HomeMy WebLinkAbout95-04464
VIVIAN RODE,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY. PENNSYLVANIA
95.4464 CIVIL TERM
CIVIL ACTION . LAW
vs.
DR. GREGORY H. KADEL and
ENDODONTICS ASSOCIATES.
Defendants
IN RE: DEFENDANTS' MOTION TO COMPEL ANSWERS TO INTERROGATORIES
AND PRODUCfION OF DOCUMENTS
ORDER
AND NOW, this
i' day of September, 1996, a rule Is issued on the plaintiff to
show cause why the relief requested In the wllhin motion ought not to be granted. This rule
rcturnable twcnty (20) days after scrvlce.
BY THE COURT,
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Kcvin A. Hess. J.
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r. Lee Shipman, laquire
1.0. 155815
GOLDaIRD, KA~'MAH . Sal.MAH, '.C.
320 Market street
strawberry square
P.O. BOll 126S
Harriabur9. PA 1710S-1268
Telephone' (717) 234-4161
Attorneye for Defendanta
I IN THE COURT OF COMMON PLEAS
I CUMBERLAND COUNTY, PENNSYLVANIA
I NO. 4464 CIVIL, 1995
I
I CIVIL ACTION - LAW
I
I JURY TRIAL DEMANDED
VIVIAN RODE,
plaintiff
VII.
DR. GREGORY H. KADEL and
ENDODONTICS ASSOCIATES,
Defendantll
DJrIIDUT" OIlIOOIlY I. DOlL NlD lIIDODOIITIC' aIlOClAtI'"
110'1'1011 TO COII"L NI..n. TO IIlTI..OOaTOIlIII UD
a .10U"'f '0. ,aODUCTIOM 0' DOCUIIIII'l'I
UD MOW, come the Defendants, Dr. Gregory H. Kadel and
Eniodontics Assooiates', by their attorney., Goldberg, Katzman ·
Shipman, P. C. who hereby move This Honorable court to compel
plaintiff, Vivian Rode, to produce Documents and Answer
Interrogatories. Grounds for said Motion are as folloWSI
1. This is a case alleging dental malpractice, which was
oommenced on August 21, 1995.
2. Plaintiff alleges, generally, that Dr. Kadel negligentlY
performed a root canal on August 20, 1993, and as a result
plaintiff suffered injuries to her jaw and nerves.
3. plaintiff alleges, generallY, that Endodontics Associates
ill liable for damages lIuffered by her under theories of negligence,
Respondeat superior, and breach of contract.
4. On April 19, 1996, Dr. Kadel and Endodontics Associates
.
,
served a Request for production of Documents and a Request for
(Attached as
Answers to Interrogatories upon the plaintiff.
Exhibit "A").
5. On June 4, 1996, after receiving no response from
plaintiff, counsel for Dr. Kadel and Endodontics Associates sent a
letter to plaintiff's counsel requesting the production of
documents and Answers to Interrogatories within two weeks or an
appropriate Motion would be filed. (Attached as Exhibit liB").
6. On June 20, 1996, Plaintiff's counsel requested a three
week extension from counsel for Dr. Kadel and Endodontics
Associates to finalize the Answers to ths requested discovery
material. (Attached as Exhibit "C").
7. On June 25, 1996, counsel for Dr. Kadel and Endodontics
Associates informed plaintiff's counsel that such an extension
would be granted. (Attached as Exhibit "0").
8. Though the extension has long lapsed, plaintiff has still
not produced the requested discovery material.
9. pursuant to Pa.R.C.P. No. 4019(a)(1)(viii),
. . . The court may, on Motion, make an
appropriate Order if . . . (viii) a party or
person otherwise fails to make discovery or to
obey an Order of Court respecting discovery.
10. pursuant to Pa.R.C.P. No. 4019(c),
. . . The court, when acting under subdivision
(a) of this Rule, may make . . . (5) such
order with regard to the failure to make
discovery as is just.
WHEREFORE, Dr. Kadel and Endodontics Associates respeotfully
request that This Honorable Court issue an Order compelling
plaintiff, Vivian Rode, to Produce Documents and Answsr
Interrogatories which were served upon her on April 19, 1996.
Respectfully submitted,
GOLDBERG, KATZMAN' SHIPMAN, P.C.
BYI
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Attorney I.D. 1072
320 Market street
P.O. Box 1268
Harrisburg, PA 17108-1268
(717) 234-4161
Attorneys for Gregory H. Kadel
and Endodontios Associates
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GOLDBIRG, ~TIMAN , SHIPMAN, P.C.
320 Harkat Straat
P.O. Sox 126B
Harrlaburv, PA 17108-1268
Ta1aphona. (717) 234-4161
AttornaVI for Dafandantl
VIVIAN RODE,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
vs.
NO. 4464 CIVIL, 1995
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
DR. GREGORY H. KADEL and
ENDODONTICS ASSOCIATES,
Defendants
REOUEST FOR PRODUCTION OF DOCUMENTS
TOI David W. Knauer, Esquire
411A East Main street
Mechanicsburg, PA 17055
Attorney. for Plaintiff
Pursuant to Pennsylvania Rules of civil Procedure No. 4009,
plea.e submit for inspection und copying to the law offioes of
Goldberg, Katzman' Shipman, P.C., 320E Market street,
Harrisburg, Pennsylvania, within thirty (30) days from the date
hereof, the following:
1. All photographs obtained during the course of your
investigation of the matters relating to this lawsuit.
2. copies of all statements obtained from any witnesses
or memoranda of conversations with witnesses or recordings of
witnesses' statements made or obtained during the course of the
investigation or mBtters relating to this litigation.
,
.
3. Copies of all dootors' reports, dental reoords, dental
billsl employment records or other information relevant
to th1s lawsuit which you have in your custody or possession and
whioh would have a bearinq on the olaims asserted in this
litiqation.
4. copies of all experts' reports made or seoured by you
in conneotion with your investiqation of this acoident.
GOLDBERG, KATZMAN , SHIPMAN, P.C.
By
. Lee
320 Market street
P.O. Box l268
Harrisburq, Pennsylvania l7l08
Attorneys for Defendant.
DATE I April 19, 1996
.
.
CERTIFICATE OF SERVICE
I hereby cartify that a copy of tha foregoing has been duly
.ervsd on the following coun.el of record, by depo.iting the same
in the united state. Mail, po.tage prepaid, in Harrisburg,
Pennsylvsnia, on April 19, 19961
David Knausr, Esquire
411A East Main streat
Mechanic.burg, PA 17055
Attorneys for plaintiff
GOLDBERG, KATZMAN , SHIPMAN, P.C.
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320 Market street
P.O. Box l268
Harrisburg, Pennsylvania 17108
Attorneys for Defendants
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r. Lee Shipman. lequire
1.0.'1 07252
GOLDBIRG, KATIMAN , SHIPMAN, P.c.
320 Market Street
P.O. Box 126B
Harri.bur;, PA 17108-1268
T.lephone. (7171 234-4161
Attorn.y. for D.fendant.
VIVIAN RODE, . IN THE COURT OF COMMON PLEAS OF
.
plaintiff . CUMBERLAND COUNTY, PENNSYLVANIA
.
vs. I
. NO. 4464 CIVIL, 1995
.
DR. GREGORY H. KADEL and I CIVIL ACTION - LAW
ENDODONTICS ASSOCIATES, I
Defendants I JURY TRIAL DEMANDED
INTERROGATORIES PROPOUNDED BY DEFENDANTS
FOR ANSWER BY THE PLAINTIFF
TOI David Knauer, Esquire
411A E.st Main street
Mechanicsburg, PA 17055
Attorneys for Plaintiff
PLEASE TAXE NOTICE that you are hereby required, pursuant to
Pennsylvania Rule. of civil Procedure No. 4001, et seq., to serve
upon the undersigned within thirty (30) days after .ervice of
this Notice, your Answers in writing and under oath to the
following Interrogatories.
. GOLDBERG, KATZMAN , SHIPMAN, P. C.
By
. e pm, squ re
320 Market street
P.O. Box l268
Harrisburg, Pennsylvania l7l08
Attorneys for Defendants
Telephone: (7l7) 234-4l6l
DATE I April 19, 1996
1. state I
(a) Your full name and each other name which you
have ueed or by which you have been known/
your date and place of birth/ your pre..nt
r..idence addre.. and eaoh other addr... and
period of re.idence whioh you have had durin;
the pa.t five (5) years/
(b) Your Social security Number/ and
(c) Nam. of all .pou.e. and the inclu.ive date.
of your .arria;e relation.hip a. to each
spouse named.
ANSWER I
2. state the name and address of each school,
college or other eduoational facility which
you have attended, li.ting the date. of
attendance and course. of .tudy, including
all profe..ional, trade, on-the-job, or any
othar .peoialized training which you have
received.
ANSWER:
3. state the names, addressas, relationship and
age. of all parson. dependent upon you for
support or maintenance, or to whom you
contributed support or maintenance, listing
for each .uch person the nature and amount of
.uch eupport or maintenance paid or
contributed in the year preceding the
incident referred to in your complaint.
ANSWER I
.
4. state each employment position held during
the last ten (10) years and tor eachl
ea) The name and address ot your
e.ployer, ths period ot e.ployaent,
position held, and nature ot work
being pertor.ed, and the na.e ot
your iamediate supervisor.
(b) Hours worked per week, and your
weekly gross and net inoo.e.
ANSWER I
5. state the full name and last known address,
givinq the street, street number! city and
state, of each person whom you wlll call as
an expert witness at the trial of this
matter, includinq medical/dental witnesses
identified with reqard to the issues of
liability (L) and damages (D), and with
re9ard to each expert state I
(a) The subject matter on which the
expert Is expected to testifYI
(b) The substanoe of the faots and
opinions to whioh the expert is
expected to testify I
(c) A summary of the qrounds for each
opinion I
(d) Whether the faots and opinion. to
which the expert is expected to
te.tify are contained in any
written report, memorandum, or
other document, and, if so,
identify the names and addresses of
the pre.ent custodian of said
report, memorandum or other
document. (A copy of the expert
report may be attaohed in lieu of
answerinq Interroqatory 5.)
ANSWER I
6. other than those witnesees identified in No.
5 above, state the name., residence and
bu.iness .ddr....., .nd .mploy.r. of .ach
per.on whoa you will c.ll tu testifY on your
b.half .t the trial of this matter, and
briefly .t.t. the subj.ot matter of their
propo.ed t..timony.
ANSWERI
7.
ANSWERl
L
.
Do you, or anyone aoting on your behalt,
believe that any written statemente (ae
detined by the Rules ot civil procedure) or
any oral etate.ent oonoerning thi. aotion or
it. eubjeot matter haG been given ~ or
obtained tro. any per. on?
It so, identify (by stating the na.e, last
known ho.e and busine.. addre..)l
(a) Eaoh per.on who gave an oral
.tate.ent and when, where, and to
whoe it waG made, and the .ub.tanoe
ot eaoh such state.ent.
(b) Any per.on who haG cu.tody of
any written .tate.ent. or tho.e
reduoed to a writing or otherwiee
reoorded.
8. state in detail the nature of all injuries
you claim you .Uftered a. a result of the
incident referred to in you complaint and
state the extent and nature of any disability
arisin9 theretrom.
ANSWER I
9. Please state the names and addresses/ if known, of
all dental health care provider. (dentists, oral
surgeons, endodontists, periodontists,
orthodontist., etc.), that you have consulted with
and/or received treatment from the date of your
birth u~ to until the present time. For each
dental oare provider, state the approximate date.
of treat.ent, what the treatment wa., who referred
you to that particular dental care provider, and
the reason the treatment was terminated.
ANSWER I
.. .
10. Identify all hoepitals, olinios, or other
medical faoilities in whioh you have been
confined or reoeived out-patient treatment
becau.e of the injuries or oonditions you
all.Qe in your complaint and include the name
and addre.. of the in.titution, the dates of
oonfine..nt and outpatient treatment, and the
treatment and services rendered.
ANSWER I
. ., ,
" .
11.
with regard to the institutions identified in
the previous Interrogatory, identify the
institution given the name of the dental care
provider who performed or gave the treatment
or procedures, the date when given or
performed and the nature of the treatment,
examinations, evaluations and/or operations
performed.
ANSWER:
.. .
12.
ANSWERI
I ., .
When, where and by whom were you last examined
and/or qiven dental treatment concerninq the
injuries or oonditions alleqed in your complaint?
" .
13. state how each injury you sustained affected
your normal aotivities, describe in detail
the nature of 8uch restraint and indicate any
present disability and the percentaqe, if
permanent.
ANSWER:
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"
14. state the nature and e.tiMated costs of all
future Medioal/dental attention, evaluation
and treatment which you have been advised you
will require .e a reeult of injuries
alleQedly euetained in the incident and state
the na.e and addreae of the individual
furniehing auch opinion and estimate of
coete.
ANSWER I
. "
.. .
15.
If you were employed on the date of the
incident and make claim for lost wages or
1088 earninq oapacity, state the basis upon
whioh you intend to compute your lost
earnin9s or lost earninq capacity inclUdinq
dates missed from work, rates of compensation
and jobs you contend you could have
performed.
ANSWER:
" ,
ANSWER I
I ., ,
16.
As to each of your alleged damages, including
medical/dental expenses, state whether the
expenses incurred have been paid and, if so,
the source of payment. (Include duplicate
payments)
GOLDBERG, KATZMAN , BHIPMAN, P.C.
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320 Market ~
P.O. Box 1268
Harrisburg, Pennsylvania l7l08
Attorneys for Defendants
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CERTIFICATE OF SERVICE
I h.r.by c.rtify that a copy of the foregoing ha. be.n duly
.erv.d on the following coun..l of r.cord, by d.poeiting the ....
in the unit.d Stat.. M.il, poetage pr.paid, in H.rri.burg,
Penneylv.ni., on April 19, 19961
D.vid Knau.r! Eequir.
411A E.et M.ln str..t
Mechaniceburg, PA 17055
Attorneye for Pl.intiff
GOLDBERG, KATZMAN , SHIPMAN, P.C.
e pm.,
320 Market Stree
P.O. BOK l268
Harrisburg, Penneylvani. l7l08
Attorneys for Defendants
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Jun. 4, 1"6
David W. ~au.r, I.quir.
411A I..t Main str..t
M.chania.buri, PA 17055
In r.1
Rod. v.. Kad.l
No. 4464 Civil, 1"5
D.ar Davidl
Int.rrD9.tori.. .nd R.qu..t for production of Docua.nt. w.r. ..nt
to you und.r date of April 1', 1"6. Pl.... .ak. the n.c....ry
.rrani...nt. to r..pond to th... di.cov.ry r.qu..t. within the
n.xt two w..k.. If I do not h..r from you within two w..k. from
the date 'of thi. l.tt.r, .n .ppropriat. Motion will b. fil.d to
dir.ct aomplianc..
V.ry truly your.,
F. Lee Shipman
FLS:...
bcol M.. P.tty schneid.r
cincinnati In.uranoe company
Policy No.1 DEN 1521414C
DILl 8/31/93 (RPO)
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ATTORNEYS AT LAW
411 A Eat Mil" Street
Mtchank:sburg, PA 17055 ,
(717) 795.7790
... 241111
DAVID W. KNAUER
MARK D. SCHWARTZ
June 20, 1996
F. Lee Shipman, Esquire
Goldberg, Katzman &. Shipman
P. O. BOl( 1268
Harrisburg, PA 17108.1268
RE: VMIII Rode ... Dr. Grt,ory H. K.de/, et .1., Cumberland County Court of Common
Pleas No. 95-4464 Civil Term
Dear Mr. Shipman:
Apparently, you have not had the opportunity to return my lelephone call regarding
the above-referenced matter. I am In receipt of your letter concerning the Defendants'
discovery and wish to Inform you that I have forwarded the Interrogatories and Requests
for Production of Documents to my client for completion, I anticipate that we will be
finalizing our answers to the Defendant's discovery within the nel(1 three weeks and would
appreciate an el(tenslon until that time to file our reply. We will not be providing
duplicate copies of medical records you have already provided to us.
I will be out of the country from June 24 through August 5, 1996. If you have any
questions regarding this matter, please do not hesitate to contact my associate, Mark D.
Schwartz, Esquire. Thank you for your courtesy In this matter.
DWK:awk
Iwpdunvl.J."'.IO.h'p.ltr
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June 25, 1996
Dicteted, but not read.
David W. Knauer, E.quire
411 A Ea.t Main street
Mechanic.burg, PA 17055
Rei Vivian Rode v. Dr. Gregory H. Kadel, et al.
Cumberland County Court of Common Plea.
No. 95-4464 civil Term
Dear Davidl
I acknowledge receipt of your letter of June 20, 1996.
I have no objection to the exten.ion to respond to Interrogatorie.
and Reque.t tor Production of Documsnt.. I .hould have reali.ed
before I .ent the letter that you were going to be out of the
oountry until Augu.t 5th.
Very truly your.,
F. Lee Shipman
FLS/krb
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. . . ,
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CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing has been duly
.erved on the following counsel of record, by depositing the .allle
in the United State. Mail, postage prepaid, in Harri.bur9,
,PennsYlvania, on August 30, 19961
,David Knauer, Esquire
411A East Main Street
Mechanicsburg, PA 17055
Attorneys for plaintiff
GOLDBERG, KATZMAN' SHIPMAN, P.C.
By~>1;. " Fld,j#~
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320 Market street
P.O. Box l268
Harrisburg, Pennsylvania l7l08
Attorneys for Defendants
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I.D. 165815
GOLD.laO, IA'UIIAN I ..nllAN,
320 Market Street
strawberry Square
P.O. Box 126S
Harriaburq, PA 17108-1268
Telephone. (7171 234-4161
Attorney. for Defendant.
..c.
VIVIAN RODE,
plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNBYLVANIA
NO. 4464 CIVIL, 1995
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
vs.
DR. GREGORY H. KADEL and
ENDODONTICS ASSOCIATES,
Defendants
.all. I. IU..OaT O. DI.IMDIMTI', aalaoa' H. IADIL IMD
IMDODOMTICI AIIOOIATII, KOTIO. TO COK.IL AMI.lal TO
IMTI..OaATO_III IMD ._ODUC'IO. O. DOCUMIMTI
I. ITATIJIIMT O. rACTI
This is a case alleging dental malpractioe, which wal
commenced on Augus t 21, 1995 .
plaintif t' s complaint alleges,
qlnerally, that Dr. Gregory H. Kadel (hereinafter "Dr. Kadel")
negliqently performed a root canal on August 20, 1993, and as a
result Plaintiff suffered injuries to her jaw and nerve..
Plaintiff also alleges, generally, that Endodontics Associates is
liable for damages suffered by her under theories of negligence,
Respondeat superior, and a breaoh of contraot.
On April 19, 1996, Dr. Kadel and Endodontics Assooiates served
a Request for produotion of Documents and Interrogatories upon
Plaintiff, Vivian Rode. (See Exhibit "A"). On June 4, 1996, after
reoeiving no response to the Request for produotion of Documents or
Answers to Interrogatories, counsel for Dr. Kadel and Endodontics
Associates sent a letter to plaintiff's counsel.
(Bee Exhibit
"B"). The letter requests production of documents and Answers to
Interrogatories within two weeks or an appropriate Motion will be
filed. On June 20, 1996, plaintiff's counsel responded to the June
4 letter by writing "I anticipate that we will finalize our Answsrs
to Defendant's discovery within the next 3 weeks and would
appreciate an extension until that time to file our reply. (See
Exhibit IIC").
on June 25, 1996, counsel for Dr. Kadel and
Endodontics Assooiates returned a letter to plaintiff's counsel
CJrantinCJ the requested extension. (Bee Exhibit "0"). As of this
date, plaintiff has still not produced documents or answered the
InterroCJatories propounded on April 19, 1996.
Thie Brief is filed in support of a Motion to compel plaintiff
to respond to the discovery requested on April 19, 1996, by Dr.
