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Home My WebLink About95-06715 DATEr 8/24/95 TIMEI 11116 OFFICE OF PROTHONOTARY CIVIL CASE ODeLeT SUCIS COUNTY. P!'I. I NFORt11H I ON (LWlb (Il) 1) ~'//~' PAGE 1 DOCI<ET II 94 04146 (I ~. (L(' t JUDGE GARB CL!'ISS TRESPASS STATUS C PLAINTIFF ROBERTS 446 MARf<ET ST PERf<ASIE PA PHILLIP 'IS DEFENDANT MILLER ELECTRIC MANUFACTURING CO UNI:NOWN 99999 99999 ALGEO THOMAS S. ATTYS NONE 'IS HOFFI1AN 394(1 LOCUST LA HARRISBURG PA CARL A 99999 ATTYS NONE 'IS BRmJN RICHARD A 1288 VALLEY FORGE RD SUITE 74 VALLEY FORGE PA 99999 ATTYS NONE 'IS I.ESNIEWSn JOHN 5265 STATH~10RE DR MECHANICSBURG PA 99999 A TTYS NONE 053194 PRAECIPE FOR WRIT OF SUMMONS IN TRESPASS FILED AND WRIT EXIT. 100. 50 PD APPEARANCE OF THOMAS ALGEO. ESQ., ENTERED FOR 060294 SHERIFF' RETURN FROM (22) COUNTY. DEFT CARL A. SERVED PURSUANT TO PA. R. C. P. 11402 ( A) ( 2 ) ( III ) . EVELYN RANYON, RECPT, 061394 RECEIVED IN SHERIFF'S OFFICE FOR SERVICE. TRANSACTION 094 1 09082 AMOUNT PAID $53.00. 062194 SHERIFF' RETURN FRO~I (21) COUNTY. I1EFT JOHN LESNIE~JSn. SERVED PURSUANT TO PA.R.C.P. 11402IA)II). SERVED DEFT PERSONALLY. 063094 SHERIFF' RETURN FRO~I (15) COUNTY RECEIVED. NOT FOUND AS TO RICHARD A BROl~N, DEFT t~OT HmlE. :: ATTEMTPS Mi'lDE AND NO ANSI~ER. 071494 PAPERS RETURNED TO PROTHONOTARY. INVOICE t'fAILED TO THOMAS S, Al.GEO ESQ, TRANS U94 1 ')'f082. (HEFUND-!j.28, 9('. '~59. (4) 072994 ORDER FOR APPEAR!'INCE FOR DEFT MIl.l.ER ELECTRIC MANUFACTURING CO FILEDNLF APPEARANCE OF JAMES J DONOHUE ESQ..ENTERED PRAECIPE FOR RULE TO FILE COMPLAINT FILED. RULE RETURNABLE TWENTY DAYS AFTER SERVICE THEREOF. 081794 COMPLAINT IN ASSUMPSIT FILED. VLW PLAINTIFF. HOFFMAN SERVED BY HA~:DING TO VLW Tl.M Tl.M Tl.M TlM TlM Tl.M I"MC I,mc DATEI 8/24/95 TIME: 11: 16 P.elSE DOCt :ET II 94 (1,1146 081794 APPEARANCE OF THOMAS S. ALGEO ESQ., ENTERED FOR PLAINTIFF.WMC DEMAND FOR DAI1AGES IS III EXCESS OF '151;',(11)(1.(10. WMC NOT I CE TO DEFEND NOT F I LED i~ ITH COMPU\ 1 NT. WMC (181894 AFFIDAVIT OF SERVICE BY MAIL FILED SERVED COPY OF PRAECIPE ~ RULE TOWMC FILE COMPLAINT ON PLTFS COUNSEL ON 8/3/94. 102494 PRAECIPE FOR RULE TO FILE COMPLAINT FILED. WMC RULE RETURNABLE TWENTY DAYS AFTER SERVICE THEREOF. AFFIDAVIT OF SERVICE BY MAIL FILED. WMC ORDER FOR APPEARANCE FOR DEFTS C A HOFFMAN. R A BROl,a.. ~< J LESNIEWSn JDW ONLY FILED. APPEARANCE OF ALLEN C WARSHAW,ESQ. ,ENTERED AFFIDAVIT OF SERVICE BY MAIL FILED. JDW 120994 STIPULATION OF COUNSEL FILED SENT TO JUDGE FOR SIGNATURE BHP 122894 SERVICE OF COMPLAINT ACCEPTED BY ATTORNEY FOR DEFENDANT. WMC AFFIDAVIT OF SERVICE BY MAIL FILED. WMC PRELIMINARY OBJECTIONS,FILED.FOR DEFTS C~RL A HOFFMAN, RICHARD A BROWMC WN ~ JOHN LESNIEWSKI AFFIDAVIT OF SERVICE BY MAIL FILED. WMC 010395 STIPULATION OF COUNSEL FILED. SENT TO JUDGE. JDW 011995 ORDER APPROVING STIPULATION OF COUNSEL TO ANEND COMPLAINT ~S APPROV-WMC ED. 012495 NOTICE TO DEFEND FILED WITH COMPLAINT. BHP AMENDED COMPLAINT FILED. BHP 021395 PRELIMINARY OBJECTIONS.FILED BY DEFTS CARL A HOFFMAN JR DO. RICHARD JDW A BROWN MD ~ JOHN C LESNIEWSVI DO TO PLTF'S AMENDED COMPLAINT, AFFIDAVIT OF SERVICE BY MAIL FILED. JDW 021495 PETITION TO TRANSFER CASE TO ANOTHER COURT FILED BY PL TF BHP AFFIDAVIT OF SERVICE BY MAIL FILED, BHP 03099~ ANSWER AND NEW MATTER FILED FOR DEFT TO PlTFS PETITION TO TO TRANS- WMC FER VENUE. AFFIDAVIT OF SERVICE BY MAIL FILED. WMC 031095 ANSWER FILED. OF DEFENDANT t1ILLER ELECTRIC t'lFG CO TO PLAINTIFF'S SMt1 PETITION TO TRANSFER VENUE FILED AFFIDAVIT OF SERVICE BY MAll FILED. SMM 031395 REPLY FILED. TO DEFENDANTS' PRELIMINARY OBJECTIONS FILED BY PLTFS SMM 031595 ANSWER AND NEW MATTER OF DEFT l'lll.l.EH ELECTRIC I'IANUFACTURING CO TO SMM PLAINTIFF'S AMENDED COMPLAINT WITH NEW MATTER AND NEW MATTER IN THE NATURE OF A CROSSCLAIM PURSUANT TO RULE ~~52(D) SMM AFFIDAVIT OF SERVICE BY MAIL FILED. SMM 031695 PRAECIPE UNDER B,C,R,C.P. *266 FILED BY DEFTS CARL A HOFFMAN JR DO. VNT RICHARD A BRm~N MD 1, JOHN LESNIEl,SI:I PD. AFFIDAVIT OF SERVICE BY MAIL FIl.ED, VNT MEMORANDUM OF LAW BRIEF IN SUPPORT OF PRELIMINARY OBJECTIONS TO VNT PLTr'S AMENDED COMPl.AINT FILED BY DEFTS. AFFIDAVIT OF SERVICE BY MAIL FIl.ED. VNT 031795 RULE RETURNABLE APR I L 1(', 1 '/95, l~MC 032395 ANS\~ER FIl.ED. OF DEFTS CAt\L A HOFrMI;N JH. D.O. ,RICHARD ,; BPm-INN ~I,D.SM~I ,!, JOHN C l.ESNIEWSI..l. D.O. TO DEFT t'llLl.ER ELECTRIC MANUFACTURING CO NEW MATTER IN THE NATURE OF CROS5CLAIM PURSUANT TO PULL 2252 (D) SMM 1)32495 MEl10RANDUI1 OF LAt-) F I l.ED. WEFT'S DR lEi- IN OPPOS IT ION OF DEFTS SMM PRLE IMINAFW O[<JECT IONS TO PLM TNlFF' ~3 (\~IENDED CDl'IPl.M~IT FILED) REPLY FILED.OF DEFT MILLER El.ECTRIC MANUFACTURING CO'S NEW MATTER SMM FILED BY PLTF 2 P(,GE ~ DATE: 8/~4/9~' TIME: 11:16 DOCf::ET II 032995 040495 041')95 041195 1)41995 042695 04~895 052595 060795 062295 070795 071495 072195 9'\ 04146 vJl'lC BAF SI1M SI1M SI1M 8MI'! REPLY FILED. FOR PL TF TO DEFT MILLER ELECTRIC NEvI I'IIHTER. FILE SENT TO JUDGE PURSUANT TO RULE 266 PRAECIPE. PRAECIPE UNDER B.C.R.C.P. '~66 FILED BY DEFTS AFFIDAVIT OF SERVICE BY MAIL FILED. REPLY FILED. TO PLAINTIFF'S RULE TO SHOW CAUSE FILED BY DEFTS ANSWER AND NEW MATTER TO PLAINTIFF'S PETITION TO TRANSFER VENUE FILED BY DEFTS AFFIDAVIT OF SERVICE BY MAIL FILED. S~1 MEMORANDUM AND ORDER FILED, ORDER AS FOLLOWS, PRELIMINARY OBJECTIONSDFS OF DEFTSCARL HOFFI1AN, R I CHARD BROVIN ~. JOHN LESN I EvISI.: I TO At1END COM- PLAINT ARE SUSTAINED, SAID COMPLAINT AS TO THEM IS DISMISSED ~ PLTF DFS GRANTED LEAVE TO FILE A SECOND AMENDED COMPLAINT. ISAAC S GARB.J NOTICE OF FILING OF ORDER OF THE COURT UNDER P.A.R.C.P. 1I~36 MAILED DFS TO THOMAS ALGEO ESO PO BOX 543 SELLERSVILLE PA 18960: MARY P PATTER- SON ESO PO BOX 1~)3 HARRISBURG PA 17108-1003 DFS FILE SENT TO JUDGE PURSUANT TO RULE ~66 PRAECIPE. BAF AMENDED COMPLAINT FILED. JDW NOTICE TO DEFEND FILED WITH AMENDED COMPLAINT. JDW PRELIMINARY OBJECTIONS,FILED BY DEFTS CARL A HOFFMAN JR D.O.. BHP RICHARD A BROWN M,D. AND JOHN LESNIEWS~I, 0.0. TO PLTFS SECOND AMENDED COMPLAINT AFFIDAVIT OF SERVICE BY MAIL FILED. REPLY FILED. BY PLTF'S TO PO'S OF DEFTS/HOFFMAN. BROWN ~ PRAECIPE TO SUBSTITUTE VERIFICATION FILED. PRAECIPE UNDER B.C.R.C.P. '266 FILED BY DEFTS. AFFIDAVIT OF SERVICE BY MAIL FILED. MEMORANDUM OF LAW FILED BY DEFTS/CARL MD, ~ JOHN C LESmEl'JSn ,DO IN SUPPORT ED COMPLAINT, AFFIDAVIT OF SERVICE BY NAIL FILED. FILE SENT TO JUDGE PURSUANT TO RULE ~66 PRAECIPE. ORDER ENTERED. PO'S OF DEFTS CARL HOFFMAN AND ~ICHARD BROWN AND LESNIEWS~I TO PLTFS ~ND AMENDED COMPLAINT ARE SUSTAINED. ACTION TRANSFERRED TO COURT OF COMI1oN PLEAS OF CUMBERLAND COUNTY. FEES SHALL BE PAID BY PLTF. SENT CERTIFIED ON 8/~4/95. NOTICE OF FILING OF ORDER OF THE COURT UNDER P.A.R.C.P. #236 MAILED BHP TO MARY PATTERSON ESO BRUCE GELTING ESQ BOX 1~)3 HARRISBURG 17108 THOMAS ALGEO ESO BOX 543 SELLERSVILLE 18960 JAMES DONOHUE ESQ o~E LIBERTY PLACE STE 1800 1650 MARKET ST PHILA 19103-7395 BHP BHP LESNIEl~SI:n~AP SMM f<AP f<AP BRoWNf<AP A~IEND f<AP f<AP BAF JOHNBHP IS A HoFFMAN,JR,DO, RICHARD OF PO'S TO PLTF'S SECOND f<AP BHP END OF CASE ,... 9~j280-000111 IN THB COURT OF CONIION PLEAS OF BUCKS COUN'l'Y CIVIL ACTION PHILLIP ~ . . NO. 94-4146 VB. : () L~llt b (}d II 15: - ~ 1 /;)~ (It tL~ l-ju~- IIILLER BLBC'I'RIC IlAllUPAC'!'URING <mPAIIY, CAllI. A. HOFFIIAR, .I~Dn A. BIlOInI, and JOlIN LBSIIIaSKI . . ORDER AND NOW, to wit, this 11 rU: /7 day of July, 1995, it is hereby ORDERED that the preliminary objections of defendants, CARL A. HOFFMAN, JR., D.O.l RICHARD A. BROWN, M.D., and JOHN C. LESNIEWSKI, D.O., to plaintiff's second amended complaint as in the nature of a motion to strike due to improper venue under and pursuant to Pa. R. C. P. 1006 are SUSTAINED. IT IS HEREBY ORDERED that the action shall be transferred to the Court of Common Pleas of CUMBERLAND COUNTY. The costs and fees for transfer and removal of the record shall be paid by the plaintiff. BY TilE COURT: ~)LA ISAAC S. GARB, J. , . 9~~O-OOO~' Copies to: Mary P. Patterson, Esquire Bruce A. Gelting, Esquire 305 North Front Street Box 1003 Harrisburg, PA 17108-1003 Thomas S. Algeo, Eequire 95 North Main street Box 543 Sellersville, PA 18960 James J. Donohue, Esquire White and Williams One Liberty Place, suite 1800 1650 Market street Philadelphia, PA 19103-7395 ,\ . - '. ,. . . ... .' '0. , . '. . LAW O,."ClS or DUANE. MORRIS 8 HECKSCHE~ 305 NOATH r;RONT S!REET. P.O. BO)( 100. HARRIS.URa, PA 11108'1003 ~ ,. \ . .......'t'.... --- -.." . . i~2l\5-G0065 IN THE COURT OF CoMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA CIVIL ACTION Phillip Roberts, plaintiff No. 94-004146 vs. Miller Electric Manufacturing Company, Carl A. Hoffman, Richard A, Brown, and John Lesniewski Defendants CIVIL ACTION - LAW PD~.CIP. UNO.a BUCKS COUNTY aUL. 0. CIVIL paOCKDURK 266 TO THE PROTHONOTARY: Please refer the above captioned matter to the assigned judge for disposition. Oral argument is requested, >- ,~ >-t- ~ ~::-:.. Matter for disposition: C.J ,~ ::J <::) l.~~-c') - >~u Dl:"!endants Carl A, Hoffman, Jr., 0,0" Richard A. Brown, M.D., and .--;.;.r: .... ~;.., i:)U> '0.:':,'; Jspn C. Lesniewski, D,O. Preliminary Objections of RespectfUlly submitted, I' DUANE, MORRIS &1. KSC E By: Mary P. Patterson, Es Attorney 1.0. No, 476 Bruce A, Gelting, Es Attorney I,D, No, 69 305 North Front Stre P,O, Box 1003 Harrisburg, PA 17108-1003 (717) 237-5534 Dated: JIW. ')..0 I Iq9r" ., . , , . . ., LAW Of'nCE.1 or DUANE, ,MORJl,15 8 HECK5CHER 30& NORTH FRONT STREE.T. P.O, BOX 1003 HARRISBURG. PA 17'0.'1003 . ... .- -I 'B'a ,~ ''1 911~2%-00066 ~ PHILLIP ROBERTS, Plaintiff, IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA v. MILLER ELECTRICAL MANUFACTURING: No, 94004146 COMPANY, and CARL A. HOFFMAN, and RICHARD A. BROWN, and JOHN LESNIEWSKI, Defendants, D..KNDAHTS' 8RI.. IN SUPPORT O. PULDlINARY 08JJ:CTIONS TO PLAINTI..' S S.COW AllDDm> COJIPLAINT Defendants Carl A. Hoffman, Jr., D,O., Richard A. Brown, M.D., and John C, Lesniewski, D,O., by and through their attorneys, Duane, Morris & Heckscher, hereby inc~rporate by reference, in its entirety, their Brief in Support of Preliminary Objections to Plaintiff's First Amended Complaint, filed on March 16, 1995, with particular emphasis on section IV-B as to venue. . >- l/') ~-f- _ _i~:::: .. ._~. .:( -) (:) :"'-0 - In response to Plaintiff's argument that Preliminary .:_~ ;~t) ?i , ---In . ,'.1.. Objactions as to venue are moot given his Petition to Transfer '" vejiue, Moving Defendants also incorporate by reference, in its ~-.l , entirety, their Answer with New Matter to Plaintiff's Petition to Transfer Venue, filed March 9, 1995. Briefly, Moving Defendants assert that Plaintiff's Petition to Transfer Venue cannot be considered until it has been determined that venue is proper in Bucks County to begin with, That is to say, a Court cannot transfer venue if venue was never properly laid. Additionally, Moving Defendants bring to the Court's attention the recent . - ~ 9~AZY-OO II Z . VERIFICATION I, Phillip Roberts, do hereby verify that the statements made in the attached Amended Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. 54904 relating to unsworn falsification to author! ties. 6. -/~ .a...- Date: 7" ~~b~ I . 9~3224-00i . ---- THOMAS S. ALGEO, ESQUIRE Attorney for Plaintiff, Phillip Roberts Atty. IDI 52806 135 N. Main Street P.O. Box 543 Sellersville, PA 18960 (215) 257-3333 IN THE COURT OF COMMON PLEAS OF BUCK3 COUNTY, PENNSYLVANIA CIVIL ACTION Phillip Roberts, Plaintiff No. 94-004146-05-2 vs. Attorney rD 152806 Miller Electric Manufacturing Company, Carl A. Hoffman, Richard A. Brown, and John Lesniewski Defendants CIVIL ACTION-LAW ORDER AND NOW, this day of , 1995, upon consideration of the Plaintiff's Reply to Preliminary objections of Defendants Hoffman, Brown and Lesniewski, it is hereby ORDERED and DECREED that Defendant's Preliminary Objections are OVERRULED and DISMISSED. BY THE COURT: J. ~ 943~-OOI14' , THOMAS S. ALGEO, ESQUIRE Attorney for plaintiff, Phillip Atty. ID# 52806 135 N. Main Street P.O. Box 543 Sellersville, PA 18960 (215) 257-3333 Roberts IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA CIVIL ACTION Phillip Roberts, Plaintiff No. 94-004146-05-2 vs. Attorney ID 152806 Miller Electric Manufacturing Company, Carl A. Hoffman, Richard A. Brown, and John Lesniewski ,,.., , Defendants CIVIL ACTION-LAW PLAINTIFF'S REPLY TO PRELIMINARY OBJECTIONS aE- DEFENDANTS HOFFMAN BROWN AND LESNIEWSKI ....-. " ,II "I REPLY TO MOTION TO STRIKE FOR IMPROPER VENUE 1. On February 14, 1995 Plaintiff filed a Petition to Transfer Venue with the Court of Common Pleas of Bucks County. A true and correct copy is attached hereto and made a part hereof as Exhibit "A". 2. Plaintiff incorporates the aforementioned Petition herein as if same were set forth in its entirety. 3. This Honorable Court has not yet ruled on the aforesaid Petition. WHEREFORE, Plaintiff Phillip Roberts, respectfully requests that this Honorable Court overrule the preliminary Objections of Defendants Brown, Hoffman and Lesniewski regarding venue and require Defendants Brown, Hoffman and Lesniewski to file an Answer r"""1 943ZZY-~IIY to Plaintiff's Amended Complaint within 20 days, or in the alternative, transfer this matter to the Court of Common Pleas of Montgomery County, Pennsylvania. RZPI,Y TO MOTION TO STRIKE FOR FAILURE TO COIlPORII TO PBBlfSYLVAlfIA RULE OF CIVIL PROCBDURE 1024 4. Paragraphs 1 through 3 are incorporated herein by reference. 5. Plaintiff filed a substituted Verification on June 7, 1995. 6. Plaintiff's substituted verification was filed within twenty days after Plaintiff was served with Defendants' Preliminary Objections regarding improper verification of a pleading. Wherefore, Plaintiff Phillip Roberts respectfully requests this Honorable Court overrule Defendants Brown, Hoffman and Lesniewski's Preliminary Objections and require Defendants Brown, Hoffman and Lesniewski to file an Answer to Plaintiff's Amended Complaint within 20 days. Respectfully submitted, T~ s~~e~qUire Attorney for Plaintiff Atty. IDI 52806 135 N. Main Street P.O. Box 543 Sellersville, PA 18960 (215) 257-3333 ti 9~32Z~-DO' , ~ ' ~ " EXHIBIT "A" . . . '1 943Z24~O Illl ,i THOMAS S. ALGEO, ESQUIRE Attorney for Plaintiff, Phillip Roberts Atty. 10# 52806 135 North Main Street P.O. BOK 543 Sellersville, PA 18960 (215) 257-3333 I, IN THE COURT OF COMMON PLEAS OF CIVIL BUCKS COUNTY, PENNSYLVANIA ACTION No. 94-004146-05-2 Phillip Roberts, Plaintiff .'~ i.:h .." rn '..'01 vs. Attorney 10 #52806 Miller Electric Manufacturing company, Carl A. Hoffman, Richard A. Brown, and John Lesniewski - ~ ~. -~ .. ...... ...: :.' - _.0 .. .. . CIVIL ACTION-LAW \ Defendants tJ' a PETITION TO TRANSFER VENUE plaintiff, by and through his attorney, Thomas S. Algeo, Esquire, files this Petition pursuant to Pennsylvania Rule of Civil procedure 1006(d)(1) to transfer this matter to the Court of Common pleas of Montgomery county, and makes the following representations in suppott thereof: 1. Plaintiff was injured on May 31, 1992"while working at the Camp Hill Correctional Facility in Camp Hill, Dauphin County, Pennsylvania. 2. plaintiff instituted the instant product liability and medical malpractice actions by Writ of Summons filed May 31, 1994 in the Court of Common Pleas of Bucks county. 3. Defendants Lesniewski, Brown and Hoffman are physiciano who, on May 31, 1992, had a medical practice at the Camp Hill Correctional Facility. 4. None of the individual Defendants is currently practicing medicine at the Camp Hill Correctional Facility. .. ~ 9~3Z24-0~'4 5. Defendant Richard A. Drown is a physician with an office located in Valley Forge, Montgomery County, Pennsylvania. 6. Since all three individual Defendants provided medical care to Plaintiff and all three individual Defendants misdiagnosed Plaintiff's cond~tion, the individual Defendants are jointly or jointly and severally liable for the damages to Plaintiff. 7. Pennsylvania Rule of civil Procedure 1006(c) allows an action to be broug~t in any county where venue may be laid against one defendant, if the Plaintiff is seeking to enforce a joint or joint and several liability against two or more defendants. 8. Pen~sylvania Rule of civil Procedure 1006(d)(1) allows any I party to petition to transfer the action to a county where the action could have originally been brought. 9. The action could have originally been brought in Montgomery County against Defendant Richard A. Brown. 10. The individual Defendants are jointly or jointly and severally liable to Plaintiff. Wherefore, pursuant to Pennsylvania Rules of Civil Procedure 1006(c) and 1006(d)(1), Plaintiff respectfully requests this Honorable Court transfer this action to the Court of Common pleas of Montgomery County. Respectfully submitted, .?:\~ -::...\:, Thomas S. Alge '. squ re Attorney for Plaintiff Attorney 1.0. #52806 135 North Main Street P.O. BOK 543 Sellersville, PA 18960 (215) 257-3333 . ' 9~3224-00 ~ ~ THOMAS S. ALGEO, ESQUIRE Attorney for Plaintiff, Phillip Roberts Atty. 10# 52B06 135 North Main Street P.O. BOK 543 Sellersville, PA 18960 (215) 257-3333 IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA CIVIL ACTION Philllp Roberts, Plaintiff No. 94-004146-05-2 vs. Attorney ID #52B06 Miller Electric Manufacturing Company, Carl A. Hoffman, Richard A. Brown, and John Lesniewski Defendants CIVIL ACTION-LAW CERTIFICATION OF SERVICE Thomas S. Algeo, Esquire, being duly sworn according to law, deposes and states that service of a true and correct copy of the Plaintiff's Petition to Transfer Venue in the above-captioned matter was served on counsel for Defendants Hoffman, Brown and Lesniewski by U.S. First Class Mail, postage prepaid, on February, 15, 1995, by mailing the document to Defendants' counsel, Mary P. Patterson, Esquire, at the following address: 305 North Front Street, Fifth Floor, P.O. BOK 1003, Harrisburg, PA 1710B-1003. By: "::&--- /~ .~* Thomas s. Alge Esquire Attorney for Plaintiff 135 North Main Street P.O. BOK 543 Sellersville, PA 18960 Attorney 10# 52B06 (215) 257-3333 Sworn to and Subscribed before me this '3 day [ ." lCJ ' e Ir"""":"':'~?,... ,,-C"<d ,~ ( ~2'~~..~...:... .~. .... _m........... : ~_.... of \"" "'\;."'-'4'_'~ ' ~ I. ~' "'Y"'t \''';1-'--'' _ 1995. .... !, I.,.... ~ r'l'i("',, -it .'1" llll' !t-'I.' ", ~ '.' t" ',', ..., "( .-.: .'. , - ."\ ~ .-' J...1 ,. \ ",. ", 'If 0". , . "-'/'./1'). J;:) /1"r 2S tTlJ . '/ 10: 18 .- " LAW 0"'-ICE5 or DUANE. MORRIS II HECKSCHER 308 NORTH FRON~STREET. P.O, BOM 1003 HARRUSIIURG, PA 17108.1003 ..#4- ~L. ~ ~ .. 9~j2'l00066 IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA CIVIL ACTION ~ Phillip Roberts, Plaintiff No. 94-004146 vs. Miller Electric Manufacturing Company, Carl A. Hoffman, Richard A. Brown, and John Lesniewski Defendants CIVIL ACTION - LAW ORDER AND NOW, this day of , 1995, upon consideration of the Preliminary Objections of Defendants Carl A. Hoffman, Jr., D.O., Richard A. Brown, D.O., and John Lesniewski, D.O., it is hereby ORDERED that the Preliminary Objections of each of the above Defendants are SUSTAINED, and the Amended Complaint is dismissed. BY THE COURT: J. -- 9~3~-OOD66 I I IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA CIVIL ACTION Phillip Roberts, Plaintiff No. 94-004146 VB. Miller Electric ManUfacturing Company, Carl A. Hoffman, Richard A. Brown, and John Lesniswski Defendants CIVIL ACTION - LAW NOTICII TO PLIIAD TO: Philip Roberts and his attorney, Thomas S. Algeo, Esq. 95 N. Main Street P.o. Box 543 Sellersville, PA 18960 You are hereby notified to file a written response to the attached Preliminary Objections within twenty (20) days from .ervice hereof or a jUdgment may be entered against you. Respectfully submitted, DUANE, MORRIS & HECKSCHER << )-0)- i.7:!'.: .' " ,~~ :" : " By: Mary P. Patterson Attorney 1.0. No. Bruce A, Gelting Attorney 1.0. No. 691 305 North Front street Fifth Floor P.O. Box 1003 (717) 237-5534 n:l fI1ay 2211995"" , '- aited: :r: "'" -"j:" ~. 1- Attorneys for Defendants Carl Hoffman, Jr., D.O., RiChard A. Brown, M.D., and John LesnieWSki, D.O. VI <'-J >- . . : .:. ~,; l:'~ .) '::"'w In C) \ I'i 94.~~-00066 IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA CIVIL ACTION Phillip Roberta, plaintiff No. 94-004146 VB. Miller Electric Manufacturing company, Carl A. Hoffman, Richard A. Brown, and John Lesniewski Defendants CIVIL ACTION - LAW ."LIMI.ARY OBJ.CTIOHS O~ D.paHDAKTS CARL A. BOPPIIAII. JR.. D.O.. RICHARD A. BRO,",. M.D.. AlfD JODI US.I..SKI. D.O. TO PLAIIITIPP' S saCO.D AIIa.DaD COMPLAIIIT AND NOW, Defendants Carl A. HOffman, Jr., D.O., Richard A. Brown, M.D., and John Lesniewski, D.O., (collectively "Moving Defendants"), by and through their counsel, Duane, Morris , HeckBcher, pursuant to Pennsylvania Rule of civil Procedure 1028, hereby file their Preliminary Objections to Plaintiff's second Amended Complaint and in support thereof aver as follows: 1. Plaintiff initiated this action by the filing of a Complaint on or about August 17, 1994. 2. On January 24, 1995, Plaintiff filed an Amended Complaint. Moving Defendants preliminarilY objected to that Amended Complaint for improper venue and failure to plead with sufficient factual specificity. ~ 911 ~JZO~00066 3. On April 11, 1995, the Honorable Isaac S. Garb issued an Order sustaining the preliminary objections of moving Defendants and dismissing plaintiff's first Amended Complaint, granting leave to Plaintiff to file a second Amended Complaint. 4. On or about April 28, 1995, Plaintiff filed a second Amended Complaint to which Moving Defendants hereby object as set forth below. I. MOTIOH TO STRIKB DUB TO IMPROPBR VBNUB 5. Plaintiff's second Amended Complaint purports to state a claim against Moving Defendants for medical malpractice. 6. Pennsylvania Rule of civil Procedure 1006 provides that an action against an individual, such as each of Moving Defendants, may be brought in and only in: (1) a county in which the individual may be served; (2) a county in which the cause of action arose; (3) a county where a transaction or occurrence took place out of which the cause of action arose; or (4) in an action to enforce joint or joint and several liability, an action may be brought against all defendants in any county in which the venue may be laid against anyone of the defendants. 2 Ii 9~ .~2N0066 7. This action may not be brought against Moving Defendants in Bucks County because: (1) Moving Defendants have not been and cannot be served in Bucks County. ~ second Amended Complaint !! 3-51 Pa. R.C.P. 1006(a). (2) This purported cause of action arose at the state Correctional Facility located in Camp Hill, Cumberland County. ~ second Amended Complaint !! 