HomeMy WebLinkAbout95-03933
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Exhibit A
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Inij .41.1011
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717 Ja..... FAX
L"1It%u.etiOlllI '1'h.LI fOCll is p&rt ot thII CUri:lerlani O:lunty t.\Irainq Ha.llI appl1-
cltiOn ~.. .rod llllat: be returTwd with ttw llppliaaticn. PlIIue ~1ete by ilgn-
i::q w dati:1q ill i:lll.iaatad an:! return with the CX1l\llllte ~l1aation.
.71 C1..._at Dn". c..tIaIe, PI. 1701l.UQI
l\at(tSSI~ ~
AI p&rt Clf ..ni..ion to ClIDrlllnd County NUnin<] HcmI, tl. ~li.delIe L'ld the
Rtsp:wsible Party ,"iRillg tht RId-dam eclaDtlqe w a.gr. to tt.a ~Ol1atin;1
1. It O~.land (b.m~ _Nu.....i.ng' Ibre dai:8rmint1 that the Ilesider:t i6 lIJe
~opd.at. or doel not q\l&llfy fer =.inq hl::N CUI!, the ~lSident will cl.iech&r~
!%till CUrrblrlan:S O:lunty ~.1nq ItIIlI!l follDw1ni . 30 clay DOtitiaat1on ot the ~ to
meIca &It:L''1'l&t.tIlillin9~.
2. If the PlfM~t: C.&MCt q.a1ify for ~ W1dar thIt Mecl.ical A81i1tanoe
Clr HlIcl.icue ~"'i'~-' the Alllident will pay aps:liClble &lly rate tar ea:e at t."le
I1llrlinl] fllCillty.
3. h Rupcnlible ;any (Qlarant.:lr) UIUr.. t.'1&1: the 1leIi.dC\t:'. 1:1111 will t.
paid fl'tn tr. ....idant'. llset:a/funda. It t." fl.e.ident cloeR net haw perlOllAl ~
Clr ...t1an s-nor.al ~ are ex!'Ia\:at:ad, tr.a 1la1pOl'..il:lle PL"'t:y willllllL'<a ae:9l:.c.eticn to
Hec1ical Alllist:ance en behAlf of t!-. Rit.i.dclt:. If th8 IliIlida.-:t ~I r.oe cv.:alify for
Hadi.cal AI.iat:anc:e tI.wlir.c;, thII ~1pClNIil:lA Party will L"'rllB1l cl.i1Char9a fer the
"'.1dent if t:r.a bill iI not: paid in a t:1Jrely mat"'..a::.
4. lA'\la.. ctherwile provided for or dIIi9l"..at:ed, the Relll..d.ent Appo1:1e. t:ha AC-
lIliniIt::ator of CIIl'berland County Nurling ~ t.ha lla.iCent:'. lMul attomBl', to AIIlt,
demar.d, I\l8 fClr, CX)llact, nc:r::IItW and recei".. all ~ o~ ncnay, de..~, aocounu,
UqlCieI, duel, ~JUt:ll or L"IY od1er ~ wh..ich are row or a.'1all hBrufec L....-Ql\.
dua, owin:;, payable clr I>>lor.qirlq to tiw Resident, draw clwc:k. clr dra!t:s up:ll\ end
withdraw fu.'lds fran any e.c=ts or c>>pclita in which the Rea1c!ant: has L~ 1:1tare1t;
..ll,qrant L"ld =-'W'I the Resident'll property, real AO:i perl!Onal, for .uch pric. u
tha &ttornay-in-fA.Ct: ~ but and to de all A.Ct:. to c.arry cut these power. end to
tllm CVIr Ill\Y lrOney 10 collec"...ed or rlCllivwd tc l:ht IicmI to be held 1."1 t:u.t for pay..
ment ot t.'1e Ilesiclant'l put. or fu~ure rreL"It.enance. So long as then 18 any lIUIlI ot
r.'OllIY due tl-.. n:rre f:an t."e Resident, the powr herein gra....ted 5ha1.l not be Illi:Jject:
to ravocatiOl'lI roCr s....all this f'OW!r be A.f!lIC"...Id by the Iladd.....t I s d.i.lIlIhility or ir,-
cape.cit.y, phy.ical or lIWlt&1,
S. ':hi Pa.~d.nt auti".oriZIJ C\."1'berhnd COI:."Ity t-.\:rsing fbre toO relellee in!cr-
mado:: CXll"oCL"'T'.!rq :.""03 ll' aSM":., real or pt:Kr.al, to the C\::T>be:-L1ll1d Cou.'\ty Bocd of
Alliltara .