Kadel and Endodontice Associates.
n. IIIUI
SHOULD THIS HONORABLE COURT COMPEL PLAINTIFF TO PRODUCE
DOCUMENTS AND ANSWER INTERROGATORIES?
(suCJgested Answerl Yes)
In. DOUNln
Pa.R.C.P. 4019(a) (viii) states,
The Court may, on Motion, make an appropriate
order if a party or person otherwise fails to
make discovery or to obey an Order of court
respecting discovery.
Furthermore, Pa.R.C.P. 4019(c) (5) states, "(T]he court when
aotinq under sUbdivision (a) of this rule, may make (5) such order
with regard to the failure to make discovery as is just."
A. It Would be Appr~priate for Thi. Court to Bnter an Order
coapelliDCJ Plaintiff to An.wer Int&rroqatorie. and to
'roduce Docuaent..
On April 19, 1996, Dr. Kadel and Endodontics Associate. .erved
a Reque.t for Production of Documents and Interrogatories upon
plaintiff .
After receiving no response for approximately six
week., counsel for Dr. Kadel and Endodontics Associates .ent a
letter to Plaintiff's counsel requestinq Answers to Interrogatorie.
and production of documents within two wseks of the letter dated
June 4, 1996.
(See Exhibit "B").
The June 4, 1996 letter
indicated to Plaintiff that an appropriate Motion would be filed if
the discovery responsss were not produced as was requested.
On June 20, 1996, Plaintiff's oounsel sent a letter to coun.el
for Dr. Kadel and Endodontics Associates. (See Exhibit "C"). The
letter, in part, states,
I anticipate that we will be finalizinq our
Answers to Defendant's discovery within the
next three weeks and would appreciate an
extension until that time to file our reply.
On June 25, 1996, counsel for Dr. Kadel and Endodontics Associate.
sent a letter to plaintiff's counsel granting an extension to
respond to the Interrogatories and Request for Production of
Doouments. (See Exhibit "C").
To date, plaintiff has still not supplied the requested
documentation and Answers to Interrogatories. The extension of
three weeks has long since lapsed. The adequate preparation of a
defense requires the produotion of documents as well as the Answers
to Interrogatories. Defense preparation is prejudiced the longer
Plaintiff fails to supply the information requested on April 19,
1996. Therefore, Dr. Radel and Endodontics Associates respeotfully
suggest that it would be appropriate for this Court to enter an
Order compelling Plaintiff to Produce Documents and Answer
Interrogatories.
WHEREFORE, Dr. Radel and Endodontics Associates respectfully
request that this Honorable court enter an Order compelling
plaintiff to answer Interrogatories and produce documents.
IV. OOMOLUIlOM
Plaintiff has failed to Produce Documents or Answer
Interrogatories which were served upon her on April 19, 1996. It
would be appropriate for this court, pursuant to Pa.R.C.P.
4019(a) (1) (viii), to enter an Order compelling plaintiff to Produce
Documente and Answer Interrogatories.
Respectfully submitted,
GOLDBERG, KATZMAN' SHIPMAN, P.C.
/ ~ ~
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By 1'/ ,y::
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Attorney 1.0. 107252
320 Market street
P.O. Box 1268
lIarrisburg, PA 17108-1268
(717) 234-4161
Attorneys for Gregory H. Kadel
and Endodontics Associates
Da te I .y>3 d, 'n
CERTIFICATE OF SERVICE
I hereby oertify that a oopy of the foreqoinq haa been duly
served on the followinq oounsel of record, by depoaitinq the same
in the united stat.s Mail, postaq. prepaid, in Harrisburq,
Pennsylvania, on Auqust 30, 19961
David Knauer, Esquire
411A East Main street
Meohanicsburq, PA 17055
Attorneys for Plaintiff
GOLDBERG, KATZMAN' SHIPMAN, P.C.
At"~ /'d
By/l. ~ff~~
f'. Le pman, ES~'~":
320 Market Street
P.O. BoX l268
Harrisburq, Pennsylvania l7l08
Attorneys for Defendants
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
VIVIAN RODE
CIVIL ACTION - LAW
Plaintiff
v.
No. 95-4464 Civil Term
DR. GREGORY H. KADEL and
ENDODONTICS ASSOCIATES
JURY TRIAL DEMANDED
Defendants
PRAECIPE TO MARK DOCKET DISCONTINUED
TO THE PROTHONOTARY:
Mark the docket In the above matter discontinued.
Respectfully submltted,
DAVID W. KNAUER, P.C.
[~,J fl.40 ~
David W. Knauer, squire
Attorney for the Plaintiff
Attorney 1.0. No. 21582
411-A East Main Street
Mechanlcsburg, PA 17055
(717) 795-7790
Date: October 31/ 1996
CERTIFICATE OF SERVICE
I, David W. Knauer, hereby certify Ihat I did this 31 st day of October, 1996, serve a
true and correct copy of the within document on all counsel of record by United Slates
mall, first class, prepaid addressed as follows:
F. Lee Shipman, Esquire
Goldberg, Katzman & Shipman
P. O. BOK 1268
Harrisburg, PA 17108.1268
'la!l,Lf//'
David W. Knauer, Esquire
Allorney for Plaintiff
Allorney 1.0. No. 21582
411.A East Main Street
Mechanlcsburg. PA 17055
(717) 795.7790
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
VIVIAN RODE
Plaintiff
CIVil ACTION -lAW
v.
No. 95-4464 Civil Term
DR. GREGORY H. KADEL and
ENDODONTICS ASSOCIATES
JURY TRIAL DEMANDED
Defendants
PLAINTIFF'S BRIEF IN OPPOSITION TO THE
DEFENDANTS' PRELIMINARY OBJECTIONS
I. STATEMENT OF THE FACTS
The Defendants have accurately and adequately summarized the factual and
procedural history of this case In their brief. Plaintiff wish to add that on January 11, 1996
Plaintiff's counsel, Attorney David W. Knauer, contacted defense counsel, Allorney F. lee
Shipman, and Informed him that Plaintiff was willing to provide a proper verlflcallon and was
willing to agree to amend her Complaint to remove the "otherwise negligent" averments In
paragraphs 31 (g) and 40(k). Plaintiff's counsel provided defense counsel wllh a proposed
Stipulation, Consent to Amend and Amendment 10 the Compl.llnt for review. Defendants
were not willing sign the Stipulation but rather wished to proceed to Argument Court. A
copy of Defendants counsel's leller conflrmlnlllhese facts Is ,11I,lched hereto as Exhibit "N.
II. QUESTIONS PRESENTED
A. SHOULD PLAINTIFF BE PERMITTED THE OPPORTUNITY TO AMEND HER
COMPLAINT 8Y ATTACHING A PROPER VERIFICATlONl
. i
II
"
SUGGESTED ANSWER: YES
B. SHOULD PLAINTIFF BE PERMITTED THE OPPORTUNITY TO AMEND HER
COMPLAINT BY REMOVING THE "OTHERWISE NEGLIGENT" AVERMENTS
FOUND AT PARAGRAPHS 31(81 AND 40(f)f
SUGGESTED ANSWERI YES
III. ARGUMENT
A. PLAINTIFF SHOULD BE AFFORDED THE OPPORTUNITY TO AMEND HER
COMPLAINT
Plaintiff does not deny Ihatthe Complaint as originally flied does not Include a proper
verification because the verification is absent. Pa.R.C.P. 1024 requires that pleadings
containing averments of fact must be verified. However, as noted In the Statement of Facts
above, Plaintiff stands ready to correct this defect by a\laching a proper verification to the
Complaint, Defendant would not Stipulate to Ihls course of action.
Under the current applicable case law, Plaintiff should be granted an opportunity 10 correct
this procedural defect. See Monroe Contract Corp. v. Harrison Square. Inc., 266 Pa.Super.
549,405 A.2d 954 (1979); Lewis v. Erie Insurance Exchanlle. 281 Pa.Super. 193,421 A.2d
1214 (1980). These cases are duly recognized In the Defendants' brief.
Plaintiff In the Instant actlon, as did the appellantlnlJ:wb, requests leave of Court to
amend her verification. The ~ Court held:
The Rules of Civil Procedure arc desillned to achieve Ihe ends of justice and
are not to be accorded the status of substantive objectives requlrinll rigid
adherence. As we have often repeated, 'courls should not he aslute In
enforcinlltechnlcallties to defeat apPluently l11erllorlolls c1.1Irns. / Safeguard
Inveslmclll Co. v. Davls, 239 PiI.Super. 300/ 306, 36t A.2d 1193/11% (1976);
General MllIs, 11le. v. SIl,wcly, 203 P,I.Super. H12, lfl7, 199 A ".J 540, 543
.2-
(1964). Thus, before dismissing a petition on the basis of a defective
verlficallon, a court should allow the petitioner to amend. Monroe conl,.act
Corp. v. Harrison Square Inc., SlIpra'
421 A.2d at 1217.
Plaintiff has flied a "meritorious claim" against the Defendants as evidenced by the
fact that the Defendants' preliminary objections are IImlled to the Issues of verlflcallon and
overly broad allegations. Otherwise, Plaintiff has flied a Complaint which sufficiently pleads
meritorious causes of action. Plalnllff Is not allemptlng to avoid the requirements of Rule
1024. She recognizes her non-compllance and seeks to remedy It by providing a legally
sufficient verification as she conveyed to opposing counsel on January 11, 1996 prior to the
filing of Defendants' brief in this mailer.
Consequently, Plalnllff requests that this Court follow the reasoning of Lewb and
Monroe and grant Plaintiff leave to amend her Complaint to include a verificallon.
B. PLAINTIFF SHOULD BE GRANTED THE OPPORTUNITY TO AMEND HER
COMPLAINT TO REMOVE THE "OTHERWISE NEGLIGENT" LANGUAGE
FOUND IN PARAGRAPHS :lUg) AND 40(1).
Plalnllff has likewise nollfled Defendants' counsel that she Is agreeable to removing
this language from the Complaint and amending to Include more specific allegations.
Plalnllff remains willing to do so.
.3.
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IV. CONCLUSION
Plalnllff respectfully requests leave of Court 10 amend her Complaint to provide a
proper verification and to Include more specific allegations.
u.-_n LJ~
Dav~uer
Attorney for the Plaintiff
Attorney 1.0. No. 21582
411-A East Main Street
Mechanlcsburg. P^ 17055
(717) 795-7790
Date: ~~ (1?b
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January 15, 1~96
Via raclimile Transmillion
and rirst cla.. Mail
David W. Knau.r, tlquire
411A t.lt Main street
HlchanicsDurq, PA 17055
In rei
Rode VI. J<adel
No. 4464 Civil, 1995
Dear David:
Thi. letter ia in conjunction with our telephone converaa
January 11, 1996, wherlin you requested that we enter int
stipulation concerninq the Preliminary objections. I adv
in that telephone converlation that the Brief on the prel
Objection. wa. completld and wa. qoin9 to be filld. You
indicated that you would sInd the proposed stipulation fo
rlview.
ion of
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sed }'OU
inary
my
I wlnt to acxnowled98 rlceipt, this day,
trln.miesion, with propoeed stipulation,
Amendment to the Complaint.
of your fac.imil
Con.lnt to Amen and
"
I wlnt to advill you al expeditiously .1 possible that I not
have authorization to execute thi. Stipulation and that y
should file a Brief in accordance with the Cumberland Coun y
Rulu.
I
PLAINTIFF'S
IXHIIIT
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J~~ 15 'ea.. (l~14,Pf'1 G.K.S. .P,C.
F.:il
David W. Knau.r, Elquire
Jlnuary 15, 1996
PI;' 2
Th. Ar;ument i. lohedu1ed tor Wadnelday, January 31,
,
19961
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CERTIFICATE OF SERVICE
I, David W. Knauer, hereby certify thaI I did this 26 day of January, 1996, serve a
true and correct copy of the wllhln documenl on all counsel of record by Unlled States
mall, first class, prepaid addressed as follows:
F, lee Shipman, Esquire
Goldberg, Kalzman & Shipman
P. O. Box 1268
Harrisburg, PA 17108-1268
avid W. Knauer
Morney for Plaintiff
A\lorney 1.0. No. 21582
411-A Easl Main Street
Mechanlcsburg, PA 17055
(717) 795-7790
VIVIAN RODE,
r. Laa Shipman, laquira
1.0.', 01252
GOLDBIRG, KATIHAN , SHIPMAN, P.C.
320 Markat straat
P.O. Box 1268
HarriaburQ, PA 17108-1268
Talaphona. (717) 234-4161
Attornava for Dafandanta
plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
VS.
I
I NO. 4464 CIVIL, 1995
I
I CIVIL ACTION - LAW
I
I
DR. GREGORY H. KADEL and
ENDODONTICS ASSOCIATES,
Defendants
PRELIMINARY OBJECTIONS OF DEFENDANTS, GREGORY H. KADEL AND
ENDODONTICS ASSOCIATES. TO PLAINTIFF'S COMPLAINT
AND NOW, come the Defendants, Dr. Gregory H. Kadel ("Dr.
Kadel") and Endodontics Associates ("Endodontics"), by their
attorneys, Goldberg, Katzman' Shipman, P.c., and file
preliminary Objections to plaintiff's complaint. In support of
these Preliminbry Objections, Defendants state th~ followingl
1. plaintiff, Vivian Rode, commenced this action by filing
a Writ of Summons on or about August 21, 1995.
2. Defendants filed a PrQecipe for Rule to File a
complaint on or about September 26, 1995. The Rule was issued on
september 28, 1995.
3. plaintiff filed her Complaint on or about ootober 30,
1995.
........
4. Plaintiff's complaint alleges, generally, that
Defendant Kadel negligently performed a root canal upon
plaintiff, and as a result Plaintiff suffered injuries to her jaw
and nerves. Plaintiff allegeo, generally, that Defendant
Endodontics is liable for damages suffered by her under theories
of negligence, respondeat superior, and breach of contract.
5. Plaintiff's complaint was filed without a verification
being attached to the document.
PRELIMINARY OBJECTION
MOTION TO STRIKE PLAINTIFF'B COMPLAINT
FOR FAILING TO CONFORM TO LAW
6. Pa. R.C.P. 1024(a) requires that every pleading contain
a verifioation that the averment is true upon the signer'S
personal knowledge or information and belief.
7. Plaintiff's Complaint does not conform to Pa. R.C.P.
1024 because the Complaint does not contain a verification.
8. Pleadings that are not verified are of little value to
the court. Louwerse v. Louwerse, 36 D. , c. 3d 542, (Lebanon Co.
1985) .
9. A court will not treat verification lightly or as a
procedural formalitYI the law requires verification and, without
it, a statement of claims is a mere narration whioh amounts to
nothing. 3 Pa. standard Praotice 516135, citing Altof v. SDartan
Inns of America, 25 D. , c. 3d 63 (Erie Co. 1980).
2
'\
10. Plaintiff's complaint should be strioken for failing to
oonform to law by not containing a verifioation.
PRELIMINARY OBJECTIONS
TO VAGUE AND AMBIGUOUS ALLEGATIONS
11. Paragraph 31(g) of Plaintiff's Complaint allsges that
Defendant Kadel "was otherwise negligent."
12. Paragraph 40(f) of plaintiff's Complaint alleges that
Defendant Endodontios "was otherwise negligent."
13. The averments of Paragraphs 31(g) and 40(f) of
plaintiff's Complaint do not properly contain sufficient factual
allegations to apprise the Defendants of the manner in whioh
their conduct was allegedly negligent.
14. Defendants are entitled to be advised of the speoifio
acts of omission or commission that Plaintiff believes
constitutes negligence so that Plaintiff's proof may be confined
to such acts ard so the Defendants may reasonably prepare their
defense.
15. The Courts of this Commonwealth have held that
defendants must preliminary object to, or waive their objection
to, suoh vague and ambiguous allegations.
16. Paragraphs 31(g) and 40(f) or Plaintiff's complaint
fail to conform to law or the rules of court because these
allegations are vague and do not state material facts.
3
17. If allowed to remain in the Complaint, these improper
allegations of negligence would severely prejudice the Defendants
since plaintiff may have the opportunity to amend the Complaint
to introduce new theories of negligence after the applicable
statute of limitations has run. See Connor vs. Alleahenv General
HOSDital, 501 Pa. 306, 461 A.2d 600 (1983).
18. Paragraphs 31(g) and 40(f) should be stricken from
plaintiff's complaint, or in the alternative, Plaintiff should be
required to plead these allegations with more specificity.
WHEREFORE, Defendants, Dr. Gregory H. Kadel and Endodontics
Associates, respsctfully request this Honorable Court to enter an
Order striking plaintiff's entire Complaint for lack of
verification. In the alternative, Defendants request that
Paragraphs 31(g) and 40(f) be stricken. In the alternative, if
paragraphs 31(g) and 40(f) are not stricken, this court should
enter an Order requiring plaintiff to file a more specific
pleading.
Respectfully submitted,
GOLDBERG, KATZMAN & SHIPMAN, P.C.
By ~! ~///. /i b / /lipid/I?'
r. Le~pman, ~e
1.0. I: 07252
320 Market Street
P.O. BoX 1268
Harrisburg, PA 17108-1268
Telephone I (717) 234-4161
Attorneys for Defendants
4
*
CERTIFICATE OF SERVICE
I hereby oertify that a copy of the foregoing has been duly
served on the following counsel of record, by depositing the same
in the united states Mail, postage repaid, in Harrisburg,
Pennsylvania, on November 13, 19951
David W. Knauer, Eequire
411A East Main Btreet
Mechanicsburg, PA 17055
Attorney for Plaintiff
GOLDBERG, KATZMAN' SHIPMAN, P.C.
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By . G: ~ U//~.t'/
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Attorney for Defendants
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P. Lee Shipman, EBquire
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GOLDBERG, KATZMAN , SHIPMAN, P.C.
320 Market Street
P.O. Box 1268
HarriBbur9, PA 17108-1268
Telephone. (717) 234-4161
AttorneYB for DefendantB
VIVIAN RODE,
IN TilE COURT OF COMMON PLEAB OF
CUMBERLAND COUNTY, PENNSYLVANIA
plaintiff
vs.
DR. GREGORY H. KADEL and
ENDODONTICS ASSOCIATES,
Defendants
NO. 4464 civil, 1995
CIVIL ACTION - LAW
laII. IN .U"OaT 0' DB.INDAMT.'. OalOOay H. KADIL AM>>
INDODONTIC. A..OCIAT... .a.LINIMARY OIJICTION. TO
.LAINTI"'. CON'LAINT
I. .tat...nt of .aot.
This is a case alleging dental malpractice. Plaintiff,
Vivian Rode, commenced this action by filing a Writ of Summons on
August 21, 1995, which was the last day before the expiration of
the statute of limitations. Defendants, Dr. Gregory H. Kadel
(Dr. Kadel) and Endodontics Associates (Endodontics), filed a
Praecipe for RUle to File a Complaint on September 26, 1995. The
Rule waa issued on September 28, 1995.
Plaintiff filed her complaint on october 30, 1995.
Plaintiff's Complaint alleges, generally, that Dr. Kadel
negligently performed a root canal ~l August 20, 1993, and as a
result Plaintiff suffered injuries to her jaw and nerves.
.;.i-..
plaintiff also alleges, generally, that Defendant Endodontics is
liable for damages suffered by her under theories of negligence,
respondeat superior, and breach of contract.
plaintiff's complaint was filed without a verification being
attached to the document. paragraph 31(g) of the complaint
alleges that Dr. Kadel was "otherwise negligent," paragraph
40 (f) of the complaint alleges that Endodontics "was otherwise
negligent,"
Defendants filed preliminary Objections to plaintiff's
ccmplaint on November 13, 1995. These preliminary Objections
address the lack of a verification, as well as the paragraphs
31(g) and 40(f). This brief is in support cf Defendants'
preliminary Objections.
II. I..U..
1. Should plaintiff's complaint be stricken because it doss
not conform to law due to the lack of a verification?
suagested Answerl Yes
2. Should vague and ambiguoUS allegations in plaintiff's
complaint be stricken?