6-8. No cause of action against Moving Defendants purported to exist in this suit arose in Bucks County. See Pa. R.C.P. 1006(a)1 (3) Plaintiff has not alleged any transaction or occurrence in Bucks County out of which this action arose, nor do Plaintiff's allegations indicate any such transaction or occurrence. ~ Pa, R.C.P. 1006(a) 1 and (4) This is not an action to enforce joint or joint and several liability between Moving Defendants and co- defendant Miller Electric Manufacturing Company ("Miller); consequently, Plaintiff cannot rely on Pa. R.C.P. 1006(c) for venue as to Moving Defendants. First, Plaintiff does not allege venue as to Miller, a Wisconsin business entity. ~ second Amended Complaint! 2. Without proper venue of this co-defendant, venue cannot lie as to Moving Defendants in Bucks County under Pa. R.C.P. 1006(c). Second, even if venue does lie as to Miller, Plaintiff does not allege joint or joint and several liability between Moving Defendants and Miller. Furthermore, Plaintiff's allegations do not give rise 3 f'""'\ 911 ~)Zt~00066 to joint or joint and several liability between Miller and Moving Defendants. As such, this suit is not an action to enforce joint or joint and several liability and venue is improper as to Moving Defendants under Pa. R.C.P. 1006(c). 8. Pennsylvania Rule of civil Procedure 1028(a)(1) provides that a defendant may object to improper venue. WHEREFORE, Defendants Carl A. Hoffman, Jr., D.O., Richard A. Brown, M.D., and John Lesniewski, D.O. respectfully request that, to the extent venue is found to lie in Bucks county as to Defendant Miller Electric Manufacturing Company, this court dismiss Plaintiff's second Amended Complaint due to improper venue as to Moving Defendants, or, alternatively, to the extent venue does not lie in Bucks county as to Oefendant Miller Electric Manufacturing Company, transfer Plaintiff's suit in its entirety to Cumberland county. II. PRBLIMINARY OBJECTION I MOTION TO STRIKB .OR LACK O. CON.ORMITY TO PENNSYLVANIA RULE O. CIVIL PROCBDURE 1024 9. Pennsylvania Rule of civil Procedure 1024, "Verification," provides in relevant part as follows: (al Every pleading containing an averment of fact not appearing of record in the action or containing a denial of fact shall state that the averment or denial is true upon the signer's personal knowledge or information and belief and shall be verified. . . . 4 ~ 9~32~00066 . , 13. The verification attached to plaintiff's second Amende~ complaint and made by Mr. Algeo states neither the basis of Mr. Algeo'e information and knowledge as to the second Amende~ Complaint, nor the reason why Mr. Roberts was unable to verify the aecon~ Am.n~ed complaint. 14. Improper verification of a complaint may not be bruahe~ aaide aa a mere "legal technicality" as material rights of the partie. may be affected. RUDel v. Bluestein, 280 Pa. Super 65, ___' 421 A.2d A.2d 406, 411 (1980). 15. pennsylvania Rule of civil Procedure 1028(a) (2) provi~ea that a party may preliminarily object to a pleading for failure to conform to a rule of law or rule of court. 16. Improper Verification is properly raised through preliminary objection. Altof v. SDartan Inns of America, 25 D. , C. 3~ 63, 64 (1980): Goodrich-Amram 2d S 1024(a):6 (1991). 6 - .-":".... ~ 945Z~00066 Y E R I F I CAT ION I, Bruce A. Gel ting I hereby depose and state that I am an associate of the law firm of Duane, Morris & Heckscher, attorneys for carl A. Hoffman, D.O., Richard A. Brown, M.D., and John Lesniewski, D.O., Defendants in this matter, and make this Verification on behalf of said Defendants, who are unavailable to make this Verification timelY. I further state that the facts set forth in the foregoing preliminary Objections are true and correct based upon knowledge or information and belief that I have obtained in representing the Defendants in this case, including correspondence and conferences with them. This Verification is made subject to the penalties of 1B Pa. C.S.A. S 4904, relating to unsworn falsification to authorities. Bruce A. Gelting ___ 9~9-00073 THOMAS S. ALGEO, ESQUIRE Attorney for Plaintiff, Phillip Roberts Atty. IDI 52806 135 N. Main Street P.O. Box 543 Sellersville, PA 18960 (215) 257-3333 IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA CIVIL ACTION Phillip Roberts, Plaintiff No. 94-004146 vs. Attorney 10 152806 Miller Electric Manufacturing Company, Carl A. Hoffman, Richard A. Brown, and John Lesniewski Defendants CIVIL ACTION-LAW AMENDED COMPLAINT Plaintiff Phillip Roberts, by and through his attorney, Thomas S. Algeo, Esquire, respectfully represents the following: 1. Plaintiff is an adult individual residing at 1730 Easton Road, Doylestown, Bucks County, Pennsylvania. 2. Defendant Miller Electric Manufacturing Company (Miller Electric), is a business with a principal place of business located at Appleton, Wisconsin. 3. Defendant Carl A. Hoffman, Jr., D.O., is an adult individual and at times material hereto, was a duly licensed and practicing physician, his office is currently located at 3940 Locust Lane, Harrisburg, Dauphin County, Pennsylvania. 4. Defendant Richard A. Brown, M.D., is an adult individual and at all times material hereto, was a duly licensed and practicing physician, his office is currently located at 1288 ~ 9~316~0073 Valley Forge Road, Suite 74, Valley Forge, Montgomery County, Pennsylvania. 5. Defendant John Lesniewski, D.O., is an adult individual and at all time material hereto was a practicing physician, his office is currently located at 5265 Stathmore Drive, Mechanicsburg, Cumberland County, Pennsylvania. 6. On or about May 31, 1992, Plaintiff was working at the State Correctional Facility at Camp Hill. 7. On or about May 31, 1992 Plaintiff was operating a Welder, designed and manufactured by Miller Electric. 8. On or about May 31, 1992 Mr. Roberts was injured while operating the Miller Electric Legend Welder and sought immediate medical attention. COUNT I ROBERTS VS. MILLER ELECTRIC STRICT LIABILITY 9. Plaintiff, Phillip Roberts, incorporates by reference all of the preceding paragraphs of this Complaint as if each and every one were individually set forth within this Count. 10. Plaintiff believes, and therefore avers, that the accident of May 31, 1992, wherein Plaintiff was injured, was caused by the defective design of the Miller Legend gasoline powered welder, which defect existed at the time said welding machine was designed and manufactured by Defendant Miller Electric. 11. As a result of the defective design of the welder, defendant is strictly liable to Plaintiff pursuant to S402A of the Restatement (Second) of Torts for the following reasons: ~ 94316~0073 (a) failing to properly and adequately design the welder; (b) failing to properly and adequately manufacture the welder; (c) failing to warn Plaintiff of the dangerous nature of the welder; (d) failing to warn against foreseeable modifications; 12. As a direct result of the defective design of the welder as described above, Plaintiff was caused to suffer severe injuries including but not limited to an evulsion fracture of the left distal metatarsal, avulsion fracture of the left anterior calcaneus (heel bone), sprain and strain, and other permanent, disfiguring and disabling injuries. 13. As a result of Defendant Miller Electric's negligence, Plaintiff has suffered a loss of earnings and/or earning capacity. 14. As a result of Defendant Miller Electric's negligence, Plaintiff has suffered an interruption of his daily habits and pursuits to his great and permanent detriment and loss. 15. As a result of Defendant Miller Electric's negligence, Plaintiff has sustained various eKpenses and charges for which he has not been compensated. Wherefore, Plaintiff demands judgment against Defendant Miller Electric in an amount in eKcess of fifty thousand dOllars, plus interest and costs. ~ 94316~0073 COUNT II ROBERTS VS. MILLER ELECTRIC NEGL:GENCE 16. Plaintiff, Phillip Roberts, incorporates by reference all of the preceding paragraphs of this Complaint as if each and every one were individually set forth within this Count. 17. The negligence of the Defendant Miller Electric consisted of the following: (a) failing to discover the defect in the design of the Miller Legend gasoline powered welding machine; (b) failing to t~ke the necessary measures to a create a safer design; (c) failing to properly test the welder; Wherefore, Plaintiff demands judgment against Defendant Miller Electric in excess of fifty thousand dollars, plus interest and costs. COUNT III ROBERTS VB. HOFFMAN, BROWN AND LESNIEWSKI MEDICAL MALPRACTICE 18. Plaintiff, Phillip Roberts, incorporates by reference all of the preceding paragraphs of this Complaint as if each and every one were individually set forth within this Count. 19. On May 31, 1992, Plaintiff severely injured his left foot while working at the State Correctional Facility at Camp Hill, Pennsylvania. 20. Plaintiff sought immediate medical care at the prison dispensary. 21. Plaintiff was eKamined by Defendant Dr. John Lesniewski ~ 9Y3'~00073 on Hay 31, 1992 regarding the injury to his left foot. Dr. Lesniewski diagnosed Plaintiff as suffering from a severe strain and sprain of the left foot. 22. On June 4, 1992, Dr. Carl A. Hoffman eKamined Plaintiff and reviewed K-rays that had been taken of Plaintiff's left foot. Dr. Hoffman diagnosed Plaintiff as Dossibly suffering from an evulsion fracture of the distal left metatarsal. 23. Despite the severity of Plaintiff's injuries, no remedial treatment was provided on or before June 4, 1992. 24. On June 8, 1992, Plaintiff was examined by Defendant Dr. Richard A. Brown for the injuries to his left foot on June 8, 1992. Dr. Brown's diagnosis was consistent with that of Dr. Hoffman's of June 4, 1992. 25. Despite the severity of Plaintiff's injuries, no remedial treatment was provided on or before June 8, 1992. 26. On June 9, 1992, Plaintiff was again eKamined by Defendant Dr. Hoffman. Dr. Hoffman wrapped Plaintiff's left foot in an elastic "Ace Bandage" despite the possibility of a fractured distal left metatarsal. 27. On June 11, 1992, additional K-rays were taken of Plaintiff's injured left foot. 28. On June 11, 1992, Plaintiff was examined by Defendant Dr. Hoffman. Dr. Hoffman diagnosed Plaintiff as suffering from an evulsion fracture of the anterior calcaneus, as well as the prior diagnosis of the evulsion fracture of the left distal metatarsal. 29. Despite the severity of Plaintiff's injuries, no ~ 9Y31~00073 remedial treatment was rendered to Plaintiff by Defendants Hoffman, Brown and Lesniewski until June 12, 1992, at which time a cast was applied to plaintiff's foot. 30. From May 31, 1992, until his release from the State Correctional Facility at Camp Hill, plaintiff was under the care of Defendants Hoffman, Brown, and Lesniewski for the injuries to his left foot. 31. The malpractice of the Defendants Hoffman, Brown and Lesniewski consisted of the following: (a) failure to possess the requisite degree of skill and care ordinarily eKercised in similar cases by other physicians. Defendants failed to properly diagnose plaintiff's condition for nearly two weeks after the accident occurred. plaintiff's injuries were of the type that should have been properly diagnosed upon examining the K-rays taken on June 4, 1992. In fact, on June 4, 1992 Dr. Hoffman diagnosed plaintiff as possiblY suffering from an evulsion fracture of the left distal metatarsal, yet failed to provide the proper treatment, a cast; (b) failure to possess the degree of knowledge and skill ordinarily possessed by other physicians by failing to properly diagnose and treat Plaintiff within a reasonable period of time. Defendants repeatedly misdiagnosed Plaintiff's condition and or failed to properly identify the injury for nearly two weeks, despite having ftccess to diagnostic equipment. ~ 9431~00073 In fact, K-rays of Plaintiff's injured foot were taken on June 4, 1992, yet the actual injuries went undiagnosed for an additional nine days; (cl failure to conform to the requisite standards of care under the circumstances. upon discovering the possibility of an evulsion fracture of the left distal metatarsal, further diagnostic tests should have been performed by the Defendants. Instead no further tests were performed nor any remedial measures taken; (d) failure to properly diagnose and treat the injuries to plaintiff within a reasonable period of time. plaintiff fractured both the anterior calcaneus, and the well as the left distal metatarsal. plaintiff was initially diagnosed as SUffering from a sprain and advised to remain off his feet. The proper treatment for those injuries is to reset the bones and apply a cast. That was not done for nearly two weeks after the accident. The delay is unreasonable inasmuch as those types of injuries take approKimately four to six weeks to completely heal, therefore, the bones were partially healed before a cast was applied on June 12, 1992; (e) failure to properly eKamine and treat Plaintiff. A proper eKamination would have revealed the actual injuries sustained by Plaintiff; (f) failure to perform the necessary medical testing to determine the type and eKtent of Plaintiff's injuries. Upon discovering the possibility of an ~ 9~31~00073 evulsion fracture, Defendants should have performed the necessary tests to either confirm or refute their diagnosis. If further tests confirmed said diagnosis, proper treatment should have been rendered immediately; (g) failure to properly perform, read, interpret, and report medical tests and procedures, including, but not limited to, K-rays. X-rays were taken of Plaintiff's left foot on June 4, 1992 and June 11, 1992. However, the proper diagnosis was not made until June 12, 1992, when a cast was applied to Plaintiff's left foot. Defendants failed to properly interpret the x-rays of Plaintiff's injured left foot taken on June 4, 1992; (h) failure to eKercise reasonable care in the diagnosis and treatment of Plaintiff's condition for which prompt diagnosis and treatment were critical for effective medical treatment. A cast was not applied to Plaintiff's foot until 13 days after the accident. Plaintiff's foot had already begun to heal in the deformed condition due to the fact that a cast was not immediately, or within a reasonable period of time, applied to properly support and shape Plaintiff's fractured left foot; (i) failure to properly refer the Plaintiff to necessary medical specialists who would have made the diagnosis of Plaintiff's condition. Plaintiff was an inmate in a state correctional facility. ~ 94)119-00073 plaintiff was therefore unable to obtain treatment from the physician of his own choosing and was limited to the services of Drs. Brown Hoffman and Lesniewski, unless one or all of them permitted plaintiff to be treated by a specialist. Plaintiff was in fact treated by a specialist, an orthopedic physician named Dr. Grady, who made the proper diagnosis and applied the cast to Plaintiff's left foot on June 12, 1992; (j) failure to eKercise reasonable care under the circumstances. Defendants failed to eKercise reasonable care in this case inasmuch as they failed to properly diagnose the injuries sustained by Plaintiff, Defendants failed to provide the necessary treatment so that plaintiff would make a full recovery, Defendants misinterpreted K-rays taken of plaintiff's injured left foot and Defendants delayed in providing the proper treatment to Plaintiff for nearly two weeks; 32. As a direct and proKimate result of the malpractice of Defendants Hoffman, Brown and Lesniewski, Plaintiff's left foot is permanently disfigured and deformed. 33. As a direct and proKimate result of the malpractice of Defendants Hoffman, Brown and Lesniewski, Plaintiff has suffered, is suffering, and will continue to suffer pain and discomfort in his left foot. 34. As a direct and proKimate result of the malpractice of Defendants Hoffman, Brown and Lesniewski, Plaintiff has suffered, is suffering and will continue to suffer great bodily pain and ~ 9~69-00073 discomfort, as well as mental anKiety and nervousness, to his great detriment and loss. 35. As a direct and proKimate result of the malpractice of Defendants Hoffman, Brown and Lesniewski, Plaintiff has suffered a loss of earnings and/or earning capacity. 36. As a direct and proKimate result of the malpractice of Defendants Hoffman, Brown and Lesniewski, Plaintiff has suffered an interruption of his daily habits and pursuits to his great and permanent detriment and loss. 37. As a direct and proximate result of the malpractice of Defendants Hoffman, Brown and Lesniewski, Plaintiff has sustained various expenses and charges for which he has not been compensated. 38. Since Defendants Hoffman, Lesniewski and Brown jointly provided medical care to Plaintiff from May 31, 1992 through June 12, 1992, Defendants Hoffman, Brown and Lesniewski are jointly or jointly and severally liable to Plaintiff Phillip Roberts. WHEREFORE, Plaintiff demands judgment against Defendants Hoffman, Lesniewski, and Brown in an amount in eKcess of fifty thousand dollars, plus interest and costs. ~~.~_. Thomas s. Algeo,~Uire Attorney for Plaintiff Atty. 10# 52806 135 N. Main Street P.O. BOK 543 Sellersville, PA 18960 (215) 257-3333 .n <7> -... 'I, - .x_ ., = .t.:':: ~~ \.1'( _..... (;.-:--.;.:.:7 lI"l kC: (..}-.... ~ t...:'! " > - ~'") ;-::, :~.-' '- ,'\,'. :?~ W.. " :"'I~ "BU.' " :1. W CO, .... . ..:J = :.' . . , t ~ LAW OFFICES OF DUANE, MORRIS 8 HECKSCHER 305 NORTH FRONT STREET. P,O, BOX 1003 HARRIS8URG. Pit 17108-1003 . . , . 3. Admitted. 4. Admitted and denied. It Is admitted that Defendant Richard A. Brown, M.D. Is an adult Individual and at all times material hareto was a duly licensed and practicing physician. It Is denied that his office is currently located at 12aa Valley Forge Road, Suite 74, Valley Forge, Montgomery County, Pennsylvania. 6. Admitted and denied. It Is admitted that Defendant John lesniewski, D.O. Is an adult Individual and at all time material hereto was a practicing physician. It Is denied that his office Is currently located at 6266 Strathmore Drive. Mechanlcsburg, Cumberland County, Pennsylvania. 6. Denied. After reasonable investigation, Answering Defendant lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegation that on or about May 31, 1993, Plaintiff was working at the State Correc- tional Facility at Camp HIli (USCI-CH"I. Accordingly, said allegation Is denied and strict proof thereof Is demanded at time of trial. 7. Denied. After reasonable investigation, Answering Defendant lacks knowledge or Information sufficient to form a belief as to the truth or falsity of the allegation that on or about May 31, 1992, Plaintiff was operating a Welder, designed and manufactured by Miller Electric. Accordingly, said allegation Is denied and strict proof thereof is demanded at time of trial. a. Admitted and denied. It is admitted that on May 31. 1992, Plaintiff sought medical attention. After reasonable investigation, Answering Defendant lacks knowledge or Information sufficient to form a belief as to the truth or falsity of the allegations that on May 31, 1992, Plaintiff was injured while operating a Miller Electric .2. calcaneus (heel bone), sprain and strain, and other permanent, disfiguring and dis- abling Injuries. Accordingly, said allegations are denied and strict proof thereof Is demanded at time of trial. 13. Denied. After reasonable investigation, Answering Defendant lacks knowledge or Information sufficient to form a belief as to the truth or falsity of the allegations contained In paragraph thirteen (13) of Plaintiff's Amended Complaint. Accordingly, said allegations are denied and strict proof thereof is demanded at time of trial. 14. Denied. After reasonable Investigation, Answering Defendant lacks knowledge or inf()rmation sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph fourteen (14) of Plaintiff's Amended Complaint. Accordingly. said allegations are denied and strict proof thereof Is demanded at time of trial. 15. Denied. After reasonable Investigation, Answering Defendant lacks knowledge or Information sufficient to form a belief as to the truth or falsity of the allegations contained In paragraph fifteen (15) of Plaintiff's Amended Complaint. Accordingly, said allegations are denied and strict proof thereof is demanded at time of trial. WHEREFORE, Answer Defendant, Carl A. Hoffman, Jr., D.O., demands judg- ment be entered in his favor and against the Plaintiff together with Interests and costs. - 4- allegation that Plaintiff sought immediate medical care at the prison dispensary. Accordingly, said allegation is denied and strict proof thereof Is demanded at time of trial. 21. Admitted and denied. It Is admitted that Plaintiff was examined by Defendant Dr. John Lesniewski on May 31, 1992 regarding the Injury to his left foot. It is denied that Dr. Lesniewski diagnosed Plaintiff as suffering from a severe strain and sprain of the left foot. 22. Admitted and denied. It Is admitted that on June 4, 1992, Dr. Carl A. Hoffman examined Plaintiff and reviewed x-rays that had been taken of Plaintiff's left foot. It is denied that Dr. Hoffman diagnosed Plaintiff as possibly suffering from an evulsion fracture of the distal left metatarsal. To the contrary, the records Indicate that the results show a questionable tiny, evulsion fracture distal left metatarsal. 23. Denied. It Is denied that Plaintiff's Injuries were severe. It Is further denied that no remedial treatment was provided on or before June 4, 1992 to Plaintiff. 24. Admitted and denied. It Is admitted that on June 8, 1992, Plaintiff was examined by Dr. Richard A. Brown for an alleged injury to his left foot. It is denied that the Injury occurred on June 8. 1992. It is admitted that Dr. Hoffman on June 4, 1992 and Dr. Brown on June 8, 1992 suspected a tiny, evulsion fraction of the distal left metatarsal and that there were the differential diagnoses made by the physicians at that time. It is denied that there was any definitive diagnosis or that the diagnoses were consistent In that Dr. Brown ordered that the plaintiff be seen In consult with an orthopedic surgeon on June 12, 1992 to have a definitive diagnosis made. - 6- 26. Denied. It 15 denied that Plaintiff's injuries were severe and that no remedial treatment was provided on or before June 8, 1992. 26. Admitted and denied. It 15 admitted that Plaintiff was again examined by Dr. Hoffman on June 9, 1992. It Is further admitted that Dr. Hoffman wrapped Plain- tiff's left foot In an "Ace wrap" and that there was the possibility of a fracture of the distal left metatarsal. It is denied that Dr. Hoffman wrapped Plaintiff's foot in an Ace wrap despite the possibility of the fractured distal left metatersal. To the contrary, an Ace wrep was not contra-Indicated given the Plaintiff's possible condition. 