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Exhibit B
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LAW O"ICII
YOFFE A YOFFE. P.C.
SUITII<12 . CITY TOWI.. I 101 CHur:olllT STlllET
HAlIlllluao.,,, 11101
(" 1) 1J~1'1
po WE" or ATTORNEY
K~OW AtL MEN BY THEBE PRESENTS, that I, S:OHEY A. WAOE~HEIM, of the
Co~ntv of Dauphin. p.nnlylyanlA. hav. ma~.. conltltutad and Appoint.d, and by
thai. p..I.nt. do m.k.. conatit~t. and Ippolnt HOWARD H. WAGENHIIH. of Dauphin
Co~nty, P.nnlylvlnia. my tru. And lawful atto~.y, fa. m. and In my n.ma And
on ~y ba~lf ;.n..ally to do and p.rfor.. all ...tt.rl .nd thlng., t.An.act All
bu.ln.ll. .aka, .x.c~t. And acknowl.d;. all contract., ord.rl, dl.dl,
writin;., .11~r'nc.I and in.crum.nt. which may b. r.quilit. or proplr to
.ff.ctuat. any ~att.r or thin; app.rtainin; or b.longing to ~'. with th. I'~'
pow.rl, and to .11 lntlnt. and purpoa.1 with th. .am. v.lidity a. 1 could, if
p~.onally pr.l.nt. .nd mora partic~l.rly, but without intan4i"9 to li~it any
of the for.;oin; pO..:I, to,
1. A.k, d.mand, r.coy.r Ind rac.iY. .~l and any lum or IU=. of
mon.y, d.btl, dU.I or .ff.ct., du., payabl., eomlng or b.longing, or which ~'Y
It any tlm. b. d~., payabl. and b.lon;ing to m., from any p.r. on or p.:lon.
.hat.o.v.r,
1. Sell all or any plrt of any gooda. .ff.cta or par.onal prop.rty
whatlo'Y.r which ar. in my pOI....ion or which mAY CO"I into my pO.I.I.Lon. on
.uch cra41t and for .~ch pric.I al h. ~y d... me.t,
3. P~rcll'I' any goodl, .p.01., .ft.ot I or p.r.on.l prop.rty
whAtlo.y.r, on my acco~t or contr.ct for ..rv1cI' of Iny kind on my .ocount.
for IUch prLe'l .nd In luch lmount al h. may d.lm m..t,
4. Inlur. and ca~a. Ln.uranc. to b. mid. on any It.ml or pa:c.~a of
r.al or p.nor..l property in which I may hay. an Lntlrelt th.r.in, at lueh
premium. an4 for .ucn rlakl al h. may d.em ~t,
5. To d.polit any ..oni.., Ln form of ch.ck., drsftl or oth.....U..
which may coral Into my handl, in any bank or building o. aavin'll and loan
...ocLAtlor., and to withdraw Iny fundi in I~ch in.titudon. which no.. or in
tll. future mey b.lon; to m.,
6. To Ilgn and .ndore. my na.,. to ch...ka parabla to my ord.r, an4
to mak.. draw. .cc.pt, andorll, d~.count or othlrwL.. d..l wLth any bLlll of
'MOnang., ch.ck., prom~l.orr not.1 or otller cORlm'l:'cial or m.rcantU.
inltl:'\lIUnter
7. ':'0 have .cc... to any and all .aE. dlpo.it box.1 r.g1ahrad in
ray"......'
I. To ..11, a..Lgn, tran.t.r .nd dhpol' of any and all Ill.r.. of
Itock. bor.da, lnctud~ng U.S. BavLngl Bondi, loan., mortglgel or oth.r
..curitl'l ragilt.r.d Ln ~y nama, and to collect and rec.ipt Eor alL inter.lt
and d1Yld.nd. du. .nd plyabll to ~I, or .ny part of the purch.e. pr1c. or
oth.r con.id'l:'ltlon,
,.
