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HomeMy WebLinkAbout94-01040 I VI .... <:U 'c ':) ~. -j 1 ~ q '3 .' 1 ~I ~I ~' --I HOMCE A, JOHNSON IERR Y R. DUFFIE RICHARD W. STEWART C. ROY WEIDNER, IlL EDMUND G, MYERS JAMES ^ JOHNSON DAVID W. DILUCE MLPH H. WRIGHT, IlL DAVID I. LANZA JOSEPH L. HITCHINGS LAW OFFICES JOHNSON, DUFFIE, STEWART (/ WEIDNER 301 MARKET STREET P. 0, BOX 109 LEMOYNE, PENNSYLVANIA 17043.0109 11!LEl'HONB 717.761-4540 TBLBCOPIBR 717.761.3015 December 7.1994 ?/V'ts& / ?IneZ-. / /1 !: If- , The Honorable Harold E. Sheely President Judge Cumberland County Court of Common Pleas 1 Courthouse Square Carlisle. PA 17013.3387 Re: airview Profession armacy, Inc, v. The Couriers.Susquehanna. Inc. No. 2481 Civil 1993 No. 94-1040 Civil Term Dear Judge Sheely: As you know. we represent the Plaintiff in the above captioned cases. These cases were scheduled for a non-jury trial before Your Honor on December 23. 1994, The pertles have entered into a Settlement Agreement and, therefore, this scheduled triel can be canceled. The Settlement Agreement requires that the transaction be accomplished by January 31. 1995. In the evant that the transaction is not consummated by that date. the Settlement Agreement will become null and void and we will be requesting Your Honor to again schedule a trial, Thank you for your attention to this matter. Very truly yours. llS0(DV~;t:IE' S . EWART & WEIDNER . i/~ /1 (f,toL avid W, rMJ~' DWD:mh:40058 cc: Bruce A. Gelting, Esquire Fairvisw Professional Pharmacy 007391-0000B/Oclobcr 21. 1994/DWD/MH/390S9 FAIRVIEW PROFESSIONAL PHARMACY, INC., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2481 CIVil 1993 NO, 94-1040 CIVil TERM NON-JURY TRIAL Plaintiff vs, THE COURIERS-SUSQUEHANNA, INC. tla SUSQUEHANNA CENTER FOR NURSING AND REHABiliTATION, Defendant Cese No, 9 PRE-TRIAL MEMORANDUM OF PLAINTIFF FAIRVIEW PROFESSIONAL PHARMACY, INC. I. Basic Facts as to Liability Plaintiff and Defendant entered into e Vendor Pharmacy Agreement deted Mey 12, 1993 for e term of five (5) yeers beginning on June 30, 1993. The Agreement provides for the Plaintiff to supply the Defendant end its patients with prescriptions and pharmaceutical services. The Agreement was a continuation of similar contractual agreements between the parties that began in March 1984. The Agreement provides that all invoices were to be paid within thirty (30) days of receipt of same by the Defendant which Defendant failed to do and caused Plaintiff on August 1, 1993, to require that all further prescriptions would be provided on a C,O.D. basis, On August 4, 1993, Plaintiff filed a civil action docketed to number 2481 Civil 1993 against the Defendant in order to recover the amount of the unpaid invoices due to Plaintiff for providing goods and services pursuant to the present and previous Agreements between the parties. On or about December 30, 1993, Kenneth B. Shaffer, Administrator of the Defendant Nursing Home notified Plaintiff in writing that the Defendant was terminating its relationship with the Plaintiff and would no longer be accepting medications from the Plaintiff effective January 2, 1994, On or about March 4, 1994, Plaintiff instituted a civil action docketed to number 1040 C 1994 against the Defendant for lost profits over the remaining four and one-half (4 1/2) years of the Agreement which was terminated by the Defendant, Defendant in this second civil action has filed three (3) breach of contract "'''~--''~'-'. ^.~", 00139I-OOOO8/OcIAlbcr 21. 19941DWD/MHI39059 counterclaims alleging the Plaintiff failed to provide twenty-four (241 hour emergency services. failed to provide written monthly reports and medical record reviews. and used Improper billing procedures. II. Basic Facts as to Damages At the time the first Complaint was filed. Plaintiff was due and owing $84.205.51, At the present time. the amount due is over $40,000.00 as a result of some payments end credits. In the second Complaint. Plaintiff estimates the lost profits over the remaining four and one-half (4 1/21 years of the contract total $316.354.28. Defendent. in its three (31 countercleims. alleges damages in excess of $25.000,00 but has not provided eny specific breakdown or Iiquideted sum. III. Principal Issues of Liability and Damages As to the Plaintiff in the first action, the principal issue will be the determination of the principal amount and interest charged on the past due balance which as of September 30. 1994 was approximately $41.000.00. In the second civil action. the principal issue is whether pursuant to the Agreement. Plaintiff is entitled to lost profits under the remaining four and one-half (4 1/21 years of the contract which was terminated by the Defendant. IV. Summary of Legal Issues Whether Plaintiff was justified in only providing pharmaceutical products on a C.O.D, basis after Defendant breached the Agreement by not paying its invoices within thirty (301 days. V. Witnesses Peter S. Steele. Franklin E. Wolfe. Randy K. Steele and Robert Blazina. C,P.A. In the case of any additional witnesses to be called by Plaintiff. prior notice shall be given to Defendant. 00739I-OOOOB/Octobcr21.1994/DWDIMHI39059 VI. Exhibits Unless the perties can reach various stipulations, all documants providad in discovery including, but not limited to, all the books and records of the Plaintiff used to determine the profit realized in previous years under the Agreement with Defendent, VII. Settlement Negotiations Defendant has offered $28,000,00 to settle both claims which was rejected by Plaintiff. Plaintiff is seeking recovery for the past due amount with interest, plus future lost profits under the Agreement, Date: /0/2/ 1ft/' ( / ( JOHNSON, DUFFIE, STEWART & WEIDNER c~. By: t avid W. Deluce Attorney 1.0. No. 41687 301 Market Street P.O, Box 109 lemoyne. PA 17043-0109 Telephone (717) 761-4540 Attorneys for Plaintiff 00739I-OOOO8/OcIobcr2I, 1994/DWDIMHI39059 CERTIFICATE OF SERVICE I, David W, DeLuce, of the law firm of Johnson. Duffia, Stewart & Weidner, attorneys for Plaintiff, Fairviaw Professional Pharmacy, lno.. do hareby certify that I sarvad a true and correct copy of tha attachad Pra-Trial Memorandum by Unitad States Mail. first class, postage prepaid, upon the Counsel Iistad below: Bruce A. Gelting, Esquira Duane, Morris & Haokscher 305 North Front Streat Harrisburg, PA 17101 Date: 10 ;; ( 191 I ( r:;.. , 00739I.ooooa1M...h 2. 1994/DWDIMHI33379 FAIRVIEW PROFESSIONAL PHARMACY, INC., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 10/.10 (iv,1 /191j Plaintiff VI. CIVIL ACTION - LAW THE COURIERS-SUSQUEHANNA, INC. tla SUSQUEHANNA CENTER FOR NURSING AND REHABILITATION/COURIER, Defendant NOTICE TO DEFEND To the Defendant: You have been sued In coun, 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 jlersonally or by attorney and filing in writing with the coun your defense or objections to the claims set forth against you, You are warned that if you fall to do so the case may proceed without you and a judgment may be entered against you by the coun without further notice for any money claimed in the complaint or for any other claim or relief requested by the Plaintiff. You may lose money or propeny or other rights important to you, YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWVER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE TIlE OFFICE SET FORTII BEWW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Coun Administrator Cumherland County Coun House I Courthouse Square Carlisle. Pennsylvania 17013 Telephone: (717) 240-6200 00739J.(IOOO'IM.