ID!.mumtmL1UlllWlI:l V e s
III. Argument
Every pleading containing an averment of fact not appearing
of record in an action or containing a denial of fact must be
verified. Pa.R.C.P. 1024, see also Goodrlch-Amram 2d 51024(a)11.
Preliminary objeotions may be filed by any party to any pleading
for failure of the pleading to conform to law or rule of court or
inclusion of scandalous or impertinent matter. Pa.R.C.P.
1028(a). The objection that a pleading is not properly verified
should be raised by a motion to strike off the pleading because
of lack of conformity to law or rule of court. 3 Pa. standard
Practice 516135 (citation omitted).
A. Plaintiff'. Complaint .hould be .triok.n b.oau.. it
fail. to oonform to law.
The wording of Pa.R.C.P. 1024 is clear. The rule requires
that pleadings containing allegations of fact not appearing of
record must be verified. The purpose of a verification is to
defend a party against spurious allegations. Township of Chester
v. stapleton, 72 Pa. Commw. 141,145, 456 A.2d 673,675, n. 1
(1983), citinQ, Monroe Contraot Corp. v. Harrison Square. Inc.,
266 Pa. Super. 549, 405 A.2d 954 (1919). In the present matter,
Plaintiff has failed to attach a verification to her Complaint.
The failure to attach a proper verification to pleadings has led
to the striking of those pleadings.
3
In Mader v. Inteqrltv Real Estatg, 18 D.' C.4th 640 (Snyder
co., 1992), the plaintiff's counsel verified the complaint.
There was no explanation as to why a party did not verify the
complaint. Furthermore, the plaintiff's counsel used a stamp
facsimile of his signature to sign the verification. The court
found that it was not proper for the complaint to be verified by
plaintiff's counsel. The court determined that counsel may
verify only In situations delineated In Rule 1024. These
conditions were not present in the Mader case. The court aleo
stated, n[T)his court has grave concerns about whether the
verification, even if the information required in RUle 1024(0)
was set forth in the verification, would qualify as having been
verified by an attorney, as opposed to someone affixing a stamp
facsimile of his signature.n ~ at 642. Therefore, the court
ultimately concluded that the complaint should be stricken
because it did not conform to Rule 1024.
In Louwerse v. Louwerse, 36 D.' C.3d 542 (Lebanon Co.,
1985), a petition for support waD filed. The petition was
required to be verified pursuant to Po.H.C.P. 206. The plaintiff
testified at a hearing that she signed blank pages at the
courthouse which were later filled in by courthouso employees and
that tho affidavit on the last page was written and signed prior
to someone typing the Information on the sheet. The plaintiff
testified that Dhe II ad not read tho petition nor could she verify
4
its truthfulness. The defendant filed a timely motion to dismiss
the petitions based on the lack of a verification.
The court dismissed the petition. The court stated that:
The entire purpose of requiring a signature on each page as
practiced in Dauphin county and an affirmation at the end of
a statement is to establish that the plaintiff has in fact
read the petition and attests to its truthfulness. our
.y.t.a of ju.tio. i. pra4ioata4 on tha valua of a par.on'.
.worn or affir.ad wor4. Te.ti.ony oannot be peraitt.4 if it
i. not .worn to or affir.e4.
similarly, our legislature has determined that petitions a
party wants the court to consider must also carry that mark
of integrity which designates the matter as worthy of the
court's attention and which enables the opposition to
prepare a defense. Dooument., the truthfulne.. of whioh
oannot b. verifie4 by the pr..entar are of little value to
thi. oourt an4 blat.ntly offan4 tha avanhan4e4ne.. of
prooe4ur.l rule..
~ at 545 (emphasis supplied).
The verification requirement of Pa.R.C.P. 206 for petitions
is to be construed with reference to Pa.R.C.P. 1024. ~ Monroe
Contract CorD. v. Harrison SQuare, supra. consequently, the
principles applied in the Louwerse case are applicable to the
present matter.
There was no verification attached to plaintiff'S complaint
in the present matter. The purpose of a verification is to
defend a party against spurious allegations. TownshiD of Chester
v. Staoleton, NYnr~
The Dofendants In the present matter have
not been afforded the protection of a verification which is vital
5
to Defendants, because they provide professional dental services
for their livelihood. The ability to provide these services may
be compromised with unverified allegations of professional
malpractice. consequently, Plaintiff's complaint should be
stricken.
plaintiff may argue that her complaint should not be
stricken based upon Monroe contract corp. v. Harrison square.
~, 266 Pa. super. 549, 405 A.2d 954 (1979) and Lewis v. Erie
Ins. Exchanae, 281 Pa. super. 193, 421 A.2d 1214 (1980). The
trial court, in Monroe, found that a petition was not duly
verified and that the court consequently lacked juriSdiction to
entertain the petition. The verification error was that the
petitioner'S attorney verified the petition, but the requirements
of Rule 1024 were not specifically followed. The superior court
reversed the trial court's order and statedl
To dismiss a petition on such a point (failing to
specifically follow Rule 1024), however, would be contrary
to both the design of verification and our numerous holdings
in other areas viewing substantial compliance as a
sufficient standard. Verification is necessary to defend a
party against spurious allegations; it must not be
transformed into an offensive weapon designed to strike down
an otherwise valid petition. While we do not, of course,
condone willful noncompliance with our procedural rules, a
hypertechnical reading of each clause, and a blind
insistence on precisc, formal adhcrence, benefits neithor
the judicial system nor those utilizing that system. As we
reiterated in ~guard, 'courts should not be astute in
enforcing technicalities to defeat apparently meritorious
claims...'
G
Monroe at 556,557, 405 A.2d at 958 (citations omitted). The
court went on to state that, "at a bare minimum, a court
confronted by a defective verification should grant leave to
amend before dismissing the petition." Monroe at 557, 405 A.2d
at 959 (citation omitted).
In Lewis v. Erie Ins. EXchanqe, supra., the trial court
dismissed the appellants petition to vacate an arbitration award
and dismiss the board of a~bitrators. The petition was dismissed
because the verification did not conform to Rule 1024. The
superior Court determined that the trial court abused its
discretion in dismissing the petition without affording the
petitioner an opportunity to file an amended verification. The
Superior court cited to the language used in Monroe to support
its decision.
These two cases can be distinguished from the present
matter. Monroe and Lewis had verifications attaohed, but these
verifications were deemed deficient. The deficiencies were due
to a failure to conform with the requirements of Rule 1024.
There was no verification attached with plaintiff's complaint in
the present matter. consequently, Plaintiff ignored the
verification requirement of Rule 1024, rather than simply not
following the rule oxactly to the letter. Defendants suggest
7
that a lack of a verification is a more serious violation than
the attachment of a deficient verification.
~onroe and ~ewis arguablY stand for the proposition that a
party should be given an opportunity to amend his deficient
verification prior to the case being dismissed. Defendants
anticipate that plaintiff will make this argument to this court.
This argument should fail in the present case, however.
plaintiff has had an opportunity to add a verification in
the present matter not only at the time of filing the original
complaint, but also after the filing of the preliminary
Objections on November 13, 1995. see Pa.R.C.P. 1028(c) (1) (A
party may file an amended pleading as of course within twenty
days after service of a copy of preliminary objections. If a
party has filed an amended pleading as of course, the preliminary
objections to the original pleading shall be deemed moot.) Yet,
as of the filing of this brief, plaintiff has failed to provide a
verification for her complaint. The fact that plaintiff has had
approximately two months to attach a verification should preclude
her from now arguing that she should have more time to verify her
complaint.
In ~okebv-John~on v. William MoenniQ and Son Ltd., 41 D.&
c.3d 594 (Philadelphia Co., 1984), tho verification to the
8
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complaint was executed by a claims manager to a nonparty, and the
verification failed to demonstrate any of the named plaintiffs
had authorized the suit. The court dismissed the plaintiff'S
complaint without leave to amend. The court stated:
This dismissal will be without leave to amend since,
although the court has given more than ample opportunity to
correct the complaint's defects, they have remained
uncorrected. The court concludes from this that leave to
file a third amended complaint would prove futile, and that,
in any event, defendant should not be compelled to plead to
a third amended complaint when there is no good reason for
not curing the complaint's defects by noW. Cf., Lewis.
puora. (wherein the trial court erred bY not giving an
opportunity to correct a defective verifioation).
u... at 598,599.
Based upon the reasoning in ~okebv-Johnson, this court
should strike plaintiff's complaint. plaintiff has had an ample
amount of time, approximatelY two months, to verifY her
complaint. Although Plaintiff has had the opportunity to provide
a verification, she has chosen not to do so. consequently,
plaintiff should not be given additional time to provide a
verification, and her complaint should be stricken.
B. paragraphS 31tg) and 40(f) sbould bs stricken because
they contain vague and ..biguDua allegationa.
paragraph 3l(g) of Plaintlff'S complaint alleges that Dr.
Kadel "was otherwise negligent." paragraph 40(f) of plaintiff'S
complaint alleges that Endodontics "was otherwise negligent."
9
Preliminary objections may be filed by any party to a pleading
which has insufficient specificity. ~ Pa.R.C.P. 1028(a) (3).
The Pennsylvania Supreme Court has addressed paragraphs
similar to 31(g) and 40(f). In Connor v. Alleahenv General
Hospital, 501 Pa. 306, 461 A.2d 600 (1983), the plaintiff was
permitted to amend her complaint because the amendment merely
amplified the original allegation that the defendant was
negligent in "otherwise failing to use due care and caution under
the circumstances." l!L. at 308, 461 A.2d at 602. The supreme
Court permitted this amendment because of the boilerplate
language of "otherwise failing to use due care and caution under
the circumstances", to which the defendant did not object. The
Connor court added in a footnote that if a defendant "did not
know how it otherwise fail[ed] to use due care and caution under
the circumstances, it could have filed a preliminary objeotion"
requesting a more specific pleading or moving to strike that
portion of the plaintiff's complaint. Connor v. Alleqhenv
General Hospital, supra.
since the Connor case, defendants have objected to, and
courts have upheld objections to, such boilerplate averments of
negligence as found in paragraphs 31(g) and 40(f). In the
present case, Defendants are severely prejUdiced if these
paragraphs are allowed to remain in Plaintiff's complaint, since
10
these broad and vague allegations of negligence could be the
basis upon which Plaintiff later amends her complaint to add new
theories of negligence, even after the statute of Limitations has
run. Furthermore, these paragraphs fail to conform to law and
the rules of court since these allegations are vague and do not
state material facts or the specific acts of commission or
omission that constitute the alleged negligence. Due to the lack
of specificity of the allegations contained in these paragraphs,
Defendants are unable to determine what issues they must defend
against and are also prevented from forming a proper answer to
the Complaint.
starr v. Mvers. et aI, 109 Dauph. 147 (1988) (see appendix),
provided a standard by which a court could review Preliminary
Objections filed on the basis of lack of specificity of alleged
negligence. starr reviewed not only cases previously decided in
Dauphin county, but in other county courts, in order to determine
whether there was a consensus of opinion as to how courts should
deal with such boilerplate allegations. In this review starr
found that there were three courses that a court may follow when
confronted with boilerplate allegations.
There are, it seems, three courses which a court may
follow. We can permit boilerplate allegations and allow the
parties to havo recourse to discovery to flesh out the non-
specific averments. While this may serve to prevent
surprise at trial and alleviate the precise situation In
11
. ,,_ "<~>">""*' '_c
..~.....r~' .. c.. ...;~" ''''~-'.~'''''~~''''
connor, the solution is more illusory than real as it will
stimulate the Connor-conscious defense bar to flood the
court with preliminary objections.
There is an intermediate stage which appears to be in
favor at the present time, i.e., to allow general averments
of negligence so long as they related back to the specific
allegations. This, however, is rather imprecise and subject
very much to the discretion of the particular judge or
court. Some may feel that an allegation of 'otherwise
negligent under the circumstances' refers to the previous
allegations, whereas others may consider that the
circumstances cover the entire range of the relationship
between the parties.
The third procedure is to permit only specific
allegations on the theory that one should not be permitted
to 'discovery' their way to a lawsuit."
starr, 109 Dauph. at 153,154.
The court in starr, found that the most appropriate course
would be to require specificity in all allegations of negligence,
and held that:
"It is our feeling that the only principle which offers
any meaningful guidance to our prospective pleaders is to
require specificity in all allegations of negligence. ThUS,
we will no longer countenancc gcncral averments of
neg ligence.
~, at 155.
This is also thc course that this Court took in Kit~miller
et al v. Riverton Cons. watcr Co., 38 Cumbo L.J. 33, 46 D.& C.3d
72 (1987). The plaintiffs' had an entire building, and property
contained therein, destroyod by firo. Tho plaintiffs brought an
12
..~"".",,""h'"''40'''
action against the defendant and alleged that the defendant
failed to provide adequate water and water pressure to contain
the fire. The complaint contained an allegation which averred
that the defendant was negligent in "otherwise failing to
exercise due care under the circumstances."
The defendant a raised preliminary objection to this
paragraph. The defendant cited to Connor, and argued that
permitting the paragraph to stand would unjustly require them to
prepare to defend any possible cause of action that may fall
within the ambit of the language used in the allegation. This
Court agreed with the defendant, and the paragraph was stricken.
See also Rommel v. Perna et al., 38 Cumbo L.J. 27 (1987) and
Winters. et al. V. Loneraan. et al., 36 Cumbo L.J. 98 (1985).
Paragraphs 31(g) and 40(f) of Plaintiff's Complaint, are the
type of general averments of negligence that should not be
permitted. These general averments fail to inform Defendants as
to what acts and/or omissions constituted negligence. All of
these broad and general allegations, if allowed to remain in the
Complaint, would allow Plaintiffs to discover their way to a
lawsuit.
These broad and general boilerplate averments are also of
the kind that would support the type of amendment allowed in
13
connor, and therefore should be stricken, or in the alternative,
required to be plead with more specificity. The pleadings must
be specific enough so that Defendants can prepare a defense and
not be called to defend against matters of which they had no
notice in the pleadings. Defendants must also be able to draft a
meaningful answer. As the complaint is presently pled,
Defendants would be unable to provide meaningful answers that
would advance the purpose of the pleadings. Therefore,
Defendants respectfully request that paragraphs 31(g) and 40(f)
of plaintiff's Complaint be stricken, or in the alternative that
plaintiff must file a more specific pleading.
IV. concludon
Defendants, Dr. Gregory H. Kadel and Endodontics Associates,
respectfully request that this Honorable court strike plaintiff,
vivian Rode's, complaint for failing to contain a verification.
In the alternative, Defendants request that Paragraphs 31(g) and
40(f) be stricken because such allegations are vague and do not
state material facts. In the alternative, Defendants request
that Plaintiff be required to file n more epecific pleading.
Respectfully submitted,
GOLDBERG, KATZMAN & SHIPMAN, P.C.
:{~~
' /'
By _ ..A
. Le h pman, Esq t~
Attornoys for Defendants
14
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing has been duly
served on the following counsel of record, by depositing the same
in the United States Mail, postage repaid, in Harrisburg,
Pennsylvania, on January 11, 1996:
David W. Knauer, Esquire
411A East Main street
Mechanicsburg, PA 17055
Attorney for Plaintiff
GOLDBERG, KATZMAN' SHIPMAN, P.C.
By
F. Le
Attorney
Il^UI'ItIN COUNTY RIiI'OIIl1i
SIIU v. Mytll. till.
concern Ihan avermenl ClOclllude Ilr allegata Clllherance. lIell.alh Ihe
veneer Is Ihe lrecler of Ihe ltalule of IhllltallollS, ampllficd by Ihe
subslanllve dlscovuy principle alld aUllmenled by Ihc prucedurll rules
of discovery. We wrlle III all aile mI'l 10 clarify \lur court's posillon on
Ihll maller, and Ihul guide Ihe bar III lis fonnulallon III pleudings.
The Inlllnl case II a Iyplcal eumple ollhe problem. In his Complainl,
Ihe plalnllff chllgel Ihallhe defendanls. during Ihe cOUlSe of plalnllfrs
open hcalllurgery. were negllgenl becaule lhey packed Ihe plllnlllrl
helll wllh 100 much Ice, moklng 11 excessively cold and causing damage ,
10 Ihe h""lI. valveland lungl. In Paragllph 8 of Ihe Complallll in 'A(I)
Ihrough (g), Ihll carelessness Is sreclfically oUlllned,' lollowlng which
Ihe parlgllph gocl on 10 aver:
(g)' Improrerly Ireallng plalnllfrs coodlllon:
(I) Failing 10 prorerly Ileal plainllfrl cundlllon;
(j) Failing 10 properly diagnose plalnllfrl condlllon;
(k) The slluallon Ihal occurred In respecllo plalnllff \mOld
occur only In Ihe presence of negligence and wlluld nol
have occurred In Ihe absence Ilf negligence. ,
Ills Ihele lasl fourlubpallgraphl Ihal have allracled Ihe dclcndanls'
allenllon and rClulled In preliminary obJecllons by way of a demurrer
and a mollon for more lreclfie pleading.
1I1l'l1l.."",
\ '
I"i:
I,.
,,'
'hI
r "
141
Defore dllCunlng Ihe various eonlenlluns and analyzing Ihe plllblem,
II mlghl be well 10 eumlne Ihe Supreme COUll declslun In Connor \\
Alltg/ltllY Gtlltral /lospItClI, SOIPa. 306,461 A.ld 6IlO (1983) wllh lis
I. II) 'mpropelly (0011"1 rllllltirr. htll1. \'Ihe. lun" ,nd htm~di'rhrqm;
(b) Keepl", plalntirrs hcan. valve. luna' and hcmldl'rhr"lI1 t'txt' Iu", ku'l.
(t) Packl", plalnlifrs hunt vah'c. lunllllMJ hcnlidilrhlll111 d,",,"n hll.llar with Ice
and fIlIk!n. thcm tun rlllll;
(dl tmproprlly f1lckln. r'aintUr, hun. \'ah'c. lu"" Ind hClIlldl'rhrll'" 10 .Ieul
that ..., kkI cultlloo tonllnuina II) keep 1he", 1'11\11 "., cuM level rUI an tllcOOed
pe,iod 01 timc;
It) 1:a11l", In fCtu.ni,.t 111.1 dl&lIl.~e WI' 11(ln. dune III 111.lnlllr. hrill'. ",he, lunc,
and htl1lhli'ph"'111~
to I:.illna lu Itl W IS lu "",,ill dalll'Bf tu I'lainlll!'\ hUll, \'ilhf, lun&' .nd
hel1lidi'l'lu'llI1;
1.1 r..UlIIJ 111 rflll'tfly iutt.llll"llll)\~ IIra11he d,ulIa,e 111111'11I1111"' he,a1t. ~hc.lon.\
.nd hc:lIlldl.ptu.,m.