9. fa lr.v..t ~" my r.Am., .Lr. any aha=_ o! .tock, bondi, ..curlti..,
benk or bu11.1Lng or .lvLng. .nd loan account.. o. otller property. r.at 01:'
Plr.onal, end to vary luch lnvl.tm.nt. a. h., in hL. 101. dilcretLon may d..RI
but,
10. To ant.r into .nd upan all .nd lingul.r ~y r..l aatat.. (if anyl,
or any real ..tata acquir.d by ma in tha futur., whlr..o.v.r .Ltuata. and t~
L..I., managl and i~proYa the lama ar any p.rt th.r.of. and to r.p.ir ar
oth.rwU. Lmprov. ar aLt.r thl ..ma, or .ny part thlr.af, .r.d to bargdn.
..1L, grant and conv.y or ~ch.ng. any part or p.~t. af 1.1d raal altlca for
.lIch con.ida:'ltLon and upon luch t.rlll' II ha IhaU think Ht, and to ..acllta
Ind d.livar gaod and lufficLant d.adl ar oth.r in.trumantl for the convayanc.
or t:'lnlfar of tha ..m., with luch cov.nant. of wlrr.nty ar oth.rwLla .. h.
Ih.ll think fit. and to gLV' good ar.d .fflctual r.c.Lptl far ali 0:' any p.rt
af the purcha.e pric. or oth.r con.Lder.tion,
11. To contrlct wLth any p.r.on for l...ing for .lIch p.riodl, at IlIch
r.ntl and .lIbj.ct to luch canditiona al h. Ih.ll ... fit, all ar .ny r.al
..tat. in which I lIIay hlv, an int.r'lt, to l.t .ny .uch per.on inta pa...IILon
th.nof, to ...cuta all luch l...a. and contract. a. .h.ll b. n.c....ry or
prop.r in that b.half, to giv. no tic. to quit to .ny t.n.nt ar occupi.r
th.reof, .nd to r.ceiv. .nd r.covar frolll all tenant I Ind occupL.rl th.r.of or
af any part thareof all r.nt., arr..rl of r.nt .r~ IUIIII of mon.y whieh now ar.
or Ihall hlrlaftar b.colII. due and p.yabla in ralp.ct th.r.of: .nd .110 on
nanpaYIIl.nt th.r.of or af any part th.r.or to t.k. all n.a..aary or prop.r
m.anl .nd proc..dLngl for d.t.rmining the t.nancy Or aeoupatLon af .uch
t.nantl or occupi.r. and for .j.cting the t.nant or occupi.r. and r.cov.ring
the pO.II.lion th.r.of,
11. Ta co.....nc.. prol.clltl. di.cOntLnll. or d.r.nd .11 acHonl or
oth.r 1.g.L proc.ading. tauching my .It.t. or any p.rt whetloever. or touching
.ny m.tt.r Ln which I ".y b. in any wil. conc.rnad, ta I.ttl.. camprolllh. or
lubmit to arbUnd.on any dlbt, d....nd or othar right or matt.r due ... or
cancerning my .n.t. al h., 1n hh 101. dhcrat10n, .h.ll d..m bait .nd for
Iuch purpoI. to .x.cut. .nd d.liv.r luch r.l..I.I. diaoharg'l ar othlr
inltrum.nt. .. h. lIIay d..1II nee...ary and .dvilabl., and to ..tilfy mortgagal,
including the .xlcution af a good end lufricL.nt rll..I.' ar oth.r dilch.r;.