27. Admitted. 28. Admitted and denied. It 15 admitted that on June 11, 1992, Plaintiff was examined by Defendant Dr. Hoffman; that Dr. Hoffman diagnosed Plaintiff as suffering from an evulsion fracture of the anterior calcaneus and an evulsion fracture of the left distal metatarsal. It is denied that the diagnosis of a fracture of the left dlstel metatarsal was a prior diagnosis. 29. Admitted and denied. It is admitted a cast was applied to Plaintiff's foot. It is denied that Plaintiff's Injuries were severe or that no remedial treatment was rendered to Plaintiff by Defendants Hoffman, Brown and Lesniewski until June 12, 1992. 30. Denied. It is denied that from May 31, 1992 until his release from SCI- CH, Plaintiff was under the care of Defendants Hoffman, Brown and Lesniewski for the injuries to his left foot. 31. Denied. The allegations contained in paragraph thirty-one (31) of Plain- tiff's Amended Complaint constitute conclusions of law to which no response Is - 7 . required. To the extent, however, that said allegations al'e deemed to be factual In nature, it is denied that Defendants Hoffman, Brown and Lesniewski committed mal- practice or that the alleged malpractice consisted of the following: (al failing to possess the requisite degree of skill and care ordinarily exercised In similar cases by other physicians. It is further denied that the Defendants failed to properly diagnose Plaintiff's condition for nearly two weeks after the accident occurred or that Plaintiff's Injuries were of the type that should have been properly diagnosed upon examining the x-rays taken on June 4, 1992. It is admitted that Dr. Hoffman, on June 4, 1992, made a differential diagnosis that Plaintiff was possibly suffering from an evulsion fracture of the left distal metatarsal. It is denied that he failed to provide a proper treatment, a cast, for that possible fracture. (bl falling to possess the degree of knowledge and skill ordinarily possessed by other physicians or that they failed to properly diagnose and treat the Plaintiff within a raasonable period of time. It is denied that the DefendantJ repeatedly misdiagnosed Plaintiff's condition and/or failed to proparly identify the Injury for nearly two weeks. It is admitted that they have access to diagnostic equip- ment and that such equipment was used In the diagnosis and treatment of the Plaintiff. It Is admitted that x-rays of Plaintiff's injured foot were taken on June 4, 1992. It Is denied that the actual Injuries went undiagnosed for an additional nine days. - B- (c) failing to conform to tha requisite standsrds of care under the circumstances. It Is denied that upon discovering the possibility of an evulsion fracture of the left distal metatarsal, further diagnostic tests should have been performed by the Defendants which ware not performed. It Is denied that no further tests were performed nor any remedial measures taken. (d) failing to properly diagnose and treat the injuries to Plaintiff within a raasonable period of time. It Is admitted that Plaintiff fractured both tha anterior calcaneus, and the left distal metatarsal. It Is denied that Plaintiff was initially diagnosed as suffering from a sprain and advised to remain off his feet. it Is deniad that the proper treatment for those Injuries Is to reset the bones and apply II cast. It Is denied that this was not done for nearly two weeks after the accident or that there was any delay In providing Plaintiff appropriate treatment. It is denied that the alleged delay was un- reasonable or that those types of Injuries take approximately four to six weeks to completely heal, thereby allowing the bones to partially heal before the cast was applied on June 1 2, 1992. (e) failing to properly examine and treat the Plaintiff. It Is denied that any examination was Improperly performed or that It should have revealed the alleged actual Injuries sustained by Plaintiff prior to the time they were diagnosed. - 9 - (f) failing to perform the necessary medical testing to determine the type and extent of Plaintiff's injuries. It Is denied that upon dis- covering the possibility of an evulsion fracture. Defendants should have performed the necessary tests to either confirm or refute their diagnosis or that such was not done. It is denied that there was a failure to render proper tests to confirm that diagnosis or a failure to render treatment In a timely manner. (g) falling to properly perform. read, Interpret. and report medical tests and procedures, including, but not limited to. x-rays. It is admit- ted that x-rays were taken of Plaintiff's left foot on June 4, 1992 and June 11, 1992. It is denied that the proper diagnosis was not made until June 12, 1992, when a cast was applied to Plaintiff's left foot. It Is denied that Defendants failed to properly Interpret the x-rays of Plaintiff's Injured left foot taken on June 4. 1992. (h) falling to exercise reasonable care in the diagnosis and treatment of Plaintiff's condition or that prompt diagnosis and treatment were critical for effective medical treatment of Plaintiff's condition. It Is admitted that a cast was not applied to Plaintiff's foot until 13 days after the alleged accident. It is denied that Plaintiff's foot had already begun to heal in a deformed condition due to the fact that a cast was not immediately applied to properly support and shape Plaintiff's fractured left foot. It Is denied that a cast was - 10- '.. not applied within a reasonable period of time to properly support and shape Plaintiff's fractured left foot. iii falling to properly refer the Plaintiff to necessary medical specialists who would have made the diagnosis of Plaintiff's condition. It is admitted that Plaintiff was an inmate in a state correctional facility. It is admitted that Plaintiff was unable to obtain treatment from the physician of his own choosing. It is denied that Plaintiff was limited to the services of Drs. Hoffman. Brown and Lesniewski unless one or all of them permitted Plaintiff to be treated by e specialist. It Is admitted that Plaintiff was In fact treated by a specialist, an orthopedic physician named Dr. Grady, who made a proper diagnosis and applied the cast to Plaintiff's left foot on June 12, 1992. (]I falling to exercise reasonable care under the circumstances. It is denied that Dafandants failed to exercise reasonable care in this case, that they failed to properly diagnose the inJuries sustained by Plaintiff, that they failed to provide the necessary treatment so Plaintiff would make a full recovery, that they misinterpreted x- rays taken of Plaintiff's injured left foot, and that they delayed In providing the proper treatment to Plaintiff for nearly two weeks. 32. Denied. The allegations contained in paragraph thirty-two (321 of Plain- tiff's Amended Complaint constitute conclusions of law to which no response is re- quired. To the extent, however, that said allegations are deemed to be factual in - 11 - nature, it Is denied that Defendants Hoffman, Brown and Lesniewski committed mal- practice or that as a direct and proximate result of that alleged malpractica Plaintiff's left foot is permanently disfigured and deformed. By wey of further answer, after reasonable Investigation, Answering Defendant lacks knowledge or Information suffi- cient to form a belief as to the truth or falsity of the allegation that Plaintiff's left foot is permanently disfigured and deformed. Accordingly, said allegation Is denied and strict proof thereof Is demanded at time of trial. 33. Denied. The ellegatlons contained In paragraph thirty-three (33) of Plain- tiff's Amended Complaint constituta conclusions of law to which no response is re- quired. To the extent, however, that said allegations are deemed to be factual In nature, It is denied that Defendants Hoffman, Brown and Lesniewski committed mal- practice or that as a direct and proximate result of that alleged malpractice Plaintiff has suffered, Is suffering, and will continue to suffer pain and discomfort in his left foot. By way of further answer, after reasonable Investigation, Answering Defendant lacks knowledge or informetlon sufficient to form a belief as to the truth or falsity of the allegation that Plaintiff has suffered, Is suffering, and will continue to suffer pain and discomfort in his left foot. Accordingly, said allegations are denied and strict proof thereof Is demanded at time of trial. 34. Denied. The allegations contained In paragreph thirty-four (34) of Plain- tiff's Amended Complaint constitute conclusions of law to which no response is re- quired. To the extent, however, that said allegations are deemed to be factual In nature, it Is denied that Defendants Hoffman, Brown and Lesniewski committed mal- practice or that as a direct and proximate result of that alleged melpractlce Plaintiff has . 12 . suffered, is suffering end will continue to suffer greet bodily pain and discomfort, as well as mental anxiety and nervousness, to his great detriment and loss. By way of further answer, after reasonable investigation, Answering Defendant lacks knowledge or Information sufficient to form a belief as to the truth or falsity of the allegation that Plaintiff has suffered, Is suffering and will continue to suffer great bodily pain and discomfort, as well as mental anxiety and nervousness, to his great detriment and loss. Accordingly, said allegations are denied and strict proof thereof Is demanded at time of trial. 36. Denied. The allegations contained In paragraph thirty-five (36) of Plain- tiff's Amended Complaint constitute conclusions of law to which no response is re- quired. To the extent, however, that seid allegations are deemed to be factual In nature, it Is denied that Defendants Hoffman, Brown and Lesniewski committed mal- practice or thet as a direct and proximate result of that alleged malpractice Plaintiff has suffered a loss of earnings and/or earning capacity. By way of further answer, after reasonable investigation. Answering Defendant lacks knowledge or Information suffi- cient to form a belief as to the truth or falsity of the allegation that Plaintiff has suffered a loss of earnings and/or earning capacity. Accordingly, said allegations are denied and strict proof thereof is demanded at time of trial. 36. Denied. The allegations contained in paragraph thirty-six (36) of Plain- tiff's Amended Complaint constitute conclusions of law to which no response Is re- quired. To the extent, however, that said allegations are deemed to be factual In nature, it is denied that Defendants Hoffman, Brown and Lesniewski committed mal- practice or that as a direct and proximate result of that alleged malpractice Plaintiff has - , 3 - suffered an intarruptlon of his daily habits and pursuits to his great and permanent detriment and loss. By way of further answer, after reasonable Investigation, Answer- ing Defendant lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegation that Plaintiff has suffared an Interruption of his dally habits and pursuits to his great and permanent detriment and loss. Accordingly, sold allegations are denied and strict proof thareof 15 demanded at time of trial. 37. Denied. The allegations contained in paragraph thirty-saven (37) of Plain- tiff's Amended Complaint constitute conclusions of law to which no response 15 re- quired. To the extent, however, that sold allegations are daemed to be factual in nature, it 15 denied that Defendants Hoffman, Brown and Lesniewski committed mal- practice or that as a direct and proximate result of that alleged malpractice Plaintiff has sustained various expenses and charges for which he has not been compensated. By way of further answer, after reasonable Investigation, Answering Defendant lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegation that Plaintiff has sustained various expenses and charges for which he has not been compensated. Accordingly, said allegations are denied and strict proof thereof 15 demanded at time of trial. 38. Denied. The allegations contained In paragraph thirty-eight (38) of Plain- tiff's Amended Complaint constitute conclusions of law to which no response Is re- quired. To the extent, however, that sold allegations are deemed to be factual in nature, it Is denied that Defendants Hoffman, Brown and Lesniewski jointly provided medical care to the Plaintiff from May 31, 1992 through June 12, 1992, or that - 14 - Defendants Hoffman, Brown and Lesniewski are jointly or jointly and severally liable to the Plaintiff. WHEREFORE, Answer Defendant, Carl A. Hoffman, Jr., D.O., demands judg- ment be entered In his favor and against the Plaintiff together with Interests and costs. NEW MATTER 39. Plaintiff has failed to state a claim upon which relief be granted under Pennsylvania Law. 40. Plaintiff has failed to properly plead causes of action against Answering Defendant. 41. The Plaintiff's cause of action, the existence of which is denied, is barred by the applicable statute of limitations or statute of repose under Pennsylvania Law. 42. Answering Defendant, believes, and therefore avers, that the facts accumulated in discovery and/or propounded at trial will establish that Plaintiff was contributorily/comparatively negligent and/or assumed the risk and In order to protect Answering Defendant's right to plead such defenses, he hereby pleads contributory and comparative negligence and assumption of the risk as formal defensas. 43. Plaintiff's claims are barred by the doctrines of estoppel, waiver, and/or latches. 44. Plaintiff's claimed injuries and/or damages, the existence of which are denied, were caused In whole or in part by acts or omissions of another or others for whom Answering Defendant was not responsible and whose conduct Answering Defendant had no reason to anticipate. - 15. VERIFICATION I, CARL A. HOFFMAN. JR.. D.O.. hereby depose and state that I am a Defendant In the above matter and that the answers set forth in the foregoing ANSWER AND NEW MATTER OF DEFENDANT CARL A. HOFFMAN, JR., D.O. TO PLAINTIFF'S AMENDED COMPLAINT are true and correct to the best of my Information, knowledge and belief. This statement Is made subject to the penalties of 1 B Pa, C.S.A. ~4904 relating to unsworn falsification to authorities. M. 2. I??r Date ' c~1~.o. . . . . ~ ,,..--- 943176-001111 . J ~ . IN THE COURT OF COMMON PLEAS OF BUCJCS COUNTY CIVIL ACTION PHILLIP ROBERTS . . NO. 94-4146 VII. . . " MILLER BLBCrRIC IWWPAC'l'URING CQIIPAIIY, CARL A. HOPPIIAlI, RIf1IUD A. BROlIN, and JOHN LESNIEWSKI , . . 1lEM0RANDUM AND ORDER This is an action in trespass against defendant, Miller Electrical Manufacturing Company, on the joint theories of products liability and negligence and against defendants, HOffman, Brown and Lesniewski, based upon negligence on allegations of medical malpractice. Essentially, it is alleged that the plaintiff was injured as a result of a defective product manufactured by defendant Miller and that his injuries were exacerbated due to the alleged malpractice of the three defendant doctors. Plaintiff's injury occurred while he was employed at the State Correctional Institution at Camp Hill in Cumberland County and was treated by the three physicians. Miller Electrical Manufacturing Company is located in Wisconsin, but it is alleged that it does business in Bucks County. Defendants, Hoffman and Lesniewski, are resident in Cumberland County, and Brown is resident in Montgomery County. " .~~. ~~17~.uwJ!t complaint, ,~""""" In preliminary objections to defendants Hoffman, Brown and Lesniewski assert lack of venue in Bucks County; and secondly, lack of specificity in the allegations of negligence against them. Subsequent to the filing of the preliminary objections and answers thereto, plaintiff petitioned for and caused a rule to be entered on March 17, 1995 to show cause why vanue should not be transferred to the Court of Common Pleas of Montgomery County based upon the residence there of defendant Brown. The return d~te on that rule is April 10, 1995 and is not presently ripe for disposition. In view of the foregoing, it would appear inappropriate to rule at this time on those preliminary objections raising the question of lack of venue. Therefore, we will reserve decision on those preliminary obj ections until the plaintiff I s rule for change of venue can be determined appropriately. However, we believe that the plaintiff I s allegations of negligence against defendants Hoffman, Brown and Lesniewski are inadequate on the basis of Connor v. Alleqhenv General Hospital, 501 Pa. 306, 461 A.2d 600 (1983). Therefore, we will sustain the preliminary obj ections of defendants Hoffman, Brown and Lesniewski as set forth in Section II of the preliminary objections and dismiss the amended complaint as to them with leave to the plaintiff to file a second amended complaint. ORDER AND NOW, to wit, this 1/ T'1 day of April, 1995, pursuant to the foregoing Memorandum, it is ORDEREO that the ;' . . . .., - ' ." .' LAWOHICESOF ~.<- _J DUANE, MORRIS B HECKSCHER .OD NORTH,rRONT ~TR[ET. P.O, 90X 100~ ~ r~d HARRISBURG, PA 17108.1003 ~' ~'""\. . . . . ~ ~ ~I~~ I ~:i"On008 IN THE COURT OF COMMON PLEAS OF BUCRS COUNTY, PENNSYLVANIA CIVIL ACTION Phillip Roberts, : plaintiff No. 94-004146 ~n c' UI -q.o ~~ r,.~JJ " ' 'J I ~: i.? ::0 ,::.-~I"11 .~ .~;':: Ci .;'>~~ -- ~ ,~ . :.~~ r Ii .r;.:' vs. ,I Miller Electric Manufacturing company, carl A. Hoffman, Richard A. Brown, and John Lesniewski Defendants ", ,. ;.-;' '" ~ CIVIL ACTION - LAW ....CI1.. mml. BUC.8 COUll'l'Y RULI 01' CIVIL .aoc.DUU a.. TO THE PROTHONOTARY: Please refer the above captioned matter to the assigned judge for disposition. Oral argument is requested. Matter for disposition: Plaintiff's Petition to Transfer Venue. It is requested that argument be scheduled at the same time as that for the preliminary Objections of Defendants Carl A. Hoffman, Jr., D.O., Richard A. Brown, M.D., and John C. Lesniewski, D.O. previously, argument on that matter was requested by Praecipe ~ ~ ~:ll j 14:i ~OII008 dated March 16, 1995, attached hereto as Exhibit A. Dated: l/b.b5' Respecttully submitted, DUANE, MORRIS , HECKSCHER By: Mary . Patterson, Es . Attorney 1.0. No. 476 0 Bruce A, Geltinq, Eaq Attorney 1.0. No. 69159 305 North Front Street P.O. Box 1003 Harrisburq, PA 17108-1003 (717) 237-5534 Attorneys tor Detendants Carl A. Hottman, Jr., D.O., Richard A. Brown, M.D., and John Lesniewski, D.O. ..-... f""-\ C'Y,1 Ph-OlIDDa , IN THE COl/RT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA CIVIL ACTION .0 rH''''' U1 :'.~' Phillip Roberts, No. 9"'-004146 :.l~ ,.', , Plaintiff ... ~ ;" - VS. C1' - Miller Electric Manufacturinq ~,. -' Company, Carl A. Hoffman, C5 ' , .. ..... Richard A. Brown, and John 0 ...~ .- . Lesniewski \S) Defendants CIVIL ACTION - LAW lID11CnB mmBR DueD COmrrY RULB O. enIL lIROCBDUIUI :us. TO THE PROTHONOTARY: c Please refer the above captioned matter to the assiqned judqe for disposition. Oral arqument i. requested. Matter for disposition: Preliminary objections of Defendants Carl A. Hoffman, Jr., D.O., Richard A. Brown, M.D., and John C. Lesniewski, D.O. Respectfully submitted, DUANE, Dated: .' ..- -." s' By: Mary P. Patterson, Esq. Attorney 1.0. No. 4762 Bruce A, Geltinq, Esq. Attorney 1.0. No. 6915 305 North Front street P.O. Box 1003 (717) 237-5534 Attorneys for Defendants Carl A. Hoffman, Jr., D.O., Richard A. Brown, M.D., and John Lesniewski, D.O. " .J . \ , ,~ '. .. . . . .. L/l,W c,-rlelS or DU^NE, MO~RIS B. HECKSCHER 310. NO"TH ,...o...r aT"CI:T. P.O. .OM 1003 H,A""I..~"Q. ~ 1710..1003 ~~ , . . . ~ 5!~j 1~-0I1009 IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA CIVIL ACTION Phillip Roberts, Plaintiff No. 94-004146 vs. Miller Electric Manufacturing Company, Carl A. Hoffman, Richard A. Brown, and John Lesniewski Defendants \i') r>1 ~." ,) , . ~!' . .-\ ~: :J CIVIL ACTION - LAW ~. ... , I .~~..: ~: ~:~~ ~;~, C' , .J DllrINDAllT8' RB8POII81 TO PLaIIITIrr' 8 RULI TO 8ROW cau.. ,:;:) _J Defendants Car~ A. HOffman, Jr., D.O., Richard A. Brown, M.D., and John c. Lesniewski, D.O. (collectively "Responding Defendants"), by and through theh at ,torneys , Duane, Morris , Heckscher, hereby respond to Plaintiff's Rule to Show Cause as follows: 1. On February 13, 1995, Responding Defendants filed Preliminary Objections to Plaintiff's Amended Complaint asserting, i~ AliA, that venue is not properly laid in Bucks County. Those Preliminary Objections are attached hereto as Exhibit A. 2. On February 14, 1995, Plaintiff filed a Petition to Transfer Venue of this action, pursuant to Pa, R. civ. P. 1006(d)(1), to Montgomery County. J. On March 9, 1995, Responding Defendants filed an Answer with New Matter to Plaintiff's Petition to Transfer Venue asserting that Plaintiff's petition was both procedurally deficient in that Bucks County could not transfer venue when it had not . .. . "'" 9~3~i-OlJO09 A 'I , , @ e ~ ! I R I l , l . l . ' ~ ~ ~ill~ 11.1-011009 PHILLIP ROBERTS, IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA Plaintiff, v. MILLER ELECTRICAL MANUFACTURING COMPANY, and CARL A. HOFFMAN, and RICHARD A. BROWN, and JOHN LESNIEWSKI, No. 94004146 Defendants. PRBLIMINARY OBJECTIONS or DB.BMD~S CARL A. RO.rxu. JR.. D.O.. RXCIlARD a.BROn. K.D. AIm JOHN C. LBSNIBWSKI. D.O. TO PLAINTI..'S AKBNDBD COMPLAINT i ( AND NOW, Defendants Carl A. Hoffman, Jr., D.O., Richard A. Brown, M.D., and John C. Lesniewski, D.O., (collectively "Moving Defendants"), by and through their counsel, Duane, Morris and Heckscher, pursuant to Pennsylvania Rule of civil Procedure 1028, hereby file their Preliminary Objections to Plaintiff's Amended Complaint and in support thereof aver as follows: 1. Plaintiff initiated this action by the filing of a Complaint on or about August 17, 1994. 2. Plaintiff's Complaint purported to state a claim against Moving Defendants for medical malpractice. 3. On or about December 21, 1994, Moving Defendants filed Preliminary Objections to the Complaint on the grounds that: a) Venue was improper in Bucks County as to Moving Defendants; and b) Plaintiff improperly pleaded boilerplate, con- clusory allegations in support of his claim for medical malpractice. , . ......-, 1"""\ ~iY j 1'I:i-0lIOD9 4. plaintiff thereafter filed an Amended complaint on January 24, 1995, which again purports to state a claim against Moving Defendants for medical malpractice. 