. lht'1I .re lYoU \ubI1illl....llll\ (gr,
110
IWJPIIIN COUNTY RI!I'OR11I
11ll'l1l."ph
51111 Y. M)cn, r'.1.
_ II could have filed a prellminalY objeclion In Ihe nature of a relluest
for I mOle specific pleading or one In Ihe nalure of a 1lI0lion In slrlke
thai (lOrllon of Ihe Connors' cOlnplalnl. Ilavlng failed 10 do ehher, IU'llce
ulICn sobmltted Ihe defendanl could nol claim dlalll had been prejudiccd
by Ihe late ampllficalinn of thl. particular IlIegation of the Connms'
complalnl,
Jusllce Nix In his dlssenl algued Ihal Ihe "bollelplate allegatiuns of
neallgence," which the majority ulCd In substanllale lis decl.ion. defealcd
the pur(lOse of Ihe slllule of Iimllatlons and fruslrated Ihe objecllves of
the facl pleading system.1
The Dauphin Counly Courl has dealt wllh Ihe problem of Illlllelplale
Illegal Ions on a number of occasions, and Idmllledly our posilion has
been a blllncongruous, allhnugh each case must be closely examined
on lIs facls, In Ihe pre.Cmma, days, one of our cOUll's leading case. wus
Callna v. MaI"ty, 77 Oaur.h. 330 (1961) where In an opinion by Jodge
Sohn II was held that an al egalion Ihallhe defend ani "olherwlse failed
10 use Ihe degree of skill and calC commonly exercl.cd by physicians
and neurosurgeons" WlS nOI objectionable when reld In conneclion wllh
lIIher specific chllgn of negligence. Judge Sohn sllllng. "This may be
I 'calchall' pleldlng, bul when read In connecllon wllh III of Ihe nlher
IlIegalions of negligence, we do not deem 1110 be objecllonable." (1'.335),
We used Ihls for Ihe basis uf our decision In Mikllla I', /lo,rlJIII/,g
I\.I),,/inlc 1I0JI'IIOI, 94 Oauph. 328, 58 D&C 2d 125 (1912) where we
upheld following specific chalges of negligence. allegallons of "fallule
to observe Ihe standards of medlcll skill Ind care currenl In Ihe
communlly:' Ind "failure 10 exelclse loward plalnllfrs decedenl all of
the medlcallechnlques known 10 Ihe medical coml11unlly, . . ." Then
In C.lllna" Camll/lIldlY G,lI,nll OJlttl/lfJ/ltlc IIt1J/J/I<II, tI ",., IU51lauph,
181 (1984) we addressed die hnporl ofthe Gmn'" decision on our previous
holdings Ihal general allegalinns of negligence were nol suhject In
objecllon If supporled by specific charges. DespHe Call/w" we ul'hehl
an allegallon Ihal Ihe defendant WlS negllgenl "In olherwlse failing In
use due care and caul Inn under Ihe clrcumslllnces," IlIklng Ihe posHinn
Ihallhis leferred back 10 Ihe four COlnell of Ihe cOlnplalnl, Then III Mlllrr
" IImilty Mtd/f,,/ C"II", rl "I.. 106 Dallph. )43 (1985), we sllllCk
palllgl1ll'hs which charged cal'h defendanl wllh "belllg otherwise n'Bllgenl
under Ihe cllClllllslllllces a. fUllher discnvery Illay levenl." 1111s "''' IIK,u~hl
was guing IIKI fal.
2. lnlrltilin,l)'. we hne Ilftn ul\;ahle kl Om) IIny arl'Clliltt Uit Icpullr,I lin~'r ClIm""
..hell! i1 1111 bun ciled fllllhe rllll'Uliliuntlll1 In I\ffllltlllln I ".UI1II,llllIl \\hkh h ,""Uf
dlllulJ ht illirbn. .1I1I00.I,h Ihe n\t 111\ becn U'lltllttll)' {iltd f,I, the 1111I1"'I,iliun lhll
IllIfnthncnl ul rh:1d'''I' .hnuht he hhfflll~ 11Iu'olord
14111'IMM,1
I\"lll'lllt~ ,'oIltHY un'oUIS
""
~1oll1 ~ 1\1)('1\. rl oil
'n llccl\illll\ h)' IIlhl'l Im'llIh~'I\ tlf Ihl' ('nllll we h.l\C J1htl!l' I.lp'llll III
Sllllll~/C'I \' MO/lll" IO~ 11.l1Il'h h~ (ItJK.\) ll\'l'lIu"nl~ 11":11111111;11\
lIhledlt'll\ hi ill! iln'llIh.'Ul !lIthe Ikll'llIlillll\ nCl~ll)!l'IKl' III "lllhcl\\I'l'
1U.:lIlllt HI fillhnlt 10 ;11.:1 111;1 r.llck~\, ""l~hl!L'1I1, rcck1c,' lil\hllllllll \'IIlI.IIIIH\
tlf thc ""llIllou\h. III rille "l \klcmlillll\ pluk\\IUn III the I1l'l fllllllillll.'C III
Va,llIll'''''''< ""I:.'Y 0111,111.,,,,,"'111111 ,Ill. ,,,lr.'lII~ III1111llh."I)' ," llic'
plalluil'l," ",tt" Ihe Il'Ctll1\1l\clulaliun lhalthe pal tie) rc\ml to dl\l'lI\l'l)
ltlllf. Nalak. 111 Si",,'" I' C"'''''''''"''' (;",,,.,,,1 011""1""'''1'/1'''1''''''. IUti
\1.III!'h 21K 1I"IKKl. la<..llh., ,il"allllll ",h.,e Ihe ull.f,lIll1'" .',,"'a"l<cl
Ih.I'Ii""., i"du""II' 11111 1I111 1111111.,1 III l,!,.dlk <ha,ve,I, Tlie J""~. ,1I1Id
lhl\ phril\c. J\hll!C MUl1!ill\. ill un UlHl'llIlIll'll opil\lun. (iliff/I' \' 1'1'1/11
N,'lIt"",I, ", el' , t1n~ S IljKK), lit" lull pcrmit \In ;\\'~ll\ll'nl lh"l Illl'
lkfclH'illlh "\\",'1" 1Ilhl'IWI\l' Ill'~hl!cnt iI' ,I n",tlcr tit lil\\ 1I1hkr till'
l'IIl'Ulll\taIKc,," and 11\ UIIl(lh.f \~ Mtlliltllll'I,\It"y Ml'd/CIII ('('lIh". 11I\1I11wI
111\1el',"le.1 "l'il1l1\11 LIIKI S I'JK.II. Jtlllgc Sd",III1.' '1r11<k Ih. (..1111""\1'
11I.1Il)' ut" \lvcll1ll'ltl\ il' hCIIlt!, lUI\IcII1\ah! atlegiltilll\\ Ill' nc~It~~lIl'l'
(il) laihll" In I'hlj1,'lIy ,1I1l1 Pllll1lptly llial:!IH"C pl.lI11ll11\
(:Iuulillllll,
Ih) cllll"tl)'1Il1~ illihll'qlltlll'lll il"'pprlll'lial~ IHl'llulIh. tl'l'hlllLl"l".
.1I1\111IIll'l'lhlll" III ,h~ r,lIl' illll' Irl'illH\l'1I1 tlllhl' 1'1,11111111,
It') r,lilllll~ ,,, l'\~It'I'C ,IUl' l'.IIl,' in the oulmllll\U,ltHIU III
'fCiltll\~llt ~
ht) 1",lulll tll pHlPl'tI)' \UPCI'.I'l' ill!cnl\, 1'1l1plll) 1.:1.: \ III Ihl'
IllClhrill l'\'1I1l'I,
Icl lililllll~ 111111111'\'11)" llllllllhll l'1;lIl1lllh' \,,'\lIhhlltUl" ,lIhl
(I) 1.lIlulC hi Ill'l !III 11\ .hkqUilll' h"tilll~ nil pl,1I111111
Thl' 1\ h)' no 1II,'olll' illll'\h,Hl\ll\l' "1I\l'~ nllhc ll,tllpllll\ l'tllllllY l,I\l"
^~ it l1lilltl'llIl 1,11,:1.11 "PPl',II' Ihallll iIltlltl\\ .llt IIlClhl',lllIlalplildll'l' (,I'l"
1''''1'(','''''''' 1111'''' h.",. 1"'.'11 1',,'llIllIlIa,y 11,,\,',111111' hk.\I" .d"~e,1
111l'.HIIIll! l:!l'lIL'fillllll'\
WL'. ""\\,,' l')'illllllll'd '"''''IilI1ltl/l'1lIkl'I'''1I1\' 1IIIIIIIIIhl'I t'lHlllty llllllh,
hUll',mlllh' 1111 fl'ill (111I,,''''11' Mall) 1lllhL'lH, 111,1 ii' lilli', i1ll' IlIII 1111,111:.
nlll",\1L'1\1. II a ",L'IIL'lill\'tllh'llI'lIl1\ l,lIIllI..' tll.I\\'II,11 W\Hlli! hl'lh.IIIIIlIIll'
\\hull' 'h~ lllillllllll!l" 'l'\.'1I1 hi 1,I~l' lh~ i1I'Plll~l(h Ih,ll II Ilh' l~!!lll'r.I\
"lkg.111I1II <,,"I,,' """""'" rd",,',II,.I' ~ III ,1'....li< .llIq'.IIl''''', \1 \\111
'\Ilth'l', hllC\i1l11l'll', III ""'II..,,ullt" \' UlIt"'l"l. 1M CUlIlh t. J ,\ tl'lK.'!'
,Ill ,11lL'~alitllllh,lllhL' ,\rll'lhlollll \\,,", lIq!lI~"1I1 III "lllhl'!\l\..!! l,lIhui! III
U'"~ Ihll' fall' IImk! till' l IIlllll"'I,lIlln" ",I' ,lIll ~,l'lI ,I' hl'lll~! hili "I'IU'I,II,
\lhl'H'''' III U'Ulh"I, dill I' 11I1lI'H,'dll,fllll,\h('\Ill\hl.1 q11lltlX'I1.
\\!Il'h'lh\.' 1'1l1l11,...h'il 1',11 ,II'! "I'll... ,1\'t'lIl',llhl' 1.IIIIlIl'lil C"'!d'l' Il',\""Il,lbk
IS!
ltlPJ Il.uph
IlAUI'IIIN COUNl'V RIiI'OR1S
Slln v. ~hc", rt.1
,'a'c in Ihe eslabll"""cnln"~ 11III,Ielllenllllillnllllll'IIluIIliale ""l11lalll,
nn~ I'roce"U1cs fur ~Ingnoslic l,cnl1llcnl, nn" In lite fullllw'lI!, nn~
rnunllurlllg of !,allenlS wlIh plainlirr. rnc~lcllll'lllltlerns, it "'" Itdd Ihal
Ihc.c we,c sufficienlly .pcclnc. GIlIJ/': 1</III'IUlu Grlt/ull/",I/,j'"I. r'
<1/.. 71 Lanc. 224 (19K8), conlalnell nllcgnlion' Ihnllhe "elellll.n\ f,"led
10 plllpcrly lIeol an~ ~ingoo.e ~ecedcnl'. cOlllllllon nn~ 11"'1 II<1Ollllanl
h"'l,i~11 falle~ 10 plllvide p,ol'cr eale a. 'e'lolrell by Ihe Joinl CIIIIIIOi"iun
on Accn:dilallon nf lIo'l'lIal. an~ "'IS ul'hcl~; whe,ell', in/l<l4r I: AI/IIOIl,
" .11.. 69 Lnne. 395 (19851, slrnllnr avennenl. we,e 'Irkken.
Un~erllnlng Ihc.e I',e.lrlal conlelllinn. Is, nf cnu,.e. Ihe .lalUle of
Ihnhallons, The emcacy of llrnhallon laws has p,o~ueell une'lni\1\col
judicial app'oval. Our SUl're1lle Coorl ha, recognl"~ Ihullhe ~efense
nf Ihe S\1llUle nf Ilrnllallnn. I. nnl a lechnlcal nne, bill 1\ ,uh"an\",lallll
IllC:riloriuus.
"5U1lule. of IIrnhalionll,e vllalln lite welfu,e of ,0cielY und a,e
favored In lite law. . . , TIley plOlI1ole 'ell'15e by giving a stabilily
to human affalll. An 11lIpll,Iant public policy lies ul Ihcir
foondatlon. They Illrnulalc 10 aelivlly and punish negligcnce,
, . , Mcre ~elay, eale"ded 10 Ihe IIrnlt prescrlbell, i. il,df a
conclusive bar. The bane an~ anll~ole go logelher,"
,
SrlUIlUrktr \: M/IIRlt, 4261~. 203, 204, 231 A,2~ 121. 12) (1%11, lllU,lmg
flll1ll Unllt.1 SIIlIt.' \: OrtROIl/J<lIll1tr C(I" 260 U,5, 290, 299,)IKI, 4)
SO. 100, 10), 67 L,I!~. 261 (1922). I'urlhcr, il hus been slllle~ Iltal "The
purlKlSe uf any slalule nf 1I1l1hallons 15 tn eapc~lIe IlIi~lIliun an~ Ihlls
discourage ~elay an~ Ihe p,e.enlatlon of slalc clahns ",hidI1ll'y g,eally
I'lfjudlee the defense of lueh clah",." /tlJlln/llrt Co, 01 Not/It AlIIl'Iir,'
\: Amal,a", 446 I~, 48, 284 A.2~ 728, 729 (l97\); U/llllll-jr I',
MtlIlJ/",Ii'III' /.ilr 1IIl, Co" 3391'a, 571,575.576, 16 A,21141 (194111, See
111,0 C"/llIllIg/III1/I" 11I.II/IT/IIt't ell, IlINon/, Allltll..... 515 I\\. 4KCl. 5311
A,2d 407 (l9K7) /l/rkfil/Tll', Jmoll, 3(,8 I'a Su!,er. 211. 214, ~1.1 A 2.1
11129, uno (lIJK1),
It hai been t1ecltle~ In . 11Ing line IIf lled.llln, Ihul the ,'"11110 IIf
hllllllltllln. begin. III 'UII nlll when Ihe allegetl no~livenl '1<1' IIf Ihe
~efendanll.kes I'luee. bill when Ihe Injury I. kllllwn IlIlhe I'IIIilllll1. Thl,
I. Ihe .o.ealle~ "~I'eove'y ,ule" whkh fllu",1 il. 111111' III Ihe ,elllinlll
<1I,e Ilf Aym I', M"'R"'" )1J7 I\\. 2K2. 154 A,2,I 7KK (l951J). IIhClC II
lI'a, hellllhnl "Ihe Injury I. dllne when Ihe 11('\ he,"hlillg a !,1I\\ihle In"
11I11i<1. a ~alllllge which Is I'hyslclllly Ilhje<llve IIntlll,ce'llIi,,"hk" AI"'"
154 A.211al 792, The luw he'.lIme nll"e e.!'lidlln A"I/llm)' ,. 1;"1'1"'"
Co, IlIf., 2K4 I\\. SlIl'er, KI, 425 A,21142K (lIJKIII, ",hid, sell.lllh Ih,Cl'
IlIiI'IIiI<II
""III'III~t nlllt~ 1 \' 1111'1 Illl"
'\l
\1..., \ ~ht'l', ,'I ,II
IIllklh,'ntll'1l1 phil\l'!llIl tnm\ Il'lll~t' \lllldllll\l\1 h~' 1l','''11I1.Ihly iii'" 11\l'I.lhh,'
IWltlll' llll' \lillllllll Y pl'lltllltlllllllU'1U 1'\
tll lllll\\klll!l' III lhl' 1Il11l1Y,
1!1 lllll\\ll'lll!l' 1IIIh\' Ilprl.III\" l"lml' 1IIIhl' 1111111)', .llltl.
1'1 llltl\\ klll!L' Illlhl' l.III'illl\'l' Il'lilllllll"hlj1 Ill't\\'l'L'U lilt' II\IUI)
,lIllllhl' npl'lalllH' L'lIl1llurl
'III,' thWtl\l'I)' Hill' hit, IIl'l'U mille !llIl'\'lIIl"1ly \l'l lllllh III (',II", ,,,, I'
^'n'/II'I'II/I""'I,IIIIW/IIllI'''. ,\~., 1',1 SIII','1 I!,\, .t11 ,\ 211,1'H INK.II.
\\lh:IL'ill Ihl.: l'tlllll Il'tlllL"l',1 Ihc k\\~1 III h~,I"lIlothll' llltl\\'kd~c hi III
l,llll\\II.:IIVl'lh,1111ll1.: hi'" b"I'lIl11ll11l'll; (~llh,11 hi' IIIIUI)' h,1\ Ill'l'll (,111"'11
11\ ,lIIlIlhl.:l P,III)'\ ullhlml Althllll~h (',,,/If"'" \\,1' ,Ill ,,,lil',lI1\ 1',I'l',
.ll'ph\illltlll tllllu.' ('lItllll'" Il',1 hlllll'dll'illlll.llpl.ldll'C l'a...c, "d\ II'd.'l1ll\
l,....pllu,\.'Illll UtIIl/l'I" ", Ib.t.tk Mf//fIJIlltllllll/'/dt, \~7 1',1 SUP,'I .1211,
~Ih A 1,1 ~,\ INHh) f\111...t 1II11)tlllilllll), tlUI Snprl'l1Ic ('IIUIl h,\...
dl,J1ih."ll'llIcallhc Ih\l'It\~I)' lule I,."llllIlltllll'llh :o.lIlIpl)' ii' III\.' 1II.llullt)' ~ll''''pitl'
1t'.I'UII,lhk IlIh~cl\l"e hI tll'lClllllllC "till' 1111111)' 01 il\ l'illl\\'" 1\1,'1/1"
/"'1'11,.,1111".,1 ~lll'nll\ ,. H" (l/IlI/INIt/1ll f'. tl/I , ~tn 1',1, HO, Kh, .IIIX .'\ ~\I
,1h~, .111 .172 II'JK\I Sl'l' ilhll HI\I"'Ilt " /1111/'"'\111' I.,gl., ('" , :\1,1 P.I
'11, ,111 " 101 ,11111'IK71
Ill... 11m \\ hllll""l1ll'l)' 111l!ll'a!. IIllclh~CIII ,111111'01111111111 \\'11\\' ..1.llld,lId
III III\I.'II'ICI,IIIIIII, \'IlUpll.:ll \\ Ith Ih~ 11I11"l'lhll,lllUk, "I' t11,,'ll\t'l ~, \\ IlIdl
h,I' pllldll~C,llhc 11IIlhlcIIl II il plilillllH ...ulk!!. ,III 11I1111)' ,lIhl h,l' \lIIIll'
1I:.I"lIIltl \ldIC\'C illnllltl'llltlJlIlllcl~'I\lI.Il11\ 1I~'~h"l'II\l', 1111\ \ 1 Itlll1l\'lIu,',
Ih~' 11I11I1I1Il! ulllil' ...Iillllll' III IUIIII,IIIIIII' Sill! I' 1"111'11 illhllll lh~' \, 11111 'l'
1I111l1,'lIl1f,lllllll", Ill.:lltl\lIhlll"', 1l''iUl...." 11l1Ihl~IlIH\.'I1I.... illld L'\P"1t It'\ I~'\\,
hl' lind, 111.11 111\ 11111'111.11 thl'llI) 1.111 11\' 1'lIth'l '"ppl~'IIII'Ilh'd HI 1'\1'11
Il'pl.hl',1 Iii \\11,111.'\11'111 I... pl,lIllllll hh,h'lllllhl IIh t111~lIl,1I ,t1I"f,llllllb
11\ ,I 11111111111 III .llIll'lId Ih~ .dlq~,II,1 III LlIIIl"11IIIhl Itl III,' Jllpjl,11.1 \L1h'Il'
Illl' ,I,llutc h.I'IIII",' lUll It" hlI'IC\\'1I11111\ 111,11 pk,tlll'l, 111'1 hu lllll\hldlll~
\\lIh .1\l'IIIII'II1\ III ~1'lIl'I,lllh'l'IIVl'lHl' ('III/III" h .11"lllll'l'\,II\1Ph' I1llh,'
lilll,lll, Ih,11 il\\,1I1
111,'IC,III.:, II ""1'1\1"', Ihh'l'llllll\l" \\111,11 ,I '11111111I11\' 111I!.l\\ WI' ~,11l
1'~'lIl1lt "'lIkl!,!.III' i111~'l!,llIlllI'" .11\11,11111\\ 111\' 1',11 Ill'''' III hilH' 1,'\11111'\' 101
\h'~II\I'I)' III 11\'\1111111 Ih\' Ihlll '11I..'\llh ,I\I'IIIlI'IIl-. Whlll' ,III... 11\,\\ 'l'l\l'
hll'll'\\'1I1 '1III'Ih~ ill 111;11 <Il1d .1111'\1.,11' Ih~'I'I"\'I"" 'Illll;llllllI III ('111111111
111\' ".111111111 " IIl1l1l' 11111\111 \ ,It,11I h',d ,I' II \\ III ,11111111,111' 1111' ('1''1'/'"
\1111",11111\ ,kkll'" l"tl III Ihllhlllh' ,llll!1 \\tlll 1'11'11111111.11\ Il\ll\'lllll!"