of luch mort gaga,
13. To .ucut., .cknowledg..nd file all tax r.turn. due from Ill',
including but not limit.d ta r.d.ral Incom. Tax .nd County ..r.onal Praparty
..ax ...~...m.,
l4. I~ g.n.ral, to do all oth.e .ct.. d..dl, Natt.rl and thi~il
~~Itl~evae 1n or .bout ~y I.tat., end prop.rty en~ Itfalcl and thLn;1 ~.raln,
.1thlc particularly OC g.n.rally d.lcrLbad, al tully .nd aff.ctually to III
int.ntl .nd purpa.el al I couLd do in ~y o~n pcop.r p.rlon if p.rlonlLlr
pC.llnt, 9ivlng to ..'( laid attorn.y pow.r to m.k. and .ubltLtuta undar h1~ an
attorn.y or attorneYI for .ll the pUCPOI" h.r.1n dllcrib.d, h.reby c.tifring
and coneLrming .ll that the eaid .ttorn.y or lubltitllt. or .ub.tltll~.a Ihall
do th.rlin by vlrtu. of th... pr.l.ntl'
15, In additian to tha pow.rs and dilcl:.Uon har.ln ,p.Clllly ;Lv.n
.nd conflrr.d upon him, .nd notwlthlt.ndlng Iny Ullga or cu.to~ to tha
contrary, to h.v, tha fuLl pow aI', riiht Ind .uthorLty to do, p.rform and to
cau.a to b. dona .nd plrfocm.d all luch .ct.. daad., meet.rl .r.d thill;1 in
ccnnlctJ.ol'\ wlt~. lilY property .n~ altaU .. h., ir. I:il .ol. dl.cr.t10n, Ihall
d..~ r...on.bl.. neea..ary and prop.r, a. fully. .fflctullly .nd Iblolut.ly ..
LE hi wlrl the ab.olut. own.r &r'd pO.I..lor th.r.of.
0lI-29-1995 pI 28
111 243 5383
CI.I"fI.CO.1lA.lR5E HOI'E
Sidney W.lenhe~ - 13209 Jun. 29. 1995
Patient: Pay AIIlaunt OWed
J anua1:Y 1994 $ 991.76
r.b1:Uary 1994 1,630.75
H.l'ch 1994 1,630.75
Ap1:ll 1994 1.630,75
May 1994 1.612.75
June 1994 1.612.75
Sub total. . . . . . . . . $9 i 109.n
Phanlac:y cha1:ge... 299. S5
Total due CCNH...... $9.409.06
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CUMBERLAND COUNTY
NURSING HOME,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
CIVIL ACTION - LAW
HOWARD H. WAGENHEIM,
Defendant
NO. 95-3933 CIVIL TERM
IN REI DEFENDANT'S PRELIMINARY OBJECTIONS
BEFORE SHEELY, P.J.. and OLER, J.
OPINION and ORDER OF COURT
Oler, J.
This is a case in which Howard H. Wagenheim, the Defendant,
signed a cumberland County Nursing Home admission agreement as
attorney-in-fact and as "responsible party" for his father, sidney
A. Wagenheim. Under the agreementr Defendant promised to assure
that his father's bill would be paid from his father's assets
and/or funds. Plaintiff has filed the instant action for breach of
contract and conversion, seeking to recover unpaid charges for
sidney A. Wagenheim's care at the nursing facility.
STATEMENT OF FACTS
Plaintiff's complaint makes the following averments of fact:
Plaintiff is the Cumberland County Nursing Home, a nursing facility
located at 375 Claremont Drive, Carliele, cumberland County,
Pennsylvania.
The Defendant is Howard H. Wagenheim, an adult
individual residing at 5254 Strothmore Drive, Mechanicsburg,
Cumberland County, Pennsylvania. Defendant is the son of Sidney A.
Wagenheim, who was a resident of the Cumberland County Nursing Home
from December 1993 through July 1994.
In the course of Sidney A. Wagenheim's admission to the
NO. 95-3933 CIVIL TERM
Cumberland County Nursing Home, an admission agreement dated
December 2, 1993, was executed by the Defendant on behalf of his
father as attorney-in-fact and as "responsible party" in connection
with his father's care, assuring that his father's bill at the
Nursing Home would be paid from his father's assets and/or funds.
More specifically, the agreement stated that "[t]he Responsible
Party (Guarantor) assures that the Resident's bill will be paid
from the Resident's assets/funds. If the Resident does not have
personal funds or when personal funds are eXhausted, the
Responsible Party will make application to Medical Assistance on
behalf of the Resident. If the Resident does not qualify for
Medical Assistance funding, the Responsible Party will arrange
discharge for the Resident if the bill is not paid in a timely
manner." Defendant served as attorney-in-fact for Sidney A.
Wagenheim pursuant to a power of attorney executed in January of
1992.
By notice dated January 20, 1994, the Defendant was informed
that Sidney A. Wagenheim's level of care was being changed from
skilled care to intermediate care effective January 21, 1994.