~h 2, t!l94/DWDIMHI33379 FAIRVIEW PROFESSIONAL PHARMACY, INC" IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO, IOLlo C /911 Plaintiff vs. CIVIL ACTION - LAW THE COURIERS-5USQUEHANNA, INC. lIa SUSQUEHANNA CENTER FOR NURSING AND REHABILITATION/COURIER, Defendant COMPLAINT AND NOW, comes the Plaintiff. Falrvlew Professional Pharmacy, Inc" through Its undersigned attorneys' Johnson, Duffle, Stewart & Weidner, and files this Complaint of which the following Is a statement: 1. The Plaintiff, Falrvlew Professional Pharmacy. Inc,. Is a Pennsylvania corporation, having its principal place of business at 564 Old York Road, Ellers, York County, Pennsylvania, 2. The Defendant, The Couriers-Susquehanna, Inc., Is a corporation organized and existing under the laws of the Commonwealth of Pennsylvania and having a registered office located at 1185 Boiling Springs Road. Mechanlcsburg, Cumberland County, Pennsylvania, 3, The Defendant, the Couriers-Susquehanna, Inc., owns and operates the Susquehanna Center for Nursing and Rehabilitation, a nursing home located at 1909 North Front Street. Harrisburg, Dauphin County, Pennsylvania (sometimes hereinafter "nursing home"), 4, Over the last several years the Plaintiff has entered into various Vendor Pharmacy Agreements with The Couriers-Susquehanna, Inc" the latest of which was entered on May 12, 1993 (hereinafter" Agreement") and executed by Jeanne y, Caron, Administrator for the Defendant's nursing home, which is attached hereto and incorporated herein as Exhibit' A ", ,.... .". _..,"~.~,- 00739HIOOO8IMarch 2. 1994/DWDIMH/33379 S. Pursuant to said Agreement, the Plaintiff was to provide the Defendant's nursing home with prescription and pharmaceutical services for guests and patients at the facility as Its primary source for all prescription and pharmaceutical needs. 6. Pursuant to the terms of the Agreement, the Plaintiff provided the Defendant's nursing home with goods and services for the prescription and pharmaceutical needs of the guests and patients, 7, Paragraph fifteen (IS) of said Agreement provides that It shall remain In full force and effect for a period of five (S) years from June 30, 1993. 8, Defendant agreed, pursuant to paragraphs seven (7) and nine (9) of the Agreement, to pay all Invoices of Plaintiff within thirty (30) days of receipt of same by Defendant, 9. Defendant, without cause. repeatedly failed to pay all Invoices within thirty (30) days of their receipt thereof causing a large outstanding balance to accrue. 10, Defendant's repeated failure to make payment pursuant to the Agreement constituted a material breach of the Agreement, 1 L As a result of a large outstanding balance and Defendant's repeated failure to pay all Invoices within thirty (30) days of their receipt thereof, Plaintiff required on or about August I, 1993 that all services henceforth would be provided C.O.D. only, 12, On December 30, 1993, a letter from Kenneth B, Shaffer, the Administrator of the Defendant's nursing home advised Plaintiff that It no longer needed Plaintiffs services and were terminating the contract, Attached hereto and made a part hereof as Exhibit "B" Is a copy of said letter. 13, At the time of the termination, Plaintiff had performed its obligations under the Agreement due at that time and would have completed performance except for Defendant's cancellation and termination without Plaintiffs consent or concurrence. ...........;;:..;; 00739l-ooooa1Mlrch 2, 199<4/DWDIMHI33379 14, Plalntlffhu been and remains ready, willing and able 10 make delivery of Defendant's pharmaceutical services for the remainder of the contract term to June 30. 1998. IS. By reason of the aforesaid termination by Defendant of the Agreement, Plaintiff's anticipated profits over the remaining term of the Agreement were never real ized. 16, By reason of the foregoing, there is due and owing from Defendant to the Plaintiff lost profits that Plaintiff would have realized had Defendant continued to perform the Agreement and allow Plaintiff to provide pharmaceutical services as required therein for the remainder of the term to June 30, 1998, WHEREFORE, Plaintiff demands judgment against the Defendant In an amount In excess of $25,000,00, plus interest thereon and costs, JOHNSON, DUFFIE, STEWART & WEIDNER Date: 5/319'-/ I ( ~ By: '/1./ David . Deluce Attorney I.D, No. 41687 30 I Market Street P,O, Box 109 lemoyne, PA 17043'()109 Telephone (717) 761-4540 Attorneys for Plaintiff 00739I.QOOO1/PcblUlry2l.1994/DWD/MHI33379 VERIFICATION I, Peter S. Steele, President of Falrvlew Professional Pharmacy, Inc.. verify that the statements made In the foreBolnB Complaint are true and correct 10 the besl of my knowledge, Informal Ion and belief. I understand thai false statements herein are made subject to the penalties of 18 Pa,C,S, 14904 relatlnB 10 unsworn falsiflcatlon to authorities, Dale: 03/':'(/79 /~ ~-~!-" - Peler s.~leel ~ Exhibit A "llUI{IIIW_'UI '_m... Itl" OIt;OUIP @ HUO. 3 'C::3 9:39 <:000 F~:RvlEW PHAF~~y iEL 93.3-e4l9 "..,- P. 2 <1~ ePiV r1':L/E (Ovr.~/[RJ-SLlJ9uH{A,V{V'fJ ;11/( VENDOR PH~R"ACY AOREEKENT ~ TillS AGREEtlENT, HADE THIS 12 D~V OF KAV, 1993, BY AND BETWh~~~U~UE~NKA_~hN!~B.FO~ NURSING AND REHABILITATION/COURRIERS, A ~~~~ tkfStlNO UNDER THE LAWS OF PENNSYLVANIA . . (HEREAFTER "FACILITY". MID FAtRVIEII PROFESSII)NAL PHAR""CY, INC., A PENNSYLVAMI~ CORPORATION (HEREAFTER .PHARKACY-'. II I T N E SSE T H IIHEREAS FACILITY DESIRES TO PROYlDE QUALITY PHARK"CEUTrCAL SERVICES TO ITS IN-PATIENTSI AND WHEREAS, PHARltACY IS DULY REGISTERED AND LJCENSEr. IN THE STATE OF PENNSYLVANJAI FORTH HEREIN, THE PARTIES IIERETO AGREE AS FCI1.LOWSr 1. SERVICE AGREE"ENT. FACILITY AGREES TO RETAIN PHARMACY ANII PHARItACY ABREIlS Tel PROYIDE FACILITY WITH PHARtlACEUTICAL SERVICES UPON THE FOLLOWING TERItS AND CONDITIONS. 2. REGULATION. PHARMACY AND FACILITY AGREE TO COtlPLY WITH ALL APPLICAlILE FEIIERAL, STATE ANII LOCAL LAWS AND REGULATIONS ANII TO ADHERE TO THE PROVISIONS OF THE POLICY AND PROCEtlURES tlANUAL AS AltENI.E>> FROII TlltE TO TIllE. 3. PBIltARY SOURCE. THE PA~TIES AGREE THAT FACILITY SHALL UTILI2E PHAR"ACY AS THE PRIItARY SOURCE FOR ALL PRESCRIPTION AND PNARItACEUTICAL NEEDS OF QUESTS AND PATIENTS AT THE FACILITY. 4. PERFORltANCE lIY PHAR"ACY. PHAftnACY ABREES TO ~ELIYER PROIIPTLY TO THE FACILITY PRESCRIPTJONS AND SUPPLIES WITHIN A REASONABLE TIltS ANII WlTHOUT UNREASONABLE DELAY, 5UB.lECT TO CIRCUltSTANCES AHtI CONDITICJ)lS BE.YONII PHARHACV'S CONTROL JNC',LUIIIHG, BUT HOT LlltITEII TO, STOCK DSE-LETION. PHARItACY AGREES TNAT IF ITS JS UNABLE TO I.E1.IYER REQUESTED ITRKS WITHIN A REASONABLE TInE, PHARltACY SHALL PRO"PTLY NOTIFY FACILITY CtF THIS FACT ANXI SHALL BE THERElIY RELIEVEfI OF RESPONSJBJLITY FOR DELJVERING SAlt. PRESCRIPTJONS ANMOR SUPPLIES AUQ, 3 '93 9:40 ??oo FA1RvlEW FH'-P.~C,' TEL 938-C419 5. DELIYERY. PHAR"ACY AGREE~ TO PROYfOE hELIYERY SERYICE SIX DAYS A WEEK, KONDAV THROUGH SATURDAY DURING THE USUAL BUSINESS HOURS OF THE PHARKACY. PHARHACY AGREES TO PROVIDE 24-HOUR EKERGENCY SERVICE FOR HEDICATIONS WHENEYER NECESSARY. 6. ACCESS/INFOR"ATION. THE FACILITY AOREES TO NOTIFY PHARHACY AS TO THE STATUS OF EACH PATIENT REGARDING SOURCES OF REI"BURSEKENT AND TO SUPPLY PHARMACY VITH ANY INFOR"ATION REQUIRED FOR PHAR"ACY TO PROYIDE PROPER MEDICATIONS AND TO "AINTAIN ACCURATE MEDICATION R~ORDS. F"ACILITY SIIALL PROHP1'LY NOTIF"Y PIlARKACY AS TO CHANOES IN SUCH INFORHATION. F"ACILITY AGREES TO GIVE PHARMACY REASONABLE ACCESS TO ALL PATIENT RECORDS, FACILITIES AND SUPPLIES REQUISITE FOR THE PERFORMANCE OF ITS DUTIES HEREIN, AND PHARHACY AOREES TO FURNISH FACILITY, UPON REQUEST, ALL SUCH INFORHATION RELATING TO THE DRUGS AND SUPPLIES FURNISHED TO FACILITY OR TO THE PATIENTS THEREIN. ANY AND ALL SUCH INFORHATION EKCHANGE BETWEEN THE PARTIES SHALL BE RETAINED AND REGARDED AS CONFIDENTIAL BY BOTH PARTIES. 