111\'I~' I' ,11I1111,""h',II,tll' ,I,ll'~' \\111\ II ,11'1,,-,L1' hlllt' 11I1,1\111 ,Illlh' 1111''''111
IlIlll', Ie, III,dlll\\ III'lll'I,II.t\t'llIll'llh 11111\'l'lll'l'lh " \II hllll' II' ,hn h'1.11I'
154
II" !lour"
II^UI'IIIN COUNTY ~1ir()~IS
SII"~, M)tu, tl.1.
h.ck 10 Ihe lpeclfic allegallons, This, huwever Is ralher IIIl!,rll'lsc and
luhjecI very lIluch lu Ihe dlscre,lon uflhe pallleul., jlldge ur cuUll, SOllle
lIl.y feel Ihal an allegallo'l uf "ulhe,wlle negllgenl IIl11cr Ihe
cI,curnsL1nce." refell 10 Ihe prevluus allegallun., ",he,ens nlllrn 1Il3Y
cunslder Ihallhe clrcOlllstaOCes cuver Ihe enllre range nf Ihe ,c1l1klllship
belweeo the p.llles,
l1,e Ihlrd p,ocedure Is IU permit only spcclfic allegaliuns un IlIr theory
lhal one Ihould 001 be pellnllled 10 "discover" Ihelr way 10 IIIw sull,
In Ihe case II bar plalnllrr, In IUpport of his general allcgallons, supplle.
a qoole from Gm",'" \'. Riddl, "',mori"I 1/0,1/"1,,1, 357 I'll. S.r, 4211,
516 A,2d 53, 57 (19K6): "Appellanl need nol have knuwn lhe precise
IIlctllcal cause ufthe Injury In order to cummence Ihe runnlllg ufille SlollUle
uf Ihnltallons. She need unly 10 knnw Ihal she ""slnju,ed." Thllls Mally
uUI ofronlul, as Ihe nexllenlence lIIuslrales, "An Injury Is kr_n when
Ihe acl heralding Ihe p<!Kslble Ion Inmcll a dalllage which Is ~lleally
objecllve and u.cerlollnuble,"
Plalnllrrl reliance upon Cr/l'ttt"", 1\ I\I\\'tr ,,11I1 UR'" Cls, ~I I'u.
Supe', 173, 491 A.2d 207 (1985), Is likewise dl.llogul.IIMe, The
.olllewhal generul avellnenlS clled by plllnllff which Ihe Court appruved
In thai case were nUl under Iltack for 'pcclOelty, the Issue lIle.ty bclftg
whelher tbey sel fOllh a caUIe of acllun for InOlcllun uf emollo.. dbum
und fur professlonallllalpractlee,
In allempling IU fu,mulale I workable lolullon we mu.t ke" in mind
Ihe 1984 amendmenllo llule 1029 of Ihe Ilules of Civil Procedwc ",hlch
now lIales:
(a) A re.pun.lve !,Ieadlng Ihall udllllt ur deny each uvenncnl
of faclIII Ihe ple<edlng pleading or any pan Ihe,euf Itl ..leh
Ills respunslve. A !,arly denying only a part of anavellnenl shall
specify so 'lll,ch of II as Is Idmllled and shull deny Ihe relll""r,
Adml55lons und denluls In a ,espun.lve pleading shallrrfer
specifically In Ihe p",ug,a!,h In which Ihe avermenl adlllltlllll or
denied Is .el fOllh,
(b) Averlllenls In a pleading 10 which a re.!'on.lve plea<lillg Is
,eqlllred are ndmllled ",hen nol denied speclfielllly .. by
lIecessary Impllelllion, A general dcnllll III a dem'"lll fur pn..f,
ucel"as !,IUvlde" hy subdlvlslulI (c) uf Ihi. rille, shull hlot dIe
crfecl of 1111 adml"ioll,
Ie) A "lIlemenl hy n I'"IIY Ihu' .fler ,eu50nuhlc IIlI'e'lipllun
Ihe !,'"IY II wllholll knuwledge \II Infurmulllln IlIflicienllninlll
1.&11111MIIII
1I.\III'IIIN t'I HH~ I" ItlI'nU I"
I"
~l.IIl ~ IIhl'l\. ~'l oil
,I Iwllcl ..\ hi IIIl' 1IIIIh III illl il\'t'1111l'1l1 ,h,11I hil\l' Ihl' t'lh'111I1
,llklll"l.
Sl'l' .11!'lo, Mil',', I'. 111"\/'1'\' MI,d,lll' (',"".'1, ." 1,1, \UPI,\ I kll'nd,llll ,
In illl!UIIll! hlllllc 111I11IIIPlll'l) Ilf l~l'lll'lill i1l1l'l!,tllllll\, pllllll' In IlIl'IIIIIIII)
III ,h.lnll\~ .1 I11l'ill\inullll i11l\\H'I, Ie, thl' plillllllll lllll'l!l'\ Ih,lt till'
IIl'II.'Ihl,III1 "l'illll'lI 10 U\l' ,till' fall' ulull'l Ihl' l'lIl'lIlll'lill\l'C'" till' 11111)
IL',IIi\lh: 11ll!r.\\CI hl.'illl! hi ,1,lll', "'In Ihl' fllllllillY, ,ll'll'lId;1Il1 UWtl alllllll~
l'illC untll'llhl.' I..'ill'lIlll'l,lIH ".." TllI~ dm', IItll \C.'1'1I1111 ihh,1Il0' till' "'tll'\
h"Y 1',11,
Till,,' (l1l'l1l1'1.' of pk,uIIl11!' l\ tll Pll''ol'IlI, ,Il'rllll', illhlllilllllW Ihl' "\lIl'\
,1I111 hi ftlllll Ihe fllUlHtltlllll nl" iHhlto IlIlllt Ihl' pllllll 111 hc "lhlllllh~i1 ill
ifill!, Thl')' :Ill' dl.'!'llglll'lItO illl\'I\C thc CIIUlI iIIHllhl' illhl'l"l' P,llty Illlhl'
1\\111.'\,
1'leillllll11\ ute llc!!iJ!,I1CII hllh:\'l'hlp iIIulllll'!'ll'lItlhl' I1ll'l'I\l' IlllIlll..
IIllh"pute hclwccn parllc!'l Thclr ollke IS III IIlliHIll Ihe ...'tlIlIl
III the litl'ls ill i!t~IIl', Ihal It 1IIi1)' dl,,,,'hm.' tltl! hlW, lll\ll thl' 1',1I11~\,
Ih:ll Ihe)' IIHI)' lonll\\' \\hal 111 Il\l'ct h)' IhcH proof In ,I IIltlll'
1L''ollll'tl'llnml in thl' \'011111I11111)' ill'l'l'plc\1 ,Cll'l', Ihl' tl"ICl'llll
pll'admit!! is 10 IHlli!")' IlIl' tlflf1t1..ill' palt)' 01 tltc I,KI.. Wllldllhl'
I1h,'.IIIL'I Ck(ll't:h hi 1110\'1.', ..\llhat hl' 111i1)" 11111 he 1I11\ll'll III 11l1'
prl'p,lIulitll1 uf his l'll\l', ThUll, thl! illll'ltilliul1 Ill" surh lill.l\ l1Iu\1
he milllc \\Iilh that l'l'ltillllt)" \,llIdl Will cnilhlc IIIl' ;llhl'I....., p,lIt~
III IHl'flillC Ill!! l.... It k II... l' III 1Il""l" Ih.... tllIl'}!l'll farh
hlA Alii Ill' 1,1. I'k,IlItIlV. \ 1
Om llWIlIII!cS ot u\'lIll1l1(l'lhul' 11I1lVilll' III II \Impkl la...llItllllh.11 "lit...'
11l1ll"lhllll\llhl' pll'mhlll" I' 'lll'"llhl' III'POlIl'lI1 111I11I111I:l' ill \\1t,1I Ill' Will
II...' ,,':llIl'tl upon Itl Il\l'l" ,II III..., IlIill illld hi Ildilll' thl" I....lll... \\ 11Idl Will
hI.' tlll'd." ~ Ouot!lll'h.AIIII,1I1l ~llll)IJ l.thllolllg ilt Ihl' othl'l 'hk. \\1.' 11;1\'1'
tltl' nUlllIIl'lIl'o ollhl' \'l'lll'.,lhle lHil...'lo\lonc, "Ol'l\cI.II !l1.lll'lIll'lll\ III 1,llt
ihhlllllllll! III HIIIIO..1 i11\)' IHIltll au' llhJl'lllllll.lhll' ,"
It I" lUll f...,...'IIIll! thaI 1111' 11111) I" IIll'lpll' "llIdl nll""I" ,Ill) 1Il~',llIllIl!lul
~Ultl.llhl'ItJ pltl\pC.....I\l.l'k,lIkl.. ,..It I Il'qu II l' '1ll'~llIl'll) 111,111 ,!Ikl!.llhlll"
1111I~.ttlll!I'II(l" '1'1111'" \\...' \'llllltlllllll~l'l nlllllll'll.Ill...'1' l!l'IIClill i1\'l'lllll'lll..
1I111""}!")~""IKl' Shollltl dl"'lll\l'l) 11I......h"l' llil' l'\I~tl'lll'l' 1IIIIIIIl'I ,Id, ill
Ill'~Ill!~'lIll', II ..hllllltl Ill' 1I11Il'tl Ihal I Ill' HlIln III ('" II I'l1Ill'llllll'
I '1IIIiIH\'lll,1I 11'\ 11Il tht'l 0111 \ pi 1 tI~'l.lll,1 i,) SlI Willi III I 111,1, l\h'lIl'.lI,lPI I I',I!'<' ~" I
'~fl
III" !l'"ph
IlAUl'llIN ClllJNn' RI'.I'IRIS
511" \'. Myel'. et II
plOvl~e lur llbelallly III I'clmllllllg nmelllh,,'"I..' I'urlherrllllle, II h well
.ellle~ Ihallhe ~ecl.I,," III g,anl III ~,"y l'elml..11I1I lu alllell~ n plen~lng
I. n mnller ul Ju~lclal ~isc'ellllll, Ihllll/ll v. IItnlrl. 424 I~" 41~J, 221
^,2~ 840 (1%1); li/f/II" \', AII..,1I1r IlIJlln/f/rt Co" )211'01, SU!,CI, 132,
461 ^.2~ 1164 (1983).
We al.u call III allelllloll Ihe lolluwlllg frum Glltlmtll', 1'1,,,,,,,.1"""11
GIIS ",,,/11111" Co., 352 ra, Super. 282, 501 ^.2~ 1230, 1232 (1986):
^lIam.n~lllelll.have Ihl. ill ClllllmUII: Ihey a,e ulle'e~ Inler ill
tlllle Ihall Ihe I'lea~lng which Ihey ..ek III alllell~, II the
nlllen~menl cUlltalns allegnliun. which wuul~ hove nllllwe.1
IlIclu.lun In lhe orlglna' I'I.n~lng (lhe u.ual cn,e), Ihen Ihe
4ue.llon ul l'reju~lce I'l'r...nl'~ by Illlle al which III. ull'le~
,nlher Ihan by Ihe .ub.lance ul whal I. oll...~. The 1"15.lhle
I'reju~lce. In olh.r wor~., lI1u.1 .Iem lrumlhe loci i1mllhe lIew
allegallon. arc ulle,ed lale ,alher Ihnn In the IlIlginal "leu~ln~,
and not Inllll lhe lacl thallhe o"""nenl mny lu.e hi. cn.e un
Ihe merits II Ihe "leading is nlluwed.
It I.. ul CUUI.e, Ihe rule Ihal all amelldmenl will nul be l'errUllled nfler
Ihe .Iatule 01 IImllalllln. ha. rUII II Illnlruduced a new cnu.e ul nCllulI, '
S""dltll\ Clly n/I'IIU",ltll./'(II, 302 ra, Supcr. 184, 185.81, 448 ^.2~
58K, 589 (1982); KIIIsIs v, Olll"1I1,/)"",.II","UIIIII CII"", 451 I'd, 321,
325.26, 319 ^.2~ 914, 918 (l914),lIowevcr.lllhe amendmenl ""1111\ I1l1ly
am"lIly lit cnla'ge Ihe cli.llllg cause ul aCllulI, It will he "ermllle~,
IJlllmll v, Gtll,mlllll,'II,,"1 III MIII'mt CII""',I', 494 "" 238, 241.43, 431
^,M 231, 239 (1981). It .hllllld he IIl1le~ Ihallhl. "'" Ihe plvl1,,,1 II"e'lllIlI
In emlllOr,
It wuul~ ,eemlu IlIlIuw tllUl U 1,,<llIr III hullllldn~ Ihe ~eci,I\l1I "' lu
whe,e U l'rulll15e~ amell<lmelll 01. III, I.e., I. iI U lIew cUII,e III IIclillll
III sim"ly 1111 uml'lInClIll\l1I \II II I',evluu. UII., Ihe <\11111 ,hlluhl I"k.
-~ ---- - -
4 Mule IHB Amendment. A l'+lIty. eilher hy 0If\J c:ununlllf Ihe 'I.hCf\t' 1IIIlY 1If by
Icl\-t' uf tllurt. mly It .ny time (hnnlt~ tht' f\lflU U, Inlun. ctlllrcllhe n:llut' III I JlIl"Y
Ilf .mcnd hil I'lradln..lhe ,nlcoocll,IIUlllnll IlI'Y Ivtr Ulnuclinn,m 1,,\."uffcn[C\ Vohith
h:ne h",lprlted ht"lIff nr .flr, lh~ nllna uf lht' UliJinllllluJin" c\'cn Ihllll,l1 thcy ,i~c
II\<<! \!lllltW nil\!: ul kllllllllf lkfrlt\!:. An11l14.'1ltlllM'1I1 n~ hc II.-It Ill~-lllllll'm Iht' plC'illllll'
III Ihe l'videnu "Utfed Ul .tJllIillrtl
"ule' I2fI I.lhl.'fll t'IIll\IHll'-UUlIlIlllllllllll\".Uun uf rule, I hI' fulr' ,!l,11I hI' hht'llIlI)
u,"'IIUl.'.J hi fot'lllU' Ihe ju\l. '11Ct'lly iUIIIIIlUI't'II'he ,1(h~11I1I1I~lIl1n III l'H~f) IdulM III
Illlkl'Clllll1 'I' Vo'hidllht'J IIf" .l'llhnlhlr "' he ,Ulllt .1 ('\Clf \l.l~r III Ill) \\I("h ,Idllln !II
l"nn'l'lllIllllllilJ lli\l"Jld Mn~ 1."1111 III ,ldrd II' IlInrt'dUlt' ."Imll 11\11'\ filii ,lh:d Ihl'
\uh\l.lllllllllfhl\ ul Iht 11.IIIIC'
10 1 I 'Hull I
lI\III'IIlN Illllr"," 1111'11111'1
\L., I \ ",111., II ~I
"'Ul:llI/,lIln' III I Ill' r,hllh,llllh' pLulllllh \\l'll' 1'\'llIlllh'lll1l1l~ 11111Il'.lIl
\\lIh 11011 lIl"lIl,1I Il)' III Ih\' 111,1 ""1.111\"
1111 hl' \;IIt1lh,lIlhl\ .lppIII,u'h 1\ ,I \h'p h,ld.\\,lIllIII I'h',ldllll! 1I""'I,III1\,
\ll' \',11I UIlI) \1I~IJ~I'\llh;1l Ihl' \Illllllun IIn, IInl III IlIl' ,11'1"11.1(11 1.I~.I'n III
I Ill' C"""II' IllTI'\lllU, hill 1,lIhl'l "II 0111 SlIllIl'llll' ('01111 1.1 ildopl Ill.'
h'III.'I,.1 null'\ tll ('1\'III'III(I',hll\' wlll~h 1\"111111' 111I1) ",I \lIllll ,11111 "l.1l11
\1.111.'11I1.'111 IIf lhl' dilllll \hll\\IIIJ! Ih,ll Ih~' 1I11',ldl'l 1\ l'nlllkd III h'lId H\
111l11L'1 Ih,,' I=l'''l" I ill \)"11'111 0"1111111'''' pll'itdllll!. \\ 11111'1111' 1\'\1111 III ("IIIfI",
\\Iluld h.l\'\' hl'l"lI Ihl' "lIl11'. '" , Ihl' nU1I1 "tlull! 11$" P"'llIlIll\'t1 Ih\'
,lIlh!II\lllIl"lIl ami 1111' l'il'\' \\t1uld II.IH' l~lll'"' hi 111,11 nil 1111' Illl"llh. Ih\'
hllgal1l11t \\'llIIftl 1\111 11,1\\' 1\'qUlIl'lllIll' Ill.lll~ \\',11' \PI.'IlI 1111 tll'l'hllll~
\\ IU~lllcr Ihe IIIlU~I1t1l11l'lll \\,1\ lll'rllll\\lhlc" h'dl.'rlll Hull' l.~(l'l IHIll'ldl'\
Ihill "hl'Ill'\l'lllll' ,'1.11111111 Ikkn\l' .1\\I'1I1'llllllhl' ,IIIWlhll'III'I'''ldlllr ,1I1\\l'
Olllllllh.... nllhlllt,:I, t1,II",ldliln 1II11~'llllll'lln' 'l'l hlllll III .llll'IlIPh'd III
hl' ~l'lltlllh III I hI.' 1l1l1:lIlill pll"1I11111~, Ihe illlll'lhhlll.'lIl'l'lall" h,H, k llllhl'
,1.1l1' 01 11I1' 1I11l!1I1.11 pl",ldllll! Slll~'l' 1 Ill' 11,1l1\,11I11I1I III lIrllllll'II~'l' III
('lll/lIl1' mlUl~1 ha\'l..' 1'l.'l'lIllll.' 'Iii)' 1II11u- hmflllill, IIlIlhlll \\,11111,111.1\'1..' hl'I'1l
1I~1'1'!l!l.1I) 1111 Ihe pl.1I111111 Itl i11h.-~e \\,1\ Ih,1I ,hI' \\.1\ IIIl'lIl'II h~ I Ill'
11l'l!1Il!I'III'l' III lhe 11I1\11lI,11 .1111 III)! hl'l l'lllllilll'1I11'1I1 Ihl!I,'hl
A~l'llhlill~I>, \\~' l'lIh'l Illl' 11IIIU\\lIlg
(1I11111(
ANn NOW, 1111' !!lItl,l.l\ III Ih'\'I'llIh~'I, IIISK, SlIhp,II,II~I.lfllI\ ll!l'
Ihllllll!h (j) Ill' ".11.11:1.11111 It\ .11,,' '1IIlh'lI. itllll Ihl'l'1.lIllllll h t!lh'U (11111)
d,l)\ hi iii..' .1 1lI11h' "l'l'l, 111~ pll',uhlll! \.. 1111 1l'''I'~'~'1 Itl Ihe'I' ,1111',',11111'"
"
1,.1 It I'" I' "
'1 1111' lllllllll.lllll 1\,1\ Illnllllll, I, ,I,," 1,1 1'1" Ih.' 1II,'PIIU I., 01111. ,~llh N"lll,,,>, I ,.1
I'IN ,fII'. Ih~ .11111'1..111I1111....11111.1111 '\1'111 ", I'illl Ilhi' ,II,_.L I': 1',11. I" I,.. I., tlo.
1'>111'" ",1111111'1 ". U..II,I 1"1'.11I,111" ,"I'tl~h". IIi
I ", 1'.n."..,I, '1"..-.1111,' 1,1...."011 1I\J,II. it, 11111 1.IIl.H,.II.", ,..lojl.II""!''1,lh Il" II..
II..' "',,,",1 >""1'11.11'1.11''' if I "1,..11 " I.. wI' ,I. '."1"..1
,,,,
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYlVANIA
VIVIAN RODE
CIVIL ACTION - LAW
Plaintiff
No. f..,,(- ,1/11&1/ W~'-.\
v.