Pursuant to the admission agreement, Plaintiff alleg~s, Defendant
as the responsible party was obligated to pay over to Cumberland
County Nursing Home all income Sidney A. Wagenheim received during
his admission in order to offset the costs not covered by medical
assistance. The Defendant was given the opportunity to appeal the
2
NO. 95-3933 CIVIL TERM
determination of the level of care necessary for Sidney A.
Wagenheim; however, no such appeal was filed.
During the period of Sidney A. Wagenheim's residence at the
CUmberland County Nursing Home, the Defendant was receiving Sidney
A. Wagenheim's monthly social security payments, Veteran's
Administration benefits and pension cheeks, totalling more than
$1,600.00 per month. Notwithstanding the terms of the admission
agreement, Defendant failed to apply the income received to
Plaintiff's charges for the months of January through June of 1994.
Despite repeated written demands, Defendant has refused to pay the
total amount of $9,409.06 owing to the Plaintiff, or any portion
thereof.
On August 30, 1995, Defendant filed the fOllowing preliminary
objections I (1) a demurrer based Upon nonliability of an agent
acting on behalf of a disclosed principal; (2) a demurrer based
Upon the legal non-assignability of Sidney A. Wagenheim's income;
and (31 a motion for a more specific complaint, requesting that
Plaintiff be directed to plead the type of plan from which Sidney
A. Wagenheim received his pension check and to state more
specifically whether the plan was part of the Pennsylvania State
Retirement System or was some other plan qualifying under ERISA.
Defendant's preliminary objections are currently before this
court for disposition.
3
NO. 95-3933 CIVIL TERM
STATEMENT OF LAW
Demurrer, "In order to sustain a demurrer, it is essential
that an opponent's pleading indicate on its face that his claim ...
cannot be sustained. The question to be decided is ... whether,
upon the facts averred, it shows with certainty that the law will
not uphold the pleading." 2 Goodrich Amram 2d S1017(b) :27, at 271
(19911.
"Since sustaining a demurrer resulte in a denial of a
pleader's claim ... a preliminary objection in the nature of a
demurrer should be sustained only in cases that clearly and without
a doubt fail to state a claim for which relief may be granted. If
the facts as pleaded state a claim for which relief may be granted
... under any theory of law, then there is sufficient doubt to
require that a preliminary objection in the nature of a demurrer be
rejected." rd. at 271-72.
Motion for a more scecific cleadinq. "The question to be
decided when a preliminary objection in the form of a motion for a
more specific pleading is interposed ... is whether a pleading is
sufficiently clear to enable an opposing party to prepare a
response ...." 2 Goodrich Amram S1017(b):21, at 265 (1991).
"A preliminary objection in the form of a motion for a more
specific pleading may not be used to secure details of which the
objecting party has as much knowledge ae his or her opponent or
4
NO. 95-3933 CIVIL TERM
more." Id" at S1017(b):22 at 266-67. "The existence in
Pennsylvania of extensive and liberal rules of discovery limits the
scope of the motion for a more specific pleading. In general, when
a party states a case in a manner that fully advises an opponent of
the nature of the case and of the matters with which the opponent
will be confronted at trial, there is no need for a motion for a
more specific pleading; the opponent should seek discovery if he or
she needs more information to prepare a response." Id.,
S1017(bl:24, at 268.
Principles of contract interpretation. The primary objective
of contract interpretation is to ascertain and effectuate the
intent of the parties as it is reasonably manifested by the
language of their written contract. Toomb NJ Inc. v. Aetna
Casualty & Surety Co., 404 Pa. Super. 471, 476-77, 591 A.2d 304,
307 (1991). The words of a contract which are unambiguous should
be construed according to their plain and ordinary meaning.
Harford Mutual Ins. Co. v. Moorehead, 396 Pa. Super. 234, 240, 578
A.2d 492, 495 (1990). The court must assess the writing as a
whole, and not in discrete units, when determining whether a
writing is ambiguously drafted. Ready Food Prod., Inc. v. Great
Northern Ins. Co., 417 Pa. Super. 643, 646, 612 A.2d 1385, 1387
(1992) . In construing a contract, a court should adopt the
interpretation that is the most reasonable and probable, bearing in
mind the objectives which the parties intended to accomplish
5
NO. 95-3933 CIVIL TERM
through the agreement. Urenfield Homeowners Ass'n. v. DeYoung, 419
Pa. Super. 621, 627, 600 A.2d 960, 963 (1991).
