of intentional infliction of mental distress. 32. As a result of the conduct, Plaintiff suffered damages as previously outlined in paragraph 29. WHEREFORE, Plaintiff demands judgment against Defendants, jointly, severally, and individually in an amount to be determined by the jury and costs and such other relief as the Court deems proper. JURY TRIAL DEMANDED. COUNT III - FAILURE TO PROVIDE ADEQUATE MEDICAL CARE AND/OR CONFINEMENT CONDITIONS CONSISTENT WITH PLAINTIFF'S MEDICAL CONDITION 33. The averments of paragraphs 1 through 32 are hereby incorporated as though fully set forth at length. 34. The facts previously outlined constitutes a state tort for the failure to provide adequate medical care and/or confinement conditions consistent with Plaintiff's medical condition in violation of the Pennsylvania Constitution, statutory and/or common law. 35. As a result of the conduct, Plaintiff suffered damages as previously outlined in paragraph 29. WHEREFORE, Plaintiff demands judgment against Defendants, jointly, severally, and individually in an amount to be determined by the jury and costs and such other relief as the Court deems proper. JURY TRIAL DEMANDED. Res ectfnlly submitted, Peter M. Suwak, Esquire Counsel for Plaintiff ATTORNEY'S VERIFICATION Under the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities, I, Peter M. Suwak, Esquire, counsel for the Plaintiff, Al White, state that the facts set forth in the foregoing Complaint are true and correct based upon information, knowledge and belief This verification was signed by counsel due to unavailability of the Plaintiff. If necessary, a verification from the party will be furnished. Peter M. Suwak, Esquire Counsel for Plaintiff, Al White CERTIFICATE OF SERVICE I do hereby certify that a true and correct copy of the foregoing Complaint was served by U.S. First Class Mail, postage prepaid upon the following: Steven C. Gould, Senior Deputy Attorney General Office of Attorney General Torts Litigation Section 15`h Floor, Strawberry Square Harrisburg, PA 17120 (Counsel for Defendants Commonwealth of Pennsylvania, Department of Corrections, SCI Camp Hill and Mr. Bilous) Craig A. Stone, Esquire Marshall, Dennehey, Warner, Coleman & Goggin P.C. 4200 Crums Mills Road, Suite B Harrisburg, PA 17112 (Counsel for Defendant Dr. Yucha) Dated: January 4, 2007 By: Peter M. Suwak, Esquire Counsel for Plaintiff PA I.D. #23779 Pete's Surplus Building P.O. Box 1 Washington PA 15301 Phone: 724-228-4885 Fax: 724-228-7916 Email: pmsuwakesq(@comcast.net CERTIFICATE OF SERVICE I hereby certify that I am this day serving the Preliminary Objections Filed on Behalf of Defendants Commonwealth of Pennsylvania, Department of Corrections, SCI-Camp Hill, Mr. Bilous and Sergeant Chiles upon the person(s) and in the manner stated below: SERVICE BY FIRST CLASS MAIL POSTAGE PREPAID ADDRESSED AS FOLLOWS: Peter M. Suwak, Esquire Pete's Surplus Building P.O. Box 1 Washington, PA 15301 (Counsel for Plaintiff) Craig A. Stone, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (Counsel for Yucha) Litigation Section 15th Floor, Strawberry Square Harrisburg, PA 17120 717-787-3874 - Direct Dial By: Francis R. Filipi PA I.D. No. 18630 Senior Deputy Attorney General DATED: February 8, 2007 r ~' ` ??_? . ( ?' ? G. 7 ='ti ? "I ? ? ? „ ~ [„J 5 ? t 1.?3 2 ?? i _- w f?? (`\? . ?- ,. '?.. > . lr? .? .. ?i- PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the written matter for the next Argument Court. ----------------------------------------------------------------------------------------- -- IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA AL WHITE Plaintiff CIVIL DIVISION No: 06-4788 Civil Term V. THOMAS J. YUCHA, M.D., et al. Defendants State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): PRELIMINARY OBJECTIONS OF DEFENDANT, THOMAS J. YUCHA M.D. TO PLAINTIFF'S COMPLAINT Identify counsel who will argue cases: (a) for plaintiff: Peter M. Suwak, Esquire, Pete's Surplus Building, P.O. Box 1, Washington, PA 15301 (Name and Address) (b) for defendant: Marshall Dennehey, Warner Coleman & Goggin, By: Craig A. Stone, Esquire and Michael W. McGuckin Esquire, 4200 Crums Mill Road Suite B Harrisburg, PA 17112 (Name and Address) I will notify all parties in writing within two days that this case has been listed for argument. Court Date: Signatur ? ignature Craig A. Stone Michael W. McGuckin Print your name Print your name Date: Attorneys for Defendant Thomas Yucha, M.D. ?? ` ? -r+ _ c ?? _-- ? - __ .: ,,? ?s ?;C` -}m _- 1y -?" PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the written matter for the next Argument Court. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA AL WHITE Plaintiff V. THOMAS J. YUCHA, M.D., et al Defendants CIVIL DIVISION No. 06-4788 Civil Term State matter to be argued (i.e. plaintiff's motion for new trial, defendant's demurrer to complaint, etc.) PRELIMINARY OBJECTIONS OF DEFENDANTS COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF CORRECTIONS, SCI-CAMP HILL, MR. BILOUS AND SERGEANT CHILES TO PLAINTIFF'S COMPLAINT 2. Identify Counsel who will argue cases: (a) for plaintiff: Peter M. Suwak Esquire Pete's Surplus Building P U Box 1 Washington PA 15301 (b) for defendant Francis R. Filipi, Senior Deputy Attorney General Office of Attorney General 15`" Floor, Strawberry Square, Harrisburg PA 17120 or M. Abbeaael Pacuska, Deputy Attorney General Office of Attorney General 15th Floor Strawberry Square, Harrisburg PA 17120 I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: Signature Francis R. Filipi Print your name Attorney for Defendants Commonwealth of PA, Dept. of Corrections, SCI-Camp Hill, Mr. Bilous and Sergeant Chiles Date: Signature M. Abbegael Pacuska Print your name Attorney for Defendants Commonwealth of PA, Dept. of Corrections, SCI-Camp Hill, Mr. Bilous and Sergeant Chiles Date: /] z A Po :;?-- C7 Ct-Zl =) 0 CD AL WHITE, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. THOMAS J. YUCHA, M.D., COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF CORRECTIONS, SCI CAMP HILL, MR. BILOUS, AS UNIT MANAGER OF C-BLOCK AT SCI CAMP HILL, FIRST SHIFT SERGEANT : (NAME UNKNOWN) AT SCI CAMP HILL, SECOND SHIFT SERGEANT CHILDS AT SCI CAMP HILL, DEFENDANTS :06-4788 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF DEFENDANTS TO PLAINTIFF'S COMPLAINT BEFORE BAYLEY, J. AND GUIDO, J. ORDER OF COURT AND NOW, this day of July, 2007, IT IS ORDERED THAT within twenty (20) days of this date plaintiff shall file an amended complaint in which the facts in support of each cause of action and any special damages related thereto against each defendant shall be set forth in separate counts containing a demand for relief against each defendant.' 0 ' GiWnthe number of defendants and the different categories the defendants are in makes it extremely difficult to try to determine what facts support each cause of action against each defendant in the various counts of plaintiffs complaint. An amended complaint complying with this order should resolve these difficulties. LL- r= G7 rv ? Peter M. Suwak, Esquire Pete's Surplus Building P.O. Box 1 Washington, PA 15301 For Plaintiff Francis R. Filipi, Esquire Office of Attorney General Litigation Section 15t Floor, Strawberry Square Harrisburg, PA 17120 For Defendants Craig A. Stone, Esquire 4200 Crums Mill Road Suite B Harrisburg, PA 17112 For Thomas J. Yucha, M.D. sal IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION AL WHITE, Plaintiff, V. COMMONWEALTH OF PENNSYLVANIA; DEPARTMENT OF CORRECTIONS; SCI CAMP HILL; MR. BILOUS, as Unit Manager of C-Block at SCI Camp Hill; FIRST SHIFT SERGEANT (Name Unknown) at SCI Camp Hill; SECOND SHIFT SERGEANT CHILDS at SCI Camp Hill; and THOMAS J. YUCHA, M.D., Defendants. JURY TRIAL DEMANDED No.06-4788 Civil Term Type of Pleading: FIRST AMENDED COMPLAINT Filed on behalf of Plaintiff: Al White Counsel of Record for this Party: Peter M. Suwak, Esquire PA ID #23779 Pete's Surplus Building P.O. Box 1 Washington, PA 15301 Phone: 724-228-4885 Fax: 724-228-7916 Email: pmsuwakesq@comcast.net IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION AL WHITE, V. COMMONWEALTH OF PENNSYLVANIA; DEPARTMENT OF CORRECTIONS; SCI CAMP HILL; MR. BILOUS, as Unit Manager of C-Block at SCI Camp Hill; FIRST SHIFT SERGEANT (Name Unknown) at SCI Camp Hill; SECOND SHIFT SERGEANT CHILDS at SCI Camp Hill; and THOMAS J. YUCHA, M.D., Plaintiff, No.06-4788 Civil Term Defendants. JURY TRIAL DEMANDED NOTICE You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and notice are served, by entering a written appearance personally or by 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 of relief requested by the Plaintiffs. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, CONTACT: Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17103 717-249-3166 800-990-9108 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION AL WHITE, Plaintiff, V. No.06-4788 Civil Term COMMONWEALTH OF PENNSYLVANIA; DEPARTMENT OF CORRECTIONS; SCI CAMP HILL; MR. BILOUS, as Unit Manager of C-Block at SCI Camp Hill; FIRST SHIFT SERGEANT (Name Unknown) at SCI Camp Hill; SECOND SHIFT SERGEANT CHILDS at SCI Camp Hill; and THOMAS J. YUCHA, M.D., Defendants. JURY TRIAL DEMANDED FIRST AMENDED COMPLAINT AND NOW comes Plaintiff, Al White, by and through his counsel, Peter M. Suwak, Esquire, who files the following First Amended Complaint based upon the following: INTRODUCTION 1. Plaintiff Al White is an adult individual, a citizen of the United States, with an address of Number: FW-4186, SCI Houtzdale, P. O. Box 1000, Houtzdale, Clearfield County, Pennsylvania 16698-1000. 2. Defendant Commonwealth of Pennsylvania is a state entity. 3. Defendant Department of Corrections is a state agency within the Commonwealth of Pennsylvania. 4. Defendant SCI Camp Hill is a correctional facility for men located at 2520 Lisburn Road, Camp Hill, Cumberland County, Pennsylvania 17011. Defendant Mr. Bilous is employed as a Unit Manager of C-Block with SCI Camp Hill located at 2520 Lisburn Road, Camp Hill, Cumberland County, Pennsylvania 17011. 6. Defendant First Shift Sergeant (Name Unknown) is employed by SCI Camp Hill located at 2520 Lisburn Road, Camp Hill, Cumberland County, Pennsylvania 17011. 7. Defendant Second Shift Sergeant Childs is employed by SCI Camp Hill located at 2520 Lisburn Road, Camp Hill, Cumberland County, Pennsylvania 17011. 8. Defendant Thomas J. Yucha, M.D. is a physician with an office located at Orthopedic Institute of Pennsylvania, 3399 Trindle Road, Camp Hill, Cumberland County, Pennsylvania 17011 who works through the Department of Corrections by agreement. It is noted that Plaintiff is asserting no claim against Defendant Thomas J. Yucha in this First Amended Complaint. STATEMENT OF FACTS 9. Plaintiff Albert White was incarcerated at SCI Camp Hill pending eventual assignment to SCI Houtzdale. 10. While at SCI Camp Hill, at cell Al-08 a water leak developed from the pipes. This condition lasted for at least four weeks. Despite repeated complaints no action was taken to repair the leak. 11. On or about August 18, 2004 Plaintiff slipped and fell in his cell on the water resulting from the uncontrolled leak sustaining an injury to his wrist. 12. On or about September 22, 2004 Plaintiff again slipped and fell on some water in his cell that was coming from the leak. On this occasion he injured his knee and re-injured his wrist. X-rays revealed a wrist fracture. Eventually the wrist was treated with a cast and pain medications. The cast was removed in approximately three weeks. 13. On or about October 10, 2004 the nurses at SCI Camp Hill halted the pain medication. Upon complaint to the Dr. Yucha, the doctor indicated that he was to remain on pain medication, particularly suggesting Tylenol 3 with Codeine. However, the pain medication was never renewed. No steps were taken by Defendant Doctor to insure the medication was provided. 14. During this period the pain was unbearable together with significant swelling and wrist throbbing rendering the Plaintiff unable to sleep. 15. Subsequently while suffering from the above condition, Plaintiff was transferred to SCI Houtzdale, a part of the state wide Department of Corrections. In view of the Plaintiffs condition he should have been placed on a medical hold, but nonetheless was transferred. 16. On or about February 3, 2005 Plaintiff complained to the medical department at SCI Houtzdale regarding his fractured right wrist and torn ligaments. The nurse at the institution declined to treat the inmate absent the payment of a two dollar fee and made no arrangement at that time for review by a doctor. This approach is consistent with the Department's policies. 17. Subsequently Plaintiff was seen by an orthopedic surgeon outside the institution, but provided through the institution. When the Plaintiff attempted to give the history of his injury, the doctor refused to listen. The doctor became angry, ordered him out of the office stating that he didn't care what happened or where it happened. White was taken away without medical treatment. It was determined that White required additional surgery to his wrist. However, White, no longer trusting the doctor who had ordered him out of his office without listening to a history requested another surgeon. The Department refused this request. To date Plaintiff White has received no further treatment for his fractured wrist which continues to cause significant pain and limitation of activity. 18. The above matters were grieved by Plaintiff Albert White by grievance nos. 108817 and 109558, which grievances were denied. 19. This complaint makes no allegation of professional medical negligence against Dr. Yucha, a medical professional. Since no allegation of professional medical negligence is hereby made within the meaning of Pa.R.C.P. 1042.3, no Certificate of Merit is required. The theory against Defendant Yucha is confined to a constitutional claim of deliberate indifference associated with the absence of pain medication. It is noted that Plaintiff is asserting no claim against Defendant Thomas J. Yucha in this First Amended Complaint. COUNT I - CIVIL RIGHTS VIOLATIONS (versus all parties except Defendant Yucha) 20. The averments of paragraphs 1 through 19 are hereby incorporated as though fully set forth at length. 21. This court's jurisdiction is invoked pursuant to 28 U.S.C. §1331. 22. Defendants, their agents and employees, especially Defendants Bilous, First Shift Sergeant (L.N.U.) and Sergeant Childs, with knowledge of Plaintiff's cell conditions, particularly the ongoing water leakage and/or with deliberate indifference to such condition, have acted or failed to act in such a way as to deprive Plaintiff of necessary and adequate confinement conditions appropriate to his condition, thereby endangering the Plaintiff's health and well-being. Such acts and omissions of the Defendants violate rights secured to the Plaintiff under the Fifth, Eighth, Ninth and Fourteenth Amendments. 23. The specific acts of each Defendant follow: a. Regarding Defendant Bilous: this Defendant, as Unit Manager of C Block at SCI Camp Hill had specific knowledge of Plaintiff's cell conditions, particularly, the ongoing water leakage and despite that knowledge, acting with deliberate indifference failed to take corrective action to clean up the hazardous condition, even after the Plaintiff had sustained his first injury. Additionally Defendant failed to provide pain medication as directed. b. Regarding First Shift Sergeant (L.N.U.): this Defendant, as First Shift Sergeant of C Block at SCI Camp Hill had specific knowledge of Plaintiff's cell conditions, particularly, the ongoing water leakage and despite that knowledge, acting with deliberate indifference failed to take corrective action to clean up the hazardous condition, even after the Plaintiff had sustained his first injury. Additionally Defendant failed to provide pain medication as directed. c. Regarding Sergeant Childs: this Defendant, as a sergeant of C Block at SCI Camp Hill had specific knowledge of Plaintiff's cell conditions, particularly, the ongoing water leakage and despite that knowledge, acting with deliberate indifference failed to take corrective action to clean up the hazardous condition, even after the Plaintiff had sustained his first injury. Additionally Defendant failed to provide pain medication as directed. 24. Defendants, their agents and employees, with knowledge of Plaintiff's medical needs, and/or with deliberate indifference to such medical needs, have acted or failed to act in such a way as to deprive Plaintiff of necessary and adequate medical care and/or confinement conditions appropriate to his medical condition, thereby endangering the Plaintiff s health and well-being. Such acts and omissions of the Defendants violate rights secured to the Plaintiff under the Fifth, Eighth, Ninth and Fourteenth Amendments. 