7. PATIENT BILLING. PHARMACY AGREES TO BILL EACH PATIENT IN CONFORMITY WITH THE USUAL AND PROPER HETHOD OF BILLING REQUIRED OR ACCEPTED ON THE RESPECTIVE REIHBURSEHENT OR PAYHENT PLANS. IN ALL [NSTANCES WHERE THE FACILITY PROCESSES BILLING AND REKITTANCES, F~CILITY SHALL REHIT P~YKENT TO PHAR"ACY WITHIN THIRTY 130) DAYS OF R~EIPT OF SUCH BILL BY FACILITY. 8. BI~~ING INFORMATION. IN THE BVENT OF DISPUTE ARISING FROn ANY CLAIM OR BILL SUBMITTED BY THE PHARHACY, PHARMACY SHALL HAVE ACCESS TO ALL REASONABLE ANIl HECE..~RY DOCUMENTS ANti RECClRIIS THAT WOULD, IN ITS SOLE DISCRETION, TEND TO SUSTAIN ITS CLAIH. 9. FACILITY SERVICES. FACILITY SHALL REMIT PAY KENT WITHIN THIIITY (3(11) DAYS OF RECEIPT OF A BILL FROM THE FCIR AHY PNARMACEUTICAL SERVICES, IIRUGS, AN[I SUPPLIES OR ANCILURY EQUIP)lEIIT PURCHASES ON ITS aWN ACCOUNT. 1e. MEDICATION CHARGES. THE PHARMACY'S CHARGE FOR ME[IICATIOH SHALL AT ALL TIMES CaNFOre" TO THE REGULATIONS OF TH& P&NHSYLVANIA IIEPARTMENT OF PUBLIC WELFARE AS REVISED FROM TI"E TO TIME. P. J Au" 3 '93 9:41 iSlOO FAIR'J~EW Fro:.RI':CY TEL 938-e419 P. 4 11. CONSULTATION SERVICES. PHARKACY AGREES TO PROVIDE CONSULTATION SERVICES INCLUDINO THE FOLLOWINO, A. MONTHLY CHART REVIEW, 8. WRITTEN MONTHLY REPORTS, C. ANNUAL IN-SERVICE PROGRAMS, D. IMITIAL STAFF IN-SERVICE AS REQUIRED TO FACILITATE SMOOTH TRANSITION, E. KOHTHLY COKPUTER-GENERATEn PHYSICIAN ORDERS ANb MEllI CATION AIIKINISTRATION RRCORI!SI AND F. PHAR"ACIST CONSULTANT TO SERVE ON QUALITY ASSURANCE-1l1 ~/ COMIlJ TTEE IAS THEY ARE SCHEUUL&U I. ,;,,_ f AIlYiH;'" . ~- -- _u . u_ '""',........... JIII"","- -u.l.l BILL Ei\t"1I Pt.TII-..... tJ_,..eH~lB~ . ....,. -.- ~R r.a~D 1I1--ITH FCIR TNE FOREGOING ENUKERATEII CONSULTING SERVICES ANII FURTHETi AGI'IEE: THAT CONSULTING SERVICES BEYOND THOSE CONTEKPLATED HEREIN WILL BE COKPENSATED AT THE RATE OF .40.00 PER HOUR. .\2. INDEJ>ElUlENT STATUS. THE PARTIES AGREE TIIAT f'HARKAC't IS AN INDEPEHIlENT BUSINESS ONLY RETAINED BY THE FACILITY TO SUPPLY ITS PHARMACEUTICAL NEEDS AS SET FORTH HEREIN ANIl THAT PHARKACY REMAINS FREE TO IlEAL VITH ANY O'MlER PERSONS, FIRMS, OR CCIRPORATIONS IIURING THE TERM OF THIS AGREEMENT. .13. FAC11.lTY RESPONSIBILITY. THE PARTJES ACKNOWL&lIGE THAT THE FACIl.ITY HAS FULL CONTROL OVER THE ACTS OF ITS EllPl.OYEES AND OTHER AGENCIES SUPPLYING OR ADMINISTERING DRUGS WITHIN THE FACIL!TY, AND, IN ACCORDANCE THEREWITH, PHARKACY SHALL NOT BE RESPONSIBLE TO THE FACILITY FOR ANY LOSSES OP. LIABILITIES SUSTAINE~ AS A RESULT OF INDEPENDENT WRONGDOING 01'1 NEGLIGENCE. .14. PHARMACY RESPONSIBILITY. THE PARTIES ACKNOWLEDGE THAT PHAR"ACY HAS FULL CONTROL OVER THE ACTS OF ITS E"~LOYEES IN SUPPLYING IIRUGS ANII PHARHACEUTICAL SERVICES TCI THE FACILITY, AHII, IN ACCORllAHCE THEREWITH, FACILITY SHALL NOT BE RESPONSIBLE FOR ANY LOSSES OR LIABILITIGS SUSTAINED AS A RESULT OF INIIEPENOENT VRONG bOIHG OR NEGLIGEHC',E. Ru~, 3 '93 9:42 0200 FRIRVIEU ?HARMCY TEL 938-0419 p, !5 1~. TERM. THIS AOREE"ENT SHALL RENA IN IN FULL FORCE AND EFFECT FOR A PERIOD OF 5 YEARS FRO" 3UNE a0TH, 1993 AND WILL BE RENEWED 'OR SIMILAR 5 YEAR PERIOD AT THE EXPIRATION OF THE FIRST TERM UNLESS EITHER PARTY HAS OIVEN THE OTHER AT LEAST THIRTY 13DI DAYS NOTICE or INTENTION TO TER"INATE AT THE END OF THE FIRST OR ANY RENEWAL TERM, 16. NON-DISCRI"INATION. IT IS THE POLICY OF BOTH PARTIES TO PROVIDE SERVICES IN COMPLIANCE WITH TITLE VI OF THF. I:IVlL IHOHTS LAII OF 1964, IN THAT ALL PATIENTS WILL BE SERVED WITHOUT REGARD TO AACE, COLOR, AOE, SEX, RELIGIOUS CREED, NATIONAL ORIOIN ON ANCESTRY. FURTHER, IT IS THE POLICY OF BOTH PARTIES TO COMPLY WITH SECTION 5a4 OF THE REHABILITATION ACT OF 1973 WHICH PROTECTS PHYSICALLV AND MENTALLY HANDICAPPED PERSONS FRDN DISCRIMINATION. 17. PHARMACY AGREES TO PROVIDE SIX "EDICATION CARTa FOR USE IY THE FACILITY AS LONG AS THIS AOREEMENT IS IN EFFECT. DULY IN WITNESS WHEREOF, THE PARTIES HAVE CAUSED THESE PRESENTS TO BE EXECUTED ON THE DAY ~ND YEAR rI~ST ABOVE WRITTEN. ~.""i:....dJL~~ '."! "lL_~,.d'}l.._________________(!,w (~1.1 DMINISTRAT~ ~/V# 0 ()l77f' L FURVISW PROFESSIONAL PHARNAC:Y, IHC. --- --~~----------- exhibit B _....-.:.--.. .U.'''II~I~__'ro '..m.'. Ill" ..c,ellD @ . ~ ---- , FRI 11:27 ~~. ,': P. '" 1 SUSQUEHANNA CENTER rOR Nl!RSI~G A~D REHABILITATION 111 I 2:u.4680 F "X.~~f.l61 0 lvot N,I'ronI Str... Hanisbur..PA 17102 PERSONAL AND CONFIDENTIAL December 3D, 1993 Mr. Peter S. Steele Falrvlew Professional Pharmacy 564 Old York Road Annex Etters, PA ~~, Dear Mr. Steele: As we have previously discussed, It is our Intent to terminate our relationship with Falrvlew Pharmacy. The last date that we would be accepting medications from your pharmacy Is January 2, 1994. AS we both know, there are payment issues to be resolved. Wg will be forwarding a check In the amount of $12,000 to our attorney, Mr. Ron Toro. He will be contacting you through your attorney. One of the issues we need clarification on Is the exact current amount Susquehanna Center owes Falrview Pharmacy. Sincerely, ~4~:>>#Q. Kenneth B. Shaffer, NHA-"'-........ _.,=--~._-- Administrator KBS/mn se;J~ .. ~ 'S- v :t 1, e- ~ '" '-:J "') ., \ I , --= ...... ?; ~~ '::> =r- ,- ~ :-.:::- .!":l-- . .. ~ - .' ~ '" 0 1\J " \J) 0 '=> "---' ,. " - ~ \1'1 '- -:;- ~ tr) ISi ~~ -{l;' .. -p . ~ " ,. ~ ?\ ;~ ~ .... . ~~ i ~ 0( 1$ p.~ ~ .... . ~ I ~ D:D: '!2 ILl ~ ~ ~ ' ~ ~ .... I.~ ... I Bl1f~ !l~ .... ~~ j ,.-I ~~~~~~ ~~ E ... o at Ul .~ . ~I~ ~~ .~ ~ ~ ~ I!l :s 0 oil 0:.. I EO :i c(j 0 ~ @ !Q :j o !!! p. ~~i '" i!: 0 ~el!i! ~ z ~ :I: ~a ii: : 0 ~ ~~ ~i " . '.'m'''-'iiIIW;i~'::-. 001391..QOOOBlMarch 8, 1\l94/DWD/MHI33537 Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 1040 C 1994 CIVIL ACTION . LAW FAIRVIEW PROFESSIONAL PHARMACY, INC" vs, THE COURIERS-SUSQUEHANNA, INC, tla SUSQUEHANNA CENTER FOR NURSING AND REHABILITATION, Defendant ACCEPTANCE OF SERVICE I, Ron Turo, Esquire, attorney for The Couriers-Susquehanna, Inc" tla Susquehanna Center for Nursing and Rehabilitation/Courier, the Defendant named above, do herehy agree to accept service of the Complaint filed by Falrvlew Professional Pharmacy, Inc" the Plaintiff ahove, on behalf of the Defendant, a true and correct copy of which I received on the date set forth below, Date: 3/9frY [tg~,9 LAW OFFICES OF RON TURO 32 South Bedford Street Carlisle, PA 17013 Attorneys for Defendant ;?; . '- . . .....~ ~.~ " ", ...., ';) :>.;r - - '>-.\. l:::) - "'" '" =-::: , FAIRVIEW PROFESSIONAL PHARMACY, INC., : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA . . Plaintiff : NO. 1040 C 1994 : vs. : CIVIL ACTION - LAW . . THE COURIERS-SUSQUEHANNA, INC. SUSQUEHANNA CENTER FOR NURSING AND REHABILITATION/COURIER, t/a : . . . . . . Defendant HOTICB TO PLBAD To: Fairview Professional Pharmacy, Inc. 564 Old York Road Etters, PA You are hereby notified to file a written response to the enclosed He. Matter and Counterclaims within twenty (20) days from service hereof or a judgment may be entered against you. Jack M. Mumford, Esquire Attorney Id. No. 32695 Bruce A. Gelting, Esquir Attorney Id. No. 69159 DUANE, MORRIS & HECKSCHER 305 North Front Street P.O. Box 1003 Harrisburg, PA 17108-1003 (717) 237-5500 Attorneys for Defendant The Couriers-Susquehanna, Inc. t/a Susquehanna Center for Nursing and Rehabilitation/Courier Date: March 29, 1994 FAIRVIEW PROFESSIONAL PHARMACY, INC., : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : Plaintiff : NO. 1040 C 1994 . . vs. : CIVIL ACTION - LAW . . THE COURIERS-SUSQUEHANNA, INC. SUSQUEHANNA CENTER FOR NURSING AND REHABILITATION/COURIER, t/a : . . . . . . Defendant ANSWER. NB1f MATTBR AND COUNTBRCLAIMS AND NOW, comes the Defendant, the Couriers-Susquehanna, Inc., t/a Susquehanna Center for Nursing and Rehabilitation/Courier, through its attorneys, Duane, Morris & Heckscher, and files this Answer, New Matter and Counterclaim: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted in part and denied in part. The Defendant denies that various vendor pharmacy agreements were entered into with Plaintiff. The Defendant is aware of only one such agreement, dated May 12, 1993 (hereinafter "Agreement"). 