APPLICATION OF LAW TO FACTS
With respect to Defendant's preliminary objections in the form
of a demurrer the court believes that the facts which Plaintiff has
alleged in its complaint are sufficient to state claims upon which
relief can be granted. I An arguable interpretation of the language
of the written admission agreement is that the Defendant promised
to pay for the care that his father was receiving at the nursing
home through utilization of his father's assets and/or other funds.
The Plaintiff alleges that the Defendant failed to do so for the
The court is unable to
characterization of the admission
"assignment" of Sidney A. Wagenheim's
Administration and pension benefits.
An assignment has been defined as "[aJ transfer or making
over to another of the whole of any property, real or personal, in
possession or in action, or of any estate or right therein." In re
Lease-A-Fleet, 141 e.R. 853, 862 (E.D. Pa. 1992), quoting Black's
Law Dictionary 109 (5th ed. 1979). When an assignment is made the
property rights become vested in the assignee so that the assignor
no longer has any interest in the account. Salem TrUst Co. v.
Manufacturers Finance Co., 264 U.S. 182, 44 S. Ct. 266, 68 L. Ed.
628 (1924), Furthermore," [aJ promise to pay a debt out of a
particular fund does not constitute an assignment of the fund." In
re Lease-A-Fleet, 141 B.R. 853, 862 (E.D. Pa. 19921.
agree with Defendant's
agreement as a prohibited
social security, Veterans'
In this caee, control over Sidney A. Wagenheim's income was
not relinquished to Cumberland County Nursing Home; rather, the
Defendant was to receive the funds, and then subsequently disburse
the funds to Cumberland County Nursing Home to offset any costs not
covered by medical assistance. Under these circumstances, the
admission agreement cannot be said to constitute an assignment as
opposed to a mere contract for the payment of money.
6
NO. 95-3933 CIVIL TERM
months of January through June of 1994, and that the Defendant
received and retained the monthly income of his father for those
months. The court believes that these allegations, along with the
language of the contract, are sufficient to state claims for breach
of contract and for conversion.
For these reasons the court
believes that Defendant's preliminary objections in the nature of
a demurrer must be denied.
with regard to Defendant's contention that plaintiff's
complaint lacks sufficient specificity concerning the type of plan
from which sidney A. Wagenheim received his pension check, it
appears that the allegations which remain are sufficiently clear to
enable the Defendant to prepare a defense. The Defendant has, or
should have, as much knowledge as, or better knowledge than,
plaintiff has with regard to the type of pension plan involved. If
Defendant is in need of more information, discovery is an available
resource.
For these reasons, the following order will be enteredl
ORDER OF COURT
AND NOW, this <~?l/- day of December, 1995, upon careful
consideration of Defendant's Preliminary Objections, as well as the
briefs and oral arguments presented on the matter, the preliminary
objections are DENIED.
BY THE COURT,
..0/ .9. I, <l!..J_tL.' Ht...J
J. Wesley Ole Jr., J.
7 \'" t'
vs.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 95-3933 CIVIL TERM
CIVIL ACTION . LAW
CUMBERLAND COUNTY NURSING HOME,
Plaintiff
HOWARD H. WAGENHEIM,
Defendant
ANSWER AND NEW MATTER
2 of the Admission Agreement provides that
"if the resident cannot qualify for coverage under the Medical Assistance
or Medicare programs, the resident will pay applicable daily rate for
care at the nursing facility". The resident is Sidney A. Wagenheim and
not Howard H. Wagenheim. paragraph 3 of the Admission Agreement only
requires the responsible party to pay the resident's bill out of the
1. Admi tted.
2. Admitted.
3. Admitted.
4. Admitted.
5. Admitted.
6. Denied. paragraph
resident's assets/funds.
If those assets/funds did not exist then
paragraph 3 of the Admission Agreement requires the responsible party to
make application to medical assistance on behalf of the resident or
arrange for discharge of the resident if the bill is not paid in a timely
manner. By way of further response any assignment of social Security
income, State pension income or Veterans Benefits is against federal and
state law and is thereby void.