25. Defendants, knowing of the medical needs of the Plaintiff and with deliberate indifference to the inadequacies and deficiencies in the medical and other staffing and procedures at SCI Camp Hill and/or SCI Houtzdale have failed and neglected to establish and implement policies, practices and procedures designed to assure that plaintiff receive medical treatment and care and/or confinement conditions appropriate to his medical condition at the standards therefor in the Department of Corrections, or have adopted policies, practices and procedures which Defendants knew, or reasonably should have known, would be ineffective in delivering medical treatment and care at such standards, thereby endangering the Plaintiff s health and well-being in violation of rights secured to Plaintiff by the Fifth, Eighth, Ninth and Fourteenth Amendments to the United States Constitution. 26. Defendants, knowing of the medical needs of the Plaintiff and with deliberate indifference to such needs, have failed to instruct, supervise or train their employees and agents in such a manner as to assure the delivery of adequate medical care to Plaintiff and/or confinement conditions consistent with his medical condition, thereby endangering the Plaintiff s health and well-being in violation of the Fifth, Eighth, Ninth and Fourteenth Amendments to the United States Constitution. 27. The Defendants' actions and/or omissions were negligent and/or reckless and/or intentional. 28. The Defendants' actions and/or omissions were committed under color of law and/or pursuant to policies, customs, practices, rules, regulations, ordinances, statutes and/or usages of the State of Pennsylvania, the Department of Corrections and/or SCI Camp Hill and/or SCI Houtzdale: a. Regarding Defendant SCI Camp Hill: said municipal Defendant is responsible for the policies and practices resulting in the deliberate indifference to Plaintiff s cell conditions in failing to have in place an effective procedure to identify and/or report repair needs and to ensure timely action so as to avoid needless injury to inmates. Further said Defendant is responsible for the policies and practices resulting in the deliberate indifference to Plaintiff s medical conditions in failing to ensure the administration of appropriate pain medication as needed. b. Regarding Defendants Department of Corrections and Commonwealth of Pennsylvania: said municipal Defendant is responsible for the policies and practices resulting in the deliberate indifference to Plaintiff's cell conditions in failing to have in place an effective procedure to identify and/or report repair needs and to ensure timely action so as to avoid needless injury to inmates. Further said Defendant is responsible for the policies and practices resulting in the deliberate indifference to Plaintiff's medical conditions in failing to ensure the administration of appropriate pain medication as needed. 29. These actions have served to deprive the Plaintiff of his civil rights, as previously outlined, under color of law, and hence violate the United States Constitution and are actionable under 42 U.S.C. § 1983. 30. As a result of the aforementioned, Plaintiff has been damaged as follows: a. Medical bills in an amount to be determined. b Pain, suffering, inconvenience, loss of enjoyment of life, annoyance and other emotional distress. c Entitlement to punitive damages due to outlined outrageous conduct. d Declaration of violation of rights, as outlined. e. Entitlement to counsel fees and costs per 42 U.S.C. § 1988. WHEREFORE, Plaintiff demands judgment against Defendants, jointly, severally, and individually in an amount to be determined by the jury and costs and such other relief as the Court deems proper. JURY TRIAL DEMANDED. COUNT II - FAILURE TO PROVIDE ADEQUATE MEDICAL CARE AND/OR CONFINEMENT CONDITIONS CONSISTENT WITH PLAINTIFF'S MEDICAL CONDITION 31. The averments of paragraphs 1 through 30 are hereby incorporated as though fully set forth at length. 32. The facts previously outlined constitutes a state tort for the failure to provide adequate medical care and/or confinement conditions consistent with Plaintiff's medical condition in violation of the Pennsylvania Constitution, statutory and/or common law. 33. The specific acts of each Defendant follow: a. Regarding Defendant Bilous: this Defendant, as Unit Manager of C Block at SCI Camp Hill had specific knowledge of Plaintiff's cell conditions, particularly, the ongoing water leakage and despite that knowledge, acting with deliberate indifference failed to take corrective action to clean up the hazardous condition, even after the Plaintiff had sustained his first injury. Additionally Defendant failed to provide pain medication as directed. b. Regarding First Shift Sergeant (L.N.U.): this Defendant, as First Shift Sergeant of C Block at SCI Camp Hill had specific knowledge of Plaintiff's cell conditions, particularly, the ongoing water leakage and despite that knowledge, acting with deliberate indifference failed to take corrective action to clean up the hazardous condition, even after the Plaintiff had sustained his first injury. Additionally Defendant failed to provide pain medication as directed. c. Regarding Sergeant Childs: this Defendant, as a sergeant of C Block at SCI Camp Hill had specific knowledge of Plaintiff's cell conditions, particularly, the ongoing water leakage and despite that knowledge, acting with deliberate indifference failed to take corrective action to clean up the hazardous condition, even after the Plaintiff had sustained his first injury. Additionally Defendant failed to provide pain medication as directed. 34. The Defendants' actions and/or omissions were committed under color of law and/or pursuant to policies, customs, practices, rules, regulations, ordinances, statutes and/or usages of the State of Pennsylvania, the Department of Corrections and/or SCI Camp Hill and/or SCI Houtzdale: a. Regarding Defendant SCI Camp Hill: said municipal Defendant is responsible for the policies and practices resulting in the deliberate indifference to Plaintiff's cell conditions in failing to have in place an effective procedure to identify and/or report repair needs and to ensure timely action so as to avoid needless injury to inmates. Further said Defendant is responsible for the policies and practices resulting in the deliberate indifference to Plaintiff s medical conditions in failing to ensure the administration of appropriate pain medication as needed. b. Regarding Defendants Department of Corrections and Commonwealth of Pennsylvania: said municipal Defendant is responsible for the policies and practices resulting in the deliberate indifference to Plaintiff's cell conditions in failing to have in place an effective procedure to identify and/or report repair needs and to ensure timely action so as to avoid needless injury to inmates. Further said Defendant is responsible for the policies and practices resulting in the deliberate indifference to Plaintiff's medical conditions in failing to ensure the administration of appropriate pain medication as needed. 35. Said acts constitute an exception to state sovereign immunity pursuant to 42 Pa.C.S. §8522(b)(2) and/or §8522(b)(3) and/or §8522(b)(4). 36. As a result of the conduct, Plaintiff suffered damages as previously outlined in paragraph 30. WHEREFORE, Plaintiff demands judgment against Defendants, jointly, severally, and individually in an amount to be determined by the jury and costs and such other relief as the Court deems proper. JURY TRIAL DEMANDED. spectfully submitted, f Peter M. Suwak, Esquire Counsel for Plaintiff ATTORNEY'S VERIFICATION Under the penalties of 18 Pa.C.S. §4904 relating to unworn falsification to authorities, I, Peter M. Suwak, Esquire, counsel for the Plaintiff, Al White, state that the facts set forth in the foregoing First Amended Complaint are true and correct based upon information, knowledge and belief. This verification was signed by counsel due to unavailability of the Plaintiff. If necessary, a verification from the party will be furnished. vmj?