DR. GREGORY H, KADEL and
ENDODONTICS ASSOCIATES
3~ 6T, \1'>rUI!l. c.\l<l~uI ft,b.
CA.&41l ~'~II'~ 1'''.1
Defendants
JURY TRIAL DEMANDED
PRAECIPE TO ISSUE WRIT OF SUMMONS
TO THE PROTHONOTARY:
Issue a Writ of Summons In the above-referenced mailer.
"
Ii,
Q(;QtJ~
David W. Knauer, Esquire
Allorney for Plaintiff
Attorney I,D, No, 21582
4"-A East Main Street
Mechanlcsbur8, PA 17055
(717) 795-7790
Date:<< ~~ I,QS-
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Commonwealth of Pennsylvania
County of Cumberland
Vivian !bIB
Cnurt or Common Pleu
w.
No, ____..95:-.t.C6t.Civil..!DaIlD__________ 19__..
Dl". Gl'e!JItY H. Kadel IDI
Elid4...tics A11l1O('iatee
395 st. Joh1 Qm:dl Rd.
c;"ll Hill, PA 17011
In _____Civil. ar-tinn ::.~__________..___..
To _____~.._!HJMlJX_If._~_AQd..~,.Nl:ics As80ciatell
You are hereby notified that
Vivian IbIe
...... ....... ----.............-............. --.... .....-.........- -_..- --............ ...---.-.....................-............. ........... --....... ....-.....-..-.................. ---..
the Plain Ill! hoB commenced an acuon In ___Civi1..ltct:im_":'_.lM_____________________________n
asalnll you whlth you are required 10 delend or 0 d.rouh Judgment lIIay be enlered aplnlt you,
(SEAL)
Iam!noe E. Welker
.-..-----.--.------p~th~~~L;;y------..-..--------
Oat. _...._~L~_~t____________ 19._~~
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By ___~i.'1"";/.\'L___.I.r:'__&/~_ ____
I Deputy
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SHERIFF'S RETURN - REGULAR
CASE NOI 1995-04464 P
COnnONWEALTH OF PENNSYLVANIA'
COUNTY OF CUnBERLAND
RODE VIVUN
VS.
KADEL GREGORY H
KENNETH E. GOSSERT
CUnBERLAND County, Pennsylvania,
to law, .ays, that he aerved the
. Sheriff or Deputy Sheriff of
who being duly sworn according
within WRIT OF SUnnONS
upon KADEL GREGORY H DR the
defend.nt, at 918100 HOURS, on the 25th day of Auoust
19~ at 395 ST JOHNS CHURCH ROAD
CA"f HILL. fA 1701) ,CUnBERLAND
County. Penn.ylvania, by handing to JILL ENGLAND. PRACTICE CO-
ORDINATOR AND ADULT IN CHARGE
. true and atteated copy of the WRIT OF sUnnONS
.nd at the .ame time directing lIer attention to the contents thereof.
Sheriff's Costal
Dooketing
Servioe
Affidavit
Surcharge
So anawersl ~~/ .~././A1
/~".,.~ ~.~
R. Thoma: Kllne, Sher1f
DAVID W. KNAUER
08/28/1995
by
18.00
6.16
.00
2.00
&26. 16
r, UU
C':J'I /'-
Sworn and subscribed to before me
thia 5& day of .1.1"1i..~I.~
1 9 9f' A. D. -.
(1(/,- (;I )1LLm._ .Ji.-r.
" ~rothonot~rt'
..
SHERIFF'S RETURN - REDULAR
CASE NOI 199~-044&4 P
COnnONWEALTH OF PENNSYLVANIA,
COU~TY OF CUnBERLAND
RODE VIVIAN
VS.
KADEL GREGORY H
KENNETH E. GOSSERT
CUnBERLAND County, Pennsylvania.
to law, .ay., that he s.rved the
, Sheriff or Depuly Sh.riff of
who being duly .worn according
withi" -W.T OF SUnr10NS
upon ENDODONTICS ASSOCIATES the
defendant, at 918100 HOURS. on the ~ day of Aua~Bl
19~ at 39~ ST JOHNS CHURCH ROAD
CAnp HILL. PA 17011 .CUnBERLAND
County, P.nn.ylvania. by handing to JILL EKQ1AHQ. PRACTICE CO-
ORDINATOR AND ADULT IN CHARGE
a true and att..ted oopy of the WRIT OF BUnnONS
and at the same time directing ~ attention lo the contenls thereof.
Sheriff'. CoStSI
Docketing
Service
Affidavit
Surcharge
80 ."lIverBI ~~~
~Tliom... ~ :e. Siler 1 f f
&.00
.00
.00
2.00
'B.~0l>AVID W. KNAUER
08/201 I 99!l_A" >'
by ~L
- -{'UIJU
Sworn and subscribed 'rf b6'fon. mil
this 5r!- day of .-J!~.(;!:::::.:.._-
19 <J,( A.D.
g.,,-,- 0. )n.,lC,-- I "D.!..'i __._
Prolllono{o,"y
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r. Lee Shlpa1an, uquln
I.D. ,. 07252
GOLD.IRQ, KATIMAN , SHIPHAN, P.c.
320 Ma~ket stre.t
P.O. Box 126B
Harrl.burg, PA 17108-1268
Telephone. (717) 234-4161
Atto~n.y. fo~ D.fendanta
VIVIAN RODE,
plaintiff
VS.
DR. GREGORY H. RADEL and
ENDODONTICS ASSOCIATES,
Defendants
.
.
.
.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
:
NO. 4464 CIVIL, 1995
CIVIL ACTION - LAW
PRAECIPE
TO THE PROTHONOTARY:
PLEASE enter the appsarance of the undersi9ned on behalf of
the Defendants in the above-captioned matter.
DATE: September 26, 1995
GOLDBERG, RATZMAN , SHIPMAN, P.C.
By
Attorneys
.
r. Lla Shlpman, !Iqulre
I.D." 07252
GOLD8ERG, KATZMAN' SHIPMAN, P.C.
320 Harkat Straat
P.O. 80x 1268
Harrlaburw. PA 17108-1268
Telaphonol (7171 234-4161
Attorn.ya for Dafendanta
VIVIAN RODE,
pla1ntift
VB.
DR. GREGORY II. J<ADEL and
ENDODONTICS ASSOCIATES,
Defendanta
I IN TilE COURT OF COMMON PLEAS OF
I CUMBERLAND COUNTY, PENNSYLVANIA
I
I
I NO. 4464 CIVIL, 1995
I
I CIVIL ACTION - LAW
I
I
PRAECIPE
TO THE, PROTIIOHOTARY I
PLEASE enter the appearance of the undersigned on behalf of
the Defendants in the above-captioned matter.
DATEI September 26, 1995
GOLDBERG, KATZMAN & SHIPMAN, P.C.
By
Attorneys
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VIVIAN RODE, IN THE COURT OF COMMON PLEAS OF
plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
vs. I
I NO. 4464 CIVIL, 1995
I
: CIVIL ACTION - LAW
DR. GREGORY H. KADEL and
ENDODONTICS ASSOCIATES,
Defendants
TOI David W. Knauer, Esquire
411A East Main strset
Mechaniosburq, PA 17055
Attorney for Plaintiff
B111&
A Rule is hereby issued upon, Vivian Rode, Plaintiff,
to file a Complaint within twenty (20) days of service hereof, or
Buffer judgment of non pros.
DATE I 1- J- f' ? 'J
/i(J~
r. Lee Shipmen, lequire
1.0.', 072li2
GOLDBIRO, KATIIlAN , SHIPMAN, P.c.
320 Market Street
P.o. Box 1268
Herrieburw, PA 17108-1268
Telephone. (717) 234-4161
Attorneye for Defendante
VIVIAN RODE, . IN THE COURT OF COMMON PLEAS OF
.
plaintiff . CUMBERLAND COUNTY, PENNSYLVANIA
.
.
.
VS. .
.
. NO. 4464 CIVIL, 1995
.
DR. GREGORY H. J<ADEL and . CIVIL ACTION - LAW
.
ENDODONTICS ASSOCIATES, :
Defendants :
PRAECIPE
TO THE PROTHONOTARY:
Please issue a Rule upon the plaintiff to file a complaint
within twenty (20) days after service hereof, or Buffer judqaent
of non proB.
OOLDBERG, J<ATZMAN . SHIPMAN, P.C.
BYt:~~:n~
320 Market street
P.O. Box 1268
Harrisburg, PA 17108
Attorneys for Defendants
Telephone I (717) 234-4161
Identification No.1 07252
DATE: September 26, 1995
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I.D. ,. 07252
GOLDIIRG, KATZMAN , SHIPMAN, P.C.
320 Market 8treet
P.O. lox 1268
Marri.burv, PA 17108-1268
Telephone. (7171 234-4161
Attorney. for D.fendant.
VIVIAN RODE,
plaintiff
vs.
DR. GREGORY H. KADEL and
ENDODONTICS ASSOCIATES,
Defendants
;"('.:\ "l,"':,.
,.
I IN THE COURT OF COMMON PLEAS OF
I CUMBERLAND COUNTY, PENNSYLVANIA
I
NO. 4464 CIVIL, 1995
I
I CIVIL ACTION - LAW
I
I
CERTIFICATE OF SERVICE
I hereby certify that a copy of the Rule to File a complaint
has been duly served on the following counsel of record, by
depositing the same in the United States Mail, via certified
Mail, No.1 P 627 762 704, in Harrisburg, Pennsylvania, on
september 29, 19951
David W. Rnauer, Esquire
411A East Main street
Mechanicsburg, PA 17055
Attorney for Plaintiff
GOLDBERG, KATZMAN' SHIPMAN, P.C.
,
,//
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
VIVIAN RODE
Plaintiff
CIVIL ACTION. LAW
v.
NO. 95-4464 CIVIL TERM
GREGORY H, KADEL and
ENDODONTICS ASSOCIATES
JURY TRIAL DEMANDED
Defendants
NOTICE TO DEFEND AND CLAIM RIGHTS
YOU HAVE BEEN SUED IN COURT, If you wish to defend against the claims set
forth In the following pages, you must take action within twenty (20) days after this
Complaint and Notice are served by entering a wrlllen appearance personally or by
attomey and filing In writing with the Court your defenses 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 Court without further notlee for any
money claimed In the Complaint or for any other claim or relief requested by the Plaintiff.
You may lose money or property or other rights Important 10 you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HelP.
CUMBELAND COUNTY LAWYER RefERRAL SERVICE
Court Administrator
Cumberland County courthouse
One Courthouse Square
Carlisle, Pennsylvania 17013
(717) 240.6200
'.^;o;c-"_.,;
NOTlCIA
Le han demaandado a usted en la corte, 51 usted qulele defenderse de estas
demandas expuestas en las paglnas slgulentes, usted tlene vlente (20) dlas de plazo al
partir de la fccha de la demanda y la notlflcaclon, Usted debe presentar una aparlencla
escrlta 0 en persoa 0 por abogado y arr.hlvar en la corte enforma escrlta sus defensas 0 sus
objections alas demandas en contra de su persona, Sea avlsado que sl usted no se
deflende, la corte tomara medldas y puede entrar una orden contra usted sin prevlo avlso 0
notlflcaclon y por cualquler quela 0 allvlo que es pedldo en la petlclon de demanda.
Usted puede perder dlnero 0 sus p'ropledades 0 otros derechos Importanted para usted.
LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE, 51 NO TIENE
A80GADO 051 NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAVA
EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUY A DIRECCION SE
ENCUENTRA ESCRITA A8AJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR
ASISTENCIA LEGAL.
CUMBElAND COUNTY LAWYER REFERRAL SERVICE
Court Administrator
Cumberland COllllty Courthouse
One Courthouse Square
Carlisle, Pennsylvania 17013
(717) 240-6200
David . Knauer
Altorney for Plaintiff
Altorney 1.0. No, 21582
411-A East Main Street
Mechanlcsbur8, PA 17055
(717) 795-7790
Date: 10(2)0 I "lS
- 2-
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTV, PENNSYLVANIA
VIVIAN RODE
CIVIL ACTION. LAW
Plaintiff
No. 95-4464 CIVIL TERM
v.
DR. GREGORY H, KADel and
ENDODONTICS ASSOCIATES
JURY TRIAL DEMANDED
Defendants
COMPLAINT
1. The Plaintiff Vivian Rode Is an adult Individual wllh an address of 4923
Colorado Avenue, Harrisburg, Pennsylvania 17109-3006,
2. The Defendant Gregory H, Kadel Is an adult Individual, licensed dentist, and
a specialist In endodontics In the Commonwealth of Pennsylvania, who maintains an office
at 395 St, John's Church Road, Camp Hili, Pennsylvania 17011.
3. The Defendant Endodontics Associates Is a professional corporation
organized and doing business under the laws of the Commonwealth of Pennsylvania wllh
a registered address of 2431 North 2nd Street, Harrisburg, Pennsylvania, and maintains an
office and does business at 395 St,lohn's Church Road, Camp Hili, Pennsylvania 17011.
4. At all times relevant herein, the Defendant Kadel held himself out to be a
doctor of dentistry, who was an expert in the specialty of endodontics,
5. At all times relevant herein, the Defendant Kadel was the agent, servant,
workman, or employee of the Defendant Endodontics Associates, Inc" ilnd was acting
wllhln the scope of his aforesaid relationship ilnd authority,
-'\ .
6. AI all limes relevanl herein, Ihe Defendanl Endodonllcs Associ ales, Inc.,
malnlalned alleasllhree offices for Ihe provision of endodonllcs, Imer alia, In Ihe
Commonweallh of Pennsylvania,
7. The Plaintiff Vivian Rode vlslled Ihe offices of Ihe Defendanls on Augusl 20,
1993.
8. The Defendanl Endodonllcs Associ ales, Inc., assigned Ihe Defendanl Kadel
to perform services for Plalnllff.
9. The Defcndanl Kadel performed a rool canal on Ihe Plalnllff on Friday,
Augusl20, 1993.
10. On Salurday, August 21,1995, Ihe Plalnllff called Ihe Defendanls' office to
complain of pain and numbness, which was nol subsiding, and spoke 10 Dr. Henry
Rankow.
11. On Sunday, Augusl 22, 1995, Ihe Plalnllff again spoke wllh Dr. Rankow al
Ihe Defendanls' office regarding her conllnulng pain and numbness.
12. Dr. Rankow lold Ihe Plalnllff 10 come In Ihal nexl morning Monday,
Augusl 23, 1995, so Ihal he could evaluale Ihe slluallon.
13, On Augusl 23, 1993, Dr. Rankow discussed Ihe posslbllllY of eXlracllng the
loolh In quesllon wllh Ihe Plaintiff.
14, Laler lhal day, Ihe Plalnllff called Ihe office and scheduled appolnlmenl wllh
Dr. Tlmolhy D. Fulato 10 grind down a polnl on her loolh lefl by her appolnlmenl wllh Dr.
Rankow.
.2.
.
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15. At that subsequent appointment with Dr. Fulato, it was agreed between the
Plalnllff and Dr. Futato that it was In her best Interest to have the tooth abstracted.
16, An appointment was scheduled with Dr. Donald Dlnello to pull the tooth on
September 7, 1993.
1 7, After the tooth was abstracled at the appointment on September 7, 1993, the
Plalnllff retumed to Dr. Dinello's office for a follow-up visit at which she informed Dr,
Dlnello that she continued to have numbness In her face and law.
18. The Plaintiff presented to Dr. Calvin Taylor on June 8,1994, with continued
complaints of numbness In her face and Jaw and with sensitivity in the tooth which had
been next to the one extracled by Dr, Dlnello,
19. The Plaintiff saw Dr. Dlnello on August 2, 1994, to have this other tooth
removed,
20. The Defendant Kadel, by negligently performing a root canal on the Plaintiff,
caused permanent Injuries to Plaintiff's jaw and/or facial nerves.
21. As a result of the aforesaid root canal, the Plalnllff has undergone various
treatments and will In the future undergo treatment for her condition.
22. The aforesaid Plaintiff's Injury Is a permanent and partial disability.
23, The Plaintiff has Incurred medical expenses for treatment necessitated by the
carelessness, recklessness, and negligence of the Defendant Kadel.
24, The cost of the said treatment was necessary for treatment and care of the
aforesaid injury.
- 3-
25, As a result of the aforesaid Injury, the Plaintiff Vivian Rode will require
additional medical care and treatment for the rest of her life,
Count I
Vivian Rode v. Dr. Gregory H. Kadel
Informed Conlent
26. The Plaintiff Incorporates by reference thereto Paragraphs 1 through 25 as If
.;
more fully set forth herein by reference thereto.
27. The Defendant Kadel failed to Inform the Plalnllff prior to the root canal that
a nerve or her jaw could be damaged during the procedure which could result In a
permanent Injury. This risk of permanent damage was a significant and material risk of the
procedure done by the Defendant Kadel.
28. The Plaintiff suffered the aforesaid Injury becalJSe the Defendant Kadel
negligently performed the root canal procedure,
29. As a result of the Defendant's breach of duty to obtain Informed consent, the
Plalnllff has Incurred and will Incur medical expenses, suffered pain and will suffer pain In
the future, suffered emotional distress and will suffer emotional distress In the future, and
has suffered loss of enjoyment of life and will suffer loss of enjoyment of life In the future.
WHEREFORE, the Plaintiff demands judgment In her favor and against the
Defendant Kadel In an amount In excess of the . "''lunt for mandatory referral for
arbitration.
. 4 .
,..,"",.,,,,..,...,......
Counlll
Vivian Rode Y. Dr. Gregory H. Kadel
Negligence
30, The Plalnllff Incorporates by reference lhereto Paragraphs 1 through 29 as If
more fully set forth herein by reference thereto,
31. The Plalnllff's injuries were caused solely by lhe carelessness, recklessness,
and negligence of the Defendant Kadel In that, In the alternative, he:
a, failed to possess and employ lhe required skill and knowledge
required to treat the Plaintiff;
b. failed to utilize the required skill to treat the Plaintiff;
c, failed to take a full and complele examination of the Plaintiff before
determining 10 perform Ihe root canal;
d, failed to exercise the care and judgment of a reasonable dentist In
proceeding as aforesaid;
e, failed to exercise the care and judgment of a reasonable denllst and
specialist In endodontics by performing a procedure which caused Injury to the
Plalnllff;
f, keptlhe Plaintiff's mouth open for an extended period of lime to do
the root canal; and
g, was otherwise negligent.
32. As a result of the carelessness, recklessness, and negligence of the Defendant
Kadel, the Plaintiff suffered an Injury 10 her jaw and/or a nerve which hilS left the Plaintiff
with a permanent partial disability,
33. As a result of the carelessnl!ss, reckless, and negligence of Ihe Defendant
Kadel, the Plaintiff has suffered the follOWing elements of damage: past medical expenses,
.5.
future medical expenses, permanent dlsablllly, past pain and suffering, future pain and
sufferlng, emotional distress, and both past and future 1055 of enjoyment of life.
WHEREFORE, the Plaintiff demands judgment In her favor and against the
Defendant Kadel In an amount In excess of the amount for mandatory referral for
arbllratlon,
Count III
Vivian Rode v. Dr. Gregory H. Kadel
Breach of Contract
34. The Plaintiff incorporates by reference thereto Paragraphs 1 through 33 as If
more fully set forth herein by reference thereto,
35. The Defendant Kadel, as aforesaid, had held himself out as an expert and
competent dentist and specialist in the field of endodontics who could perform the
required services,
36, The Plaintiff accepted his offer to perform the medical services In a good and
workmanlike manner.
37, The Defendant, as aforesaid, breached his duty to perform the treatment and
care of the Plaintiff In a good and workmanlike manner,
38, As a result of the Defendant/s breach of his aforesaid contract, the Plaintiff
has suffered the Injures and damages as aforesaid,
WHEREFORE, the Plaintiff demands judgment in her favor and against the
Defendant Kadel In an amount in excess of the amount for mandatory referral for
arbllratlon,
.Ii.
....-, "'~F,",~""".. __.....