5. Denied. The averments contained in Paragraph 5 of Plaintiffs' Complaint are based upon documents attached as /. . "'..':.,. Plaintiff's Exhibit A which, as writings, speak for themselves and need not be admitted nor denied. To the extent that a further answer is deemed required, the Defendant denies that Plaintiff provided prescription and pharmaceutical services pursuant to the Agreement. 6. Denied. The averments contained in Paragraph 6 of Plaintiffs' Complaint are based upon documents attached as Plaintiff's Exhibit A which, as writings, speak for themselves and need not be admitted nor denied. To the extent that a further answer is deemed required, the Defendant denies that Plaintiff provided prescription and pharmaceutical services pursuant to the Agreement. 7. Denied. The averments contained in Paragraph 6 of Plaintiffs' Complaint are based upon documents attached as Exhibit A which, as writings, speak for themselves and need not be admitted nor denied. 8. Denied. The averments contained in Paragraph 6 of Plaintiffs' Complaint are based upon documents attached as Exhibit A which, as writings, speak for themselves and need not be admitted nor denied. 9. Admitted in part and denied in part. It is admitted that Defendant failed to pay all invoices within thirty (30) days, 2 however, the Defendant denies causing a large outstanding balance to accrue, or that such balance accurately reflects goods and services provided by Plaintiff. 10. Denied. It is specifically denied that Defendant repeatedly failed to make payments pursuant to the Agreement or in any way materially breached the Agreement. 11. Admitted. It is admitted that Plaintiff required on or about August 1, 1993 that all services henceforth would be provided C.O.D. only. 12. Denied. The averments contained in Paragraph 12 are based upon documents attached as Plaintiff's Exhibit B which, as writing, speak for themselves and need not be admitted nor denied. 13. Denied. The averments contained in Paragraph 13 are denied on the basis that Plaintiff has materially breached its obligations under said Agreement, inter AliA, failing to provide monthly chart review, written monthly reports and necessary 24 hour emergency services. 14. Denied. As evidenced by Plaintiff's material breach of its obligations under said Agreement, Plaintiff is unable or unwilling to perform its obligations under the Agreement. 3 15. Denied. The averments contained in paragraph 15 are denied on the basis that plaintiff had no enforceable expectation to profits under the Agreement. By way of further answer, any losses to plaintiff were due solely to plaintiff's breach of its material obligations under the Agreement. 16. Denied. The averments contained in paragraph 16 are denied on the basis that, inter AliA, plaintiff had no enforceable right to any profits under the Agreement. NEW MATTER 17. The promise contained within the Agreement, that the parties agree that facility shall utilize pharmacy as the primary source for all prescription and pharmaceutical needs of guests and patients at the facility, is indefinite, vague and illusory and as a result, provides no basis for any claim of lost profits by plaintiff. (See Agreement attached hereto and incorporated herein as Exhibit A.) 18. plaintiff, as scrivener of the Agreement at issue, must suffer any deficiencies in the language of the instrument and any ambiguities are to be construed against the plaintiff. 4 (- 19. As a result, the Vendor Pharmacy Agreement entered into on May 12, 1993 between the plaintiff and Defendant is void as it lacks Mutuality of Obligation and fails for lack of consideration. 20. Pursuant to the Agreement, plaintiff was to provide 24- hour emergency services for medications to the Defendant whenever necessary. 21. plaintiff, without cause, failed to provide 24-hour emergency services whenever necessary. 22. Plaintiff's failure to provide 24-hour emergency service whenever necessary constitutes a material breach of the Agreement. 23. Pursuant to the Agreement, plaintiff was to provide consultation services to Defendant, inter ~, written monthly reports and medical record reviews. 24. plaintiff, without cause, failed to provide such consultation services to Defendant. 25. As a direct result of plaintiff's failure to provide consultation services, Defendant was notified through a statement of Deficiencies issued on November 24, 1993 by the Pennsylvania Department of Health in its own right and as survey agent for the Department of Health and Human services/ Health Care Financing 5 f' -, Administration of its failure to provide these required services in accordance with state and Federal regulations. 26. Plaintiff's failure to provide such consultation services constitutes a material breach of the Agreement. 27. Plaintiff made use of improper billing procedures in crediting third-party payments to Defendant's account. 28. Plaintiff's improper billing procedures constitute a material breach of the Agreement. 29. The agreement at issue contains no provision for interest payments on past due accounts. 30. In contravention of the Agreement, Plaintiff has charged Defendant interest on past due accounts. 31. The interest rate charged by Plaintiff is usurious, unlawful and unconscionable. 32. Plaintiff's improper billing of interest on Defendant's past due accounts constitutes a material breach of the Agreement. 33. Jean Caron did not have authority on behalf of Defendant to enter into this Agreement with Plaintiff. 6 COUNT I - BREACH OF CONTRACT 34. To the extent that this Agreement attempts to establish an exclusive provider of prescription and pharmaceutical services, such Agreement is unlawful and void as against pUblic policy. 35. The Agreement at issue does not limit the right of Defendant to terminate said Agreement. 36. consequently, Defendant was within its rights under the Agreement to terminate said Agreement for plaintiff's material breach. COUllTBRCLl\IMS PURSUANT TO PA. R. CIV. P. 1031 37. Paragraphs 1 through 36 are incorporated herein by reference as if fully set forth. 38. The Agreement required plaintiff, inter AliA, to provide 24 hour emergency services to Defendant. 39. By reason of the aforesaid material breach of the Agreement by plaintiff in failing to provide 24 hour emergency services as set forth in Paragraphs 20-22 and 25 above, Defendant was required to contract for such services with a new pharmaceutical provider and pay additional fees for such services. 7 40. Prior to Plaintiffs' material breach of the Agreement as set forth above, the Defendant has at all times performed its obligations under the Agreement and all conditions precedent have been performed by Defendant or otherwise have occurred to establish Defendant's right to the recovery of the sums referred to in Paragraph 41 below. 41. As a direct and proximate result of Plaintiff's material breach of the Agreement, as set forth above, and its failure to perform its obligation to provide 24 hour emergency services under the Agreement, Defendant has suffered direct and consequential damages in an amount in excess of $25,000.00. WHEREFORE, the Defendant, The Couriers-Susquehanna, Inc. t/a Susquehanna Center for Nursing and Rehabilitation/courier demands judgment in its favor and against the Plaintiff, Fairview Professional Pharmacy, Inc. in an amount in excess of $25,000.00, lawful interest, the costs of this action and such other legal and equitable relief as this Honorable Court deems just and proper. COUNT II - BREACH OF CONTRACT 42. Paragraphs 1 through 36 are incorporated herein by reference as if fully set forth. 