5. These Preliminary Objections are filed in response to that Amended Complaint. I. KOTIO. TO STRIK! DUI TOIKPROPBR VENUI 6. Pennsylvania Rule of civil Procedure 1006 provides that: . . . an action against an individual may be brought in and only in a county in which he may be served or in which the cause of action arose or where a trans- action or occurrence took place out of which the cause of action arose or in any other county authorized by law. 7. Pennsylvania Rule of civil Procedure 1006(c) provides (a) that in an action to enforce joint or joint and several liability, an action may be brought against all defendants in any county in which the venue may be laid against anyone of the defendants. 8. Pennsylvania Rule of civil Procedure 1028(a) (1) provides that a Defendant may object to improper venue. 9. Moving Oefendants in this case are individuals.who do not reside i~ Bucks county; the cause of action arose in Cumberland county and no transaction or occurrence took place in Bucks County; and Plaintiff does not claim that this is an action to enforce joint or joint and several liability against the Defendants. 10. Bucks county is an inconvenient forum because the cause of action arose in Cumberland county, the allegedly defective product is located in Cumberland county, the physicians provided treatment in Cumberland county, two of the three named defendant - 2 - '" f"", c4,1l'1:i-Oll009 doctors practice in or around Cumberland County, and most of the witnesses, as well as the state Correctional Institution at Camp Hill, are located in Cumberland County. 11. This action may not be brought against Moving Defendants in Bucks County for the following reasons: (a) Moving Defendants have not been and cannot be sued in Bucks County. ~ Amended Complaint II 3-5; Pa. R.C.P. 1006(a). I I This purported cause of action arose at the state Correctional Facility located in Camp Hill, Cumberland county. ~ Amended Com- plaint II 6-8. No cause of action against Moving Defendants purpor~ed to exist in this sui t arose in Bucks County. See Pa. R. C. P. 1006(a); (c) Plaintiff has not alleged any transaction or occurrence in Bucks county out of which this action arose, nor do Plaintiff's allegations indicate any such transaction or occurrence. ~ Pa. R.C.P. 1006(a); and (b) (d) This is not an action to enforce joint or joint and several liability between Moving Defendants and co-defendant Miller Electric ManUfacturing Company ("Miller), a Wisconsin business entity; consequently, Plaintiff can- not rely on Pa. R.C.P. 1006(c) for venue as to Moving Defendants. 12. Even if this were a suit to purportedly enforce joint and several liability, Plaintiff has still failed to obtain venue over Moving Defendants by virtue of Miller's presence in this suit for the fOllowing reasons: (a) Plaintjff does not allege venue as to Miller. See Amended Complaint I 2. without proper venue of this co-defendant, venue cannot lie as to Moving Defendants in Bucks County under Pa, R.C.P. 1006(c); (b) Second, even if venue does lie as to Miller, absent the requisite allegation of joint and several liability between Moving Defendants - 3 - ,~ !"""\ S:Y .11 ~ .HlII009 (c) and Miller, venue is still improper as to Moving Defendants under Pa. R.C.P. 1006(c); and Third, there can be no joint and several liability between physician Moving Defendants and Miller, which is alleged to have caused the Plaintiff's original injury because the law is clear that a tort feasor originally causing an injury and a physician who alleged- ly subsequently aggravates or causes a new injury are not joint tortfeasors. LasDroaata v. oua1ls, 263 Pa. superior ct. 174, 307 A.2d 803 (1979). WHEREFORE, Defendants Carl A. Hoffman, Jr., D.O., Richard A. Brown, M.D., and John C. Lesniewski, D.O. respectfully request that, to the extent venue is found to lie in Bucks County as to Defendant Miller Electric Manufacturing company, this Court dismiss Plaintiff's Amended Complaint due to improper venue as to Moving Defendants; or, alternatively, to the extent venue does not lie in Bucks county as to Defendant Miller Electric Manufacturing company, transfer Plaintiff's suit in its entirety to Cumberland county. II. MOTIOH TO STRIKB AND/OR MOTIOH POR A MORB SPBCIPIC PLBADIKG PURSUANT TO PA. R.C.P. 1028 POR PAILURS TO PLBAD WITH 'ACTUAL BPBCIPICITY 13. Pennsylvania Rule of Civil Procedure 1019 (a) requires that a complaint set forth the material facts upon which a cause of action is based. 14. Pennsylvania Rule of civil Procedure 1028(a)(2) provides that a party may preliminarily object to a pleading for failure to conform with rule of law or court. - 4 - -, ciY.1\J-on009 15. In Conner v. Al1eQhenv General Hospital, 501 Pa. 307, 461 A.2d 600 (19B3), the Supreme Court statod that where a general averment of negligence is not met with a Motion to strike or a Motion for a more specific pleading, a plaintiff may amend his complaint to include more specific allegations of negligence even after the statute of limitations has run. ~ ~ starr v. Hyers, 109 Dauph. 147 (19B8). 16. plaintiff has pled several allegations of negligence without the specificity required by Pennsylvania law. 17. Specifically, in Paragraph 31 of the Amended Complaint, Plaintiff has set forth what purports to be the particulars of his negligence/malpractice claims against Moving Defendants. However, the allegations of negligence against Moving Defendants found in paragraph 31 are overly broad, vague, non-factually supported boilerplate and conclusory allegations which fail to adequately apprise Defendants of the specific facts upon which these gener- alized claims are based. 18. In Paragraph 31 of Plaintiff's Amended Complaint, he alleges that moving Defendants cOl1U1litted malpractice which con- sisted ot the following: (a) failure to possess the requisite degree of skill and care ordinarily exercised in similar cases by other physicians; (b) failure to possess the degree of knowledge and skill ordinarily possessed by other physicians: (e) failure to conform to the requisite standards of care under the circumstances: (d) failure to properly diagnose and treat the injuries to Plaintiff within a reasonable period of time: - 5 - failure to properly eKamine and treat Plaintiff/ failure to perform the necessary medical testing/ failure to properly perform, read, interpret, and report medical tests and procedures, including, but not limited to, x-rays/ failure to exercise reasonable care in the dia- gnosis and treatment of Plaintiff's condition for which prompt diagnosis and treatment were critical for effective medical treatment/ failure to properly refer the Plaintiff to necessary medical specialists who would have made the diagnosis of Plaintiff's condition/ and (j) failure to exercise reasonable care under the circumstances. , . (e) ( f) (g) (h) (i) ,~ 54.(.i:i-0I1009 19. Pennsylvania Rule of Civil Procedure 1019 (a) requires that the "material facts" on which a cause of action is based must be stated in a concise and summary form. The specific allegations outlined above are devoid of the requisite material facts to sup- port the conclusory allegations of liability. This objectionable paragraph and subparagraphs, therefore, fails to conform to law under rules of court. 20. If the above averments contained in Paragraph 31 are per- mitted to remain, Moving Defendants will suffer great p:oejudice because plaintiff will be able to introduce new theories of liabil- ity at any time without regard to the statute of Limitations. 21. Moving Defendants will suffer further prejudice in their inability to respond to or prepare a defense to these overly broad, vague, conclusory and otherwise deficient allegations. 22. Paragraph 31 of Plaintiff's Amended Complaint fails to comply with the requirements of Pa. R.C.P. 1019(a) and should be stricken from the Amended Complaint. - 6 - . . . . 1""\ ~ 9~.i I ~:i-Oll009 WHEREFORE, Defendants Carl A. Hoffman, Jr., D.O., Richard A. Brown, M.D., and John c. Lesniewski, D.O. respectfully request that this Court strike Paragraph 31 (a) through (j) of Plaintiff's Amended Complaint, or, in the alternative, order Plaintiff to file an Amended Complaint which brings the paragraphs objected to into compliance with Pa. R.C.P. 1019(a). Respectfully submitted, DUANE, MORRIS & HECKSCHER Dated: 9..} It> {9 S- f I By: .V't..Cbl___ MARY ATTERSON, ESQ. I.D. Nu er 47620 BRUCE A. GELTING, ESQ. I.D. Number 69159 305 North Front Street Fifth Floor P. o. Box 1003 Harrisburg, PA 17108-1003 (717) 237-5531 Attorneys for Carl A. Hoffman, Jr., D.O., Richard A. Brown, M.D., and John c. Lesniewski, D.O. - 7 - " . 91~~:i~OIl009 ~ . ., e i i .[ . , I I } I " ,. c 'fnVEr :;:'i,:'OT.~RY "1 , '~OUNTY r- '''; -'1 1~,'lJO: 37 IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA 91Y~~i-On009 CIVIL ACTION Phillip Roberts, plaintiff . . No. 94-004146 . . . . vs. . . . . Miller Electric Manufacturing : coapany, Carl A. Hoffman, Richard A. Brown, and John Le.niew.lei Defendant. : . . . . . . CIVIL ACTION - LAW D.wmma-s' ...... UR ... p"". '!O ttta%ft%ft'. ttft:E'J.IIO. 1ft) ft...... y..u. Defendants Carl A. Hoffman, Jr., D.O., Richard A. Brown, M.D., and John C. Le.niewski, D.O., (collectively "An.wering Defendants"), by and through their counsel, Duane, Morri. and Becucher, hereby respond to plaintiff's Petition to Transfer Venue under Pa. R.C.P. 1006(d)(1), as follows: 1. After reasonable investigation, Answering Defendant. are without sufficient Jcnowledge or information to fOrlll a belief as to the truth of the averaents contained in Paragraph No. 1 of Plaintiff's petition and, accordingly, they are denied. 2. Admitted. .' ..- --- 3. Denied. It is denied that Answering Defendants had a medical practice at the camp Hill correctional Facility on May 31, 1992. 4. Admitted. 5. Admitted. ( ( (, ---. ,~ S,II:II~.'i-Oll009 6. Denied as stated. It is admitted thiAt the Answering Defendants provided medical care to the Plaintiff. It is specifically denied that Answering Defendants misdiagnosed Plaintiff's condition. The remaining averments in Paragraph No.6 of Plaintiff's Petition are conclusions of law to which no response . is required. To the extent these averments are deemed factual in nature, it is specifically denied that Answering Defendants are jointly or jointly and severally liable to Plaintiff in any manner. 7. Denied. The averments contained within Paragraph No. 7 of Plaintiff's Petition are conclusions of law which require no response. By way of further answer, Pa. R.C.P. 1006(c) speaks for itself and need not bo admitted nor denied. Additionally, it is denied that Plaintiff has alleged joint or joint and several liability as to all defendants in this action; therefore, Plaintiff cannot rely on Rule 1006(c) to assert venue with regard to Defendant Miller Electric Manufacturing Company. 8. Denied. The averments contained within Paragraph No. 8 of Plaintiff's Petition constitute conclusions of law to which ,no response is required. Additionally, Pa. R.C.P. 1006(d) (1) speaks for itself and need not be admitted nor denied. BX_~ay of further answer, Plaintiff mistates Rule 1006(d) (1) which provides for transfer of an action .2I1lY "(f]or the convenience of parties and witnesses." Plaintiff fails even to assert that it seeks transfer on that basis, let alone offer any factual basis for a RUle 1006 (d) (1) forum Il2ll conveniens transfer. ~ Paae v. 2 ~ r.'lj;;J :i-OII009 (Rule 1006(d) (1) ( Ekbladh, 404 Pa. Super. 368, ~gO A.2d 1278 tran.f.r i. bas.d on forum non conv.ni.n.). 9. Denied. Th. av.nent. contained in Paragraph No.9 of Plaintiff'. Complaint conatitut. conclu.ions of law to which no r..pon.. i. required. To the ext.nt th... averments are deemed factual in natur., th.y are deni.d. 10. Deni.d. Th. av.ra.nt. contain.d within Paragraph No. 10 of Plaintiff'. P.tition con.titut. conclu.ions of law to which no r..pon.. i. r.quir.d. To the .xt.nt the averments are 4....4 factual in nature and a r..pon.. i. required, it is denied that An.w.ring Defendant. are jointly or jointly and severally liable to Plaintiff. , ( ... ........ 11. Paragraph. 1 through 10 of this An.wer and New Matt.r ar. incorporated h.rein by r.f.r.nc. a. if fully set forth. 12. On January 24, 1995, Plaintiff filed an AIIIended complaint in the Court of Common Pl.a. of Bucks County. 13 . On F.bruary 10, 1995, An.w.ring Defendants filed Pr.liainary Obj.ction. to the Aa.nd.d Complaint asserting4mproper v.nu. and a failure to plead with the required specificity. 14. Plaintiff did not re.pond to the Notice to Plead to the factual allegations supporting Answering Defendants' Pr.liminary Objection for improper venue and, consequently, those factual allegations are deemed admitted. Pa. R.C.P. 1026. 3 ,. . ,.-, ~ ~'4 ~ d:i-0lIO09 ( 15. Instead, on February 14, 1995, Plaintiff filed a Petition to Transfer Venue under Rule 1006 (d) (1) - forum nsm conveniens. That Petition, however, is procedural+y deficient. 16. A Rule 1006(d) (1) Petition can only be filed in an action where venue already lies, i.e. "transfer" means moving from . one proper venue to another. au Hosierv COrD of America. Inc. v. 81gb, 327 Pa. Super. 472, , 476 A.2d 50, 51 (1984) (only where venue is already established does the procedure for transfer fall under RUle 1006(d)). 17. As noted, Answering Defendants have filed a Preliminary Objection as to improper venue. The Court has yet to rule on the issue. However, because Plaintiff failed to respond to the Preliminary Objections, the factual allegations contained ( therein are deemed admitted and venue must be found D2t to lie in Buck. County. 18. Consequently, because it has not been established that venue is properly laid in Bucks County, Plaintiff may not use Rule 1006(d) (1) to transfer venue. ~ AlAQ Calderone v. BUlsis, 33 D'C3d 491, 492 (C.P. Phil. 1983) ("where venue i. wrongly laid, Rule 1006(e) governs the transfer.") " ~. -... 19. Moreover, Plaintiff apparently misreads or misconstrues Rule 1006(d) (1) to allow transfer to Montgomery County simply on the basis of his allegation that the suit could have been originally brought there. 20. As noted above, a Rule 1006(d) (1) transfer is to be issued QIl}.y on forum J1QIl conveniens grounds. Plaintiff ignores the ( 4 .' ""\ ~It ,G:i-0l1009 first clause of the Rule it relies upon, that such transfer is only "rflor the convenienoe ot Dartie. and witnesses." 21. Some ot the tactors a court looks to in determining a forum nsm conveniens petition are location of witnesses and proof, access to sources of proof, availability of compulsory . proce.. for unwilling witnesses, costs of obtaining witnesses, enforceability of jUdqments, and the public interest in compelling juror. to con.ider a case not concerning its community. Dranzo v. Winterhaltar, 395 Pa. super. 578, 577 A.2d 1349 (1990)7 Flaxman v. Burnatt, 393 Pa. super. 520, 574 A.2d 1061 (1990). 22. plaintiff has the burden of proving that transfer of venue i. necessary and the Court is not to grant the petition without. .howing of real necessity. Dranzo. :i13. Plaintiff, however, offers only one remote connection b.tw.en this action and Montgomery county -- the Valley ro~. offic. of on. of the physician defendants. 24. In so doing, plaintiff wholly ignores the obvious connections between this action and cumberland county -- the place of the all.g.d injury, the place of treatment, availability of .' witn..... who may be incarcerated, the relative low cost. of Obtaining witnesses in cumberland county and Cumberland county's int.r..t in actions concerning its community. "An analysis of the appropriateness of a county as a forum is proper when evaluating transfer of venue from one county to another . . . pursuant to Pa. R.C.P. 1006(d) (1)" ~, 404 Pa. super. at _, 590 A.2d at 12BO. 5 ~ 943 ~-(lOO?'l A THOMAS S. ALGEO, ESQUIRE Attorney for plaintiff, Phillip Roberts Atty. 101 52B06 135 N. Main Street P.O. Box 543 Sellersville, PA 18960 (215) 257-3333 \.... '_1 , ' -.. IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA .' CIVIL ACTION 'i ,_, :'" :Q ,"'0 ) -"',..4' . ':.' r .f.c Phillip Roberts, Plaintiff No. 94-004146-05-2 :72 \/; :)r~: ;--:. ,:",j"';, ':..; --.1"1 ''::::':-0 :..~ ,~r; -~, -( vs. Attorney 10 #52806 ~.! ~.l 0.:;) -. Miller Electric Manufacturing Company, Carl A. Hoffman, Richard A. Brown, and John Lesniewski Defendants CIVIL ACTION-LAW PLAINTIFF'S REPLY TO DEFENDANT MILLER ELECTRIC'S HEW MATTER 39. The averments contained in paragraph 39 of Defendant Miller Electric Manufacturing Company's Answer and New Matter are denied as a conclusion of law to which no response is required. By way of further answer, Plaintiff's action was timely filed and served upon Defendant Miller Electric Manufacturing Company and therefore is not barred by any statute of limitations. 40. The averments contained in paragraph 40 of Defendant Miller Electric Manufacturing Company's Answer and New Matter are denied as a conclusion of law to which no response is required. By way of further answer, Plaintiff does state a cause of action upon which relief may be granted. Specifically, Plaintiff is alleging injuries which resulted from the use of a defective product. 41. The averments contained in paragraph 41 of Defendant Miller Electric Manufacturing Company's Answer and New Matter are . " .. ~ 94~5-(l00711 denied as a conclusion of law to which no response is required. By way of further answer, Plaintiff at all times relevant hereto acted in a reasonable manner and therefore it is specifically denied that plaintiff's claim is barred entirely, or in part, by the applicability of the Pennsylvania Comparative Negligence Act, the Doctrine of Assumption of the Risk, and/or the Doctrine of Contributory Negligence. 42. The averments contained in paragraph 42 of Defendant Miller Electric Manufacturing Company's Answer and New Matter are denied as a conclusion of law to which no response is required. By way of further answer, Plaintiff at all times relevant hereto acted in a reasonable manner and was not contributorily negligent. 43. The averments contained in paragraph 43 of Defendant Miller Electric Manufacturing Company's Answer and New Matter are denied as a conclusion of law to which no response is required. By way of further answer, the product in question was not materially altered after it left the possession of Defendant. To the eKtent that any alterations were made, without admitting that any were in fact made, said alterations were foreseeable by Defendant Miller Electric Manufacturing Company and therefore, proper warnings should have been given regarding the dangers of altering said machine. . . ~ 9Ii~II~OZZI THOMAS S. ALGEO, ESQUIRE Attorney for Plaintiff, Phillip Atty. 10# 52806 135 N. Main Street P.O. Box 543 Sellersville, PA 1B960 (215) 257-3333 Roberts IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA CIVIL ACTION Phillip Roberts, Plaintiff No. 94-004146-05-2 vs. Attorney 10 #52B06 Miller Electric Manufacturing Company, Carl A. Hoffman, Richard A. Brown, and John Lesniewski t.D CJ1 :-1: = N .r.- " ::J: OJ" C2! nO]j ",t:' -.1 .~ ;"'-ra,.l ....-(i "'''; \,,"::t..-.. 9;~.~~ ~~G Defendants CIVIL ACTION-LAW PLAINTIFF'S BRIEF IN OPPOSITION OF DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFF'S AMENDED COMPLAINT - .. - o Plaintiff Phillip Roberts, by and through his attorney, Thomas S. Algeo, Esquire, hereby files the within Brief in Opposition to Defendants' Preliminary Objections to Plaintiff's Amended Complaint: I. HISTORY OF THE CASE On or about May 31, 1992 Plaintiff, an inmate at the State Correctional Facility at Camp Hill, was injured while operating a gas powered welder manufactured by ~iller Electric Manufacturing Company. Plaintiff sought immediate medical treatment at the prison dispensary. Plaintiff was eKamined and treated by the individual Defendants for his injuries over a period of several weeks before the proper diagnosis was made. ~ 9lf311~02Z1 On May 31, 1994, Plaintiff commenced this action by filing a Writ of Summons with the Court of Common Pleas of Bucks County. preliminarf Objections were filed by the individual Defendants and an Answer was filed by the corporate Defendant. Plaintiff filed an Amended Complaint in response to the individual Defendants' preliminary objections. The individual Defendants again filed preliminary objections raising the issues of improper venue and insufficiency of the pleading. Plaintiff filed a Petition to Transfer Venue requesting this Honorable Court transfer this matter to Montgomery County. The Rule Returnable date is April 20, 1995. II. OUESTIONS INVOLVED A. Whether Plaintiff's claims should be stricken for lack of specificity pursuant to Rules of Civil Procedure 1028(a)(2) and 1028(a)(3). (Suggested answer: no) B. Whether Plaintiff's claims against the individual Defendants should be dismissed pursuant to Rule of civil Procedure 1006 on the basis that this action may not be brought in Bucks County against the individual Defendants. (Suggested answer: no) , . ~ 94311~02ZI II 1. ARGUMENT A. Whether Plaintiff's claims should be stricken for lack of specificity pursuant to Rules of civil Procedure 1028(a)(2) and 1028(a)(3). Defendants allege that Plaintiff's Amended Complaint does not set out with specificity and particularity the claims against Drs. Hoffman, Brown and Lesniewski. The specific paragraph which Defendants wish to have stricken, Paragraph 31(a)-(j), sets forth the objective standards not adhered to by the Defendants. Plaintiff's Amended Complaint, paragraphs 20 through 30, sets forth a detailed factual history of the medical treatment (or lack thereof) provided by the Defendants. See Plaintiff's Amended Complaint paragraphs 20 through 30. The Amended Complaint identifies the injuries sustained by Plaintiff, the diagnoses of all three doctors during the course of treatment, the correct diagnosis of the Plaintiff's injuries (evulsion fractures of the left distal metatarsal and the anterior calcaneus), the remedial measures taken (e.g. wrap foot with an "Ace Bandage") or omitted (e.g. applying a cast promptly) by Defendants and the damages Plaintiff suffered and continues to suffer as a result of the malpractice of the individual Defendants. In Krajsa vs. Kevpunch Inc., the Superior Court held that a complaint need not identify a specific legal theory underlying the claim, it must appraise the defendant of the claim being asserted and summarize the essential facts to support that claim. ~ 9~31 ,;JII!I02Z I K[Ajsa vs. KevDunch. Inc., 622 A.2d 355(pa.Super. 