Count IV
Vivian Rode v. Endodonllcl A'loclate., Inc.
Negligence
39. The Plalnllff Incorporates by reference thereto Paragraphs 1 through 38 as If
more fuliy set forth herein by reference thereto,
40. The Defendant Endodontics Associates, Inc" was careless, reckless, and
negligent In that It, Inter aI/a, In the allernatlve:
a. did not prohibit Its agents, servants, workmen, or employees from
performing any procedure which would cause permanent jaw and/or nerve damage
to patients;
b, failed to establish Internal guidelines for the performance of
procedures which present serious risk of permanent jaw and/or nerve damage;
c. failed to enforce those guidelines and/or procedures with respect to
the treatment of the Plaintiff Vivian Rode If such guidelines and/or procedures
existed;
d. failed to establish Internal guidelines or procedures for providing
patients with sufficient Informallon with respect to the risks Involved with the
particular procedure performed by the Defendant Kadel on the Plaintiff;
e. failed to supervise the Dl1fendant Kadel as aforesaid In Paragraphs a
through d with respect to the Plalnllff; and
f, was otherwise negligent,
41. As a result of the aforesaid negligence of the Defendant Endodontics
Associates, Inc" the Plaintiff suffered the aforesaid Injuries and damages.
42, The Injures the Plaintiff suffered were caused by the negligence of the
Defendant Kadel and the Defendant Endodontics Associates, Inc, The Defendant
.7.
Endodontics Assoclates, Inc., is ellher solely liable to the Plaintiff or jointly and severely
liable to the Plainliff wllh the Defendant Kadel for damages as aforesaid.
WHEREFORE, the Plaintiff demands judgment in her favor and against the
Defendant Kadel In an amount In excess of the amount for mandatory referral for
arbitration,
Count V
Vivian Rode v. Endodontics Associates, Inc.
Responde.' Superior
43. The Plaintiff incorporates by reference thereto Paragraphs 1 through 42 as if
more fully set forth herein by reference thereto,
44. The Defendant Endodontics Associates, Inc" Is liable to the Plaintiff pursuant
to the Doctrine of Respondeat Superior for the tort and breach of contract of the Defendant
Kadel, Its agent, servant, workman or employee, as aforesaid,
WHEREFORE, the Plaintiff demands judgment In her favor and against the
Defendant Kadel In an amount In excess of the amount for mandatory referral for
arbitration,
Count VI
Vivian Rode v. Endodontics Associates, Inc.
Breach of Contract
45, The Plainliff Incorporates by reference thereto: 'aragraphs 1 through 44 as If
more fully set forth herein by reference thereto,
46, The Defendant Endodontics Assoclates, Inc" Is responsible for Its breach of
contract to provide expert and professional care to the Plalnliff.
.8.
WHEREFORE, the Plaintiff demands judgment In her favor and against the
Defendant Kadel In an amount In excess of the amount for mandalory referral for
arbltrallon.
12" ~. ~k<j>
David W. Knauer, Esquire
Attorney for Plaintiff
Attorney I,D. No. 21582
411-A East Main Street
Mechanlcsburg, PA 17055
(717) 795-7790
Date: fO)Ji:>/"IS"
-9-
CERTIFICATE OF SERVICE
I, David W, Knauer, hereby certify that I did this 30th day of October, 1995, serve a
true and correct copy of the within document on all counsel of record by facsimile and
United States mall, first class, prepaid addressed as follows:
F. lee Shipman, Esquire
Goldberll, Katzman & Shipman
p, O. Box 1268
Harrlsburll, PA 17108.1268
y~,~ ~. ~~fl-L'j
David W, Knauer
Attorney for Plaintiff
Attorney I,D, No, 21582
411.A East Main Street
Mechanlcsburll, PA 17055
(717) 795.7790
III
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PRAECIPE FOR LISTING CASE FOR ARGUMENT
(tlIDt be typewritten and subnitted in dup] i<:'~tel
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Plel11lc list the within matter for the next AI9Jl1Ilnt Court.
---------------------------------------------------------------------------------------
CAPTION OF CASE
(entire caption IlIISt be stated in fulll
VIVIAII RODB,
( plaintiff I
VB.
DR. GIlBGORY B. KADBL and
BlDQDDRTICB ABSOCIATBS,
( Defendant I
No. UU
Civil
19 95
1. state I1I!Itter to be ~ (i.e., plaintiff'S rmtion for MW trial. deferdant'a
dEmIrrer to cmplaint. etc. I:
PRBLIIIlllAIlY OBJBCTIOIIS OF DBFBIIDAll'rS, GIlBGORY H. KADBL MID
BIDODONTICS ASSDClATBS. TO PLAIRTIPP'S COIlPLAIII'1'
2. Identify counsel 1o'b:l will argue case:
(al for plaintiff: David W. lUlauer, Bsquire
~s: 411A Baat Main Street
Mechanicsburg, PA 17055
(bl for defendant:
Address:
F. Lee Shi~n, Bsquire
P.O. Box 1268
Harrisburg, PA 17108
3. 1 will notify all parties in writing within two days that this caee has
been listed for argunent.
4. Arg\m!Ilt court Date: 1/31/96
12/13/95
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VIVIAN RODB
V.
I IN THB COURT OF COMMON PLBAS OF
I CUMBBRLAND COUNTY, PBNNSYLVANIA
I
I
I NO. 95-4464 CIVIL TBRM
I
I CIVIL ACTION - LAW
DR. GREGORY H. DDBL AND
BNDODONTICS ASSOCIATBS
IN RBI DBFBNDANTS' PRBLIMINARY OBJBCTIONS TO
PLAINTIFF'S COMPLAINT
BBPORBI SUBBLY. P.J.. BAYLBY. J.
AND HOW, thb
ORDBR OP COURT
-;;1
IS day of MARCH, 1996, after condderaUon
of the partie.' brief. and oral drgumente, we hereby grant in
part and deny in part defendant.' preliminary objectione. within
10 day. of thie order, plaintiff will amend her complaint to
include a proper verification. Further, Paragraph. 31(g) and
40(f) are etricken from plaintiff'. complaint.
By the Court,
David W. Knauer, Bequire
For the Plaintiff
F. Lee Shipman, Bequire
For the Defendant
liL< /./ (
Harold B. Sheely,
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VIVIAN RODB
I IN THE COURT OF COMMON PLEAS OF
I CUMBERLAND COUNTY, PENNSYLVANIA
I
I
I NO. 95-4464 CIVIL TERM
I
I CIVIL ACTION - LAW
V.
DR. GREGORY H. KADEL AND
ENDODONTICS ASSOCIATES
IN RBI DEFENDANTS' PRELIMINARY OBJECTIONS TO
PLAINTIFF'S COMPLAINT
BEFORB. BUBBLY. P.J.. BAYLBY. J.
MEMORANDUM OPINION AND ORDER OF COURT
The Court heard argument on January 31, 1996, regarding
defendant.' preliminary objection. to plaintiff'. complaint.
B..entially, plaintiff filed a complaint on October 30, 1995,
alleging that Dr. ~adel negligently performed a root canal on
Augu.t 20, 1993, re.ulting in injury to plaintiff'. jaw and
nerve.. Plaintiff further claim. that defendant Bndodontic. i.
li.ble for damage. .he .uffered under theories of negligence,
re.pondeat .uperior, and breach of contract. Defendant. filed
preliminary objection. to the complaint on November 13, 1995,
reque.ting that the complaint be .tricken for it. lack of an
attached verification. In the alternative, they reque.t that
Paragraph. 31(g) and 40(f) be .tricken for vaguene.. and failure
to .tate material fact., or that plaintiff be required to file a
more .pecific pleading.
Defendants have cited to the appropriate ca.e law and rule.
of procedure to support their arguments with re.pect to the
nece..ity of verifying a complaint and prohibiting the use of
overly broad, boilerplate language such as "otherwise negligent."
.
, .
NO. 95-6466 CIVIL TBRM
How.v.r, wh.n argum.nt wa. pr...nt.d, coun..l for plaintiff
.xpr....d willingn... to amend the complaint to provide a prop.r
v.rification and to includ. more .pecific all.gation.. W. not.
that d.f.nd.nt.' obj.ction. appear to mainly conc.rn the two
month lap.. b.for. plaintiff acted to rem.dy the fault. of h.r
complaint. N.v.rthel..., we will not .trike the complaint for
the pr.viou.ly di.cu...d deficiencie. without giving plaintiff
the opportunity to am.nd her complaint, and i..u. the following
ord.r.
ORDBR OF COURT
AND NOW, thh /'irt/) day of MARCH, 1996, aft.r coneideration
of the parti..' brief. and oral argum.nt., w. hereby grant in
part and d.ny in part def.ndant.' pr.liminary obj.ction.. within
10 day. of thi. order, plaintiff will am.nd h.r complaint to
includ. a proper verification. Furth.r, Paragraph. 3l(gl and
40(f) ar. .trick.n from plaintiff'. complaint.
By the Court,
1.1 Harold B. Sh..lv
Harold B. Sh.ely, P.J.
David W. Knau.r, B.quire
For the Plaintiff
F. L.. Shipman, B.quire
For the Def.ndant
uld
2
v.
NO. 95-4464 CIVIL TERM
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
VIVIAN RODE
Plaintiff
CIVIL ACTION. LAW
GREGORY H, KADEL and
ENDODONTICS ASSOCIATES
JURY TRIAL DEMANDED
Defendants
NOTICE TO DEFEND AND CLAIM RIGHTS
YOU HAVE BEEN SUED IN COURT, If you wish to defend against the claims set
forth In the following pages, you must take action within twenty (20) days after this
Complaint and Notice are served by entering a written appearance personally or by
attorney and filing In writing with the Court your defenses or objections to the claims set
forth against you. You are warned that If you fall to do so the case may proceed without
you and a judgment may be entered against you by the Court without further notice for any
money claimed In the Complaint or for any other claim or relief requested by the Plaintiff.
You may lose money or property or other rights Important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TElEPHONE THE
OfFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP,
CUMBELAND COUNTY LAWYER REFERRAL SERVICE
Court Administrator
Cumberland County Courthouse
One Courthouse Square
Carlisle, Pennsylvania 17013
(717) 240.6200
NOTlCIA
le han demaandado a usted en la corte. 51 usted qulele defenderse de est as
demandas expuestas en las paglnas slgulentes, usted Ilene vlente (20) dlas de plazo al
partir de la fecha de la demanda y la nollflcaclon. Usted debc prcsentar una aparlcncla
escrlta 0 en persoa 0 por abogado y archlvar en la corte enforma escrlla sus defensas 0 sus
objections alas demand as en contra de su persona. Sea avlsado que 51 usted no se
deflende, la corte tomara medldas y puede entrar una orden contra usted sin prevlo avlso 0
nollflcaclon Y por cualquler queja 0 allvlo que cs pedldo en la petlclon de demanda,
Usted puede perdu dlnero 0 sus propledades 0 otros derechos Importanted para usted.
llEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE, 51 NO TIENE
ABOGADO 0 51 NO TIENE El DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA
EN PERSONA 0 llAME POR TElEFONO A lA OFICINA CUY A DIRECCION SE
ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR
ASISTENCIA lEGAL.
CUMBElAND COUNTY lAWYER REFERRAL SERVICE
Court Administrator
Cumberland County Courthouse
One Courthouse Square
Carlisle, Pennsylvania 17013
(717) 240-6200
~tf:~
A\lorney for Plaintiff
Morney 1.0, No, 21582
411-A East Main Street
Mechanlcsburg, PA 17055
(717) 795-7790
Date:?1tuJ.. ;Lt 199/.
I
.2.
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
VIVIAN RODE
CIVIL ACTION. LAW
Plaintiff
v.
No. 95-4464 CIVIL TERM
DR. GREGORY H. KADEL and
ENDODONTICS ASSOCIATES
JURY TRIAL DEMANDED
Defendants
AMENDED COMPLAINT
1. The Plaintiff Vivian Rode is an adult Individual with an address of 4923
Colorado Avenue, Harrisburg, Pennsylvania 17109.3006,
2, The Defendant Gregory H. Kadel Is an adult individual, licensed dentist, and
a specialist in endodontics In the Commonwealth of Pennsylvania, who maintains an office
at 395 St, John's Church Road, Camp Hill, Pennsylvania 17011,
3, The Defendant Endodontics Associates Is a professional corporation
organized and doing business under the laws of the Commonwealth of Pennsylvania with
a registered address of 2431 North 2nd Street, Harrisburg, Pennsylvania, and maintains an
office and docs business at 395 St, John's Church Road, Camp HIli, Pennsylvania 17011.
4, At all times relevant herein, the Defendant Kadel held himself out to be a
doctor of dentistry, who was an expert In the speclaity of endodontics,
5, At all times relevant herein, the Defendant Kadel was the agent, servant,
workman, or employee of the Defendant Endodontics Associates, Inc" and was acting
within the scope of his aforesaid relationship and authority,
6. At all times relevant herein, the Defendant Endodontics Associates, Inc.,
maintained at least three offices for the provision of endodontics, Inter alia, In the
Commonwealth of Pennsylvania,
7. The Plaintiff Vivian Rode visited the offices of the Defendants on August 20,
1993.
8. The Defendant Endodontics Associates, Inc" assigned the Defendant Kadel
to perform services for Plaintiff.
9. The Defendant Kadel performed a root canal on the Plaintiff on Friday,
August 20, 1993.
10. On Saturday, August 21, 1995, the Plaintiff called the Defendants' office to
complain of pain and numbness, which was not subsiding, and spoke to Dr, Henry
Rankow.
11, On Sunday, August 22, 1995, the Plaintiff again spoke with Dr. Rankow at
the Defendants' office regarding her continuing pain and numbness.
12, Dr. Rankow told the Plaintiff to come In that morning Sunday, August 22,
1993, so that he could evaluate the situation.
13. On August 22, 1993, Dr. Rankov.' discussed the possibility of extracting the
tooth In question with the Plaintiff,
14, The Plaintiff called the office and scheduled appointment with Dr. Timothy
0, Fulato to grind down a point on her toolh left by her appointment with Dr, Rankow,
.2.
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15. At that subsequent appointment with Dr. Futato, it was agreed between the
Plaintiff and Dr, Futato that it was in her bestlntcrest to have 'he toolh abslracted,
,
16, An appointment was scheduled with Dr. Donald Dlnello to pull the tooth on
September 7/ 1993,
17. After the tooth was abstracted althe appointment on September 7, 1993, the
Plaintiff returned to Dr. Dlnello/s office for a follow-up visit at which she informed Dr.
Dlnello that she continued to have numbness in her face and law,
18, The Plaintiff presented to Dr. Calvin Taylor on lune 8, 1994/ with continued
complaints of numbness In her face and jaw and with sensitivity in the tooth which had
been next to the one eKtracted by Dr. Dlnello,
19. The Plaintiff saw Dr. Dlnello on August 2, 1994/ to have this other tooth
removed.
20, The Defendant Kadel, by negligently performing a root canal on the Plaintiff,
caused permanent Injuries 10 Plaintiff's law and/or facial nerves,
21, As a result of the aforesaid root canal, the Plaintiff has undergone various
treatments and will In the future undergo treatment for her condition,
22. The aforesaid Plaintiff's Injury is a permanent illld partial disability.
23. The Plaintiff has Incurred medical eKpenses for treatment necessitated by the
carelessness, recklessness, and negligence of the Defendant Kadel.
24. The cost of the said treatment was necessary for treatment and care of the
aforesaid injury.
-] .
25, As a result of the aforesaid Injury, the Plaintiff Vivian Rode will require
addlllonal medical care and treatment for the rest of her life,
Count I
Vivian Rode v. Dr. Gregory H. Kadel
Informed Conlent
26, The Plaintiff Incorporales by reference thereto Paragraphs 1 through 25 as If
more fully set forth herein by reference thereto.
27. The Defendant Kadel failed to Inform the Plalnllff prior to the root canal that
a nerve or her jaw could be damaged during the procedure which could result In a
permanent Injury. This risk of permanent damage was a significant and material risk of the
procedure done by the Defendant Kadel.
28, The Plaintiff suffered the aforesaid Injury because the Defendant Kadel
negligently performed the root canal procedure.
29. As a result of the Defendant's breach of duty to obtain Informed consent, the
Plalnllff has Incurred and will Incur medical expenses, suffered pain and will suffer pain In
the future, suffered emotional dlslress and will suffer emotional distress In the future, and
has suffered loss of enjoyment of life and will suffer loss of enjoyment of life In the future.
WHEREFORE, the Plalnllff demands judgment In her favor and against the
Defendant Kadel In an amount In excess of the amount for mandatory referral for
arbitration,
.4.
Count II
Vivian Rode v. Dr. Gregory H. Kadel
Negligence
30. The Plaintiff Incorporates by reference thereto Paragraphs 1 through 29 as If
more fully set forth herein by reference thereto.
31. The Plaintiff's Injuries were caused solely by the carelessness, recklessness,
and negligence of the Defendant Kadel in that, In the alternative, he:
a, failed to possess and employ the required skill and knowledge
required to treat the Plaintiff;
b. failed to utilize the required skill to treat the Plaintiff;
c. failed to take a fuil and complete examination of the Plaintiff before
determining to perform the root canal;
d. failed to exercise the care and judgment of a reasonable dentist In
proceeding as aforesaid;
e, failed to exercise the care and judgment of a reasonable dentist and
specialist In endodontics by performing a procedure which caused injury to the
Plaintiff;
f. kept the Plaintiff's mouth open for an extended period of time to do
the root canal; and
32, As a result of the carelessness, recklessness, and negligence of the Defendant
Kadel, the Plaintiff suffered an Injury to her jaw and/or a nerve which has left the Plaintiff
with a permanent partial disability.
33, As a result of the carelessness, reckless, and negligence of the Defendant
Kadel, the Plaintiff has suffered the following elements of damage: past medical expenses,
.. 5..
future medical expenses, permanent disability, past pain and suffering, future pain and
suffering, emotional distress, and both past and future loss of enjoyment of life.
WHEREFORE, the Plaintiff demands judgment In her favor and against the
Defendant Kadel In an amount In excess of the amount for mandatory referral for
arbitration.
Count III
Vivian Rode v. Dr. Grqory H. Kadel
Breach of Contract
34. The Plaintiff Incorporates by reference thereto Paragraphs 1 through 33 as if
more fully set forth herein by reference thereto,
35. The Defendant Kadel, as aforesaid, had held himself out as an expert and
competent dentist and specialist In the field of endodontics who could perform the
required services.
36. The Plaintiff accepted his offer to perform the medical services In a good and
workmanlike manner.
37. The Defendant, as aforesaid, breached his duty to perform the treatment and
care of the Plaintiff In a good and workmanlike manner,
38, As a resull of the Defendant's breach of his aforesaid contract, the Plaintiff
has suffered the Injures and damages as aforesaid,
WHEREFORE, the Plaintiff demands judgmcnt In hcr favor ilnd agalllstthe
Defendant Kadel In all amount In excess of the amount for mandatory referral for
arbitration,
.Ii -
Count IV
Vivian Rode v. Endodontics Associates, Inc.
Negligence
39. The Plaintiff Incorporates by reference thereto Paragraphs 1 through 38 as if
more fully set forth herein by reference thereto,
40. The Defendant Endodontics Associates, Inc" was careless, reckless, and
negligent In that it, Inter alia, In the alternative:
a, did not prohibit Its agents, servants, workmen, or employees from
performing any procedure which would cause permanent jaw and/or nerve damage
to patients;
b, failed to establish Internal guidelines for the performance of
procedures which present serious risk of permanent law and/or nerve damage;
c, failed to enforce those guidelines and/or procedures with respect to
the treatment of the Plaintiff Vivian Rode If such guidelines and/or procedures
existed;
d, failed to establish Internal guidelines or procedures for providing
patients with sufficient information with respect to the risks Involved with the
particular procedure performed by the Defendant Kadel on the Plaintiff;
e, failed to supervise the Defendant Kadel as aforesaid In Paragraphs a
through d with respect to the Plaintiff; and
41, As a result of the aforesaid negligence of the Defendant Endodontics
Associates, Inc" the Plaintiff suffered the aforesaid Injuries and damages,
42, The Injures the Plaintiff suffered were caused by the negligence of the
Defendant Kadel and the Defendant Endodontics Associates, lnc, The Defendant
Endodontics Associates, Inc" Is either solely lIahle to the Plaintiff or jointly and severely
liable to the Plaintiff with the Defendant Kadel for damages as aforesaid,
.7.