7. It is denied that Howard Wagenheim had the opportunity to
appeal the determination of the level of care necessary for Sidney
wagenheim. The decision to reduce the level of care from skilled to
unskilled (and therefore from covered by Medicare to uncovered) was made
by Cumberland County Nursing Home and was not appealable.
What was
appealable was whether Medicare would be required to pay for Sidney
Wagenheim's unskilled care. By way of further response, Sidney Wagenheim
was opposed to being removed from skilled care and Howard Wagenheim
voiced this objection to Cumberland County Nursing Home on several
occasions.
8. Admitted in part and denied in part. Howard Wagenheim only
received Sidney Wagenheim's payments as the agent of Sidney Wagenheim.
Until spent, the money only belonged to Sidney A. Wagenheim.
9. Paragraphs 1-8 are incorporated herein by reference.
10. Denied. Cumberland County Nursing Home knew Howard Wagenheim
was acting as Power of Attorney for Sidney Wagenheim and therefore the
logical interpretation of the contract is that Howard Wagenheim could
only pay Cumberland County Nursing Home out of Sidney Wagenheim's assets
if those assets existed and most importantly, if Sidney Wagenheim
authorized payments of his assets to be made to Cumberland County Nursing
Home. By way of further response, Sidney Wagenheim was upset about being
moved into intermediate carp. thereby cancelling Medicare coverage and
had directed Howard Wagenheim not to pay Cumberland County Nursing Home.
By way of further response any assignment of Social Security income,
State Pension income or Veterans Benefits is against federal and state
law and is thereby void.
11. It is denied that Howard Wagenheim had any duty to pay income
of Sidney Wagenheim to plaintiff. Paragraph 3 requires Howard Wagenheim
to pay Sidney Wagenheim's bill to plaintiff out of Sidney Wagenheim's
assetS/funds. Assets/fund8 are a balance sheet item and are different
from income which in accounting terms is an income statement item. By
suggesting that Howard Wagenheim had to pay plaintiff off the top out of
Sidney Wagenheim's income amounts to an illegal income attachment by a
credi tor.
12. Denied.
Howard Wagenheim is not responsible for the
aforesaid Charges as set forth herein. Paragraphs 1 through 11 are
incorporated herein by reference.
~ .
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13. Admitted in part and denied in part. It is denied that
Howard Wagenheim owes any money to plaintiff. It is admitted that Howard
Wagenheim refuses to pay his father, Sidney Wagenheim's bill to
Cumberland County Nursing Home for which Howard Wagneheim is not
personally liable.
14. Paragraphs 1-13 are incorporated herein by reference.
15. It is denied that Howard Wagenheim ever agreed to turn over
all income to plaintiff. Any attempt by plaintiff to suggest that Howard
Wagenheim had a duty to turn over any income to plaintiff amounts to an
illegal income attachment. By way of further response, Howard Wagenheim
was only obligated to pay plaintiff out of the assets of Sidney Wagenheim
if those assets existed and if Sidney Wagenheim authorized the same. It
is denied that the defendant received and retained the monthly income of
Sidney Wagenhp.im. At all relevant times, until spent, Sidney Wagenheim' s
monthly income was controlled by Sidney Wagenheim himself.
16. Denied. Sidney Wagenheim's income belongs only to Sidney
wagenheim and any other result would suggest an illegal income
attachment. Sidney Wagenheim directed the expenditures of his money as
he saw fit. As a creditor of Sidney Wagenheim, Cumberland County Nursing
Home like any other creditor had the right to obtain a judgment against
Sidney Wagenheim and attached assets of Sidney Wagenheim as woulu any
other credi tor, however, Cumberland County Nursing Home is not so
privileged a creditor as to be legally justified in attaching the income
of Sidney Wagenheim.
17. Denied. Howard Wagenheim was acting in accordance with
Sidney Wagenheim's instructions not to pay Cumberland County Nursing Home
and therefore no misappropriation occurred.
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NEW MATTER
18. Paragraphs 1 through 17 are incorporated herein by
refsrence.
19. Nothing in the Admission Agreement requires that Howard
Wagenheim must payout of his own assets any amounts to Cumberland County
Nursing Home.
20. Nothing in the Admission Agreement requires Howard Wagenheim
to pay Cumberland County Nursing Home assets belonging to Sidney
Wagenheim if Sidney Wagenheim did not authorize the same.