1993). In the instant matter, plaintiff's Complaint does appraise the Defendants of the claim being asserted, i.e. medical malprac~ice. Furthermore, the Plaintiff's Amended Complaint, as is set forth above, adequately summarizes the essential facts to support plaintiff's claim. Also, Defendants claim that they are unable to prepare a defense due to the "vague" and "conclusory" allegations made by plaintiff (see Defendants' Brief in support of preliminary Objections, page a). As is stated above, Plaintiff's allegations against Defendants are not vague and conclusory. Plaintiff's Amended Complaint sets forth the specific facts and legal theory upon which this case is based. Defendants are aware, or should be aware, of the treatment they provided to plaintiff from May 31, 1992 through June 12, 1992. Plaintiff's Amended Complaint, when read as a whole, contains sufficient factual allegations for the Defendants to prepare an adequate defense to the malpractice claim. Defendants also claim that Plaintiff will be able to introduce new theories of liability against Defendants after the '. Statute of Limitations has run. In his Amended Complaint Plaintiff only alleged one incident in which he severely injured his foot. plaintiff then chronologically describes the course of treatment provided by Defendants. Plaintiff has only claimed and pleaded one injury for which he was treated by the individual ~ 9431~002ZI ~Defendants. Plaintiff has sufficiently pleaded the facts of this case to allow Defendants to prepare a defense to the claim of malpractice. Therefore, Paragraph 31(a)-(j) should not be stricken from Plaintiff's Amended Complaint, nor should this action be dismissed. B. Whether Plaintiff's clai.s against the individual Defendants should be dis.issed pursuant to Rule of Civil Procedure 1006 on the basis that this action ~y not be brought in Bucks County against the individual Defendants. Improper venue shall be raised by preliminary objection and if not so raised shall be waived. If a preliminary objection to venue is sustained and there is a county of proper venue within the state the action 'shall not be dismissed but shall be transferred to the appropriate court of that county. Pa.R.C.p. No 1006(e), 42 Pa.C.A. S1006(e). Instead of dismissing action, court of common pleas should on its own motion transfer it to proper county if preliminary objection to venue is sustained. Anderson v. Uva, 326 A.2d 430, (Pa.Super. 1974). Plaintiff's Amended Complaint was filed in Bucks County, Pennsylvania. Defendants Brown, Hoffman and Lesniewski filed preliminary objections raising the issue of venue. On February 14, 1995 Plaintiff filed a Petition to Transfer Venue with this Honorable Court requesting the matter be transferred to Montgomery County. At no time has Defendant Miller Electric ~ 9431l~221 " objected to venue, it therefore waives any objection it may have regarding this issue. Defendants Brown, Hoffman and Lesniewski claim in their Brief in support of their preliminary Objections that Cumberland County is an appropriate county within the Common~alth for this matter to be heard (Defendants' Brief in supportt of preliminary objections, page 11). Accordingly, the issue is not li there is a county of proper venue within the Commonwealth, but which county has proper venue. Therefore, pursuant to Rule of Civil procedure 1006(e), this matter shall not be dismissed, but shall be transferred to the appropriate court in a county with proper venue. Furthermore, preliminary objections that would result in dismissal of cause of action will be sustained only in cases which are clear and free from doubt. Meinhart vs. Heastor, 622 A.2d. 1380. (pa.Super. 1993). This case is not clear and free from doubt. In his Amended Complaint plaintiff has asserted claims against the individual Defendants for medical malpractice. The issues raised by plaintiff in his Amended Complaint are not clear and free from doubt. The allegations of negligence, malpractice and product liability have not been decided by the finder of fact. Therefore, Defendants' preliminary objections should not be sustained if the result would be a dismissal of plaintiff's action. 11 91~17"00222 THOMAS S. ALGEO, ESQUIRE Attorney for Plaintiff., Phillip Roberts Atty. IDI 52806 135 N. Main Street P.O. Box 543 Sellersville, PA 18960 (215) 257-3333 IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA CIVIL ACTION Phillip Roberts, Plaintiff \0 (Jl -.; :'" "" ,,) ~ -0 :::: OJ'TJ C:J ~}()T ..~. -~-;:. .:,..:, <}:(' '-, l.;~ ce- . ".~ .. I"~r.~ '-_'_'11 c.. -i.-; ~'>v "-:n ~-< No. 94-004146-05-2 vs. Attorney ID 152806 Miller Electric Manufacturing Company, Carl A. Hoffman, Richard A. Brown, and John Lesniewski - .. &" Defendants CIVIL ACTION-LAW PLAINTIFF'S REPLY TO DEFENDANT MILLER ELECTRIC MANUFACTURING COMPANY'S NEW MATTER 12. Admitted. 13. Denied. After reasonable investigation, Plaintiff is without sufficient knowledge or information to form a belief as to the truth or accuracy of the averments contained in this paragraph and same is, therefore, denied and strict proof thereof is demanded at time of trial. By way of further anawer, Plaintiff was never provided a time stamped copy of Defendants' Preliminary Objections and therefore, Plaintiff was not aware of the exact date said Preliminary Objections were filed. By way of further answer, Plaintiff filed a Reply to Defendants' Preliminary Objections on March 13, 1995. ,........, 9'1r?,D022Z 14. Denied. The averments contained in Paragraph 14 of Defendants' New Matter are conclusions of law to which no responsive pleading is required. By way of further answer, As is stated in Paragraph 13 above, Plaintiff filed a response to Defendants' Preliminary Objections on March 13, 1995. Furthermore, Plaintiff filed a Petition to Transfer Venue on February 14, 1995 requesting this Honorable Court transfer this matter to Montgomery County. Furthermore, to the extent that Plaintiff did not respond to Defendants' Preliminary Objections, the averments relating to venue constitute conclusions of law to which no response is required. 15. Admitted in part. It is admitted that Plaintiff filed a Petition to Transfer Venue on February 14, 1995. The remaining averments contained in Paragraph 15 of Defendants' New Matter are denied as conclusions of law to which no responsive pleading is required. 16. Denied. The averments contained in Paragraph 16 of Defendants' New Matter are conclusions of law to which no responsive pleading is required. 17. Admitted in part. It is admitted that Defendants filed Preliminary Objections to venue and that this Honorable Court has not yet ruled on said Preliminary Objections. The remaining averments contained in Paragraph 17 of Defendants' New Matter are conclusions of law to which no responsive pleading is required. To the extent said averments are not conclusions of law same are specifically denied and strict proof thereof is aemanded at time of ~ 9Y~;-V ,,00222 trial. As is stated above, Plaintiff did respond to Defendants' Preliminary Objections to venue. 18. Denied. The averments contained in Paragraph 18 of Defendants' New Matter are conclusions of law to which no responsive pleading is required. 19. Denied. The averments contained in paragraph 19 of Defendants' New Matter are conclusions of law to which no responsive pleading is required. By way of further answer, the averments in Paragraph 19 of Defendants' New Matter are speculative and conclusory to which no appropriate response may be asserted. 20. Denied. The averments contained in Paragraph 20 of Defendants' New Matter are conclusions of law to which no responsive pleading is required. By way of further answer, Moving Defendants misstate Rule 1006(d)(1) in that the word "only" is not found in the first clause. 21. Denied. The averments contained in Paragraph 21 of Defendants' New Matter are conclusions of law to which no responsive pleading is required. 22. Denied. The averments contained in Paragraph 22 of Defendants' New Matter are conclusions of law to which no responsive pleading is required. 23. Denied as stated. It is denied that the connection with Montgomery County is remote inasmuch as of the other Defendants, individual and corporate, only one resides in or has an office in Cumberland County. The corporate Defendant has waived any and all objections to venue by failing to raise said objections by way of .~ 9ir:'7-'ODZ2Z Prel~miuary Objection and the other individual Defendant reside in or has an office in Dauphin County. 24. Denied as stated. It is denied that Plaintiff ignores the obvious ("ignores" and "obvious" are subjective words to which Defendants have no actual knowledge of what Plaintiff ignores and that which he takes in to consideration before making a decision and what is obvious). There are connections to Bucks County, Montgomery County, Dauphin County and Cumberland County. Plaintiff chose to commence this matter in Bucks County. Although not absolute, a plaintiff's choice of forum is to be given great weight. By way of further answer, although the injury occurred in Cumberland County, the place where the treatment was rendered (the State Correctional Facility at Camp Hill) has not been named a party to this action, the location and availability of potential witnesses is speculative inasmuch as only one witness remains incarcerated in Cumberland County, and therefore the cost of obtaining witnesses is not a factor to be considered. Also, the alleged malpractice occurred while the Moving Defendants were under contract with the Commonwealth of Pennsylvania to provide medical treatment to prisoners. Cumberland County has no real interest in this action since this matter has nothing to do with the lawa, ordinances, citizens or residents of Cumberland County. 24. (Defendants misnumbered the paragraphs in their New Matter, therefore there are two Numbers 24) The averments contained in the second Paragraph 24 of Defendants' Answer to New Matter are conclusions of law to which no responsive pleading is required. ~ ~117-'00222 , VERIFICATION I, Thomas S. Algeo, Esquire, do hereby verify that the statements made in the attached Complaint are true and correct. I understand that false statements herein are made subject to the penalt1es of 18 Pa.C.S. 54904 relating to unsworn falsification to . authorities. Date: 3(2.-> Iq~ ..~~~ Thomas S. Algeo , 'I' , ' ... . ,..... . . , r. . . LAW O,.'IC[$ or DU^NE. MORRIS 8 HECKSCHER .05 NORTH FRONT STREET. P.O. BOX 1003 liAAAISaURG. PA 1"1108.1003 w . . , . .. . ~ ~ 943116-01)037 PHILLIP ROBERTS, Plaintiff, IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA v. MILLER ELECTRICAL MANUFACTURING COMPANY, and CARL A. HOFFMAN, and RICHARD A. BROWN, and JOHN LESNIEWSKI, No. 94004146 Defendants. en r~" U1 f '. ,- ( , ;'YJ N W 2:~ 9 -.I " .. u.... o. n...IIDAII'l'8 ca.,.. a. .0..... .1... D.O.. alco.n A. BROD. II.D. AlII) .10.. C. U..ID.KX. D.O. 'l'O D...IIDJUI'l' IIILYR .YCTRIC 1f1l1lllW1l-nIIIG COII.UY'I ... UTT.R 1M ft. D'1'1JU o. a CROll CU.III .U.IUJUI'l' 'l'O RUY JJIJ(d~ 44. Denied. The allegations contained in the cross-claim pursuant to Pa. R. Civ. P. 2252(~) of Defendant, Miller Electric Manufacturing Co. ("Miller") constitute conclusions of law to which no response is required. To the extent, however, that said allegations are deemed to be factual in nature, it is denied that if the allegations in Plaintiff's Complaint are true and proven, than those injuries and damages were due solely to or as a consequence of the negligence, carelessness, recklessness of Defendants HOffman, Brown and Lesniewski, that Defendants Hoffman, Brown and Lesniewski are alone liable to the Plaintiff, or that Defendants Hoffman, Brown and Lesniewski are jointly and severally liable with Defendant Miller or liable over to Defendant Miller on . '"" ~ 91{ j , 16-0IJO:i7 VERIFICATION I, Mary P. Patterson, hereby depose and state that I am an associate in the law firm of Duane, Morris and Heckscher, attorneys for Carl A. Hoffman, D.O., Richard A. Brown, M.D., and John c. Lesniewski, D.O., Defendants in this matter, and make this Verification on behalf of said Defendants, who are unavailable to make this Verification tim.ly. I further state that the facts set forth in the foregoing ANSWER OF DEFENDANTS CARL A. HOFFMAN, JR., D.O., RICHARD A. BROWN, M.D. AND JOHN C. LESNIEWSKI, D.O. TO DEFENDANT MILLER ELECTRIC MANUFACTURING COMPANY'S NEW MATTER IN THE NATURE OF A CROSS CLAIM PURSUANT TO RULE 2252 (d) are true and correct based upon knowledge or information and belief that I have obtained in representing the Defendants in this case, including correspondence and conferences with them. This Verification is made subject to the penalties of 18 Pa. C.S.A. 14904, relating to unsworn falsification to authorities. , .--' 7":l'YPS Date ' f~ '.,/! ,,/' J~ ~_ ~~; '. %AU-t~~ Ma . Patterson, Esq. o 9q3107~16 THOMAS S. ALGEO, ESQUIRE Attorney for Plaintiff, Phillip Roberts Atty. IDI 52806 135 North Main Street P.O. Box 543 Sellersville, PA 18960 (215) 257-3333 IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA CIVIL ACTION Phillip Roberts, No. 94-004146-05-2 Plaintiff vs. Attorney ID 152806 Miller Electric Manufacturing Company, Carl A. Hoffman, Richard A. Brown, and John Le.niewski Defendants CIVIL ACTION-LAW ORDER AND NOW, this day of , 1995, upon consideration of the foregoing Petition to Transfer Venue, it is hereby ORDERED and DECREED that this matter be transferred to the Court of Common Pleas of Montgomery County, Pennsylvania. BY THE COURT: J. . , !"'"'\ ~ THOMAS S. ALGEO, ESQUIRE 9~305~-00085 Attorney for Plaintiff, Phillip Roberts Atty. IDI 52806 135 North Main Street P.O. Box 543 ~ellersville, PA 18960 (215) 257-3333 IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA CIVIL ACTION Phillip Roberts, No. 94-004146-05-2 plaintiff ,0 <.:1 .." r~ c, ,^ - .' . "0' ..- ,n .. . ;- ; ~r-, ~ > - . ':':1" ~~. vs. Attorney ID 152806 "" :.; Miller Electric Manufacturing Company, Carl A. Hoffman, Richard A. Brown, and John Lesniewski c..n ..-' O'.l Defendants CIVIL ACTION-LAW PETITION TO TRANSFER VENUE plaintiff, by and through his attorney, Thomas S. Algeo, Esquire, files this Petition pursuant to Pennsylvania Rule of civil Procedure 1006 (d) ( 1) to transfer this matter to the Court of Common Pleas of Montgomery County, and makes the following representations in support thereof: 1. plaintiff was injured on May 31, 1992, while working at the Camp Hill correctional Facility in Camp Hill, Dauphin County, Pennsylvania. 2. plaintiff instituted the instant product liability and medical malpractice actions by Writ of Summons filed May 31, 1994 in the Court of Common Pleas of Bucks County. 3. Defendants Lesniewski, Brown and Hoffman are physicians who, on May 31, 1992, had a medical practice at the Camp Hill correctional Facility. 4. None of the individual Defendants is currently practicing medicine at the Camp Hill Correctional Facility. , , . ~ --- 5. Defendant Richard A. Brown is ~J~~Q6~c~~th an office located in Valley Forge, Montgomery County, Pennsylvania. 6. Since all three individual Defendants provided medical care to Plaintiff and all three individual Defendants misdiagnosed Plaintiff's condition, the individual Defendants are jointly or jointly and severally liable for the damages to Plaintiff. 7. Pennsylvania Rule of Civil Procedure 1006(c) allows an action to be brought in any county where venue may be laid against one defendant, if the Plaintiff is seeking to enforce a joint or joint and several liability against two or more defendants. 8. Pennsylvania Rule of Civil Procedure 1006(d)(1) allows any party to petition to transfer the action to a county where the action could have originally been brought. 9. The action could have originally been brought in Montgomery County against Defendant Richard A. Brown. 10. The individual Defendants are jointly or jointly and severally liable to Plaintiff. Wherefore, pursuant to Pennsylvania Rules of Civil Procedure 1006(c) and 1006(d)(1), Plaintiff respectfully requests this Honorable Court transfer this action to the Court of Common Pleas of Montgomery County. Respectfully submitted, ~ ~l~SqlJire Attorney for Plaintiff Attorney I.D. #52806 135 North Main Street P.O. Box 543 Sellersville, PA 18960 (215) 257-3333 . . . '. ~ ~ 9~305~-DDOB5 VERIFICATION I, Thomas S. Algeo, Esquire, do hereby verify that the statements made in the attached Petition are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.s. 54904 relating to unsworn falsification to authorities. Date: "]...14.1C(~ ~~~ Thomas s. Alge , . . H. PAUL KESTER, ESQ. COURT ADMINISTRATOR JAM!! J. FOWlES o.,tM)' Coun Admln.nator IfllcalAlt..nl CATHY L. OILLAHA:'/ """I.ftl ("..un .t.limln"ltall)r ,C.aI_1I1 DOUOLAS R. PRAUL. ESQ. "....Ilftl ell"" A!Jmln'II""or IU. and Racarctn RICHARD OIA~~I:'/I. JR.. ESQ. "",.lant eLlun "dmuu.....h... IOrphana C..un Oi""lunl O. THOMAS WILEY Dr,UI)' t.~..U" -\dmlnl\,rator 1\t1",I.n.ll~Llu"'1 ~ REC.~~HAR 9~si~-OOllrJ . . . . TILIPHONES Illll I'" COURT AD".R. - FISCAL AFFAIRS 6Ol1 OPIRATIONS - LAlli a RISIARCH 0100 ORPHANS COURT 0065 DISTRICT COURTS 6Ol5 March 6, Petition February 1995 to Transfer Venue 14, 1995 TO: Thomas S. R~ ROBERTS VS. MILLER ELECTRIC MFG. CO. et al No. 94-004146-05-2 ' Your Ippllcltion In th. lbov.CIS. hiS not been acted upon by the Court beelunlt is d.ficl.nt In the following rl'peell: 1. Not signed by ( ) Couns.1 ) Petitioner lAffi.nt ( ) Other: o On. or mar. of the following docum.nt. Ire not Itteched: I I Exhibit "-" I I V.rlflcltion l,x ) Sugg..t.d. I ) Affidlvit of S.rvlce ( I Order for helrlng I ) Oth.r: 3. You filled to alleg.: I ) Authority for the relief your cllentseeks. Court. ( I Other: ) A notlry publiC Rul. for Court'. u.. I Facts elllbllshing jurisdiction or v.nu. in this 4, Objection. to discovery must first be determined before the Cour!will directthlt discovery b. produced. 6. Pl.... b. sure you heve complied with a.C.R.C,P. No. "266, 6. All or p.rt of plrlgraph _left blank. 7, Pl.... comply with a.C.R.C.P, No. "301 and "302, 8. Pl.... proceed by rule to show cause. 9. Pl.... comply with a.C.R.C.P. No, 4019(g)(1) "(allb). 10, Other: The orlginel pleedlng is being returned herewith. DOUGLAS R, PRAUL. ESnUIRE Asslstlnt Court Administrator . ~ w -.. .w ).. . . . LAW OFFlC[S or ~- , , .. DUANE, ~c)RRIS 8 HECKSCHER ~~ 30& NORTH rRONT STREtT. P.O. BOX 1003 .~o2Plc . . HARRISBURG, PA 17108'1003 " 'J - .. .. .. ". ~ .. "' III . .r '. . ~ ~'~ ; . . i' . . ~ ~. LAW orne,s or DUANE. MORRIS 8 HECKsCHER 30a NORTH "'RaNT STREET. P.O. 1:50)( 1003 HARRISBURG, PA 1710!H003 -C' .; ~ ~, . . ~. '1""'\ -- 94.110~-IlOO7? PHILLIP ROBERTS, IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA Plaintiff, v. MILLER ELECTRICAL MANUFACTURING COMPANY, and CARL A. HOFFMAN, and RICHARD A. BROWN, and JOHN LESNIEWSKI, No. 94004146 '-0 "1- (,)1 "'_',:.. Defendants. -J 1.7' ~: D...MD~.' BII.. III IDPIOI~ O. JlUL%K!IIUY OU_Mla.. '1'0 PLAIII'l'I..'. ....MD.D COIIPLAIII'l' 9 o ,~ -.J "':.- Defendants Carl A. HOffman, Jr., D.O., Richard A. Brown, M.D., and John C. Lesniewski, D.O., by and through their attorneys, Duane, Morris & Heckscher, hsreby file the within Brief in Support of the Preliminary Objections to Plaintiff's Amended Complaint: I. BIlTORY O. '1'B. cal. At all times relevant to this dispute, Plaintiff, Phillip ROberts, was an inmate incarcerated at the State Correctional Institution at Camp Hill, Cumberland County, Pennsylvania (the "SCI-CH"). Defendants are Miller Electrical Manufacturing Cal'pany ("Miller"), and three (3) physicians who provided medical services at SCI-CH, Carl A. Hoffman, Jr., D.O., Richard A. Brown, H.D. and John Lesniewski, D.O. (collectively "Moving Defendants"). Plaintiff alleges that on May 31, 1992, he injured his left foot while operating a welder, purportedly designed and manufactured by defendant Miller, while working at SCI-CH. Plaintiff claims that he was thereafter taken to the medical .., \.~ u -,. ... . ""'\ 1"""1 91j ~ I u3-.IJ0077 . .. department at SCI-CH where he was evaluated and treated by Moving Defendants. plaintiff has initiated the instant lawsuit in Bucks County. He asserts claims for strict liability and negligence against Miller based on the design and manufacture of the welding equipment which he was allegedly using when he injured his foot. He also asserts a claim for medical malpractice (negligence) against each of the Moving Defendants based on the treatment he received at SCI- CH for the injuries to his foot. Moving Defen~,'nts have filed Preliminary objections to plaintiff's Amended Complaint on two (2) grounds: (1) that plaintiff has failed to plead his claim of medical malpractice with the specificity required by Pennsylvania law; and (2) that venue in Bucks county is improper as to those Defendants. II. ROW ~ aU.STIaR 18 RAIS.D This action was initiated by writ of Summons on May 31, 1994. On August 17, 1994 Plaintiff filed his complaint against Miller and Moving Defendants. Moving Defendants filed Preliminary Objections and on January 24, 1995, plaintiff filed an Amende,\ Complaint. On February 10, 1995, Moving Defendants filed Preliminary objections with a Notice to Plead to Plaintiff's Amended Complaint. Plaintiff did not respond, in the allotted time or otherwise, to Moving Defendants' Preliminary Objections, including the factual averments - 2 - ... . ". . r-., 94.C~-IlOO7? . J containaeS therein'. This Brief i. fUeeS in .upport of tho.e Preli.inary Objection.. In. 00."10.. IIIVOLnD A. _etller .lailltiff'e V.aue _II e:lI:uaor? all~.tioB. of .Aalia..a. .~eu1 .triak.a~or Laa~ of .Deaiflai~. ~.u..t 1:0 ~.IlB.YIY..i. aut.. of Ci"il .roa.dur. 101.'a"2) aad 101.'."3). " (Suqgested Answer: Yes) .. _etller Pl_illtif!'. Cl_i.. &a.~~~ ~~Yi:: IMf.1l4a.at:. .l1euld .. Di_t...d _0. _ ..aaawl...l. aut. of at.!! .ree..~r; 1D8. aB tile ..ai. tll_t tlli. Actioll 1:: ::: ::.:::uqllt is .ua~. COUBt:y aaal..t M09 . . (Suqgested Answer: Yes) " 'Plaintiff has not opposed Movinq Defendant's Preliminary Objections. Therefore, the facts alleged therein are deemed admitted. Action InductrieB. Inc. v. Wiedeman, 236 Pa. Super. 447, 346 A.2d 798 (1975). - 3 - "- . . """ 9Y~ lu,~"1I007? . ......, '. . IV. UGUUIl'1' A. Plaintiff'a Vaaue and Conolu.orv Alleaation. of .aa1iaenoe .bould be .trioken for Laok of .Deoifioitv Pur.uant to pennsvlvania RUle. of civil Prooedure 1028(a' (2' aDd 1028(a'(3'. pennsylvania Rule of civil Procedure 1019(a) requires a plaintiff to plead the material facts upon which the cause of action is based in a concise and sUDIIlIary form. ~ Weiss v. Eauibank, 313 Pa. Super. 446, ___, 460 A.2d 271, 274-275 (1983); Laursen v. Gen. HOSD. of Monroe countv, 259 Pa. Super. 150, -' 393 A.2d 761, 766 (1978), reversed 2n other arounds, 494 Pa. 238, 431 A.2d 237 (1981). In a complaint, a plaintiff must do more than merely provide notice to the defendant of the existence of a claim; a plaintiff must also clearly state the factual basis upon which the claim is asserted. Baker v. Ranaos, 229 Pa. Super. 