- Peter M. Suwak, Esquire Counsel for Plaintiff, Al White CERTIFICATE OF SERVICE I do hereby certify that a true and correct copy of the foregoing First Amended Complaint was served by U.S. First Class Mail, postage prepaid upon the following: Francis R. Filipi, Senior Deputy Attorney General/Amy zapp, Esquire Office of Attorney General Litigation Section 15`h Floor, Strawberry Square Harrisburg, PA 17120 (Counsel for Defendants Commonwealth of Pennsylvania, Department of Corrections, SCI Camp Hill and Mr. Bilous) Craig A. Stone, Esquire Marshall, Dennehey, Warner, Coleman & Goggin P.C. 4200 Crums Mills Road, Suite B Harrisburg, PA 17112 (Counsel for Defendant Dr. Yucha) Dated: August 16, 2007 By:? Peter M. Suwak, Esquire Counsel for Plaintiff PA I.D. #23779 Pete's Surplus Building P.O. Box 1 Washington PA 15301 Phone: 724-228-4885 Fax: 724-228-7916 Email: pmsuwakesggcomcast.net C? > CD C7 r--, n i i ' M. Abbegael Pacuska Deputy Attorney General Office of Attorney General Litigation Section 15u' Floor, Strawberry Square Harrisburg, PA 17120 Direct Dial: 717-787-1179 AL WHITE IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. COMMONWEALTH OF PENNSYLANIA, No. 06-4788 -CIVIL TRIAL DEPARTMENT OF CORRECTIONS; SCI CAMP HILL; MR. BILOUS, as Unit Manager of C-Block at SCI Camp Hill; FIRST SHIFT SERGEANT (name unknown) at SCI Camp Hill; SECOND SHIFT SERGEANT CHILDS at SCI Camp Hill; and THOMAS J. YUCHA, M.D. Defendants NOTICE TO PLEAD To: Al White, c/o Peter M. Suwak, Esquire Pete's Surplus Building P.O. Box 1 Washington, PA 15301 You are hereby notified to file a written response to the enclosed Preliminary Objections within twenty (20) days from service hereof or a judgment may be entered against you. COMMONWEALTH DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFF'S AMENDED COMPLAINT AND NOW, come the Defendants the Commonwealth of Pennsylvania, the Department of Corrections, SCI-Camp Hill, Mr. Bilous, and Sergeant Chiles (corrected spelling) (hereafter 2 collectively the "Commonwealth Defendants") and preliminarily object to Plaintiff Al White's First Amended Complaint as follows: 1. MOTION TO STRIKE FOR FAILURE TO CONFORM TO RULE OF COURT PURSUANT TO Pa.R.C.P. 1028(a)(2). 1. On or about January 5, 2007, plaintiff filed his Complaint in response to rules to file a complaint. 2. The Complaint set out three claims. Those claims were: Count I, a claim of violation of civil rights under the Fifth, Eighth, Ninth and Fourteenth Amendments; Count II, a claim defendants intentionally inflicted mental distress on plaintiff; and Count III, a claim defendants failed to provide adequate medical care. 3. In February 2007, Commonwealth Defendants submitted preliminary objections to Plaintiff's Complaint. 4. On July 11, 2007 oral argument was held regarding Defendants' preliminary objections to the Complaint. 5. On July 25, 2007, this Honorable Court issued an Order that Plaintiff file an amended complaint within twenty (20) days of the date of the order setting forth separate counts containing a demand for relief against each Defendant. 6. Plaintiff filed a First Amended Complaint noting that Plaintiff is no longer asserting a claim against Thomas J. Yucha. (See, Am. Complaint 18). 7. In line with Plaintiff's notation in paragraph 8 of the Amended Complaint, the parties have additionally stipulated to the discontinuance of claims against Dr. Yucha. 3 8. Plaintiff's Amended Complaint was to be filed with the Cumberland County Court of Common Pleas on or before August 14, 2007 in compliance with the Court's July 25, 2007 Order. 9. Plaintiff did not even mail the Complaint for filing, from Washington Pennsylvania, until August 16, 2007, two days after the due date for filing. See Letter to Cumberland County Prothonotary Enclosing Amended Complaint for Filing attached hereto as Attachment A. 10. 'Plaintiff failed to comply with this Court's Order of July 25, 2007 and therefore, his Amended Complaint should be stricken. WHEREFORE, the Commonwealth Defendants respectfully request the Court strike Plaintiff's Amended Complaint pursuant to Pa.R.C.P. § 1028(a)(2). II. LEGAL INSUFFICIENCY OF A PLEADING (DEMURRER) 11. The Commonwealth Defendants hereby incorporates paragraphs 1-10 of these Preliminary Objections by reference as though set forth herein at length, 12. Count I of Plaintiff's First Amended Complaint attempts to set forth a claim for the violation of his due process rights pursuant to the Fifth Amendment (T22,25, 26). 13. The Due Process clause of the Fifth Amendment only protects against actions by Federal government actors, not state government actors and restricts only federal government action. See Nguyen v. United States Catholic Conference, 719 F.2d 52, 51 (3d Cir.1983). 14. All Defendants named herein are state actors and employees, not federal employees. 4 15. Plaintiff's Amended Complaint and the averments contained therein are legally insufficient to state a claim under the Fifth Amendment pursuant to Section 1983 because the Defendants named therein are state actors. WHEREFORE, the Commonwealth Defendants respectfully request the Court grant Defendants' demurrer and dismiss this action with prejudice in its entirety on the basis of legal insufficiency of a pleading. III. LEGAL INSUFFICIENCY OF A PLEADING (DEMURRER) 16. The Commonwealth Defendants hereby incorporate paragraphs 1-15 of these Preliminary Objections by reference as though set forth herein at length. 17. Plaintiffs First Amended Complaint alleges that Defendants violated Plaintiff's rights as secured under the Ninth Amendment (¶ 22-29). 18. . The Ninth Amendment does not confer any substantive rights. See Soder v. Chenot, Civ. No. 6-1522, 2007 WL 1098970 at * 4 (M.D.Pa. April 11, 2007) (stating that "[t]he Ninth Amendment does not independently secure any substantive constitutional rights, but rather has been interpreted to be a rule of construction.... A § 1983 civil rights claim premised on the Ninth Amendment fails because there are no constitutional rights secured by that amendment.") (Attachment B). 19. Plaintiff's Amended Complaint and the averments contained therein are legally insufficient to state a claim under the Ninth Amendment pursuant to Section 1983 because the Ninth Amendment is a rule of construction and does not secure any substantive rights. 5 WHEREFORE, the Commonwealth Defendants respectfully request the Court grant Defendants' demurrer and dismiss this action with prejudice in its entirety on the basis of legal insufficiency of a pleading. IV. LEGAL INSUFFICIENCY OF A PLEADING (DEMURRER) 20. The Commonwealth Defendants hereby incorporate paragraphs 1-19 of these Preliminary Objections by reference as though set forth herein at length. 21. Plaintiff's Amended Complaint sets forth a claim for civil rights violations pursuant to 42 U.S.C. § 1983 (122-30) against the Commonwealth of Pennsylvania Department of Corrections, and SCI-Camp Hill. 22. Pursuant to § 1983: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in any action of law, suit in equity, or other proper proceeding for redress... 42 U.S.C. § 1983 (§ 1 of the Civil Rights Act of 1871)(emphasis added). 23. Section 1983 creates no remedy against a state. Will v. Mich. Dept. of State Police, 491 U.S. 58, 64 (1989). 24. Plaintiff's Amended Complaint and the averments contained therein are legally insufficient to state a claim pursuant to Section 1983 because the Commonwealth of Pennsylvania, the Department of Corrections, and SCI-Camp Hill are not persons within the meaning of § 1983. 6 25. Actions for damages against state officials in their official capacity are impermissible because such a suit is "against the official's office" and is therefore "no different from a suit against the state itself." Will, 491 U.S. at 71. 26. Plaintiff's Amended Complaint and the averments contained in Count I are legally insufficient to state a claim pursuant to Section 1983 insofar as Defendants Bilous and Chiles are named in their official capacities. WHEREFORE, the Commonwealth Defendants respectfully request the Court grant Defendants' demurrer and dismiss Count I against the Commonwealth of Pennsylvania, the Department of Corrections, and SCI-Camp Hill with prejudice on the basis of legal insufficiency of a pleading and against Defendants Bilous and Chiles in their official capacities. V. LEGAL INSUFFICIENCY OF A PLEADING (DEMURRER) 27. The Commonwealth Defendants hereby incorporate paragraphs 1-26 of these Preliminary Objections by reference as though set forth herein at length. 28. Count I of Plaintiff's Amended Complaint purports to bring a Monell claim, pursuant to 42 U.S.C. § 1983 against the Commonwealth of Pennsylvania, the Department of Corrections and SCI-Camp Hill. 29. Monell allows local government, only, to be treated as "persons" for the purposes of § 1983; it does not permit such an action against state government. See Monell v. Dept. of Social Services of City of New York, 436 U.S. 658 (1978). 30. Under Monell, a city can be held liable for an unconstitutional policy or practice carried out by its employees. Monell at 690-691. 7 31. Plaintiff's Count I attempts to bring such an action against the Commonwealth of Pennsylvania, a state, the Department of Corrections, a Commonwealth government agency, and SCI-Camp Hill, an institution of the Department of Corrections by referring to them as "municipal Defendant" (¶28(a) and (b)). 