21. By operation of federal law the right to receive Social
Security benefits and Veterans Benefits are not assignable and, once
paid, cannot be levied upon by a creditor with the status of Cumberland
County NurSing Home.
22. By operation of state law, the right to receive a state
pension is not aSSignable.
WHEREFORE, defendant requests that Plaintiff's Complaint be
dismissed.
Respectfully Submitted
YOFFE ~;YOFFE, P'S,' d~
By ,6;'4. t..J!':T /?/ Jf:Irx
.;;!EF~~~Y"N. YOFP'E, ESQUIRE
Attorney for Defendant
214 Senate Avenue, Suite 203
Camp Hill, PA 17011
(717) 975-1838
Attorney ID No. 52933
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009117.0000711InUlry II. 1996IILIIIMH/.9106
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 95-3933 CIVIL TERM
CUMBERLAND COUNTY NURSING HOME,
vs.
CIVIL ACTION - LAW
HOWARD H. WAGENHEIM,
Defendant
REPLY TO NEW MA.lTER
AND NOW, this 23rd day of January, 1996, comes the Plaintiff, Cumberland County Nurslnll Home by
and throullh Its undersillned attorneys, Johnson, Duffie, Stewart & Weidner, and replies to the Defendant's New Matter
as follows:
18. Paragraphs one (I) throullh seventeen (17) of Plaintiffs Complaint are Incorporated by reference as
If the same were more fully set forth atlenllth herein.
19. Denied. The Admission Allreement attached to Plaintiffs Complaint speaks for Itself. By way of
further answer the Admission Agreement required Howard Wagenhelm to turn over assets of Sidney WlJlenhelm to
offset the cosL~ Incurred by the nursinll home that were not relmhursed throullh Medicare. The assets received by
Howard Wagenhelm on behalf of Sidney Wagenheim. were not Howard Wallenhelm's assets, unless and until he
converted them for his own use. which Is alleged in the Plaintlfrs Complaint.
20. Denied. The Admission Allreement signed hy Howard Wallenhelm on behalf of Sidney WlJlenheim
required Howard Wallenhelm to turn over asseL~ of Sidney Wagenhelm which he received in order to offset the costs
Incurred by the nursing home and not reimbursed through Medicare medical assistance.
21. Denied. The averments of paragraph twenty-one (21) constitute a conclusions of law to which no
responsive pleadlnllls required. To the extent that the averments of paragraph twenty.(me (21) are deemed factual in
nature, the same are demed and strict proof thereof Is demanded at the time of trial. By way of further answer, the
averments setliJrth In paragraph twenty-one (21) were likewise alleged hy the Defendant In his preliminary objections
and have heen addressed in the Opinion and Order of Court dated Decemher 27, 1995 denying the same.
009117-OOOO7IllnUlry la, 1996/1LH/M11I49a06
22. Denied. Th~ averments of parallraph twenty-two (22) constitute a conclusions of law to which no
responsive pleadinllis required. By way of further answer s~e Plaintifrs reply to parallraph twentY-ilne (21).
WHEREFORE, Plaintltl". Cumherland County Nursing Home, respectfully request that this HOllOrable Coun
enter judllment in lis favor and allainst Defendant, Howard H. Wagenhelm in the amount of $9,409.06, plus Interat
at six (6~) percent from June 30. 1994, and cosls.
Date:
I /Z'i fl~
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JOHNSON, DUFFIE, STEWART'" WEIDNER
~a,"'
avid W. eLuce
Allorney I: . No. 41687
Joseph L. Hitchings
Allorney 1.0. No. 65551
301 Market Street
P.O. Box 109
Lemoyne, PA 17043~109
Telephone (717) 761-4540
Allorneys for Plaintiff
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009l17-oooG7/lunc 6, 1996IDWD/MH/53121
CERTIFlCA TE OF SERVICE
I, David W. DeLuce. of the law firm of Johnson. Duffie, Stswart 8. Weidner, attornays for
Cumberland County Nursing Home, do hereby certify that I served a true and correct copy of the attached
Praecipe to Settle end Discontinue by United States Mail. first class, postaga prepeid, upon the Counsel
listed below:
Jeffrey N. Yoffe, Esquire
Yoffe 8. Yoffe, P.C.
214 Senate Avenue, Suite 203
Cemp HIli. PA 17011
Date:
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