333, 350, 324 A.2d 498, 506 (1974). These averments of fact, which the plaintiff must eventually prove at trial, must be "sufficiently specific so as to enable defendant to prepare his defense." lli.; ~ AlG Weiss v. Eauibank, SUDra; Pa. R.C.P 10l9(a). Moreover, the requirement that the plaintiff provide a factual basis for his claim not only provides the defendant the opportunity to defend the claim, but it also limits the scope and extent of plaintiff's claim so as to clearly define the issues to be tried. ~ Laursen v. Gen. Hose., BUDra. Consequently, when a defendant is faced with non-specific, boilerplate allegations lacking sufficient factual support, such as - 4 - '. ~ .,........, 9~ C:H100n . many of tho.. in this complaint, a defendant must preliminarily object to those allegations to prevent a plaintiff from later introducing a new theory or cause of action beyond the statute of limitations. ~ Connor v. Al1eahenv Gen. HOSD., 501 Pa. 306, 461 A.2d 600 (1983); starr v. Myers, 109 Dauph. 147 (1988); Nelle. et aL v. Milton Hershev Medical Center. et aL, 111 Dauph. 264 (1991); Badowski v. Acme Markets, 80 Luz. Leg. R. 44 (1990) (a copy of the starr and Nelle opinions are attached hereto as appendices "A" and "B," respectively). In Connor, the Court permitted the plaintiff to introduce a new cause of action after the statute of limitations had run, reasoning that the plaintiff had pled non-specific allegations in the complaint and the new cause of action simply was an amplification of those allegations. In footnote 3 to this opinion, the Court noted that the defendant should have preliminarily objected to the non-specific, boilerplate language to preclude the plaintiff from introducing the new cause of action. Consequently, the Supreme Court recognizes the use of preliminary objections to require a plaintiff to define and limit a cause of action to the factual allegations supporting the action. In this matter, Plaintiff fails to provide sufficient factual basis or support for the following conclusory boilerplate allegations of Moving Defendants' purported negligence, contained within paragraph 31 of plaintiff's Amended Complaint: - 5 - .( -. .(~ ~ 9~jI03-/l007/ Ca) tailur. to po..... the requi.it. d.gr.e ot skill and care ordinarily exerci.ed in similar cases by oth.r physicians; Cb) failure to po.ses. the degre. of knowledge and skill ordinarily po.se.sed by other phy.icians, Cc) failure to conform to the requisite .tandards of car. under the circum.tanc.., Cd) tailure to properly diagno.e and treat the injuries to Plaintift within a reasonable period ot time; Ce) failure to properly .xamin. and treat Plaintiff , Cf) failure to perform the necessary medical testing; Cg) failure to properly pertorm, read, interpret, and report medical tests and procedure., including, but not limited to, x-rays; Ch) failure to exercise reasonable care in the diagno.is and treatment ot Plaintitt'. condition for which prompt diagnosis and treatment were critical for ettective medical treatment; Ci) necessary diagnosis tailure to properly reter the Plaintift to medical specialists who would have made the of Plaintiff's condition; and Cj) failure to exercise reasonable care under the circumstances. These conclusory allegations, taken together with the entire complaint, tail to state the material tacts on which Plaintiff's cause of action is based, as required by Pa. R. Civ. P. 1019Ca). While Plaintitf attempts to simply outline the legal requirements for a claim for medical malpractice, he tail. to identity the tact. which he must plead and eventually prove which would indicate liability on the part ot Moving Defendants with respect to the above averments. - 6 - . ( , .~ I"'. gY-i I tJ.i-llOO7? . In particular, in paragraph 31(a), Plaintiff fails to allege any fact. indicatinq that Movinq Defendant. failed to possess the requi.ite degree of skill and care. In paraqraph 3l(b), Plaintiff fails to identify what knowledqe or skill Movinq Defendants alleqedly failed to posses.. In paraqraph 3l(c), Plaintiff fails to alleqe in what manner Plaintiff failed to conform to the requi.ite .tandards of care. In paragraph 31(d), Plaintiff fails to alleqe what the proper diaqnosis and treatment should have been. In paraqraph 31(e), plaintiff fails to alloqe how Movinq Defendants examination and treatment were not proper. In paraqraph 3l(f), Plaintiff fails to alleqe what medical testinq was necessary. In Paraqraph 31(q), Plaintiff fails to alleqe which medical tests and procedure. were improperly performed, read, interpreted and reported. In paraqraph 3l(h), Plaintiff fails to alleqe in what manner did Movinq Defendants fail to exercise rea.onable care. In paraqraph 31(i), Plaintiff fails to identify which medical specialist. were necessary, or what the proper diaqnosis was. Finally, in paraqraph 31(j) fails to alleqe in what manner Movinq Defendants failed to exercise reasonable care. In summary, Plaintiff alleqes that he was injured and souqht medical attention from Movinq Defendants over a period of time. From that minimum factual basis, Plaintiff proceeds to supply a laundry list of boilerplate leqal conclusions. The alleqations in paragraph 31 are simply qeneral statements of conduct which could constitute medical malpractice under Pennsylvania law, e.g., - 7 - "- . ' . ,......." ~ 9llJ luj-llOO7? , . "failure to exeroise reasonable oare under the ciroumetances." Plaintitt, however, fails to plead any taote, as required by Pa. R. civ. P. 1019(a), to indicate the bast. for such conclusory dlegations. As this matter now stands, Moving Defendants cannot ascertain wh~t actions or omissions Plaintiff allege. conetituted the negligence outlined in paragraph 31 and, as euch, are unable to prepare a defense to this action. As importantly, if Plaintiff is not required to allege with specificity the factual basis for his olaim, plaintiff could be permitted to further amend hi. complaint with a new theory of negligence beyond the statute of limitations. Consequently, following the Connor dictate to defendants to preliminarily Object to ambiguous language such as that found here, Moving Defendants herein do so both in order to preserve their right to limit any future attempt by the Plaintitf to amend his Complaint based on these conclusory allegations and also to properly prepare a defense to this claim. Paragraph 31 of Plaintift's Complaint should be stricken or, alternatively, Plaintiff should be ordered to bring this paragraph into compliance with Pa. R. Civ. P. 1019(a). - 8 - ~ , ( .~ ~ 94.i/IH-llOO7/ .. .1aiBtiff'. Clai.. AaaiB.t KoviBa ::::~::::. .houl&! .. Di..i....s Pur.UUlt to .. . hle of Civil .roaeclure 1001 OB :Il: :::i~ ::t till. Aatioll .&V .at .. .rouabt i u 0' aaaill.t _ovlllo D.f.adaat.. Moving Defendant. filed a Preliminary Objection to Plaintiff'. Complaint asserting that venue as to Moving Defendants was not proper in Bucks County. In support of that Preliminary Objection, Moving Defendants averred that they do not reside in Bucks County, that they could not have been served or .ued in Bucks County, that Plaintiff'. purported cause of action arose in CUlllberland County, and that no transaction or occurrence took place in Bucks County out of which Plaintiff's purported cause of action aroso. Pursuant to Pa. R. civ. P. 1026, Moving Defendants attached to the Preliminary Objections a Notice to Plead to these factual averment., directing Plaintiff to re.pond within the required twenty (20) days. Plaintiff did not respond, in any manner, to the Moving Defendants' Preliminary Objections, as permitted by Pa. R. Civ. P. 1017(a) and as directed by Pa. R. Civ. P. 1026. ~ AlaQ Van Mastriat v. Delta Tau Delta, 393 Pa. Super. 142, , 573 A.2d 1128, 1131 (an answer is required to a preliminary objection containing a notice to plead). Consequently, these factual averments are deemed admitted and constitute the uncontested faots in this matter. ~ Pa. R. Civ. P. 1029(e) (3) (averments in preliminary objections to bodily injury actions must be denied with specificity; failure to deny is deemed admission). - 9 - ~ . . ,........, 9Y ki-(]Ol17? The application or Pennsylvania law qoverninq venue to these unconte.ted racts will, thererore, re.ult in a rindinq or improper venue in Bucks county as to Moving Der.ndant.. Pennsylvania Rule or civil Procedure 1006(a) provides that Except as otherwise provided . . . an action against an individual may be brouqht in and only in a county in which he may be .erved or in which the cau.e or action aro.e or where a transaction or occurrence took place out or which the cause or action aro.e or in any other county authorized by law. Pa. R. civ. P. 1006(a). As previously discussed, the uncontested racts or this matter reveal that this purported cause or action arose in CUmberland County and no transaction or occurrence took place in Bucks county out of which this cause of action purportedly arose; Plaintirf was injured and souqht medical treAtment from Moving Derendants wholly within CUmberland county. Additionally, with regard to whether Moving Derendants may be served in Bucks County so as to establish venue, Pa. R. Civ. P. 402, governinq service of individuals, reveals that Plaintiff could not have served any of the Movinq Defendants in Bucks county, Moving Defendants do not reside or have an office or principal place or business in Bucks county. Consequently, applying Pa. R. civ. P. 1006(a) to the uncontested facts of this matter, venue as to Movinq Defendants is not proper in Bucks county. In apparent recognition of this fatally dericient flaw in his initial pleadinq, Plaintiff amended his complaint to allege that Moving Defendants are jointly or jointly and severally liable to - 10 - . , . .-." Ciljll1, .. 11IJ 0 '1") , J!l 1.1 Ji ,. Plaintiff. Z Amend. Complaint, !38. Pa. R. Civ. P. 1006(c) provides that an action to enforce joint or joint and several liability against two or more defendants may be brought against all defendants in any county in which venue may ~e laid against anyone of these defendants. However, because it has already been established that venue is not proper as to any of the three Moving Defendants, Plaintiff may not rely on Pa. R. Civ. P. 1006(c) to assert proper venue. (While it is not clear whether venue is proper in Bucks County as to the remaining defendant, Miller, Plaintiff does not allege joint or joint and several liability with regard to Miller and Moving Defendants. Consequently, venue as to Miller in Bucks County is irrelevant in a Rule 1006(c) analysis.) It has been conclusively established that venue does not lie in Bucks County as to Moving Defendants. Rule 1006(e) provides that where a preliminary objection to venue is sustained, the matter shall be transferred to a county of proper venue, or otherwise dismissed. Because defendant Miller has not objected to venue, Plaintiff's Amended Complaint should be dismissed as to Moving Defendants. Alternatively, this action should be transferred to a county of proper venue - Cumberland County. ZAlso in apparent recognition of improper venue as to Bucks county, on February 14, 1995, Plaintiff filed a petition to transfer venue on forum rum conveniens grounds to Montgomery County. On March 9, 1995, Moving Defendants filed an Answer with New Matter to Plaintiff's Petition, asserting that the Petition should be denied on both procedural and substantive grounds. - 11 - .. . 'fli\ 9~3 ~-1l0077 .. . . .",~ !lit 9'I,i fflj "!lDO?.' . - . I, . I , CB.~I.ICA~B O. .B.VICB On this 1'1-# day of March, 1995, I, Sharon L. Sillik, II secretary in the law offices of Duane, Morris' Hecksoher, hereby certify that I have served this day true and correct copies of the foreqoinq DBrBIIDAIl'l'.' ..IB. I. .UPJIO.~ O. PULI.IIlAaY OIlJBCTIO.. '1'0 PLaIII'l'I"'. JUmIlDBD CO.PLaIII'l' in the above-captioned case, by depositinq same in the United states Fint ClllSS Mail, postaqe prepaid, in Harrisburg, Pennsylvania, to those persons and addresses indicated below: Thomas S. Alqeo, Esquire 95 North Main street Box 543 Sellersville, PA 18960 Attorneys for Plaintiff James J. Donohue, Esquire White and Williams One Liberty Place, Suite 1800 1650 Market Street Philadelphia, PA 19103-7395 Counsel for Defendant Miller Electrical Mfq. Co. ( -Yt;l1'n 1~ (.~ /JI', '(.~ Sharon L. S II k ~ "'~d-.J1L,.~____9~3~~~~~~..... ~ ' totl A.'U: 1u.:"lN ~\~'l~' 1t~:1 'I''' If !'I 'P' \' r \ . ""7' /)r, ~ ' " " ~ ''':O~' ".'AII ro l"~ e"'l:lDW1-/~. 'v,.' ~t'nl","'I"""""~t."'" ~ "F; L~.' "(:''':~I'.: ",'U'TO' ~ ~nl.~,J11l, 1./,",," ','W "'tt",,~ i\,"l"\ ! '1":! - 'l !:!~~~~~ iU.." fn'(th.,'" (I'. :, n.~"I..\.~ "t~.~""( Hrl'...." ' . r ,I.., \.'.! ,\ ;U;.hr, ,~Il"Uvl~.'IT ....A'f ""; il(H'.\o:.O At"j,,~....., ..t...,I'il),:" ,,', /', ,-,..- .'. . '\, ~" - __l... ,~. ..; ."""ft 'rJU. \ 1,_; . ;)10';'; , .. .' ~ ~:'~'1..lo.'\\~j/1 ~'::""'L"'I" ...' .. .. .... ". ~ ....)1 ,,' ! '.4....____. 1..(."~J.j. 1" 1 ,J.. "1 _., i. .J~ ~~ ..~ ;j~4J "",;\0 ";0;:;/.,,,, ....~.-.~/,.- -- ... " -' - ,,~~_ ....v ..r~" ,,1\, 'or< ~-.r- WHITB AND WILLIAM ~~.J~' ..' .... -(~~..... . I By. James J. Donohue, Esquire Attorney for Defendant, ~ Identification No. l5654 Miller Electric l800 One Liberty place Manufacturing Co. philadelphia, Pa. 19l03-7395 (215) 864-7037 PHILIP ROBERTS COURT OF COMMON PLEAS BUCKS COUNTY VS. MILLER ELECTRIC MFG. CO., CARL A. HOFFMAN, RICHARD A. BROWN and JOHN LESNIEWSKI . NO. 94004146 ANSWER OF DBFENDANT. MILLER ELECTRIC MANUFACTURING CO. Te PLAINTIFF' S AMBNDED COMPLAINT WITH NEW MA'1"1'ER AND NEW MA'1"1'ER IN THE NATURE OF A CROSSCLAIM PURSUANT TO RULE 2252(d) l. Admitted upon information and belief. 2. Admitted. 3. - 5. Denied. After reasonable investigation, answering Defendant is without information sufficient to admit or deny the averments contained herein. 6. - B. Denied. After reasonable investigation, answering Defendant is without information sufficient to admit or deny the averments contained herein; therefore, same are denied and strict proof demanded at trial, if relevant. 200D87E3.~P' Z2 :0111'1 S I ~,il SG I, :; , . '" ~ 94 ~ 100-00[1 lit COUNT I 9. Answering Defendant incorporates by reference herein its responses to paragraphs 1 through 8 as though set forth fully herein at length. lO. - lS. Denied. Theee averments arc deemed denied as conclusions of law to which no reeponsive pleading is required. By way of further response, answering Defendant avers that the Miller Legend gasoline powered welder left its possession free of any defect. WHEREFORE, answering Defendant demands that Plaintiff's Complaint be dismissed with prejudice and costs assessed. COUNT II l6. Answering Defendant incorporates by reference herein its responses to paragraphs 1 through l5 as though each were set forth fully herein at length. l7. Denied. The averments contained herein are deemed denied as conclusions of law to which no responsive pleading is required. WHEREFORE, answering Defend~nt demands that Plaintiff's Complaint be dismissed with prejudice and costs assessed. COUNT II I l8. - 38. These averments are not directed at answering Defendant and, therefore, no response is required. 200087E3.UP5 -2- "'"'" ~ 943 IOO-OOOI't NEW MATTER 39. Plaintiff's claims are barred by the applicable Statute of Limitations. 40. Plaintiff's Complaint fails to state a cause of action upon which relief may be granted. 41. Plaintiff's claims are barred entirely or in part by the application of the pennsylvania Comparative Negligence Act, the Doctrine of Assumption of the Risk, and/or the Doctrine of Contributory Negligence. 42. The incident in question was caused solely by the negligence of the Plaintiff. 43. The product in question was materially altered after it left the possession ,f answering Defendant. WHBRBPORB, answering Defendant demands that judgment be entered in its favor and against the Plaintiff with costs assessed. NEW MATTER CROSSCLAIM PURSUANT TO PA. R.C.P. 2252(d) 44. If the allegations of Plaintiff's Complaint are true and proven, any and all such liability being expressly denied by answering Defendant herein, then those injuries and damages were due solely to or as a consequence of the negligence, carele3sness, recklessness of the CO-Defendants, who are alone liable to the Plaintiff, jointly and severally liable with answering Defendant, or liable over to answering Defendant on the ~00087E3.~P5 -3- ~ ~ ~ 9431 OO-OOB 'It cause of action declared upon, including costs and reasonable attorneys' fees. WHBRBPORB, answering Defendant demands the relief heretofore requested. WHITE AND WILLIAMS Attorneye for Defendant, Miller Electric Manufacturing Co., Inc. " -4- 200087E3.WP5 -"'" ".... 943100-00014 WITS AND WILLIAMS By' James J. Donohue, Esquire Identification No. l5654 l800 One Liberty place Philadelphia, Pa. 19l03-7395 (2l5) 864-7037 Attorney for Defendant, Miller Electric Mfg. Co. PHILIP ROBERTS COURT OF COMMON PLEAS BUCKS COUNTY VS. MILLER ELECTRIC MFG. CO., CARL A. HOFFMAN, RICHARD A. BROWN and JOHN LESNIEWSKI I NO. 94004146 CBRTIFICATB OF SBRVICB I hereby certify that a copy of Defendant's Answer to Plaintiff's Amended Complaint with New Matter was served on all counsel of record by U.S. First Class Mail, postage prepaid, on March l3, 1995. 2000181i.WP5 . 11 9430rOOtY6 REPLY TO PARAGRAPHS 13 THROUGH 22 4. Paragraphs 1 through 3 are incorporated herein by reference. 5. Paragraph 13 of Defendants' Preliminary Objections is admitted. 6. Paragraph 14 of Defendants' Preliminary Objections is admitted. 7. Paragraph 15 of Defendants' Preliminary Objections is admitted. 8. Paragraph 16 of Defendants' Preliminary Objections is denied. It is specifically denied that Plaintiff has pled any allegations of negligence without the specificity required by Pennsylvania law. To the contrary, Plaintiff has set forth, with specificity and particularity, the acts and omissions of the individual defendants upon which Plaintiff's claim is based. In particular, Paragraphs 18 through 30 of Plaintiff's Amended Complaint set forth the material facts of this matter. 9. Paragraph 18 of Defendants' Preliminary Objections is admitted. 10. Paragraph 19 is admitted in part and denied in part. It is admitted that Pennsylvania Rule of civil Procedure 1019(a) requires that the material facts on which a cause of action is based must be stated in a concise and summary form. The remaining averments contained in Paragraph 19 are specifically denied. Paragraph 31(a) through (j) states with particularity the .,","" 9430nD~46 misconduct and malpractice of the Defendants. Furthermore, Paragraph 31 of Plaintiff's Amended Complaint sets forth the professional standards which were not complied with by Drs. Brown, Hoffman and Lesniewski. 11. Paragraph 20 of Defendants' Preliminary Objection is denied as a conclusion of law to which no responsive pleading is required. By way of further reply, Defendants will not suffer any prejudice by the inclusion of Paragraph 31 of Plaintiff's Amended Complaint. As is stated above, all the material facts of this action are stated in a specific and particular manner, including Plaintiff's theory of liability on the part of the Defendants, Drs. Brown, Hoffman and Lesniewski. 12. Paragraph 21 of Defendants' Preliminary Objections is denied as a conclusion of law to which no responsive pleading is required. By way of further reply, it is specifically denied that Defendants will suffer any prejudice whatsoever by the inclueion of Paragraph 31 of Plaintiff's Amended Complaint. The preceding paragraphs of Plaintiff's Amended Complaint clearly state the material facts upon which this action is based. 13. Paragraph 22 of Defendants' Preliminary objections is denied as a conclusion of law to which no responsive ploading is required. By way of further reply, for the reasons stated above, Paragraph 31 of Plaintiff's Amended Complaint does comply with the requirements of Pa. R.C.P. 1019(a) and should not be stricken. Wherefore, Plaintiff Phillip Roberts respectfully requests this Honorable Court overrule Defendants Brown, Hoffman and Lesniewski's Preliminary Objections and require Defendants Brown, .., .......... 9~3093,.qoOI4 WITB AIID WILLIAMS BYI James J, Donohue, Esquire Identification No. 15654 l800 One Liberty Place Philadelphia, Pa. 19l03-7395 (2l5) 864-7037 Attorney for Defendant, Miller Electric Mfg. Co. t!;,!; PHILIP ROBERTS COURT OF COMMON PLEAS BUCKS COUNTY VS. MILLER ELECTRIC MFG. CO., CARL A. HOFFMAN, RICHARD A. BROWN and JOHN LESNIEWSKI .' I NO. 94004146 AliSWBR OF DBPBNDAIi'l'. MII.T.RR B~IC M~NisO" TO PLAINTIPP'S PETITION TO PBR Defendant, Miller Electric Mfg. Co., hereby files this Response to Plaintiff's Petition to Transfer this matter to the Court of Common Pleas of Montgomery County as follows I l. Denied as stated. It is admitted that Plaintiff was injured on May 3l, 1992 while an inmate at the Camp Hill Correctional Facility in Camp Hill, Pennsylvania. Contrary to what is set forth in Plaintiff's Petition, Camp Hill is located in Cumberland County and not Dauphin County, Pennsylvania. 2. Admitted. 3. Admitted. 4. Unknown to answering Defendant. 5. Unknown to answering Defendant. 6. Denied as stated. 7. Admitted. U) (.11 :.: ~ ;;,;) - a ;:;.. ,. . ..... ~7 Zlll1087E3.VP5 <::) ~ . . -'- ~"; ~< '--../- ;~:. '. . .. ""'\ 945093flCI0 III , 8. Denied as an incomplete statement. P.R.C.P. l006(d)(l) allows the Court upon Petition of any party to transfer an action "for the convenience of parties and witneseeB". Plaintiff has failed to make any showing that thiB matter should be tranBferred to Montgomery County for the convenience of partieB and witnesses. To the contrary, the only posBible connection with Montgomery County is the averment that Defendant, Richard A. Brown, now has an office in Valley Forge, Montgomery County. Dr. Brown, through hiB counsel, has alleged that the matter Bhould be transferred to Cumberland County where all of the alleged tortiouB conduct took place. 9. It is unknown to anBwering Defendant where Dr. Richard A. Brown has an office. lO. Denied as a concluBion of law. WHBRBPORB, it iB reBpectfully requeBted that Plaintiff's petition to TranBfer thiB matter to Montgomery County be denied and that pursuant to Pa. R.C.P. l006(d)(l), for the convenience of the parties and witneBseB, the matter be transferred to Cumberland County where the underlying tranBactions occurred. ReBpectfully submitted, WHITE AND WILLIAMS Attorneys for Defendant, Miller Electric Mfg. Co. , 200087U.WP5 -2- -'\ 943093~10 14 WHITE AND WILLIAMS BYI Jam.. J. Donohue, Esquire Identification No. l5654 l800 One Liberty Place Philadelphia, Pa. 19l03-7395 (2l5) 864-7037 Attorney for Defendant, Miller Electric Mfg. Co. PHILIP ROBERTS I COURT OF COMMON PLEAS BUCKS COUNTY VB. MILLER ELECTRIC MFG. CO., CARL A. HOFFMAN, RICHARD A. BROWN and JOHN LESNIEWSKI I NO. 94004146 CBRTIPICATE OP SBRVICB I hereby certify that a copy of Defendant's Answer to Plaintiff's Petition to Transfer Venue was served on all counsel of record by U.S. First Class Mail, postage prepaid, on March a, 1995. 