32. As the Commonwealth of Pennsylvania, its Department of Corrections, and SCI- Camp Hill are not local or city entities, Monell does not apply. WHEREFORE, the Commonwealth Defendants respectfully request the Court grant Defendants' demurrer and dismiss Count I against the Commonwealth of Pennsylvania, Department of Corrections, and SCI-Camp Hill with prejudice on the basis of legal insufficiency of a pleading VI. MOTION TO STRIKE PLAINTIFF'S CLAIM FOR PUNITIVE DAMAGES 33. The Commonwealth Defendants hereby incorporate paragraphs 1-32 of these Preliminary Objections by reference as though set forth herein at length. 34. In Plaintiffs' First Amended Complaint, Plaintiff sets forth a request for punitive damages. (See, Am. Complaint ¶ 30(c)). 35. As Commonwealth parties within its definition found at section 8501 of the Judicial Code, 42 Pa. C. S. § 8501, damages recoverable against the Commonwealth Defendants are specifically limited by the Sovereign Immunity Act, 42 Pa.C.S. § 8528(c).1 1 Damages against the Commonwealth shall be recoverable only for: (1) Past and future loss of earnings and earning capacity; (2) Pain and suffering; (3) Medical and dental expenses; (4) Loss of consortium; and (5) Property losses. 42 Pa.C.S. § 8528(c). 8 36. Plaintiffs request for punitive damages are not enumerated as recoverable against the Commonwealth Defendants at section 8528(c) of the Judicial Code, 42 Pa. C. S. § 8528(c). WHEREFORE, the Commonwealth Defendants respectfully request the Court grant their preliminary objection and strike Plaintiff s claim for relief for punitive damages. VII. LEGAL INSUFFICIENCY OF EIGHTH AMENDMENT MEDICAL TREATMENT CLAIM (DEMURRER) 37. The Commonwealth Defendants hereby incorporate paragraphs 1-36 of these Preliminary Objections by reference as though set forth herein at length. 38. In order to state a viable § 1983 claim, the plaintiff must prove (1) that he was deprived of rights, privileges or immunities secured by the Constitution or laws of the United States due to (2) the conduct of a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). 39. To succeed on an Eighth Amendment claim for lack of adequate medical care, "a prisoner must allege acts or omissions sufficiently harmful to evidence a deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97 (1976). 40. Plaintiff alleges that Defendants were deliberately indifferent because they "failed to provide pain medication as directed." (See, Am. Complaint ¶ 23, 33). 41. Prison officials, who are not physicians, cannot be considered deliberately indifferent simply because they failed to respond to the medical complaints of a prisoner who was already being treated by medical personnel in the prison. Durmer v. O'Carroll, 991 F.2d 64, 69 (3d Cir. 1993). 9 42. Plaintiff fails to allege any facts to support that the Commonwealth Defendants failed to provide adequate medical care which is guaranteed to the Plaintiff by the Eighth Amendment. WHEREFORE, the Commonwealth Defendants respectfully request the Court grant their demurrer pursuant to Rule 1028(a)(4) of the Pennsylvania Rules of Civil Procedure and dismiss his Eighth Amendment and state law claims for inadequate medical treatment. VIII LEGAL INSUFFICIENCY OF EIGHTH AMENDMENT INADEQUATE CONDITIONS OF CONFINEMENT CLAIM (DEMURRER) 43. The Commonwealth Defendants hereby incorporate paragraphs 1-42 of these Preliminary Objections by reference as though set forth herein at length. 44. To state a claim for inadequate conditions of confinement, a prisoner must demonstrate that the conditions were objectively, sufficiently serious and that they resulted in the denial of the minimal civilized measures of life's necessities. Farmer v. Brennan, 511 U.S. 825, 834 (1994). 45. He must then prove that prison officials "subjectively acted with a sufficiently culpable state of mind, i.e. deliberate indifference." Nami v. Fauver, 82 F.3d 63, 67 (3d Cir.1996). 46. Plaintiff has alleged that his cell contained a water leak and that the Commonwealth Defendants failed to clean up the leak. (See, Am. Complaint 110, 23, 33). 47. Although Plaintiff uses the words "deliberate indifference," he has alleged no facts from which the inference could be drawn that Defendants subjectively knew of and appreciated a substantial risk with regard to that leak. See Thomas v. Zinkel, 155 F.Supp.2d 408 (E.D.Pa.2001) (granting defendants' motion to dismiss where pro se plaintiff "use[d] the 10 constitutional code words `deliberate indifference"' but alleged only that prison officials knew of water leak and should have repaired it). 48. Slippery prison floors are not objectively serious conditions giving rise to Eighth Amendment protection. See LeMaire v. Maass, 12 f.3d 1444, 1457 (9th Cir.1993) ("slippery prison floors ... do not state even an arguable claim for cruel and unusual punishment"); Robinson v. Cuyler, 511 F.Supp. 161, 163 (E.D.Pa.1981) (holding that a slippery kitchen floor in a prison is not hazardous enough to merit constitutional protection). 49. At most, Plaintiff has alleged that Defendants were negligent; however; "negligence does not transform into a constitutional claim solely because it is committed under color of state law." Zinkel, 155 F.Supp.2d at 414. WHEREFORE, the Commonwealth Defendants respectfully request the Court grant their demurrer pursuant to Rule 1028(a)(4) of the Pennsylvania Rules of Civil Procedure and dismiss his Eighth Amendment and state law claims for inadequate medical treatment. IX. LEGAL INSUFFICIENCY OF FOURTEENTH AMENDMENT DUE PROCESS CLAIM (DEMURRER) 50. The Commonwealth Defendants hereby incorporate paragraphs 1-49 of these Preliminary Objections by reference as though set forth herein at length. 51. A valid due process claim is asserted only when a plaintiff is deprived of a protected life, liberty or property interest. 52. Plaintiffs Complaint fails to state an interest that is protected by the Due Process Clause. 11 WHEREFORE, the Commonwealth Defendants respectfully request the Court grant their demurrer pursuant to Rule 1028(a)(4) of the Pennsylvania Rules of Civil Procedure and dismiss his Fourteenth Amendment claim. X. LACK OF SUBJECT MATTER JURISDICTION 53. The Commonwealth Defendants hereby incorporate paragraphs 1-52 of these Preliminary Objections by reference as though set forth herein at length. 54. Defendants Bilous and Chiles are, and were during the time relevant to the Complaint, employed by the Commonwealth of Pennsylvania Department of Corrections. 55. Defendants Commonwealth of Pennsylvania, Department of Corrections, and SCI-Camp Hill are, and were during the time relevant to the Amended Complaint, the Commonwealth, and Commonwealth agencies. 56. Plaintiff's First Amended Complaint, in Count II, purports to set forth state tort claims for failure to provided adequate medical care and/or confinement conditions consistent with Plaintiff's medical care. (See, Am. Complaint IT 32-34). 57. Article 1, § 11 of the Pennsylvania Constitution establishes sovereign immunity and provides that the Commonwealth and its officials acting within the scope of their duties are immune from suit except where the legislature provides otherwise. 58. The legislature has waived sovereign immunity in only nine narrow areas of negligence;2 none of which apply here. 2 The nine categories of cases for which immunity has been waived are vehicle liability; medical-professional liability; care, custody and control of personal property; Commonwealth real estate, highways and sidewalks; potholes and other dangerous conditions; care, custody and control of animals; liquor store sales; National Guard activities; and toxoids and vaccines. 42 Pa.C.S. § 8522(b). 12 59. Plaintiff alleges that immunity is waived in this case pursuant to 1) the medical professional liability waiver, 2) care custody and control of personal property waiver, and 3) the Commonwealth real estate waiver. (See, Am. Complaint ¶ 35). 60. Immunity is waived pursuant to 42 Pa.C.S. § 8522(b)(2) medical-professional liability when the allegations involve "acts of health care employees of Commonwealth agency medical facilities or institutions or by a Commonwealth party who is a doctor, dentist, nurse or related health care personnel." 61. The Commonwealth Defendants are not health care employees, nor are they doctors, dentists or any health-care related profession. They are a unit manager, and a sergeant for the Department of Corrections. (See, Am. Complaint ¶¶ 5, 7). 