8 45. Because of the aforesaid breach of the Agreement, as set forth in Paragraphs 23-25 and 38 above, Defendant was required to incur expenses including, but not limited to, attorney's fees and consultant's fees, in responding to a statement of Deficiencies issued by the Pennsylvania Department of Health in responding to and in correcting the deficiency which was caused solely by plaintiff's material breach of the Agreement. 43. The Agreement required plaintiff to provide consultation services to Defendant, inter AliA, written monthly reports and medical record reviews. 44. By reason of the aforesaid material breach of the Agreement by plaintiff in failing to provide consultation services, as set forth in Paragraphs 23-25 above, Defendant was required to contract for such services with a new provider and pay additional fees for such services. 46. Prior to Plaintiff's material breach of the Agreement, as set forth above, the Defendant has at all times performed its obligations under the Agreement and all conditions precedent have been performed or otherwise have occurred to establish Defendant's right to the recovery of the sums referred to in paragraph 45 above. 9 COUNT III - BREACH OF CONTRACT 47. As a direct and proximate result of plaintiff's material breach of the Agreement, as set forth above, and its failure to perform its obligation to provide consultation services under the Agreement, Defendant has suffered direct and consequential damages in an amount in exces~ of $25,000. WHEREFORE, the Defendant, The Couriers-Susquehanna, Inc. t/a Susquehanna Center for Nursing and Rehabilitation/Courier demands judgment in its favor and against the Plaintiff, Fairview Professional Pharmacy, Inc. in an amount in excess of $25,000.00, lawful interest, the costs of this action, and such other legal and equitable relief as this Honorable Court deems just and proper. 48. Paragraphs 1 through 36 are incorporated herein by reference as if fully set forth. 49. By reason of the aforesaid material breaches of the Agreement by Plaintiff in using improper billing procedures in crediting third-party payments to Defendant's account, as set forth in Paragraphs 27-28 above, and in charging interest on past due accounts, as set forth in Paragraphs 29-32 above, Defendant has suffered monetary losses by being overcharged by Plaintiff under the Agreement. 10 50. Prior to plaintiff's material breaches of the Agreement, as set forth above, the Defendant has at all times performed its obligations under the Agreement and all conditions precedent have been performed or otherwise have occurred to establish Defendant's right to recovery of the sums referred to in Paragraph 49 above. 51. As a direct and proximate result of Plaintiff's material breaches of the Agreement, as set forth above, and its failure to use proper billing procedures and its improper charging Defendant interest under the Agreement, Defendant has suffered direct and consequential damages in an amount in excess of $25,000.00. WHEREFORE, the Defendant, The couriers-Susquehanna, Inc. t/a Susquehanna Center for Nursing and Rehabilitation/Courier, demands judgment in its favor and against the Plaintiff, Fairview professional Pharmacy, Inc., in an amount in excess of $25,000.00, 11 lawful interest, the costs of this action, and such other legal and equitable relief as this Honorable Court deems just and proper. Respectfully submi ~a Jack M. Mumford, Esqu Attorney Id. No. 326 Bruce A. Gelting, Esquire Attorney Id. No. 69159 DUANE, MORRIS & HECKSCHER 305 North Front Street P.O. Box 1003 Harrisburg, PA 17108-1003 (717) 237-5500 Attorneys for Defendant The Couriers-susquehanna, Inc. t/a Susquehanna Center for Nursing and Rehabilitation/courier Date: March 29, 1994 f:\home\nll\fllrvlow\lnowor. 12 . . .-" . '. -.. ... . .to t (OvJfI</fR'J-Sl.IJ9u6I{,4Nrf'A ,NC VENDOR PKARJlACY AOREE"ENT ~ THIS AGRtEJlENT, HADE THIS 12 DAY OF KAY, 1993, BY AND . BETW~~~?U~U~~N~_~hN1~.FO~ NURSING AND REHABILITATIOM/CQURRIERS, A ~~~~~~tkf~tING UNDER THE LAWS OF PENNSYLVANIA . . (HEREAFTER .FACILITY"' AND FAIRVIEW PROFESSIONAL PHARKACY, INC., A PENNSYLVANIA CORPORATION (HEREAFTER .PHARKACY.'. '~J ,..~ .--" ..... ..". ~~. e;Jii) ~E WIT N E SSE T K WHEREAS FACILITY DESIRES TO PROVIDE QUALITY PKARJlACEUTICAL SERVICES TO ITS IN-PATIENTS; AND WHEREAS, PHARMACY IS DULY REGISTEhED AND LICENSED IN THE STATS OF PKHNSYLVANIAJ FORTH HEREIN. THE PARTIES HERETO AGREE AS FaLLOWSr 1. SERVICE AGREE"ENT. FACILITY AGREES TO RETAIN PHARKACY AND PHARMACY AGREES TO PROVIDE FACILITY WITH PHARJlACEUTICAL SERVICES UPON THE FOLLOWING TERKS AND CONDITIONS. 2. REGUUTIOIl. PHARMACY AND FACILITY AGREE Tel COMPLY wITH ALL APPLICABLE FEDERAL, STATE AND LOCAL LAWS AND REGULATIONS AND TO ADHERE TO THE PROVISIONS OF THE POLICY AND PROCEDURES JlANUAL AS AJlEHDED FROJI TIJlE TO TIKE. 3. PRIJlARY SOURCE. THE PARTIES AGREE THAT FACILITY SHALL UTILIZE PHARMACY AS THE PRIJlARY SOURCE FOR ALL PRESCRIPTION AND PHARMACEUTICAL NEEDS OF QUESTS AND PATIENTS AT THE FACILITY. ~. PERFDRJlANCE BY PHARMACY. PHAR"ACY AGREES TO DELIVER PROMPTLY TO THE FACILITY PRESCRIPTIONS AND SUPPLIES WITHIN A REASONABLE TIJlE AND WITHOUT UNREASONABLE DELAY, SUBJECT TO CIRCUMSTANCES AND CONDITIONS BEYOND PHARMACY'S CONTROL INCLUDING, BUT NOT LIMITEh TO. STaCH DEPLETION. PHARMACY AGREES THAT IF ITS IS'UNABLE TO DELIVER REQUESTED IT~S WITHIN A REASONABLE TIME, PNARNACY SHALL PROMPTLY NOTIFY FACILITY CIF THIS FACT AND SHALL BE THEREBY RELIEVED OF RESPONSIBILITY FOR DELIV!i:&ING SAID PRSSCRIPTIDNS AND/OR SUPPLIES " . . " >. --. .. -----'- - -.. . .' ;. ....... , . s. DELIVERY. PHARKACY AGREES TO PROVIDE DELIVERY SERVICE SIX DAVS A WEEK, KONDAV THROUGH SATURDAY DURING THe USUAL BUSINESS HOURS OF THE PHARMACY. PHARHACY AGREES TO PROVIDE 24-HOUR EMERGENCY 'SERVICE FOR KEDICATIONS WHENEVER NECESSARY. 6. ACCESS/INFORKATION. THE FACILITY AOREES TO NOTIFY PHARKACY AS TO THE STATUS OF EACH PATIENT REGARDING SOURCES OF REIKBURSEKENT AND TO SUPPLY PkAR"ACY VITH ANY INFORKATION REQUIRED FOR PHARMACY TO PROVIDE PROPER MEDICATIONS AND TO MAINTAIN ACCURATE MEDICATION RECORDS. FACILITY SHALL PROMPTLY NOTIFY PHARMACY AS TO CHANGES IN SUCH INFORHATION. FACILITY AGREES TO GIVE PHARKACY REASONABLE ACCESS TO ALL PATIENT RECORDS, FACILITIES AND SUPPLIES REQUISITE FOR THE PERFORMANCE OF ITS DUTIES HEREIN, AND PHARHACY AGREES TO FURNISH FACILITY, UPON REQUEST, ALL SUCH INFORMATION RELATING TO THE DRUGS AND SUPPLIES FURNISHED TO FACILITY OR TO THE PATIENTS THEREIN. ANY AND ALL SUCH INFORMATION EXCHANGE BETWEEN THE PARTIES SHALL BE RETAINED AND REGARDED AS CONFIDENTIAL BY 90TH PARTIES. 7. PATIENT BILLING. PHARMACY AGREES TO BILL EACH PATIENT IN CONFORMITY VITH THE USUAL AND PROPER HETHOD OF BILLING REQUIRED OR ACCEPTED ON THE RESPECTIVE REIMBURSEMENT OR PAYKENT PLANS. IN ALL INSTANCES WHERE THE FACILITY PROCESSES BILLING AND REMITTANCES, FACILITY SHALL REHIT PAYMENT TO PHARMACY WITHIN THIRTY 1~0) DAYS OF RECEIPT OF SUCH BILL BY FACILITY. 8. BILLING INFO~HATIOH. IN THE EVENT OF DISPUTE A~ISING FROH ANY CLAIn OR BILL SUBftITTEO BY THE PHARnACY, PHARnACY SHALL HAVE ACCESS TO ALL REASONABLE ANn NECSSSARY DOCUIlENTS AND RECORl.S THAT WOULD, IN ITS SOLE DISCRETION, TEND TO SUSTAIN ITS CLAIM. 9. FACI1.ITY SERVICES. FACILITV SNALL REMIT PAYMENT VITHIN THIRTY (3~) DAYS OF RECEIPT OF A SILL FRON TNE FOR ANY PHARMACEUTICAL SERVICES, DRUGS, AND SUPPLIES OR ANCIl.1.ARY EQUIPMENT PURCHASES ON ITS aWN ACCOUNT. .10. MEDICATION CHARGES. THE PHARNACY'S CNATtGE FOTt NEIll CATION SHALL AT Al.L TIllES CONFORM TO THE REGULATIONS OF THE PENNSY1.VANIA DEPARTMENT OF PUBLIC WELFARE AS REVISED FRON TIME TO TIME. ....