2OODI7E'.WPS . ~ . . . \ LAW Of'r1CES OF' DUANE, MORRIS 8 HECKSCHER 3015 NORTH FRONT"STREET, P,O. BOX 1003 HARRISBURG. PA 1710e-1003 -, ~ . . . ';JY :\O91-000?1). -'. 6. Denied as stated. It 18 admitted that the Answering Defendants provided medical care to the Plaintiff. It is specifically denied that Answering Defendants misdiagnosed Plaintiff's condition. The remaining averments in Paragraph No. 6 of Plaintiff's Petition are conclusions of law to which no response is required. To the extent these averments are deemed factual in nature, it 18 specifically denied that Answering Defendants are jointly or jointly and severally liable to Plaintiff in any manner. 7. Denied. The averments contained within Paragraph No. 7 of Plaintiff's Petition are conclusions of law which require no response. By way of further answer, Pa. R.C.P. 1006(c) speaks for itself and need not be admitted nor denied. Additionally, it is denied that Plaintiff has alleged joint or joint and several liability as to all defendants in this action, therefore, Plaintiff cannot rely on Rule l006(c) to assert venue with regard to Defendant Miller Electric Manufacturing company. 8. Denied. The averments contained within Paragraph No. 8 of Plaintiff's Petition constitute conclusions of law to which no response is required. Additionally, Pa. R.C.P. l006(d) (1) speaks for itself and need not be admitted nor denied. By way of further answer, Plaintiff mistates Rule 1006(d) (1) which provides for transfer of an action .2IllY "[f]or the convenience of parties and witnesses." Plaintiff fails even to assert that it seeks transfer on that basis, let alone offer any factual basis for a Rule l006(d) (1) forum rum conveniens tranefer. bA Paae v. 2 Q4:\D91-1100?q. Ekbladh, 404 Pa. super. 368, 590 A.2d 1278 (Rule 1006(d) (1) transfer is based on forum D2D convenien~). 9. Denied. The averments contained in paragraph No. 9 of plaintiff's complaint constitute conc1usione of law to which no response is required. To the extent these averment. are deemed factual in nature, they are denied. 10. Denied. The averments contained within paragraph No. 10 of Plaintiff's Petition constitute conclusions of law to which no response is required. To the extent the averments are deemed factual in nature and a response is required, it is denied that Answering Defendants are jointly or jointly and severally liable to Plaintiff. OW DTTI. 11. Paragraphs 1 through 10 of this Answer and New Matter are incorporated herein by reference as if fully set forth. 12. On January 24, 1995, Plaintiff filed an Amended Complaint in the Court of Common Pleas of Bucks County. 13. On February 10, 1995, Answering Defendants filed Preliminary objections to the Amended Complaint asserting improper venue and a failure to plead with the required specificity. 14. Plaintiff did not respond to the Notice to Plead to the factual allegations supporting Answering Defendants' Preliminary Objection for improper venue and, consequently, those factual allegations are deemed admitted. Pa. R.C.P. 1026. 3 911109 I-,ODD?'), .--" 15. Instead, on February 14, 1995, Plaint1tf filed a petition to Transfer Venue under Rule 1006(d) (1) - forum wm conveniens. That Petition, however, is procedurally deficient. 16. A Rule 1006(d) (1) Petition can only be filed in an action where venue already lies, i.e. "transfer" means moving from one proper venue to another. a.A Hosierv COrD of America. Inc. v. High, 327 Pa. super. 472, , 476 A.2d 50, 51 (1984) (only where venue is already established does the procedure for transfer fall under Rule 1006(d)). 17. As noted, Answering Defendants have filed a Preliminary Objection as to improper venue. The Court has yet to rule on the issue. However, because Plaintiff failed to respond to the Preliminary Objectionf'l, the factual allegations contained therein are deemed admitted and venue must be found D2t to lie in Bucks County. 18. Consequently, because it has not been established that venue is properly laid in Bucks county, Plaintiff may not use Rule 1006(d) (1) to transfer venue. ~ AlI2 Calderone v. BUlsis, 33 D&C3d 491, 492 (C.P. Phil. 1983) ("where venue is wrongly laid, Rule 1006(e) governs the transfer.") 19. Moreover, Plaintiff apparently misreads or misconstrues Rule 1006(d) (1) to allow transfer to Montqomery county simply on the basis of his allegation that the suit could have been oriqinally brought there. 20. As noted above, a Rule 1006(d) (1) transfer is to be issued ~ on forum wm conveniens grounds. Plaintiff ignores the 4 9~ :m91-D0079, "' i I I I d tirst clau.. ot the RUle it reli.. upon, that .uch transt.r is only "rtlor the convenience ot Dan!.. and wit.na....." 21. Some of the tactor. a court look. to in d.termining a forum JlQD conveniens petition are location ot witn.s.es and proot, access to sources ot proot, availabili ty of compulsory proce.. for unwilling witne..es, co.t. of obtaining witn....., .ntorc.ability ot jUdgment., and the pUblic int.r..t in comp.lling juror. to con.id.r a case not concerning its community. Dranzo v. Wint.rhalt.r, 395 Pa. Sup.r. 578, 577 A.2d 1349 (1990); Flaxman v. Burn.tt, 393 Pa. Super. 520, 574 A.2d 1061 (1990). 22. Plaintift ha. the burden ot proving that transfer of v.nue is necessary and the Court is not to grant the petition without a showing of real nece..ity. Dranzo. 23. Plaintitf, however, offers only one r.mot. connection between this action and Montgomery County -- the Vall.y Forg. office of one of the phy.ician det.ndant.. 24. In.o doing, Plaintitt wholly ignore. the obvious connections between this action and CUmberland County -_ the plac. ot the alleged injury, the plac. of tr.atment, availability ot witnesses who may be incarcerated, the relative low co.t of obtaining witnesses in CUmberland County and CUmberland County's interest in actions concerning its community. "An analysis ot the appropriateness of a county as a torum is proper when evaluating transfer ot venue from one county to another . . . pursuant to Pa. R.C.P. 1006(d) (1)" iA!m, 404 Pa. Super. at _, 590 A.2d at 1280. ! I ! .. 5 '. 9Y:1091 ~00079 , r-- 24. Consequently, Plaintiffs' Petition must be denied because it is (1) procedurally deficient in that a RUle 1006(d) (1) petition cannot be granted prior to a determination that venue is proper in Bucks CountY1 and (2) wholly laCking in any support of a forum I1ml conveniens argument that Montgomery County is the appropriate venue for this action. WHEREFORE, pursuant to Pennsylvania Rule of Civil Procedure 1006, Answering Defendants respectfully request this Court to deny Plaintiff's Petition to Transfer Venue under RUle 1006(d) (1) Respectfully submitted, DUANE, MORRIS , HECKSCHER Dated: fl1a,rc.h 7. Irq)' , By: 1JukJ! J Mary P. Patterson Attorney I.D. No. Bruce A, Gelting Attorney I.D. No. 69 59 305 North Front Street Fifth Floor P.o. Box 1003 (717) 237-5534 Attorneys for Defendants Carl Hoffman, Jr., D.O., RiChard A. Brown, M.D., and John LesnieWSki, D.O. 6 '. ;) \,,;; . ... " I ~ . . . LAW 0""IC[5 OF DUANE, MORRIS B HECKsCHER 30S NORTH FRONT STREET. P,O. BOX 1003 HARRISBURG. PA 17100-1003 ~I+W- QJS,,"- . ; 'r ~':"; :(3 c\_o \'IJOL) ~':f.(') L,.:I.:"'I. '_,' '1. ~ glLiOS2-11u5 " PHILLIP ROBERTS, IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA Plaintiff, v. MILLER ELECTRICAL MANUFACTURING COMPANY, and CARL A. HOFFMAN, and RICHARD A. BROWN, and JOHN LESNIEWSKI, No. 94004146 Defendants. PRILI.I_AR! OBJBCTIO_. or DlrINDAXT. CARL A. HorrMAN. JR.. D.O.. RICHARD A.BRO". N.D. ~D Jon C. LI._II.SIlI. D.O. TO PLAINTIrr'. MlelD COMPLAINT AND NOW, Defendants Carl A. Hoffman, Jr., D.O., Richard A. Brown, M.D., and John C. Lesniewski, D.O., (collectively "Moving Defendants"), by and through their counsel, Duane, Morris and Heckscher, pursuant to Pennsylvania RUle of civil Procedure 1028, herebyflle their Preliminary Objections to Plaintiff's Amended Complaint ~nd in support thereof aver as follows: 1. Plaintiff initiated this action by the filing of a Complaint on or about August 17, 1994. 2. Plaintiff's Complaint purported to state a claim against ~oving Defendants for medical malpractice. i:'> :~ 3. On or about December 21, 1994, Moving Defendants filed ~I: Rreliminary Objections to the Complaint on the grounds that: . . a) Venue was improper in Bucks County as to Moving Defendants; and b) Plaintiff improperly pleaded boilerplate, con- clusory allegations in support of his claim for medical malpractice. qlj ~1lC"' I "u.h. ,ltJ5 4. Plaintiff thereafter filed an Amended complaint on January 24, 1995, which again purports to state a claim against Moving Defendants for medical malpractice. 5. The;.Je preliminary Objections are filed in response to that Amended Complaint. I. MOTION TO ITRIKB DUB TO IMPROPBR VBNUB 6. Pennsylvania Rule of civil Procedure 1006 provides that: (a) ... an action against an individual may be brought in and only in a county in which he may be served or in which the cause of action arose or where a trans- action or occurrence took place out of which the cause of action arose or in any other county authorized by law. 7. Pennsylvania RUle of Civil Procedure 1006 (c) provides that in an action to enforce joint or joint and several liability, an action may be brought against all defendants in any county in which the venue may be laid against anyone of the defendants. 8. Pennsylvania Rule of civil Procedure 1028(a) (1) provides that a Defendant may object to improper venue. 9. Moving Defendants in thIs case are individuals who do not reside in Bucks county; the cause of action arose in Cumberland County and no transaction or occurrence took place in Bucks county; and Plaintiff does not claim that this is an action to enforce joint or joint and several liability against the Defendants. 10. Bucks County is an inconvenient forum because the cause of action arose in Cumberland County, the allegedly defective product is located in Cumberland County, the physicians provided treatment in Cumberland county, two of the three named defendant - 2 - qtj'[Jr-" .' .J .IL , I t"J~j doctors practice in or around Cumberland County, and most of the witnesses, as well as the state Correctional Institution at Camp Hill, are located in Cumberland County. 11. This action may not be brought against Moving Defendants in Bucks County for the fOllowing reasons: (a) Moving Defendants have not been and cannot be sued in Bucks County. ~ Amended Complaint " 3-5; Pa. R.C.P. 1006(a). (b) This purported cause of action arose at the state Correctional Facility located in Camp Hill, Cumberland County. ~ Amended Com- plaint " 6-8. No cause of action against Moving Defendants purported to exist in this sui t arose in Bucks County. See Pa. R. C. P. l006(a); (c) Plaintiff has not alleged any transaction or occurrence in Bucks County out of which this action arose, nor do Plaintiff's allegations indicate any such transaction or occurrence. ~ Pa. R.C.P. 1006(a); and (d) This is not an action to enforce joint or joint and several liability between Moving Defendants and co-defendant Miller Electric Manufacturing Company ("Miller), a Wisconsin business entity; consequently, Plaintiff can- not rely on Pa. R.C.P. 1006(c) for venue as to Moving Defendants. 12. Even if this were a suit to purportedly enforce joint and several liability, Plaintiff has still failed to obtain venue over Moving Defendants by virtue of Miller's presence in this suit for the following reasons: (a) Plaintiff does not allege venue as to Miller. ~ Amended Complaint ! 2. without proper venue of this cO-defendant, venue cannot lie as to Moving Defendants in Bucks County under Pa. R.C.P. 1006(c); (b) Second, even if venue does lie as to Miller, absent the requisite allegation of joint and several liability between Moving Defendants - 3 - / ----, (1U":[15"I""'1. c ,. 1.'.., t.. .J .bJ and Miller, venue is still improper as to Moving Defendants under Pa. R.C.P. 1006(c); and (c) Third, there can be no joint and several liability between physician Moving Defendants and Miller, which is alleged to have caused the Plaintiff's original injury because the law is clear that a tort feasor originally causing an injury and a physician who alleged- ly subsequently aggravates or causes a new injury are not joint tortfeasors. Lascroaata v. Oualls, 263 Pa. Superior ct. 174, 307 A.2d 803 (1979). WHEREFORE, Defendants Carl A. Hoffman, Jr., D.O., Richard A. Brown, M.D., and John C. Lesniewski, D.O. respectfully request that, to the extent venue is found to lie in Bucks County as to Defendant Miller Electric Manufacturing Company, this Court dismiss Plaintiff's Amended Complaint due to improper venue as to Moving Defendants; or, alternatively, to the extent venue does not lie in Bucks County as to Defendant Miller Electric Manufacturing company, transfer Plaintiff's suit in its entirety to Cumberland County. II. MOTION TO STRI.B AND/OR MOTION FOR A MORB SPBCIFIC PLBADING PURSUANT TO PA. R.C.P. 1021 FOR FAILURB TO PLBAD WITH FACTUAL SPBCIFICITY 13. Pennsylvania Rule of civil Procedure 1019 (a) requires that a complaint set forth the material facts upon which a cause of action is based. 14. Pennsylvania Rule of Civil Procedure 1028(a) (2) provides that a party may preliminarily object to a pleading for failure to conform with rule of law or court. - 4 - ~ elll ~IJC"" I [ . .J.1e .J 6;1 15. In Conner v. Allaqhenv General HosDital, 501 Pa. 307, 461 A.2d 600 (1983), the Supreme Court stated that where a general averment of negligence is not met with a Motion to strike or a Motion for a more specific pleading, a plaintiff may amend his complaint to include more specific allegations of negligence even after the statute of limitations has run. ~ AlD2 Starr v. Mvers, 109 Dauph. 147 (1988). 16. Plaintiff has pled several allegations of negligence without the specificity required by Pennsylvania law. 17. specifically, in Paragraph 31 of the Amended Complaint, Plaintiff has set forth what purports to be the particulars of his neqliqenc~/malpractice claims against Moving Defendants. However, the allegations of negligence against Moving Defendants found in Paraqraph 31 are overly broad, vague, non-factually supported boilerplate and conclusory allegations which fyil to adequately apprise Defendants of the specific facts upon which these gener- alized claims are based. 18. In Paragraph 31 of Plaintiff's Amended Complaint, he alleges that moving Defendants committed malpractice which con- sisted of the following: (a) failure to possess the requisite degree of skill and care ordinarily exercised in similar cases by other physicians; (b) failure to possess the degree of knowledge and skill ordinarily possessed by other physicians; (c) failure to conform to the requisite standards of care under the circumstances; (d) failure to properly diagnose and treat the injuries to Plaintiff within a reasonable period of time; - 5 - , failure to properly examine and treat plaintiff/ failure to perform the necessary medical testing/ failure to properly perform, read, interpret, and report medical tests and procedures, including, but not limited to, x-rays/ failure to exercise reasonable care in the dia- gnosis and treatment of Plaintiff's condition for which prompt diagnosis and treatment were critical for effective medical treatment/ failure to properly refer the Plaintiff to necessary medical specialists who would have made the diagnosis of Plaintiff's condition I and (j) failure to exercise reasonable care under the circumstances. (e) (f) (g) (h) (i) qi 'DC') .' L1 JI ,dbS 19. Pennsylvania Rule of civil Procedure 1019(a) requires that the "material facts" on which a cause of action is based must be stated in a concise and summary form. The specific allegations outlined above are devoid of the requisite material facts to sup- port the conclusory allegations of liability. This objectionable paragraph and subparagraphs, therefore, fails to conform to law under rules of court. 20. If the above averments contained in Paragraph 31 are per- mitted to remain, Moving Defendants will suffer great prejUdice because Plaintiff will be able to introduce new theories of liabil- ity at any time without regard to the statute of Limitations. 21. Moving Defendants will suffer further prejudice in their inability to respond to or prepare a defense to these overly broad, vague, conclusory and otherwise deficient allegations. 22. Paragraph 31 of Plaintiff's Amended Complaint fails to comply with the requirements of Pa. R.C.P. 1019(a) and should be stricken from the Amended complaint. - 6 - 9'LiOS2 u 165 WHEREFORE, Defendants Carl A. HOffman, Jr., D.O., Richard A. Brown, M.D., and John C. Lesniewski, D.O. respectfully request that this Court strike Paragraph 31 (a) through (j) of Plaintiff's Amended Complaint, or, in the alternative, order. Plaintiff to file an Amended Complaint which brings the paragraphs objected to into compliance with Pa. R.C.P. 1019(a). Respectfully submitted, DUANE, MORRIS & HECKSCHER Dated: 0J/~ h5/ / J "I" Ij ~-.. B 1(1''''.;./.. I'.~ Y: . I,'. ',' . . . (...f. ". MARY\P.\~ATTERSON, ESQ. I.D. Number 47620 BRUCE A. GELTING, ESQ. I.D. Number 69159 305 North Front street Fifth Floor P. O. Box 1003 Harrisburg, PA 17108-1003 (717) 237-5531 Attorneys for Carl A. Hoffman, Jr., D.O., RiChard A. Brown, M.D., and John C. Lesniewski, D.O. - 7 - ./"'\ 9Yj05ZI':i 65 V E R I F I CAT ION I, Mary P. Patterson, Esq., hereby depose and state that I am an associate of the law firm of Duane, Morris , Heckscher, attorneys for Carl A. Hoffman, Jr., D.O., Richard A. Brown, M.D., and John C. Lesniewski, D.O., Defendants in this matter, and make this Verification on behalf of said Defendants, who are unavailable to make this Verification timely. I further state that the facts set forth in the foregoing Preliminary Obj ections are true and correct based upon knowledge or information and belief that I have obtained in representing the Defendants in this case, including correspondence and conferences with them. This Verification i. made subject to the penalties of 18 Pa. C.S.A. 14904, relating to unsworn falsification to authorities. :;/10 /9.( Date ' / '."', 9q30ZJ~1256 THOMAS S. ALGEO, ESQUIRE Attorney for plaintiff, Phillip Roberts Atty. IDI 52806 135 N. Main Street P.O. Box 543 Sellersville, PA 18960 (215) 257-3333 IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA CIVIL ACTION Phillip Roberts, plaintiff No. 94-004146-05-2 vs. Attorney ID #52806 Miller Electric Manufacturing Company, Carl A. Hoffman, Richard A. Brown, and John Lesniewski Defendants CIVIL ACTION-LAW NOTICE You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a Judgment may be entered against you by the Court without further Notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE 8fFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. ~(: tS~ ~.. 0:...:. 0".. .' u-~ C~ (\ ". -? ~ ,..--1 '.,:;(1 i' :i:t.~ ~~~ (tOO o:=> DiU) - .. - - ~ ~ ~. -, '{j. Bucks counly Bar Association 135 East State Street Doylestown, PA 18901 Phone 215/348-9413, 536-8435, 752-2666 By: THOMAS S. ALGEO, Esquire Attorney for Plaintiff ~ 9430Zi-O~6 THOMAS S. ALGEO, ESQUIRE Attorney for plaintiff, Phillip Atty. ID# 52806 135 N. Main Street P.O. Box 543 Sellersville, PA 18960 (215) 257-3333 Roberts IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA CIVIL ACTION Phillip Roberts, Plaintiff No. 94-004146 vs. Attorney ID #52806 Miller Electric Manufacturing Company, Carl A. Hoffman, Richard A. Brown, and John Lesniewski Defendants CIVIL ACTION-LAW AMENDED COMPLAINT Plaintiff Phillip Roberts, by and through his attorney, Thomas S. Algeo, Esquire, respectfully represents the following: 1. Plaintiff is an adult individual residing at 1730 Easton Road, Doylestown, Bucks County, Pennsylvania. 2. Defendant Miller Electric Manufacturing Company (Miller Electric), is a business with a principal place of business located at Appleton, Wisconsin. 3. Defendant Carl A. Hoffman, Jr., D.O., is an adult individual and at times material hereto, was a duly licensed and practicing physician, his office is currently located at 3940 Locust Lane, Harrisburg, Dauphin County, Pennsylvania. 4. Defendant Richard A. Brown, M.D., is an adult individual and at all times material hereto, was a duly licensed and practicing physician, his office is currently located at 1288 ~ 9430Zl-0p2.S6 Valley Forge Road, Suite 74, Valley Forge, Montgomery County, Pennsylvania. 5. Defendant John Lesniewski, D.O., is an adult individual and at all time material hereto was a practicing physician, his office is currently located at 5265 Stathmore Drive, Mechanicsburg, Cumberland County, Pennsylvania. 6. On or about May 31, 1992, Plaintiff was working at the State Correctional Facility ~t Camp Hill. 7. On or about May 31, 1992 Plaintiff was operating a Welder, designed and manufactured by Miller Electric. 8. On or about May 31, 1992 Mr. Roberts was injured while operating the Miller Electric Legend Welder and sought immediate medical attention. COUNT I ROBEkTS VS. MILLER ELECTRIC STRICT LIABILITY 9. plaintiff, Phillip Roberts, incorporates by reference all of the preceding paragraphs of this Complaint as if each and everyone were individually set forth within this Count. 10. plaintiff believes, and therefore avers, that the accident of May 31, 1992, wherein Plaintiff was injured, was caused by the defective design of the Miller Legend gasoline powered welder, which defect existed at the time said welding machine was designed and manufactured by Defendant Miller Electric. 11. As a result of the defective design of the welder, defendant is strictly liable to plaintiff pursuant to S402A of the Restatement (Second) of Torts for the following reasons: -~.- 9430za-~56 (a) failing to properly and adequately design the welder; (b) failing to properly and adequately manufacture the welder; (c) failing to warn Plaintiff of the dangerous nature of the welder; (d) failing to warn against foreseeable modifications; 12. As a direct result of the defective design of the welder as described above, Plaintiff was caused to suffer severe injuries including but not limited to an avulsion fracture of the left distal metatarsal, avulsion fracture of the left anterior calcaneus (heel bone), sprain and strain, and other permanent, disfiguring and disabling injuries. 13. As a result of Defendant Miller Electric's negligence, Plaintiff has suffered a loss of earnings and/or earning capacity. 14. As a result of Defendant Miller Electric's negligence, Plaintiff has suffered an interruption of his daily habits and pursuits to his great and permanent detriment and loss. 15. As a result of Defendant Miller Electric's negligence, Plaintiff has sustained various expenses and charges for which he has not been compensated. Wherefore, Plaintiff demands judgment against Defendant Miller Electric in an amount in excess of fifty thousand dollars, plus interest and costs. .. 