62. The allegations within Plaintiff s Amended Complaint do not involve the care, custody or control of any Commonwealth "personal property" such that sovereign immunity would be waived. 42 Pa.C.S. § 8522(b)(3). 63. The real property exception to sovereign immunity may be imposed only where the plaintiff s injury is caused by a defect in the real estate itself. See Shedrick v. William Penn School District, 654 A.2d 163, 165 (Pa.Cmwlth.1995) (real property exception to sovereign immunity did not apply where pedestrian was attempting to establish negligence because rainwater on the floor of high school neither derived, nor originated from the real property). 64. Liability will not be imposed against a government entity under the real property exception to immunity for injuries caused by negligent failure of government entity to remove a foreign substance from the realty. Bradley v. Franklin County Prison, 674 A.2d 363, 365 (Pa.Cmwlth. 1996). 13 65. The allegations against the Commonwealth Defendants involve actions/inactions taken while acting within the scope of their official duties. 66. Plaintiffs state tort claims against the Commonwealth Defendants are stated as failure to provide adequate medical care and/or confinement conditions and do not meet the exceptions for negligence claims pursuant Section 8522; they are therefore barred by the doctrine of sovereign immunity. WHEREFORE, Defendants respectfully request that this Honorable Court sustain their preliminary objections and dismiss Count II of Plaintiff s Amended Complaint against the Commonwealth Defendants, with prejudice. Respectfully submitted, THOMAS W. CORBETT, JR. Attorney General B Y• M. ABBEGAEL PACUSKA Office of Attorney General 15th Floor, Strawberry Square Harrisburg, PA 17120 Phone: (717) 787-1179 Fax: (717) 772-4526 mpacuska@attorneygeneral.gov Deputy Attorney General Attorney ID 94059 SUSAN J. FORNEY Chief Deputy Attorney General Chief, Civil Litigation Section Date: September 13, 2007 Counsel for Commonwealth Defendants 14 Attachment A PETER M. SUWAK ATTORNEY AT LAW PETE'S SURPLUS BULDING P. O. BOX 1 WASHINGTON, PENNSYLVANIA 15301 TELEPHONE 724-2284885 JOHN R. JORDAN ASSOCIATE August 16, 2007 Office of the Prothonotary County of Cumberland One Courthouse Square Carlisle, PA 17013-3387 RECEIVED Office of Attorney General AUG 2 ""' 2007 Re: White v. SCI Camp Hill, et al. No. 06-4788 Civil Term Dear Sir/Madam: Litigation Section Enclosed for filing please find a First Amended Complaint relative to the above referenced matter. Please date stamp the extra cover sheet and return same in the self addressed stamped envelope provided. Please call me if you have any questions or require anything further to perfect this filing. truly yours, Peter M. Suwak, Esquire PMS/scp Enclosures cc: File Francis R. Filipi, Senior Deputy Attorney General (via regular mail)/ Amy zapp, Esquire Craig A. Stone, Esquire (via regular mail) Albert White RECEIVED AL" !i 7001 Caphli Litigation ? A. c ? d J A C Y• t0 e.? r?? a a CI d r a 0 c r, in o ? ?$ D IA, . ` , a?hment -B Page 2 of 6 V4?,sGlat?t. Slip Copy Slip Copy, 2007 WL 1098970 (M.D.Pa.) (Cite as: Slip Copy) N Soder v. Chenot M.D.Pa.,2007. Only the Westlaw citation is currently available. United States District Court,M.D. Pennsylvania. Jeffrey Dale SODER, Plaintiff V. Charles Fredric CHENOT, III, et. al, Defendants. No. 4:CV 06-1522. April 11, 2007. Jeffrey D. Soder, Millerstown, PA, pro se. Cheryl L. Kovaly, Lavery, Faherty, Young & Patterson, P.C., Harrisburg, PA, for Defendants. JOHN E. JONES III, United States District Judge. THE BACKGROUND OF THIS ORDER IS AS FOLLOWS: *1 Pending before the Court is a Motion to Dismiss Pursuant to Rule 12(b)(1) and (6) of the Federal Rules of Civil Procedure, or, in the alternative, Motion for More Definite Statement Pursuant to Rule 12(e) (doc. 13)("the Motion") filed on November 17, 2006 by Defendants John Kerns, John Melville, Greg Gordon and William Minor (collectively "Moving Defendants"). For the following reasons, the. Motion will be granted. PROCEDURAL HISTORY. Pro se Plaintiff Jeffrey Dale Soder ("Plaintiff') filed the instant civil rights action in this Court on August 7, 2006 (doc. 1), against numerous Defendants arising out of various alleged criminal actions by members of the Millerstown Borough Police Department that purportedly occurred in 2003 through the Spring of 2004. Plaintiff was granted in forma pauperis status and the United States Marshal to ordered served the named Defendants."11 FN 1. The only Defendants who did not execute a waiver of service or answer the Page 1 complaint are Defendants Richard Charles Curran and Tina Curran. It is known to the Court that Defendant Tina Curran is deceased and that Defendant Richard Curran is the accused slayer. The Court. is additionally aware that pending criminal homicide charges remain in place against Defendant Richard Curran as a result of Mrs. Curran's death. The United States Marshal attempted service on Defendant Curran at the Northumberland County Prison, but was unsuccessful in that Defendant Richard Curran had been transferred. In a separate Order we shall direct the United States Marshal to serve Defendant Curran forthwith at his current place of incarceration. As aforementioned, the instant Motion (doc. 153 was filed on November 17, 2006. The Moving Defendants filed a brief in support (doc. 16) of the Motion on November 29, 2006. Albeit untimely, Plaintiff filed a brief in opposition (doc. 21) to the Motion on December 28, 2006.FN'The Moving Defendants filed a reply brief (doc. 25) on January 4, 2007. The Motion is fully briefed and therefore ripe for our review. FN2. In light of the Plaintiffs pro se status, we shall, in the interest of justice, consider his brief in opposition and the arguments contained therein in the disposition of the instant Motion. STANDARD OF REVIEW.• In considering a motion to dismiss pursuant to Fed. R. Civ. Pro. 12(b)(6), a court must accept the veracity of a plaintiffs allegations. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see also White v. Napoleon, 897 F.2d 103, 106 (3d Cir.1990). In Nami v. Fauver, 82 F.3d 63, 65 (3d Cir.1996), our Court of Appeals for the Third Circuit added that in considering a motion to dismiss based on a failure to state a claim argument, a court should "not © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. http://web2.westlaw.comlprintlprintstream.aspx?prft=HTMLE&destination=atp&sv=Split... 9/13/2007 Page 3 of 6 Slip Copy Slip Copy, 2007 WL 1098970 (M.D.Pa.) (Cite as: Slip Copy) inquire whether the plaintiffs will ultimately prevail, only whether they are entitled to offer evidence to support their claims."Furthermore, "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."Conley v. Gibson, 355 U.S. 41, 4546 (1957); see also District Council 47 v. Bradley, 795 F.2d3 310 (3d Cir.1986). STATEMENT OF FACTS. The instant civil rights action filed by Plaintiff against numerous Defendants arises out of alleged criminal actions by members of the Millerstown Borough Police Department that purportedly occurred in 2003 through the Spring of 2004. Defendant Kerns is the Mayor of Millerstown Borough and Defendants Melville, Gordon and Minor are members of the Millerstown Borough Council With respect to Defendant Kerns and Gordon, the following are the sole factual averments relating to them contained in the complaint: that he approved or authorized Police Chief Richard Curran's actions in waiting outside Plaintiffs residence for Plaintiffs return on an unspecified date prior to the spring of 2004, purportedly to harass Plaintiff; that he allowed Curran!s relocation of VASCAR pavement lines on an unspecified date prior to the spring of 2004, to increase ticket issuance and traffic law enforcement; and that he stated, on or about September 15, 2003, that reports of a traffic accident involving a Borough police cruiser were mere rumors started by Plaintiff, "a known liar." (Complaint, ¶¶ VIII, IX, XIII, XVI, XVII„ XIX). *2 With respect to Defendant Melville, the following are the sole factual averments relating to him contained in the complaint: that he allowed Curran's relocation of VASCAR pavement lines on an unspecified date prior to the spring of 2004, to increase ticket issuance and traffic law enforcement; and that he stated, on or about September 15, 2003, that reports of a traffic Page 2 accident involving a Borough police cruiser were mere rumors started by Plaintiff, "a known liar." (Complaint, ¶¶ IX, XIII, XVI, XVII, XIX). With respect to Defendant Minor, the following are the sole factual averments relating to him contained in the complaint: that he witnessed Curran