___J.-_.. . /........."...7"._ ....... . M....... _.. ._ ".' ..... o' . 11. CONSULTATION SERVICES. PHARHACY AGREES 10 PROVIDE CONSULTATION SERVICES INCLUDING THE FOLLOWINGs A. KOMTHLY CHART REVIEW, 8. WRITTEN HONTHLY REPORTSI C. ANNUAL IN-SERVICE PROGRAMS, D. INITIAL STAFF IN-SERVICE AS REQUIRED TO FACILITATE SHOOTH TRANSITION, E. MONTHLY COMPUTER-GENERATED PHYSICIAH ORDERS AH~ MEDICATION ADHINISTR~TIOH RECORDS, AND F. PHARMACIST CONSULTANT TO SERVE ON QUALITY ASSURAHCE~lI ~/ COllHI TTEE US THEY ARE SCHIlliUUi:lll. ~,_ f ;oI.RTI E" . ~- -- ['!'. . .l~ -,,,,............, PWMJn.. -n....l BIbb. ~'.~n P/.TII-....... tJ_,..OH.3I!ibS.......JI -..~" ....r>D ....-.m FOR THE FOREGOIHG ENUHSRATRII CONSULTING SERVICES AHD FURTNEk AGREE THAT CONSULTING SERVICES SEYOND THOSE CONTEMPLATED HEREIH ~ILL SE COMPENSATED AT THE RATE OF C40.~ PER HOUR. J2. INDEPENDENT STATUS. ,THE PARTIES AGREE THAT PHARMACY IS AN INDEPENDENT BUSINESS ONLY RETAINED BY THE FACILITY TO SUPPLY ITS PHARMACEUTICAL HE:EIIS AS SET FORTH HETtEIN ANII THAT PHARMACY REJlAINS FREE: TO IlEAL WITH AMY OTHER PERSONS. F'IRMS. OR CCIFfpORATIONS IIlJRING THE TERM OF THIS AGREEMENT. 13. FACILITY RESPONSIBILITY. THE PARTIES ACKHOWLSDGE THAT THE FACILITY HAS FULL CONTROL OVER THE ACTS OF ITS EJlPLOYEES AND OTHER AGENCIES SUPPLYING OR ADMINISTERING DRUGS WITHIN THE FACILITY. AHD, IH ACCORDANCE THEREWITH, PHARftACY SHALL NOT BE RESPONSIBLE TO THE FACILITY FOR ANY LOSSES OR LIABILITIES SUSTAIHED AS A RESULT OF INDEPENDENT WRONGDOING OR NEGLIGENCE. 11. pHARMACY RESPONSIBILITY. THE PARTIES ACKNOWLEDGE THAT PHARftACY HAS FULL CONTROL OVER THE ACTS OF ITS EftPLOYEES IN SUPPLYING DRUGS ANti PHARMACEUTICAL SERVICES TO THE FACILITY, AND. IN ACCORDANCE THEREWITH, FACILITY SHALL NOT BE RESPONSIBLE FOR.ANY LOSSES OR LIABILITIBS SUSTAINED AS ^ RESULT OF IHDEPENOENT WRONG DOING OR NEGLIGENCE. . ..' .....,... ....-..-- .-......--- -. . - , ...<<. .. 15. TERM. THIS AGREEHENT SHALL RE"AIN 1M FULL FORCE AND EFFECT FOR A PERIOD OF 5 YEARS FROH JUNE a0TH, 1~3 AND WILL BE RENEWED FDft SIHILAR 5 YEAR PERIOD AT THE EXPIRATION OF THE FIRST TERn UNLESS EITHER PARTY HAS GIVEN THE OTHER AT LEAST THIRTY (301 DAYS NOTICE OF INTENTION TO TERMINATE AT THE END OF THE FIRST OR ANY RENEWAL TERK. 16. NON-DISCRIHINATION. IT IS THE POLICY OF BOTH PARTIES TO PROVIDE SERVICES IN COKPLIANCE WITH TITLE VI OF THE CIVIL RIGHTS LAW OF 196~, IN THAT ALL PATIENTS WILL BE SERVED WITHUUT REGARD TO RACE, COLOR, AGE, SEK, RELIGIOUS CREED, NATIONAL ORIGIN OR ANCESTRY. FURTHER, IT IS THE POLICY OF BOTH PARTIES TO COHPLY WITH SECTION 50~ OF THE REHABILITATION ACT OF 1973 WHICH PROTECTS PHYSICALLY AND HENTALLY HANDICAPPED PERSONS FRO" DISCRIHINATION. 17. PHARKACY AGREES TO PROVIDE SIX HEOICATIOM CARTS FOR USE BY THE FACILITY AS LONG AS THIS AGREEMENT IS IN EFFECT. IN WITNESS WHEREOF, THE PARTIES HAVE CAUSED THESE PRESENTS TO BE DULY EXECUTED ON THE DAY NO YEAR FIRST ABOVE WRITTEN. ~ ' ~.-I <. .. ,J oJ. "'N'ST..,~~L-----------_C'U"';" FAIRVIEW PROFESSIONAL PHARMACY, INC. --44;J- PRESIDENT ~-~~----------- VBRrJ'rCATrON I, Duane Nicholson, hereby depose and state that I am President of The couriers-Susquehanna, Inc., the Defendant in this case; that I am authorized to make this Verification on behalf of the Corporation; and that the facts set forth in the foregoing Answer, New Matter and Counterclaim are true and correct to the best of my information, knowledge, or belief. This statement is made subject to the penalties of 18 Pa. C.S.A. S 4904 relating to unsworn falsification to authorities. Date 3/'21/ fy I I ~;Lh~di/b~~ uane icholso CBRTIFICATB OF SBRVICB I, Nora A. starnes, a secretary in the law offices of DUANE, MORRIS & HECKSCHER, hereby certify that I this day served a true and correct copy of the foregoing "Answer, New Matter and Counterolaim" by first class mail, postage prepaid, at Harrisburg, Pennsylvania, addressed to the person listed below: David W. DeLuce, Esquire Johnson, DUffie, Stewart & Weidner 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 ,?h~-" d".L'G~_u_~ Nora A. Starnes Date: March 29, 1994 .,; . en C'oI ... ... :c ~~ <C... % &&.Ib,::J.:! IOZ0% W:OQ'"'l 4.,%Q~ <?~~J- ,.:t ~-at/! ,,Ja..fi% ,.Il...IuJffi ..~J;~~ ....'" ~U ::c a- ~ Ill> N , LAW OF'F'ICES OF' DUANE, MORRIS €I HECKSCHER 30S NORTH F'RONf STRt(T, P.O. BOX 1003 HARRISBUnG. PA 17ioe.I003 t'''.4'~~;''~.....~ .:'L:;;;.~'_~;~ ,;, .~ ..':C;;:1f:;;"f .-- ~, ~~. . 00739I.oooo8/AprilI9, 1994/DWDIMHI34S76 FAIRVIEW PROFESSIONAL PHARMACY, INC" IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO, 1040 C 1994 CIVIL ACTION - LAW Plainliff vs, THE COURIERS-SUSQUEHANNA, INC, tla SUSQUEHANNA CENTER FOR NURSING AND REHABILITATION, Defendant PLAINTIFF'S RESPONSE TO NEW MATIER AND DEFENDANT'S COUNTERCLAIMS 17. DenIed. This averment contains a legal conclusion to which no response is required. To the extent a response may be required, the Agreement is clear and specific as to the intentions of the panies regarding the primary source of pharmaceutical needs of guests and patients atlhe facility. 18. DenIed. This averment contains a legal conclusion to which no response is required, 19. Denied. This averment contains a legal conclusion 10 which no response is required, 20. Admitted. 21, Denied. It Is specifically and unequivocally denied Ihat Plaintiff failed to provide twenty-four (24) hour emergency services when necessary, 22. Denied. This averment contains a legal conclusion to which no response is required. 23. Admitted In part. Denied In purt. The Agreement states that Pharmacy shall provide consultation services including written monthly repons, The Agreement does not require nor include medical record reviews. 00739I.ooooaf^prilI9, 1994fOWOfMHf34576 24, Denied. It is specifically amI unequivocally denied that Plaintiff wilhout cause failed to provide consultation services. On the contrary. Plaintiff provided consultatiun services as long as it was paid on a timely basis as required by paragraph nine (9) of the Agreement. Cenaln consultation services were not provided only after Defendant was in material breach of the Agreement and upon notilicalion to the Defendant of the reason therefore, Defendant never objected nor demanded that Plaintiff cuntinue the consultation services. 25. Denied. After reasonable investigation, the Plaintiff is without knowledge or information sufficient to form a helieI' as to the truth of these averments and strict proof thereof is demanded at the time of trial. If relevant, By way of further response, Defendant's failure to adhere to the requirements of the Pennsylvania Depanment of Health is its own duty and responsibility and not that of the Plaintiff. 26, Denied. This averment contains a legal cundusion to which no response is required, 27, Denied. After reasonable investigation. the Plaintiff is without knowledge or information sufficient to form a belief as to the truth of this averment and strict prouf thereof is demanded at the time of trial. if relevant, 28. Denied. This averment contains a legal cundusion to which no response is required, 29. Admllled In part. Denied In pari. It is admitted that the Agreement does not contain a provision for interest payments on past due accounts. By law. Plaintiff is entitled to interest on liquidated damages and may recover for the time value of money. 30. Denied. This averment contains a legal cunclusion to which no response is required. 31. Denied. This averment contains a legal conclusion to which no response is required, 32. Denied. This averment contains a legal cundusiun to which no response is required. 33. Denied. Based on prior practices and Plaintitrs experience with the administrator of Defendant's nursing home. Jeanne Y. Caron had apparent authurity tu enter agreements on behalf uf Defendant. Funhermore, Defendant was aware of the Agreement and by its actiuns assented to its terms and conditions. 