WHEREFORE, the Plaintiff demands judgment In her favor and against the
Defendant Kadel In an amount In excess of the amount for mandatory referral for
arbitration.
Count V
Vivian Rode v. Endodontlcl Alloclatel, Inc.
Respondeat Super/or
43, The Plaintiff Incorporates by reference thereto Paragraphs 1 through 42 as If
more fully set forth herein by reference thereto.
44. The Defendant Endodontics Associates, Inc" Is liable to the Plaintiff pursuant
to the Doctrine of Respondeat Superior for the tort and breach of contract of the Defendant
Kadel, Its agent, servant, workman or employee, as aforesaid.
WHEREFORE, the Plaintiff demands judgment In her favor and against the
Defendant Kadel In an amount In excess of the amount for mandatory referral for
arbitration,
Count VI
Vivian Rode v. Endodonllcl Alloclatel, Inc.
Breach of Contract
45, The Plaintiff Incorporales by reference thereto Paragraphs 1 through 44 as If
more fully set forth herein by reference thereto,
46, The Defendant Endodontics Associates, Inc" Is responsible for Its breach of
contract to provide expert and professional care to the Plaintiff.
. 8 .
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WHEREFORE, the Plaintiff demands judgment In her favor and against the
Defendant Kadel In an amount In excess of the amount for mandatory referral for
arbitration,
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Attomey for Plaintiff
Attorney 1.0. No, 21582
411-A East Main Street
Mechanlcsburg, PA 17055
(717) 795-7790
Date:rlt~ ~/9?i
- 9-
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VERIFICATION
Subject to the penalties of 18 Pa,C.S,A. 4904 relating 10 unsworn falsification to
authorities, I hereby certify that the facts In the foregoing pleading are true and correct to
the best of my Information and belief.
/-Jq.q,.
fZ..~~.-, 21 k'"X.
Date:
CERTIFICATE OF SERVICE
I, David W, Knauer, hereby cerlify that I did this 26th day of March, 1996, serve a
true and correct copy of the within document on all counsel of record by United States
mail, first class, prepaid addressed as follows:
F, lee Shipman, Esquire
Goldberg, Kalzman & Shipman
p, 0, 80x 1268
Harrisburg, PA 17108-1268
avid W. auer,
Attorney for Plaintiff
Attorney 1.0, No, 21582
411-A East Main Street
Mechanlcsburg, PA 17055
(717) 795-7790
r. Lee Shipman, laquire
I.D.,. 07252
GOLDBIRG, KATIMAN , SHIPMAN, P.c.
320 Market Street
P.O. Box 1268
Herri.burg, PA 17108-1268
Telephone. (717) 234-4161
Attorneya for Defendant.
VIVIAN RODE,
Plaintiff
VS.
DR. GREGORY H. KADEL and
ENDODONTICS ASSOCIATES,
Defendants
TO THE PLAINTIFF I
.
.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 4464 CIVIL, 1995
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
NOTICE
You are hereby notified to plead to the enclosed New Matter
within twenty (20) days from the date of service hereof, or a
default judqment may be entered aqainst you.
DATEI April 15, 1996
GOLDBERG, KATZMAN' SHIPMAN, P.C.
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GOLDBIRO, KATZMAN , SHIPMAN, P.c.
320 Karklt strllt
P.O. BOil 1268
Harrilbur;, PA 17108-1268
Tlllphonl' (7171 234-4161
AttornlYI for Dlflndlntl
VIVIAN RODE, . IN THE COURT OF COMMON PLEAS OF
.
plaintiff I CUMBERLAND COUNTY, PENNSYLVANIA
I
vs. I
NO. 4464 CIVIL, 1995
I
DR. GREGORY H. KADEL and I CIVIL ACTION - LAW
ENDODONTICS ASSOCIATES, I
Defendants I JURY TRIAL DEMANDED
ANSWER WITH NEW MATTER
TO PLAINTIFF'S AMENDED COMPLAINT
AND NOW, come the Defendants, Dr. Gregory H. Kadel (tlDr.
Kadel") and Endodontics Associates, by their attorneys, Goldberg,
Katzman' Shipman, P.c., who answer the plaintiff'S complaint,
with New Matter, as follows I
ANSWER
1. Admitted.
2 . Admi tted.
3. Admitted.
... .~.. .' ".'!
4. Admitted that Dr. Kadel, at all times relevant hereto,
and presently, is a dentist licensed to practice dentistry in the
commonwealth of Pennsylvania specializing in endodontics. The
u.s of ths word "expert" calls for conclusions of law and fact to
which an answer is deemed unneceesary.
5. Admitted.
6. Admitted.
7. Admitted.
8. Denied. Endodontics Associates did not as.ign Dr.
Kadel, however, Dr. Kadel did see plaintiff professionally on
August 20, 1993.
9. Admitted.
10. After reasonable investigation, Dr. Kadel and
Endodontic. As.ociates are presently without knowledge or
infor..tion .uffici.nt to for a b.lief a. to the truth of the
.lleg.tions of this p.r.graph, proof thereof is dsm.nded and the
.... are therefore denied.
11. Admitted in part, denied in p.rt. Admitted Plaintiff
contacted Dr. Rankow on August 22, 1993. After reason.ble
investig.tion Dr. Kadel and Endodontics Associates, are presently
without knowledge or information sUffici.nt to form a belief a.
to the truth of the allegations that Plaintiff h.d continuing
p.in and numbness, proof thereof is demanded and the same is
therefore denied.
12. Admitted.
2
13. Admitted. By way of further answer, Plaintiff
requested the tooth be extraoted.
14. Admitted in part, denied in part. It is admitted the
Plaintiff was seen by Dr. Futato on August 23, 1993 and had
treatment on a "eharp edge that oatohes the tongue." The balanoe
if the allegations of this paragraph call for conclusions of faot
to which an answer is deemed unneoessary. If an answer is deemed
neoessary, the allegations are denied.
15. Admitted in part, denied in part. It is admitted that
the Plaintiff saw Dr. Futato on August 23, 1993. It is denied,
however, that "it was agreed between plaintiff and Dr. Futato
that it was in her best interest to have the tooth abstraoted
(.ic)". On the oontrary, the reoords of Dr. Futato indicate that
"Petient shOUld have tooth extraoted."
16. After reasonable investigation Dr. Kadel and Endodontio
Ae.ooiate. are presently without knowledge or information
.uff~cient to form a belief as to the truth of the allegations of
this paragraph, proof thereof is demanded and the same are
therefore denied.
17. After reasonable investigation Dr. Kadel and Endodontio
Assooiates are presently without knowledge or information
sufficient to form a belief as to the truth of the allegations of
this paragraph, proof thereof is demanded and the same are
therefore denied.
3
18. After reasonable investigation Dr. Kadel and Endodontio
Assooiates are presently without knowledge or information
suffioient to form a belief as to the truth of the allegations of
this paragraph, proof thersof is demanded and the same are
therefore denied.
19. After reasonable investigation Dr. Kadel and Endodontio
Assooiates are presently without knowledge or information
suffioient to form a belief as to the truth of the allegations of
this paragraph, proof thereof is demanded and the same are
therefore denied.
20. After reasonable investigation Dr. Kadel and Endodontio
Assooiates are prssently without knowledge or information
suffioient to form a belief as to ths truth of the allegations of
this paragraph, proof thereof is demanded and the same are
therefore denied.
21. After reasonable investigation Dr. Kadel and Endodontic
Assooiates are presently without knowledge or information
suffioient to form a belief as to the truth of the allegations of
this paragraph, proof thereof is demanded and the same are
therefore denied.
22. After reasonabls investigation Dr. Kadel and Endodontic
Assooiates are pressntly without knowledge or information
suffioient to form a belief as to the truth of the allegations of
this paragraph, proof thereof is demanded and the same are
therefore denied.
4
.
23. After reasonable investigation Dr. Kadel and Endodontic
Associatee are presently without knowledge or information
sufficient to form a belief as to the truth of the allegations of
this paragraph, proof thereof is demanded and the same are
therefore denied.
24. After reasonable investigation Dr. Kadel and Endodontic
As.ociates are presently without knowledge or information
sufficient to form a belief as to the truth of the allegations of
this paragraph, proof thereof is demanded and the same are
therefore denied.
25. After reasonable investigation Dr. Kadel and Endodontic
A..ociate. are presentlY without knowledge or information
sufficient to form a belief as to the truth of the allegations of
this paragraph, proof thereof is demanded and the same are
therefore denied.
count I
vivian Rode v. Dr. Gregory H. Kadel
Informed consent
26. The Answers to Paragraphs 1 through 25 are incorporated
herein by reference.
27. The allegations of this Paragraph call for conclusions
of law and fact to which an answer is deemed unnecessary. If an
answer is deemed necessary, the allegations of this paragraph are
specificallY denied.
5
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28. The allegations of this Paragraph call for conclusions
of law and fact to which an answer is deemed unnecessary. If an
answer is deemed necessary, the allegations are specifically
denied. On the contrary, all dental treatment rendered by Dr.
Kadel was done in a good and workmanlike manner and above the
applicable standard of dental care.
29. The allegations of this Paragraph call for conclusions
of law and fact to which an answer is deemed unnecessary. If an
answer is deemed necessary, it is specifically denisd that Dr.
Kadel breached a duty to obtain informed consent. On the
contrnry, all dental treatment rendered by Dr. Kadel was done in
a good and workmanlike manner and above the applicable standard
of dental cars. After reasonable investigation, Dr. Kadel is
presently without knowledge or information sufficient to form a
belief as to the truth of the balance of the allegations of this
paragraph, proof thereof is demanded and the same are therefore
denied.
WHEREFORE, Defendant, Dr. Gregory H. Kadel, requests that
Count I the plaintiff's complaint be dismissed.
count II
Vivian Rode v. Dr. Gregory H. Kadel
Neqliqence
30. The Answers to paragraphs 1 through 29 are incorporated
herein by reference.
6
care.
31. The allegations of this Paragraph, including
subparagraphs a. through f., call for conclusions of law and fact
to which an answer is deemed unnecessary. If an answer is deemed
necessary, it is specifically denied that Dr. Radel was in any
way careless, reckless and/or negligent in the dental treatment
rendered to the Plaintiff. On the contrary, all dental treatment
rendered by Dr. Radel was done in a good and workmanlike manner
and above the applicable standard of dental care. In addition,
the allegations of subparagraphs a. through f. are specifically
denied.
32. The allegations of this Paragraph call for conclusions
of law and fact to which an answer is deemed unnscessary. If an
anewer is deemed necessary, it is specifically denied that Dr.
Radel was in any way careless, reckless or negligent as to the
treatment of Plaintiff. On the contrary, all dental treatment
rendered by Dr. Radel was done in a good and workmanlike manner
and above the applicable standard of dental care.
33. The allegations of this Paragraph call for conclusions
of law and fact to which an answer is deemed unnecessary. If an
answer is deemed necessary, it is specifically denied that Dr.
Radel was in any way careless, reckless or negligent in the
dental treatment rendered to Plaintiff. On the contrary, all
dental treatment rendered by Dr. Radel was done in a good and
workmanlike mannsr and above the applicable standard of dental
7
WHEREFORE, Detendant, Dr. Gregory H. Kadel, requests that
Count II ot the Plaintitf's Complaint be dismissed.
Count III
Vivian Rode v. Dr. Gregory H. Kadel
Breach of Contract
34. The Answers to Paragraphs 1 through 33 are incorporated
herein by reference.
35. The allegations of this Paragraph call tor conclusions
ot law and fact to which an answer is deemed unnecessary. If an
answer is deemed necessary, it is admitted that Dr. Kadel was at
all relevant times, and continues to be, a dentist licensed to
practice dentistry in the Commonwealth ot Pennsylvania
specializing in endodontics. The use of the word "expert" calls
for a conclusion to which an answer il deemed unnecessary.
36. The allegations of this Paragraph call for conclusions
ot law and tact to which an answer is deemed unnecessary. It an
answer is deemed necessary, it is admitted that Dr. Kadel
pertorms dental treatment in a good and workmanlike manner and
above the applicable standard of dental care.
37. The allegations of this Paragraph call for oonclusions
of law and fact to which an answer is deemsd unneoessary. If an
answer is deemed necessary, it is denied that Dr. Kadel, in any
way breached a duty to perform dental treatment for the Plaintitf
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in a good and workmanlike manner. On the contrary, all dental
treatment rendered to the Plaintiff by Dr. Kadel was, in fact,
done in a good and workmanlike manner and above the applicable
standard of dental care.
38. The allegations of this paragraph call for conclusions
of law and fact to which an answer is deemed unnecessary. If an
answer is deemed necessary, it is specificallY denied that Dr.
Kadel, in any way breached a contract to perform dental services.
on the contrary, all dental services performed by Dr. Kadel were
done so in a good and workmanlike manner and above the applicable
standard of dental care.
WHEREFORE, Defendant, Dr. Gregory H. Kadel, requests that
Count III the plaintiff'S complaint be dismissed.
count IV
Vivian Rode v. Endodontics Associates, Inc.
Nealiaence
39. The Answers to Paragraphs 1 through 38 are incorporated
herein by reference.
40. The allegations of this Paragraph, including
subparagraphs a. through e., call for conclusions of law and fact
to which an answer is deemed unnecessary. If an answer is deemed
necessary, it is specificallY denied that Endodontic Asrociates
was in any way careless, reckless and/or negligent in the dental
treatment rendered to plaintiff. In addition, it is specificallY
denied that Endodontics Associates was in any way careless,
reckless and/or negligent as alleged in subparagraphs a. through
e.
41. The allegations of this Paragraph call for conclusions
of law and fact to which an answer is deemed unnecessary. If an
answer it deemed necessary, it is specifically denied that
Endodontic A.sociates was in any way careless, reckle.. or
negligent a. to the dental treatment of Plaintiff.
42. The allegations of this Paragraph call for conclusions
of law and fact to which an answer is deemed unnecessary. If an
an.wer it deemed necessary, it is specifically denied that Dr.
Kadel or Endodontic Associates were in any way careles., reckless
or negligent in the dental treatment of Plaintiff.
WHEREFORE, Defsndant, Endodontics Associates, requests that
Count IV the Plaintiff's Complaint be dismissed.
Count V
Vivian Rode v. Endodontics Associates, Inc
Respondeat sUDerior
43. The Answers to Paragraphs 1 through 42 are incorporated
herein by reference.
44. The allegations of this Paragraph call for conclusions
of law and fact to which an answer is deemed unnecessary. If an
10
, .
answer is deemed neceesary, it is denied that Dr. Kadel was in
any way careless, reckless and/or negligent in the dental
treatment rendered to Plaintiff, nor did Dr. Kadel breach a
contract. In addition, all dental treatment rendered to
Plaintiff by Dr. Kadel was, in fact, done in a good and
workmanlike manner and above the applicable standard of dental
care.
WHEREFORE, Defendant, Endodontics Associates, Inc, requests
that Count V of the plaintiff's complaint be dismissed.
Count VI
Vivian Rode v. Endodontics Associates, Inc.
Breach of Contract
45. The Answers to Paragraphs 1 through 44 are incorporated
herein by reference.
46. The allegations of this Paragraph call for conclusions
of law and fact to which an answer is deemed unnecessary. If an
answer is deemed necessary, it is specifically denied Endodontics
Associates in any way breached a contract to perform dental
services.
On the contrary, all dental services performed by Dr.
Kadel and Endodontic Associates were done so in a good and
workmanlike manner and above the applicable standard of dental
care.
11
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WHEREFORE, Defendant, Endodontics Associates, Inc., reque.ts
that Count VI of the Plaintiff's Complaint be dismissed.
NEW MATTER
47. plaintiff's complaint fails to state a claim upon which
relief can be granted.
48. plaintiff's claims and/or alleged losses are prohibit.d
and barred in whole or in part by the Doctrine of comparative
Negligence, 42 Pa. C.B.A. 57102, and/or the Doctrine of
contributory Negligence, with any liability or r..pon.ibility on
the part of Dr. Kad.l or Endodontic. A.sociat.. being expre..ly
denied.
49. Plaintiff'. claim. and/or alleged 10.... are barred by
the Doctrine of As.umption of the Ri.k, any liability or
re.ponsibility on the part of Dr. Kad.l and Endodontic.
A..ociates b.ing expre.sly denied.
50. Plaintiff'. olaim and/or alleged losses may have been,
or were entirely or substantially, the result of or caussd by
intervening or superseding causes for which the Defendant is not
liable or responsible, any liability or responsibility on the
part of Dr. Kadel or Endodontics Associates being expressly
denied.
12
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61. plaintiff failed to mitigate her damages, if any, with
any liability or responsibility on the part of Dr. Kadel or
Endodontics Associates, being expressly denied.
62. plaintiff's claims or alleges losses are barred by the
applicable statute of Limitations.
WHEREFORE, Defendants, Dr. Gregory H. Kadel and Endodontics
Associates, requests that the plaintiff's complaint be dismissed.
GOLDBERG, KATZMAN' SHIPMAN, p.e.
17108-1268
Identification No.1 07262
Telephone I (717) 234-4161
13
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I, Gregory H. KaAel, D.D.I., hereby aoknowledge that 1
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.. the ,Deeend.nt in thle acdon, tbat :t have rellll the tora901n9
cSocUllenc .n4 th.t the faot' .tated thualn are true and correct
co the :~,t of ~ knowledge, lntoraatlon an4 billet.
I un4tr.tand that any e.l,. .tate.ant. h.r.1n are ..4e
.Ubj.ot to p.nalti.. ot 1. 'a. C.S. s.otlon .10., relating to
un.worn talaltlo'tlon to .uthorltle..
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. UDIL, D. . .
D.tal 11_II-e7 b
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CERTIFICATE OF SERVICE
I hereby certifY that a copy of the foregoing has been duly
eerved on the following counsel of record, by depositing the same
in the united states Mail, postage repaid, in Harrisburg,
pennsylvania, on April 15, 1996:
David W. Knauer, Esquire
411A East Main street
Meohanicsburg, PA 17055
Attorney for plaintiff
GOLDBERG, KATZMAN' SHIPMAN, p.e.
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
VIVIAN RODE
CIVIL ACTION. LAW
Plalnllff
v.
No, 95-4464 Civil Term
DR, GREGORY H, KADEL and
ENDODONTICS ASSOCIATES
JURY TRIAL DEMANDED
Defendants
PLAINTIFF'S REPLY TO THE DEFENDANTS' NEW MATTER
47-52. Denied, The Plaintiff avers to the contrary that Paragraphs 47-52 Inclusive
are conclusions of law to which no reply is required pursuant to the Pennsylvania Rules of
Civil Procedure and strict proof thereof Is demanded at time of trial,
WHEREFORE, the Plaintiff demands judgment In her favor and against the
Defendants on the Defendants' New Matter,
Respectfully submitted,
DAVID W, KNAUER, p,c.
Date;~'31 (796
avid W, Knauer,
Attorney for Plaintiff
Attorney I,D, No, 21582
411.A East Main Street
Mechanlcsburg, PA 17055
(717) 795-7790
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CERTIFICATE OF SERVICE
I, David W, Knauer, hereby certify Ihat I did this 3rd day of May, 1996, serve a true
"'" """" """ of 'II' wlllll, d"""'" '" ,II """.1 of '0<0", b, U ,II"" "".. ""II,
first class, prepaid addressed as follows:
F. Lee Shipman, Esquire
Goldberg, Katzman 8< Shipman
P. 0, BoX 126B
Harrisburg, PA 17108-1268
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