poke Plaintiff in the chest with his finger, express derision regarding Plaintiffs constitutional rights, and threaten to take Plaintiff to the ground, handcuff Plaintiff, and incarcerate ' Plaintiff on an unspecified date prior to the spring of 2004; that he approved or authorized Curran's actions in waiting outside Plaintiffs residence for Plaintiffs return on an unspecified date prior to the spring of 2004; that he allowed Curran's relocation of VASCAR pavement lines on an unspecified date prior to the spring of 2004, to increase ticket issuance and traffic law enforcement; that he stated, on or about September 15, 2003, that reports of a traffic accident involving a Borough police cruiser were mere rumors started by Plaintiff, "a known liar;" and that he conducted or participated in a traffic stop of Plaintiffs wife in late July of 2003. (Complaint, ¶¶ VII, IX, X, XIII, XVI, XVII, XIX). In Paragraph XXVII of the Complaint, Plaintiff further identified Defendants Mary Kerns, Jane Doe Minor and Dixie Gordon as wives of the Perry County Public Officials, alleging that they are "Socialist-Queens, enjoying and living on the Largess and Unlawful spoils brought home by their husbands" and suggests in Paragraph XXVIII that they "failed, refused or neglected to protect Plaintiff from the conspiracy of their husbands."Plaintiff names Louise Melville as a Defendant, but does not include her in these paragraphs, although we can infer that the Plaintiff meant to include her along with the other wives of the Defendants. DISCUSSION. A. 42 U.S.C. § 1983 Claim "Individual" capacity suits under 42 U.S.C. § 1983 seek to impose general liability upon a government official for actions taken under color of state law. © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. http://web2.westlaw.comlprintlprintstream.aspx?prft--HTMLE&destination=atp&sv=Split... 9/13/2007 Page 4 of 6 Slip Copy Slip Copy, 2007 WL 1098970 (M.D.Pa.) (Cite as: Slip Copy) See Kentucky v. Graham, 473 U.S. 159, 165 (1985). To establish personal liability against a defendant in a § 1983 action, that defendant must have personal involvement in the alleged wrongs; liability cannot be predicated solely on the operation of respondeat superior. Rizzo v. Goode, 423 U.S. 362 (1976). It is well established that a supervisory official's mere failure to at in the face of allegedly unconstitutional conduct committed by a subordinate cannot be the basis for imposition of Section 1983 liability. See Rizzo, 423 U S. at 376 (1976). In order to establish supervisory liability, a plaintiff must show an "affirmative link" between the supervisor's conduct ad the constitutional deprivation. Rizzo, 423 U.S. at 371. Accordingly, supervisory personnel are only liable for the Section 1983 violations of a subordinate if they knew of, participated in or acquiesced in the subordinate's conduct. See Capone v. Marinelli, 838 F.2d 102, 106 n. 7 (3d Cir.1989)(citing Hampton v. Holmesburg Prison Officials, 546 F.2d 1077, 1082 (3d Cir.1976)). *3 The Defendants argue that there is no allegation in the complaint that the moving Defendants knew of, participated in, or acquiesced in any type of unconstitutional conduct by any of their subordinates, nor is there any allegation or evidence of an unconstitutional custom, practice or usage that might indicate they condoned or authorized the alleged unconstitutional behavior of a subordinate. Furthermore, any allegations that the moving Defendants "authorized" actions by Defendant Curran do not establish a prima facie case under § 1983 because the actions allegedly "authorized" by some of the moving Defendants do not establish a violation of Plaintiffs constitutional rights. Furthermore, Plaintiffs bald assertion that these Defendants "attempt to impose totalitarian Socialism upon the People," (doc. 1 at ¶ XXIII), is obviously insufficient to state a claim for a violation of Plaintiffs civil rights. Accordingly, we find that Plaintiff has stated no cognizable claim against Defendants Kerns, Melville, Gordon and Minor. B. Claims against Defendants' Wives Page 3 In Paragraph XXVII of the complaint, Plaintiff alleges that Defendants's wives "failed, refused or neglected to protect Plaintiff from the conspiracy of their husbands"F"'From Plaintiff s brief in opposition to the Motion, it is apparent that he brought a claim against the wives of certain Defendants because he was aggrieved that his "Soul-mate ... Barbara" was criminally prosecuted, allegedly solely based on her association with Plaintiff. (Rec. Doc. 20 at 3). FN3. This is not only a bizarre allegation, but one that walks right up to, if not across, the line that would expose Plaintiff to sanctions under Fed.R.Civ.P. 11. Inasmuch as Plaintiff has pled no specific conduct by these Defendants, nor has he alleged that they acted under color of law, he has stated no cognizable § 1983 claim against them, the Motion shall accordingly be granted as to them. C. First Amendment Claim Although the complaint purports to assert a First Amendment claim, Plaintiff fails to identify any First Amendment protected activity in which he purportedly engaged or in which he sought to engage. Nor does Plaintiff identify any actions by the moving Defendants to hinder his exercise of, or to retaliate against him for the exercise of, activities protected by the First Amendment. To the extent that the complaint purports to assert a First Amendment claim, it plainly fails to state a cognizable cause of action and must be dismissed. D. Fourth Amendment Claim Plaintiff avers that Defendant Minor performed or participated in a traffic stop of Plaintiffs wife, with no legitimate purpose, toward the end of July of 2003. Plaintiff does not have standing to assert a deprivation of his wife's Fourth Amendment rights. Section 1983 only permits suit for the abridgment of one's own constitutional rights. Quitmeyer v. Southeastern Pa. Trans. Auth ., 740 F.Supp. 363, © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. http:llweb2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp& sv=Split... 9/13/2007 Page 5 of 6 Slip Copy Slip Copy, 2007 WL 1098970 (M.D.Pa.) (Cite as: Slip Copy) 370 (E.D.Pa.1990). Accordingly, this claim fails. E. Stah Amendment Claim Plaintiff purports - to allege a claim against the moving Defendants for a violation of his Sixth Amendment rights. The Sixth Amendment provides that all criminal defendants "shall enjoy the right to a speedy and public trial, by an impartial jury."U.S. Const. amend. VI. There is simply no factual basis in the complaint for the assertion of a Sixth Amendment claim against the moving Defendants. F. Ninth and Tenth Amendment Claim *4 Plaintiffs complaint purports to allege a claim against the moving Defendants for a violation of his Ninth and Tenth Amendment rights. Plaintiff avers in a conclusory fashion that "Defendants ... deprived Plaintiff of his 9th and 10th Amendment Rights, which protect him from Oath-breaking so- called `public servants' who wallow at the trough of the Public dole while trampling upon Plaintiffs Constitutional Rights."(Complaint, ¶ XXII). The Ninth Amendment does not independently secure any substantive constitutional rights, but rather has been interpreted to be a rule of construction. Gagliardi v. Clark, 2006 U.S. Dist. LEXIS 70509, *49-51 (W.D.Pa.2006)(intemal citations omitted). A § 1983 civil rights claim premised on the Ninth Amendment fails because there are no constitutional rights secured by that amendment. The Tenth Amendment provides that, "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."U.S. Const. amend. X. There are simply no factual averments in the complaint that implicate the Tenth Amendment. This claim fails as well. G. Fourteenth Amendment Claim Plaintiff alleges in a conclusory fashion that the Defendants deprived him of his right to life, liberty, or property without due process of the law, and of Page 4 his rights to equal protection under the law. (Complaint, ¶ XXXXIV(c)). Plaintiffs Fourteenth Amendment Claim is simply not supported by . a statement that simply restates the language of the Amendment, and is not supported by any minimal factual averment. To succeed in a substantive due process claim under § 1983, a plaintiff must establish as a threshold matter that he has a protected property interest to which the Fourteenth Amendment's due process protection applies. Woodwind Estates, Ltd v. Gretkowski, 205 F.3d 118, 123 (3d Cir.2000). If a plaintiff makes that showing, a violation of substantive due process rights by an executive official is proven if. (1) the official deprived the plaintiff of the protected property interest; (2) through actions that were so arbitrary and egregious as to shock the conscience. County of Sacramento v. Lewis, 523 U.S. 833, 846047 (1998). Plaintiff has not identified any fundamental right of which he was allegedly deprived by the moving Defendants. Moreover, Plaintiff has not identified any conduct by the moving Defendants that "shocks the conscience." Accordingly, Plaintiff has not pled any facts capable of supporting a substantive due process claim. To state a claim under § 1983 for deprivation of procedural due process rights, a plaintiff must allege that (1) he was deprived of an individual interest that is encompassed within the Fourteenth Amendment's protection of "life, liberty, or "property," and (2) the procedures available to him did not provide "due process of law ." Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir.2000). A review of Plaintiffs complaint reveals that he has simply pled no facts to maintain a procedural due process claim against the moving Defendants. *5 The equal protection clause of the Fourteenth Amendment provides that no State shall "deny any person within its jurisdiction the equal protection of the laws."U.S. Const. amend. XIV. Plaintiff has not alleged within his complaint that he was deprived of his right to equal protection because he has not alleged that he was treated differently than 0 2007 Thomson/West..No Claim to Orig.'U.S. Govt. Works. http://web2.westlaw.comlprintlprintstream.aspx?prft=HTMLE&destination=atp&sv=Split... 9/13/2007 Page 6 of 6 Slip Copy Slip Copy, 2007 WL 1098970 (M.D.Pa.) (Cite as: Slip Copy) similarly situated persons; nor has Plaintiff alleged that a decision to treat him differently was made on the basis of an unjustifiable standard, such as race, religion, or any other impermissible factor. See . Government of the Virgin Islands v. Harrigan, 791 F.2d 34, 36 (3d Cir.1986); Batson v. Kentucky, 476 U.S. 79, 93 (1986); Keenan v. City of Philadelphia, 983 F.2d 459, 465 (3d Cir.1992); Andrews v. City of Philadelphia, 895 F.2d 1469, 1478 (3d Cir.1990). H. Civil Conspiracy Claim Plaintiffs complaint purports to state a claim of civil conspiracy pursuant to 18 U.S.C. § 1961. To state a civil RICO claim, a plaintiff must allege: (1) conduct; (2) of an enterprise; (3).through a pattern; (d) of racketeering activity. See Lum v. Bank of America, 361 F.3d 217, 223 (3d Cir.2004). A "pattern of racketeering activity" requires "at least two acts" of conduct indictable under various enumerated federal criminal statutes. 18 U S.C. § 1961(l),(5). A review of the complaint reveals that Plaintiff has not alleged any facts from which one could infer an agreement or understanding amongst the Defendants to violate the Plaintiffs . rights, constitutional or otherwise. Nor has the Plaintiff alleged facts that colorably meet any of the RICO touchstones as set forth above. Accordingly, we shall dismiss Plaintiffs civil conspiracy claim. CONCLUSION: Accordingly, for the foregoing reasons, we shall grant the Defendants' Motion and dismiss the complaint as against them for Plaintiffs failure to state a claim upon which relief can be granted, pursuant to Fed.R.Civ.P. 12(b)(6). NOW, THEREFORE, IT IS HEREBY ORDERED THAT: 1. Defendants' Motion to Dismiss (doc. 13) is GRANTED. 2. The following Defendants shall be terminated as Page 5 parties to this action: John Kerns, John Melville, Greg Gordon, William Minor, Mary Kerns, Louise Melville, Dixie Gordon and Jane Doe Minor. 3. All claims against Defendant Tina Curran, who is deceased are DISMISSED.FN4 The Clerk shall terminate Tina Curran as a party to this action. FN4. While under certain circumstances Plaintiff could endeavor to serve Defendant Tina Curran's estate via her personal representative (if any), the claims against her aie so utterly bereft of merit that for the same reasons as substantially set forth hereinabove, we will put an end to them on our own initiative pursuant to 28 U.S.C. § 1915(e)(2)(A)(ii). M.D.Pa.,2007. Soder v. Chenot Slip Copy, 2007 WL 1098970 (M.D.Pa.) END OF DOCUMENT © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. http://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Split... 9/13/2007 AL WHITE Plaintiff V. COMMONWEALTH OF PENNSYLANIA, DEPARTMENT OF CORRECTIONS; SCI CAMP HILL; MR. BILOUS, as Unit Manager of C-Block at SCI Camp Hill; FIRST SHIFT SERGEANT (name unknown) at SCI Camp Hill; SECOND SHIFT SERGEANT CHILDS at SCI Camp Hill; and THOMAS J. YUCHA, M.D. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : No. 06-4788 -CIVIL TRIAL Defendants CERTIFICATE OF SERVICE I, M. Abbegael Pacuska, Deputy Attorney General for the Commonwealth of Pennsylvania, Office of Attorney General, hereby certify that on September 13, 2007, I caused to be served a true and correct copy of the foregoing document titled COMMONWEALTH DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFF'S AMENDED COMPLAINT by depositing same in the United States Mail, first-class postage prepaid to the following: Peter M. Suwak, Esquire Pete's Surplus Building P.O. Box 1 Washington, PA 15301 (Counsel for Plaintiff) Craig A. Stone, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crams Mill Road, Suite B Harrisburg, PA 17112 (Counsel for Yucha) M. ABBEGA PACUSKA Deputy Attorney General r-' go t r . Vt4-W4"*-- - CRAIG A. STONE, ESQUIRE I.D. No. 15907 Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3502 Attorneys for Defendant Thomas J. Yucha, M.D. IN THE COURT OF COMMON PLEASE OF CUMBERLAND COUNTY, PENNSYLVANIA AL WHITE CIVIL DIVISION Plaintiff No: 06-4788 Civil Term V. COMMONWEALTH OF PENNSYLVANIA; DEPARTMENT OF CORRECTIONS; SCI CAMP HILL; MR. BILOUS, as Unit Manager of C-Block At SCI Camp Hill; FIRST SHIFT SERGEANT (Name Unknown) at SCI Camp Hill; SECOND JURY TRIAL DEMANDED SHIFT SERGEANT CHILDS at SCI Camp Hill; And THOMAS J. YUCHA, M.D. Defendants 1. The above captioned action was commenced by Praecipe for Writ of Summons on August 21, 2006. 2. On or about January 4, 2007, a Complaint was filed including claims against Dr. Yucha. 3. Preliminary Objections were filed to plaintiffs Complaint on behalf of Dr. Yucha. 4. After consideration of Dr. Yucha's Preliminary Objections to plaintiffs Complaint and plaintiffs response, the court issued an Order requiring plaintiff to file an Amended Complaint. 5. On or about August 16, 2007, plaintiff filed a First Amended Complaint in which it is alleged: "It is noted that plaintiff is asserting no claim against defendant Thomas J. Yucha in this First Amended Complaint." (See paragraphs 8 and 19.) 6. Plaintiff also alleges in the First Amended Complaint that the claims asserting "Civil Rights Violations" are asserted "versus all parties except defendant Yucha." (See heading preceding paragraph 20) 7. It is further pleaded in the First Amended Complaint that plaintiff makes no allegation of professional medical negligence against Dr. Yucha, a medical professional. (See paragraph 19) 8. By signing this stipulation, counsel of record for plaintiff and the remaining defendants provide express consent to the voluntary discontinuance of claims, with prejudice, a ns the defend t Thom J. Yucha, M.D. P er M. Suwak, Esquire Pete's Surplus Building P.O. Box 1 Washin2t%f1?A r3.01 Attorney, M. Abbe ael Pacuska Office of Attorney General Civil Litigation Section 15th Floor, Strawberry Square Harrisburg, PA 17120 Attorney for Defendant Commonwealth of Pennsylvania, Department of Corrections, SC1 Camp Hill and Mr. Bilous Craig A Sto quire 4200 C Mt Road, Suite B Harrisburg, PA 17112 Attorney for Defendant Thomas J. Yucha, M.D. s-? O t '. SEP S 6 Mrp CRAIG A. STONE, ESQUIRE I.D. No. 15907 Marshall, Dennehey, Warner, Coleman & Goggin 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 (717) 651-3502 Attorneys for Defendant Thomas J. Yucha, M.D. IN THE COURT OF COMMON PLEASE OF CUMBERLAND COUNTY, PENNSYLVANIA AL WHITE Plaintiff CIVIL DIVISION No: 06-4788 Civil Term V. COMMONWEALTH OF PENNSYLVANIA; DEPARTMENT OF CORRECTIONS; SCI CAMP HILL; MR. BILOUS, as Unit Manager of C-Block At SCI Camp Hill; FIRST SHIFT SERGEANT (Name Unknown) at SCI Camp Hill; SECOND JURY TRIAL DEMANDED SHIFT SERGEANT CHILDS at SCI Camp Hill; And THOMAS J. YUCHA, M.D. Defendants ORDER AND NOW this day of , 2007, upon consideration of the -26 foregoing stipulation of counsel, it is hereby ORDERED that all claims against the defendant Thomas J. Yucha, M.D. are voluntary discontinued and ended, with prejudice. The action shall continue without effect or prejudice hereby against the remaining defendants. 6CI r3