007391-OOOOBlApriI19. 1994/DWD/MHI34S76 34, Denied. The parties never Interpreted the Agreement to establish an exclusive provider arrangement. On the contrary, the Agreement states that Defendant shall utilize Plaintiff as the primary source for prescription and pharmaceutical needs while complying with all applicable federal. state and local laws and regulations. 35, Denied. The Agreement does limit the right of Defendant to terminate the same. 36. Denied. It Is specifically and unequivocally denied that Defendant had any right under the Agreement to terminate said Agreement lIor was Plaintiff in material breach thereof. COUNTERCLAIMS COUNT I - BREACH OF CONTRACT 37. The averments in paragraphs one (I) through sixteen (16) of Plaintiffs Complaint and seventeen (17) through thirty-six (36) of its response to Defendant's New Maller are incorporated herein by reference, 38. Admitted in port. Denied in port. The Agreement provides that Plaintiff agrees to provide twenty- four (24) hour emergency service for medications whenever necessary. 39, Denied. It is specifically and unequivocally denied that Plaintifffailed to provide twnety-four (24) hour emergency service for medications whenever necessary and therefore there was not a material breach of the Agreement. As to the remaining averments in this paragraph. after reasonable investigation. the Plaintiff is without knowledge or information sufficient to form a belief and strict proof thereof is demanded at the time of trial. if relevant, 40. Denied. It is specifically and unequivocally denied that Defendant at all times performed its obligations under the Agreement and all conditions precedent have heen perlilrmed by Defendant or otherwise occurred and therefore Defendant has no right to the recovery of the sums referred to in paragraph forty-one (41) of its counterclaim, 41. Denied. It is specifically and unequivocally denied that Plaintiff is in material breach of the Agreement and therefore Defendant Is not entitled to recover any direct or consequential damages. On the contrary, it is Defendant who materially breached the Agreement by failing to timely pay on Invoices issued by Plaintiff pursuant to 00739I-OOOO8/ApriI19. 1994/DWD/MH/34576 paragrapb nine (9) of the Agreement. and Plaintiff wa.~ ~ntitled to tak~ r~asonabl~ steps to ensure future payment rather than continue to accrue a substantial balance. WHEREFORE, Plaintiff respectfully requ~sts that judgm~nt be entered in its favor and against Defendant and that It be awarded appropriate costs and allorney's f~es. COUNT II . BREACH OF CONTRACT 42. The averments In paragraphs on~ (I) through sixteen (\6) of Plaintiffs Complaint and seventeen (\7) througb thirty-six (36) of its response to D~fendant's New Mall~r are incorporated herein by reference. 43. Admllted In part. Denied In purl. The Agreement provides that Plaintiff is to provide consultation services Including wrillen monthly reports. In said Agreement, Plaintiff did not agree to provide medical record reviews. 44. Denied. It is specifically and unequivocally denied that Plaintiff materially breached the Agreement in failing to provide consultation services. On the contrary. it was Defendant who initially breached the Agreement and Plaintiff could not be required to continue to p~rform professional services with no assurance tbat it would be paid pursuant to the terms of the Agreement. 45. Denied. It Is specifically and unequivocally d~nied that Plaintiff was in breach of the Agreement or was responsible for deficiencies issued by the Pennsylvania Departm~nt of Health to Defendant. Any such deficiency was due to the actions or inactions of Def~ndant including its material hreach of th~ Agreement with Plaintiff. 46. Denied. Defendant initially breached th~ Agreement by failing to satisfy its invoices from Plaintiff within thirty (30) days as required under the Agr~ement and has no legal rigbtto the r~covery of the sums alleged in paragrapb forty-five (45) of its count~rclaim. 47. Denied. It Is specifically and un~quiv{)cally d~ni~d that Plaintiff materially breacbed the Agreement and that Defendant bas suffered direct and cons~quential damag~s which may be recoverable from Plaintiff. 007391-00008/Aprilt9, 1994/DWD/MH/34576 WHEREFORE, Plaintiff respectfully requ~sts thatjudgm~nt he enter~d in its favor and against Defendant and that it be awarded appropriate costs and allorney's fees. COUNT \11 . BREACH OF CONTRACT 48. The averments In paragraphs one (I) through sixte~n (\6) of Plaintiffs Complaint and seventeen (\7) through thirty-six (36) of its response to D~f~ndant's N~w Maller ar~ incorporated ber~in by reference. 49. Denied. It is specifically and unequivocally denied that Plaintiff used improper billing procedures and that cbarglng interest on past due accounts constitut~s a material breach of the Agreement. Therefore, any monetary losses allegedly suffered by Defendant are its sole r~sponsihility. SO. Denied. It is specifically and unequivocally d~nied that D~f~ndant at all times performed its obligations under the Agreement and all conditions pr~c~dent were p~rtilrmed or otherwise occurred, and therefore, Defendant has no rlgbt to recover the sums referr~d l\l in paragraph tilrty-nin~ (49). 51. Denied. It is specilically and unequivucally denied that Plaintiff commilled any material breach of the Agreement including the alleged failure to use prop~r hilling procedures and improper charging of interest to Defendant and therefore, Defendant bas not suffered any direct and cunsequ~ntial damages to whieh it may be entitled to recover. WHEREFORE, Plaintlffrespectfuliy requests that judgment b~ entered in its favor and against Defendant and that It be awarded appropriate costs and allorney's fees. Resp~ctfully suhmitted. David W. Del c~ Allurn~y I.D. Nu. 41687 30 I Market Stre~t P.O. Bux 109 lemuyn~, PA 17043-0109 T~lephun~ (717) 761-4540 Allorn~ys lilr Fairview Professional Pharmacy .,"'}"~'>7:~~:Ij 00739t-OOOO8/AprilI9,1994/DWD/MH/34S76 VERIFICATION I, Peter S. Steele, President of Fairvlew Professional Pharmacy, Inc.. verify that the statements made in the foregoing Answer are true and correct to the hest of my knowledge, information and belief. I understand that false statements bereln are made subject to the penalties of 18 Pa.C.S. fi4904 relating to unsworn falsification to authorities. Date: 0'-1//1 /1 ~ . , -- ;~~Ie~ ...-.- ;OO-'~7~ 007391-00008/AprilI9, 1994/DWD/MH/34S76 CERTIFICATE OF SERVICE I, David W. Deluce, of the law firm of Johnson, Duffie, Stewart & Weidner, attorneys for Fairview Professional Pharmacy, Inc., do bereby certify that I s~rved a tru~ and correct copy of the allacbed Answer by United States Mail, first class, postage prepaid, upun the Cuuns~llisted b~low: Jack M. Mumford. Esquire Duan~, Morris & H~cksch~r P.O. Box 1003 Harrisburg, PA 17108.1003 DO,. 1 )dry / .". ~ :- .r >- ;!r:: ,..to.,; ~ t"rI7'J-~1 ~ ,'Y.~5~'~-~ N ""," w';'- . .',.c' . , _,,,. :r I.-'~'~/:F h. if '" ~ <>: .... """ 1<.;$ .... , .~ o~ i l;; ~~ ~o: ~ <( ~ ~ ~ i~~~ '12 I~ ~ ~ I ~ hd 0.."" g .., Sl1f~ !l~ ..... 'U ~ ~ ~ I ~ rEii:OI"i !O.... .... .... 0..... iii g tJ ~~ ~ .~ ~ 5 ~.. 0 ~ iil !;: .., ~ , Eo< I!! tll :S .>J.:.. b:~~~ Ii! 0.. lQ j :i <!I ~ l'l 0.. ~ .... ~ o ~ ~ 9 d I Vl 0 ~ , ~ ~ ~~ ~ 9 6: : 0 ~~ ~ f~ ~S~ I', t.~m). FAIRVIEW PROFESSIONAL PHARMACY, INC.. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff NO. 2481 CIVIL 1993 vs. CIVIL ACTION - LAW THE COURIERS-SUSQUEHANNA, INC. tla SUSQUEHANNA CENTER FOR NURSING AND REHABILITATION, Defendant FAIRVIEW PROFESSIONAL PHARMACY, INC., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 94-1040 CIVIL TERM v" CIVIL ACTION. LAW Plaintiff vs. THE COURIERS-SUSQUEHANNA, INC. tla SUSQUEHANNA CENTER FOR NURSING AND REHABILITATION, Defondant ORDER OE COURT AND NOW, this ~i day of July, 1994, upon presentation of the Stipulation for Consolidation entered into by counsol on behalf of the parties to both of the above cases, it is ordered that the abovo captioned actions are consolidated for purposos of discovery a/,;<:!,tii;Zy .1/' / / i / " ~OT , J. 7./~,"Lf V '<' -,- ' 1~5i~2~'.: FAIRVIEW PROFESSIONAL PHARMACY. INC., IN THE COURT OF COMMON PLEAS OF CUMBEBLAND COuNTY, PENNSYLVANIA Plaintiff NO. 2481 CIVIL 1993 vs. CIVIL ACTION - LAW THE COURIERS-SUSQUEHANNA, INC. t/a SUSQUEHANNA CENTER FOR NURSING AND REHABILITATION, Defendant Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 94-1040 CIVIL TERM FAIRVIEW PROFESSIONAL PHARMACY, INC.. vs. CIVIL ACTION. LAW THE COURIERS-SUSQUEHANNA, INC. tla SUSQUEHANNA CENTER FOR NURSING AND REHABILITATION, Defendant STIPULATION FOR CONSOLIDATION 1. Plaintiff, Fairview Professional Pharmacy, Inc., commenced an action against the Couriers- Susquehanna, Inc. tla Susquehanna Center for Nursing and Rehabilitation on August 4. 1993 and docketed to number 2481 Civil 1993. to recover damages for an alleged breach of contract by the Defendant. 2. Plaintiff commenced an action against the Couriers-Susquehanna, Inc. tla Susquehanna Center for Nursing and Rehabilitation in this Court on March 4, 1994 docketed to number 94-1040 Civil Term also seeking to recover damages for an alleged breach of contract by the Defendant. 3. Defendant in the second action filed counterclaims alleging that Plaintiff similarly committed a breach of contract arising out of the same contract. . ,. , 4. The above captioned c,lses involve common quustions of both law and lact. and much of the discovery Bnd evidence presented in connection with orle of the cases will bo applicable to discovery and trial of the other action in that: A. Both cases involve alleged breaches of contract by Ihe parties arising out of prescription and pharmaceutical services provided by Plaintiff to the Defendant's nursing home for guests and patients at the lacility; B. The witnesses and much of the material to be presented at trial shall be similar. 5. Plaintiff and Defendant by their undersigned counsel in each rospective action have agreed and stipulated that both cases shall be consolidated for trial and discovery. WHEREFORE, each of the parties to this Stipulation. by and through their undersigned counsel. have and do hereby agree that both of the above caplioned cases shall bo consolidated for trial and discovery. FAIRVIEW PROFESSIONAL PHARMACY. INC. ,"- . - I \ . ,/~, ,) / . / () I' ;; . I -. . I , .!\ r , . ,(- -'1_,,' (, l- n l., ~ rJ.. \~~( (( ~-!!l:'/ y David W. DeLuce. Esqui/e JOHNSON. DUFFIE, STEWART & WEIDNER Attorneys for Fairview Professional Pharmacy, Inc. THE COURIERS-SUSQUEHANNA, INC. tla THE SUSQUEHANNA CENTER FOR NURSING AND REHABiliTATION ~ Ron Ture. quire Attorney for The Couriers-Susquehanna, Inc. tla The Susquehanna Center for Nursing and Rehabilitation THE COURIERS-SUSQUEHANNA, INC. tla THE SUSQUEHANNA CENTER FOR NURSING AND REHABiliTATION tl Nx Jack M. Mumford, Esquire ! ; Bruce A. Gelting. Esquire \ DUANE, MORRIS & HECKSCHER Attorneys for The Couriers-Susquehanna. Inc. tla The Susquehanna Center lor Nursing and Rehabilitation r~r--""~""."'" PRAECIPE FOR L1~T~~G ~ASE FOR IR1Ah (Must be typewritten and submitted in duplicatu) TO THE PROTHONOTARY OF CUMBERlAtlD COUNTY Please list the following case: (Check one) for JURY trial at Ihe nexl term of civil courl. , . " )() lor Irial withoul a jury. , ....n..................n...u................................................nu.......................................................................................... CAPTION OF CASE (entire caption must be slated in full) (check one) , "" FAIRVIf.W PROFESSIONAL PHARMACY, INC., ( )() Assumpsit Trespass ::1 Trespass (Motor Vehicle) (Plaintiff) ----- (othe6--- vs. TIlli COURIERS-SUSQUT::lIANNA, INC. t/a SU~~ CENTER FOR NURSING AND REHABILITA'rION, The trial lis I will be called on Auqust 9 ,_~__91._ and _n/~_______,___.______ Trials commence on ___~~_wd)Cor _~99'!._,_ . (Defendant) Pretrials will be held on ___~~t:...lI...J- 994. _ ... . (Briefs are due 5 days before pretrials.) (The party listing Ihis case for Irlal shall provide forlhwith it copy of the praecipe to all counsel, pursuant to local Rule 214-1.) vs. ~: --~~i040 c~~v~~ TI;~-7------- 1993. Indicate the attorney who will try case for the party who flies Ihis praecipe: _Dilvid._W...Dc:Luce, _ Esquire Indicate trial counsel for other parties if known: Ron Turo,_~guj~_i!!lg JlI'J,,-ce_~:Uj.119,, ~~quir" ------------+:.l':: - -,.,. ----C(- "'-';::r~-- '-r---- ____________.__.._'____._h_____ ,___. "."fA- '~.--i'...'---. .' ... .. '~- -. .,. I '-- ;0 This case is ready lor trial. " I 1/(1,' tI.C ':1\ /". L _ Slgned..(, {. i. . -- '. L'b _~_ ___= Dnte: ~_7//'?~~L(! Print Name:..Davict 101. _I)(:(,u~~. , _ ... r",orney for: ('~lirvie.... Profumional Phau:ucy, Inc. 0....... . . .....--..-.. 66, FAIRVIEW PROFESSIONAL PHARMACY, INC, Plaintiff . , . , IN THE COURT OF CONMOll PLEAS OF CUMBERLAND COUllTY, PENNSYLVANIA CIVIL ACTION - LAW V . , THE COURIERS-SUSQUEHANNA, INC.: t/a SUSQUEHANNA CENTER FOR : NURSING AND REHABILITATION : NO. 2481 CIVIL 1993 / NO, 94-1040 CIVIL TERMv' ORDER OP' COURT AND NOW, August 10, 1994, at the request of counsel for the defendant, the above-captioned matter is hereby continued from the September, 1994 trial term, The prothonotary is directed to relist the case for the November, 1994, trial term, By the Court, /h-,.- L~, I (:, Harold E, Sheely, k'C~ 1'.J. David W, DeLuce, Esquire For the Plaintiff Ron Turo, Esquire Bruce Gelting For the Defendant Court Administrator :sld ~ en - c-.l ~>- "'.- -of ._ w...~ =;.1 U~;:.';r. L:ou.i 'L.;t:o~" \.~...o r.... ~, ':.':,~~~ " .o~:~ ~:',,,,,UI~ \.o'.:~ r;~.. ......... :.:> ~.:."t :c c.- o '" <.0 => .... '_'~J."'."" FAIRVIE\'I PROFESSIONAL PHARMACY, INC., plaintiff IN 'rilE COURT OF COHHOlf PLEAS OF CUHBERLlIND COUNTY, PENNSYLVANIA V. THE COURIERS-SUSQUEHANNA, INC. tla SUSQUEHANNA CENTER FOR NURSING AND REHABILITATION, Defendants CIVIL ACTION - LAW NO. 2481 CIVIL 1993 ' NO. 94-1040 CIVIL TERM - ORDER OF COURT AND NOW, this 18th day of October, 1994, the case was called for trial this date. Representing the parties was David \'I. DeLuce, Esquire, for the plaintiff and Bruce Gelting, Esquire, for the Defendant. This case was previously continued from the last term because there were outstanding discovery matters and it has now been relisted for trial again at the direction of the Court. The only outstanding matter at this point seems to be a deposition of the Plaintiff which has been scheduled for Honday, October 24th, 1994. To kl1ep this matter proceeding, the Court vlill now set a trial date for this case for Friday, December 23rd, 1994, at 9:00 a.m., and the Court directs that counsel submit the appropriate pretrial memorandums to the Court as provided by our rules of court. If there are any motions filed after the depositions have been taken on Honday, they should be filed with the Court Administrator and we will handle them as they are filed. Counsel have indicated that it should take no 10nCjer than one , . "'<";''';'<''~r~~'r (I" . ",,' '" ':/f :;;:;~:'~,:t'~['~':~~;.5r/:~~~~, l~'f:' :.' ~. ,.,' ,... . .........,' ,/ .'~,';.:~,,, / day to complete this case since it is a non-jury trial. By the court, , I \ I l ( ~ '~l' \ t . . J I. l " ~ Harold E. sheely, P.J. David W. DeLuce, Esquire For the Plaintiff Bruce Gelting, Esquire For the Defendant Court Administrator :lfh