9~30Ql-Oe256 ~ ~ COUNT II ROBERTS VS. MILLER ELECTRIC NEGLIGENCE ,16. Plaintiff, Phillip ROberts, incorporates by reference all of the preceding paragraphs of this Complaint as if each and everyone were individually set forth within this Count. 17. The negligence of the Defendant Miller Electric consisted of the fOllowing: (a) failing to discover the defect in the design of the Miller Legend gasoline powered welding machine; (b) failing to take the necessary measures to a create a safer design; (c) failing to properly test the welder; Wherefore, Plaintiff demands jUdgment against Defendant Miller Electric in excess of fifty thousand dollars, plus interest and costs. COUNT III ROBERTS VS. HOFFMAN, BROWN AND LESNIEWSKI MEDICAL MALPRACTIC~ 18. Plaintiff, Phillip ROberts, incorporates by reference all of the preceding paragraphs of this Complaint as if each and every one were individually set forth within this Count. 19. On May 31, 1992, Plaintiff severely injured his left foot while working at the State Correctional Facility at Camp Hill, Pennsylvania. 20. Plaintiff sought immediate medical care at the prison dispensary. 21. Plaintiff was examined by Defendant Dr. John Lesniewski .. '"1 9430Zl-0p2.56 on May 31, 1992 regarding the injury to his left foot. Dr. Lesniowski diagnosed Plaintiff as suffering from a severe strain and sprain of the left foot. 22. On June 4, 1993, Dr. Carl A. Hoffman examined Plaintiff and reviewed x-rays that had been taken of Plaintiff's left foot. Dr. Hoffman diagnosed Plaintiff as ~ossibly suffering from an evulsion fracture of the distal left metatarsal. 23. Despite the severity of Plaintiff's injuries, no remedial treatment was provided on or before June 4, 1992. 24. On June 8, 1992, Plaintiff was examined by Defendant Dr. Richard A. Brown for the injuries to his left foot on June 8, 1992. Dr. Brown's diagnosis was consistent with that of Dr. Hoffman's of June 4, 1992. 25. Despite the severity of Plaintiff's injuries, no remedial treatment was provided on or before June 8, 1992. 26. On June 9, 1992, Plaintiff was again examined by Defendant Dr. Hoffman. Dr. Hoffman wrapped Plaintiff's left foot in an elastic "Ace Bandage" despite the possibility of a fractured distal left metatarsal. 27. On June 11, 1992, additional x-rays were taken of Plaintiff's injured left foot. 28. On June 11, 1992, Plaintiff was examined by Defendant Dr. Hoffman. Dr. Hoffman diagnosed Plaintiff as suffering from an evulsion fracture of the anterior calcaneus, as well as the prior diagnosis of the evulsion fracture of the left distal metatarsal. 29. Despite the severity of Plaintiff's injuries, no 9430{J-~56 remedial treatment was rendered to Plaintiff by Defendants Hoffman, Brown and Lesniewski until June 12, 1992, at which time a cast was applied to Plaintiff's foot. 30. From May 31, 1992, until his release from the State Correctional Facility at Camp Hill, Plaintiff was under the care of Defendants Hoffman, Brown, and Lesniewski for the injuries to his left foot. 31. The malpractice of the Defendants Hoffman, Brown and Lesniewski consisted of the following: (a) failure to possess the requisite degree of skill and care ordinarily exercised in similar cases by other physicians; (b) failure to possess the degree of knowledge and skill ordinarily possessed by other physicians; (c) failure to conform to the requisite standards of care under the circumstances; (d) failure to properly diagnose and treat the injuries to Plaintiff within a reasonable period of time; (e) failure to properly examine and treat Plaintiff; (f) failure to perform the necessary medical testing; (g) failure to properly perform, read, interpret, and report medical tests and procedures, including, but not limited to, x-rays; (h) failure to exercise reasonable care in the diagnosis and treatment of Plaintiff's condition for which prompt diagnosis and treatment were ........, 9430Zl-P'"-ZS6 critical for effective medical treatment; (i) failure to properly refer the plaintiff to necessary medical specialists who would have made the diagnosis of Plaintiff's condition; (j) failure to exercise reasonable care under the circumstances; 32. As a direct and proximate result of the malpractice of Defendants Hoffman, Brown and Lesniewski, plaintiff's left foot is permanently disfigured and deformed. 33. As a direct and proximate result of the malpractice of Defendants Hoffman, Brown and Lesniewski, Plaintiff has suffered, is suffering, and will continue to suffer pain and discomfort in his left foot. 34. As a direct and proximate result of the malpractice of Defendants Hoffman, Brown and Lesniewski, plaintiff has suffered, is suffering and will continue to suffer great bodily pain and discomfort, as well as mental anxiety and nervousness, to his great detriment and loss. 35. As a direct and proximate result of the malpractice of Defendants Hoffman, Brown and Lesniewski, plaintiff has suffered a loss of earnings and/or earning capacity. 36. As a direct and proximate result of the malpractice of Defendants Hoffman, Brown and Lesniewski, Plaintiff has suffered an interruption of his daily habits and pursuits to his great and permanent detriment and loss. 37. As a direct and proximate result of the malpractice of Defendants Hoffman, Brown and Lesniewski, plaintiff has sustained . . (', 9ll,~%lt"0l1IS9 "\ WHITE AND WILLIAMS By: James J. Donohue, Esquire Identification No. 156~4 One Liberty place, Suite 1800 philadelphia, Pa. 19103 (215) 864-7037 Attorney for Defendant, Miller Electric Mfg. Co. PHILIP ROBERTS COURT OF COMMON PLEAS BUCKS COUNTY VS. MILLER ELECTRIC MFG. CO., CARL A. HOFFMAN, RICHARD A. BROWN and JOHN LESNIEWSKI : NO. 94-004146-05 STIPULATION TO AMEND COMPLAINT It is hereby agreed by and among all counsel that paragraphs ll(e) and l7(d) of Plaintiff's Complaint shall be deleted. .'- ....,~_ 0\ .1::;..... ("') ~~;#tV ~ .... ~ ~,t -;i..l, .~ , <. .'j:::: o. :. + ("'.;_~l ' ~r:) t1 ~(,,~)_':' CJ ..::r (11 ~.A.~. THOMAS S. ALG ~ ESQUIRE Counsel for plaintiff BY THE COURT: WHITE AND WILLIAMS Attorneys [or Defendant, Miller ~lectriC()g. Co. <(l.. C- . / /1', ~ BI. /L/~ L/('\.. '.- -' (.~/ MES J. C. NOHUE DUANE, MORRIS , HECKSCHER Attorneys for Defendant, Hoffman, Brown and Lesniewski ,) , .. (~' /;',,;-, /I.'~411' t<-r;r;.lL,....4."j..'T/ f1^R'y P. P"TTERSOl'l', ESQUIRE By J. 200D4F2F.WP5 ~ ~ CH?987-uLl\ \3 4. pennsylvania Rule of civil procedure 1006 provides that: (a) ., . an action against an individual may be brought in and only in a county in which he may be served or in which the cause of action arose or where a trans- action or occurrence took place out of which the cause of action arose or in any other county authorized by law. 5. Pennsylvania Rule of civil procedure 1006(c) provides that in an action to enforce joint or joint and several liability, an action may be brought against all defendants in any county in which the venue may be laid against anyone of the defendants. 6. pennsylvania Rule of civil procedure 1028(a) (1) provides that a Defendant may object to improper venue. 7. Moving Defendants in this case are individuals who do not reside in BuckS counts: the cause of action arose in cumberland county and no transaction or occurrence took place in BuckS county: and plaintiff does not claim that this is an action to enforce joint or joint and several liability against the Defendants. B. This action may not be brought against Moving Defendants in Bucks county for the following reasons: (a) Moving Defendants have not been and cannot be sued in Bucks county. ~ee complaint .~ 3-5: Pa. R.C.P. 1006(a). (b) This purported cause of action arose at the state correctional Facility located in Camp Hill, cumberland county. ~ complaint .. 6-8. No cause of action against Moving Defendants purported to exist in this suit arose in BuckS county. ~ Pa. R.C.P. 1006(a): (c) plaintiff has not alleged any transaction or occurrence in BuckS county out of which this action arose, nor do plaintiff's allegations indicate any such transaction or occurrence. See Pa. R.C.P. 1006(a)1 and - 2 - ~ ~ 91;:98/-0oI13 (d) This is not an action to enforce joint or joint and several liability between Moving Defendants and co- defendant Miller Electric Manufacturing company ("Miller), a Wisconsin business entity; consequently, plaintiff cannot rely on Pa. R.C.P. 1006(c) for venue as to Moving Defendants. 9. Even if this were a suit to enforce joint and several liability, plaintiff has still failed to obtain venue over Moving Defendants by virtue of Miller's presence in this suit for the followin9 reasons: (a) plaintiff does not allege venue as to Miller. ~ complaint . 2. Without proper venue of this co- defendant, venue cannot lie as to Moving Defendants in Bucks County under Pa. R.C.P. 1006(C); and (b) Second, even if venue does lie as to Miller, absent the requisite allegation of joint and several liability between Moving Defendants and Miller, venue is still improper as to Moving Defendants under Pa. R.C.P. l006(C). WHEREFORE, Defendants Carl A. Hoffman, Jr., D.O., Richard A. Brown, M.D., and John C. Lesniewski, D.O. respectfully request that, to the extent venue is found to lie in Bucks County as to Defendant Miller Electric Manufacturing company, this Court dismiss plaintiff's complaint for improper venue as to Moving Defendants; or, alternatively, to the extent venue does not lie in Bucks county as to Defendant Miller Electric ManUfacturing company, transfer plaintiff's suit in its entirety to Cumberland County. - 3 - -........ ,,-.. C j'in' I-OOI,'J ,111..:101 J 11 . PULIKIIIAIlY OBJICTIOII TO PARAGRAPH at OW PLAIMTIWW" COKPLAIMT WOIl WAILUR! TO CO.WOIK WITH IlULI OW LAW OR COURT 10. pennsylvania Rule of civil Procedure 1019 (a) requires that a complaint set forth the material facts upon which a cause of action is based. 11. pennsylvania Rule of civil procedure 1028(a) (2) provides that a party may preliminarily object to a pleading for failure to conform with rule of law or court. 12. In Conner v. Alleahenv Gene~al Hospital, 501 Pa. 307, 461 A.2d 600 (1983), the Supreme Court stated that where a general averment of negligence is not met with a Motion to strike or a Motion for a more specific pleading, a plaintiff may amend his com- plaint to include more specific allegations of negligence even after the statute of limitations has run. ~ ~ starr v. Mvers, 109 Dauph. 147 (1988). 13. The following averments contained in paragraph 26 of plaintiff's complaint are allegations against Moving Defendants which are merely boilerplate, conclusory allegations of negligence which fail to adequately apprise Defendants of the specific facts upon which these generalized claims are based: (a) failure to possess the requisite degree of skill and care ordinarily exercised in similar cases by other physicians I (b) failure to exercise the requisite degree of skill and carel (c) failure to possess the degree of knowledge and skill ordinarily possessed by other physicians I - 4 - ~ ~ ll't;'9lV-Olll LJ WHEREFORE, Defendants Carl A. Hoffman, Jr., D.O., Richard A. Brown, M.D., and John c. Lesniewski, D.O. respectfully request that this Court strike paragraph 26 of Plaintiff's complaint for failure to conform to rule of law or court. III. MOTION FOR A MORB SPECIPIC PLBADING 16. Paragraphs 1 through 15 are incorporated herein by refer- ence as if set forth in full. 17. Plaintiff's complaint consists of a laundry list of legal conclusions completely devoid of factual support. ~ complaint '26. 18. Plaintiff's complaint states that after plaintiff was injured while working at the state correctional Facility at camp Hill, he sought medical attention from Moving Defendants. 19. From that occurrence, Plaintiff proceeds to list thirteen (13) conclusory allegations of Moving Defendants' purported mal- practice rather than allege facts which would give rise to the legal conclusions Plaintiff asserts. See Complaint ~26. 20. pennsylvania Rule of civil Procedure 1019 (a) provides that the material facts upon which a cause of action or defense is based shall be stated in a concise and summary form. 21. Plaintiff's Complaint fails to set forth material facts regarding the acts or omissions of Moving Defendants sufficient to enable Moving Defendants to respond or prepare a defense. plain- tiff's complaint simply states that plaintiff was injured and - 6 - ,"'""'I r-. %:9S?-lJOI13 sought medical attention from Moving Defendants and, as a result, Moving Defendants purportedly committed medical malpractice. 22. Plaintiff's Compl3int fails to identify the facts essen- tial to support Plaintiff's claim of medical malpractice. ~ Smith v. Brown, 283 Pa. Super 116, 423 A.2d 743 (1980). 23. Pennsylvania RUle of Civil Procedure 1028(a) (3) provides that a defendant may object to inSUfficient specificity in a Com- plaint. WHEREFORE, Defendants Carl A. Hoffman, Jr., D.O., Richard A. Brown, M.D., and John C. Lesniewski, D.O. respectfully request that this Court order Plaintiff to file a more specific complaint with respect to Moving Defendants. In the event that Plaintiff fails to file a more specific complaint within twenty (20) days, Moving Defendants request that Plaintiff's Complaint be dismissed as to those same Defendants. Respectfully submitted, DUANE, MORRIS & HECKSCHER Dated: /Ol-/;}.;t/tJI ~ / By: 7~:&PIIfIZ/1.;4/"';:":" MARY F,V, PATTERSON, ESQ. I.D. Number 47620 BRUCE A. GELTING, ESQ. I.D. Number 69159 305 North Front Street Fifth Floor P. O. Box 1003 HarriSburg, PA 17108-1003 (717) 237-5531 Attorneys for Carl A. Hoffman, Jr., D.O., Richard A. Brown, M.D., and John c. Lesniewski, D.O. - 7 - ,-, ".,., , " 9'1;~98;,-oOllj V E R I FIe A T ION I, Mary P. Patterson, Esq., hereby depose and state that I am an associate of the law firm of Duane, Morris , HecKscher, attorneys for Carl A. Hoffman, Jr., D.O., Richard A. Brown, M.D., and John C. Lesniewski, D.O., Defendants in this n,atter, and make this Verification on behalf of said Defendants, who are unavailable to make this Verification timely. I further state that the facts set forth in the foregoing preliminary Objections are true and correct based upon Knowledge or information and belief that I have obtained in representing the Defendants in this case, including correspondence and conferences with them. This Verification is made subject to the penalties of 18 Pa. C.S.A. ~4904, relating to unsworn falsification to authorities. Date /;;1/:);:1/-'11 , --, /'1 .../;) /, /L 1/_ I/a:J' /--: / CIA ^o/'-,,,~~ Mary{P. Patterson, Esq. '" " ;1 g ~ " - . .. .' ,. LAW orner. 0' \.,. DUANE, MORRIS 8 HECKSCHER ' I 30S NORTH 'RONT IT"E'Er. P.O. IIOx 100 .. .~ HARRIS.UItO, PA 1710..1003 .. " ,-.. ~ CI\!')98"-Oo 10" .J II., I ~ CI.~lrlC&~1 or ...VICI On this 22nd day ot D.c.mb.r, 1994, I, Ruth M. For.yth., a ..cr.tary in the law ottices ot Duane, Morris , Heckscher, her.by c.rtity that I nave ..rv.d this day true and correct copies ot the tor.qoinq ace.Pt.-cI or ...vle. in the abov.-caption.d ca.., by d.positinq same in the united states First Class Mail, po.taq. pr.paid, in Harri.burq, P.nn.ylvania, to those p.r.on. and addr..... indicated below: Thomas S. Alqeo, Esq. 95 North Main Str..t Box 543 S.ll.r.vill., PA 18960 (Attorneys tor Plaintitt) Jame. J. Donohu., Esq. White and Williams On. Lib.rty Place, suite 1800 1650 Mark.t str.et Philadelphia, PA 19103-7395 (Counsel tor Detendant Miller Electrical Mtq. Co.) -~l l:t P. rn -:::f(t-'<lJ-,f12e. Rut M. Forsythe --- """~ H. PAUL lESTER, ESQ, coun ADlIlNISTRATOR JAMES J. FOWKES tlIt,.cy Co.n A4mi.......IOf I f1tcaI AllIIn. CATHY L OILLAHAN .0\"""1 C'*" AdminltUlIlJr IC_", DOUOLASIl. PRAUL. ESQ. AIMIII" (_n Admlnllllltor lLa....._1 IlICHAIlD OIASNINI. JR.. ESQ, AIIiIIInI C.,.ft Admln"UIl!)r 10..... ell." Oi'iltonl 0, THOMAS WILEY ett,UI)' C:,"I" .~minl"I'IIO' 1~.....nall."u'"'1 COURT OF COMMON PLEAS OF lUCKS COUNTY OFFICE OF COURT ADMINISTRATOR DOYLESTOWN. PA. "M. December 22, 1994 TO: James J. Donohue, Esquire coun ADMR, FISCAL AFFAIU OPERATIONS LAW. RESEARCH ORPHANS COURT DISTRICT COURTS TELEPHONES IlUl J... - 6OZ7 6040 6700 6065 60Zl RE: Roberts VS. Mil1sr Electric Mfg. Co., Carl HOffman, Richard Brown and John Lesniewski No. 94-004146 Your .ppllc~don In the .bov.cas. has not been acted upon by the Coun because it is d.fici.nt in th~ following r..pecta: I. Not .Igned by ( ) Couns.' ( ) Petitioner ( IAffl.nt ( I Oth.r: ~ or more of the following docum.nt. are not an.ched: LA"- ) exhibit ..~. ( ) V.rlflcatlon ()( ) Suggest.d Ord.r ( ) Affidlvlt of S.rvlc. ( ) Ord.r for h.ferlng ( ) Oth.r: 3. You f.lled to .lIege: ,I ) Authority for the r.lI.f your cll.nt s..ks. Coun.' I') Oth.r: I A not.ry publiC "" for Coun's u.. ) Factustabllshlng jurisdiction or v.nu,'n thli 4. Objection. to dlscov.ry must first be det.rmin.d before the Court will direct that dlscov.ry be produced. 6. PI.... be sur. you have complied with 8.C.R.C.P. No. '266. ~ All or p.n of peragraph _left blank. CJPI.... comply with 8.C.R.C.P. No. '301 ~ '302. 8. PI.... proceed by rule to show cause. 9. Pl.... comply with B.C.R.C.P. No. 4019(g)(1) .(aUb). 10. Oth.r: Th. original pleading Is being returned herewith. DOUGLAS R. PRAUL, ESQUIRE Assistant Coun Administrator 'f'l C1 I I " f'-,) -, --,. : - - .. . 0 w " ;\ ,'- -. .,.. w ., " LAW OrroCES or oe'"".) DUANE, MORRIS 8 HECKSCHER -' , .OD NORTH rRONT STREET, P,O. BOX 1003 . . ~b~ ~. . HARAIS.URG, PA 171011'1003 " . Wl ~ ' f L~W OfnctS or .. DUANE, MORRIS e HECKSCHEP;..a .., 308 NORTH rRONT STREET. P.O. aox lOa" HARRISBURG, PA 171011.1003 -~ ~ . '.. ,-. - r ... 942899-00086 C..'l'I.IC&'l'. o. ...V:IC. On this ~/~ day of octob.r, 1994, I, Ruth M. Forsyth., a ..cr.tary in the law offices of DUan., Morri. , Hecksch.r, her.by c.rtify that I have ..rved this day true and correct copies of the for.goinq .-aICI.. ~R RULI 'fO .xLi CO..Ullft in the abov.- caption.d cas., by d.po.iting .ame in the Unit.d states Fir.t Cla.. Mail, po.taq. pr.paid, in Harri.burq, p.nn.ylvania, to tho.. p.r.on. and addr..... indicat.d b.low: Thoma. s. Alqeo, E.q. 95 North Main street Box 543 S.ll.r.ville, PA 18960 (Attorn.y. for plaintiff) James J. Donohu., Esq. White and Williams On. Lib.rty Plac., suit. 1800 1650 Mark.t str.et Philad.lphia, PA 19103-7395 (couns.l for Defendant Miller Electrical Mfg. Co.) If., ~{,LU ii1_ M. Forsythe ~ ~ THOMAS S. ALGEO, ESQUIRE Attorney for Plaintiff, Phillip Atty. ID# 52806 95 N. Main Street P.O. Box 543 Sellersville, PA 18960 (215) 257-3333 9~j~795-0D 152 Roberts ---------------------------------------------------------- IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA CIVIL ACTION Phillip Roberts, Plaintiff No. 94-004146 vs. Attorney ID #52806 Miller Electric Manufacturing Company, Carl A. Hoffman, Richard A. Brown, and John Lesniewski Defendants CIVIL ACTION-LAW .' COMPLAINT Plaintiff Phillip Roberts, by and through his attorney, Thomas s. Algeo, Esquire, respectfully represents the following: 1. Plaintiff is an adult individual residing at 446 East Market Street, Perkasie, Bucks County, Pennsylvania. 2. Defendant Miller Electric Manufacturing Company (Miller Electric), is a business with a principal place of business located at Appleton, Wisconsin. 3. Defendant Carl A. HOffman, Jr., D.O., is an adult individual and at times material hereto, was a duly licensed and practicing physician, his office is currently located at 3940 Locust Lane, Harrisburg, Dauphin County, Pennsylvania. 4. Defendant Richard A. Brown, M.D., is an adult individual and at all times material hereto, was a duly licensed and practicing physician, his office is currently located at 1288 Valley Forge Road, Suite 74, Valley Forge, Montgomery County, """" r"\ 9l"~795-00 152 Pennsylvania. 5. Defendant John LesniewSki, D.O., is an acult individual and at all time material hereto was a practicing physician, his office is currently located at 5265 Stathmore Drive, Mechanicsburg, Cumberland County, Pennsylvania. 6. On or about May 31, 1992, Plaintiff was working at the State Correctional Facility at Camp Hill. 7. On or about May 31, 1992 Plaintiff was operating a Welder, designed and manufactured by Miller Electric. 8. On or about May 31, 1992 Mr. Roberts was injured while operating the Miller Electric Legend Welder and sought immediate medical attention. COUNT I ROBERTS VS. MILLER ELECTRIC STRICT LIABILITY 9. Plaintiff, Phillip ROberts, incorporates by reference all of the preceding paragraphs of this Complaint as if each and every one were individually set forth within this Count. 10. Plaintiff believes, and therefore avers, that the accident of May 31, 1992, wherein Plaintiff was injured, was caused by the defective design of the Miller Legend gasoline powered welder, which def~ct existed at the time said welding machine was designed and manufactured by Defendant Miller Electric. 11. As a result of the defective design of the welder, defendant is strictly liable to Plaintiff pursuant to S402A of the Restatement (Second) of Torts for the following reasons: (a) failing to properly and adequately design the ~ ~ welder; (b) failing to properly and adequately manufacture the welder; (c) failing to warn plaintiff of the dangerous nature of the welder; failing to warn against foreseeable modifications; other defects which may become evident through the course of discovery or trial; 12. As a direct result of the defective design of the welder as described above, plaintiff was caused to suffer severe injuries including but not limited to an avulsion fracture of the left distal metatarsal, avulsion fracture of the left anterior calcaneus (heel bone), sprain and strain, and other permanent, disfiguring and disabling injuries. 13. As a result of Defendant Miller Electric'S negligence, Plaintiff has suffered a loss of earnings and/or earning capacity. 14. As a result of Defendant Miller Electric'S negligence, Plaintiff has suffered an interruption of his daily habits and pursuits to his great and permanent detriment and loss. 15. As a result of Defendant Miller Electric'S negligence, Plaintiff has sustained various expenses and charges for which he has not been compensated. 9~j~795-00IS2 (d) (e) Wherefore, Plaintiff demands judgment against Defendant Miller Electric in an amount in excess of fifty thousand dollars, plus interest and costs. ,'1 ,....., 94j~795-00 152 COUNT II ROBERTS VS. MILLER ELECTRIC NEGLIGENCE 16. Plaintiff, Phillip Roberts, incorporates by reference all of ' the preceding paragraphs of this Complaint as if each and every one were individually set forth within this Count. 17. The negligence of the Defendant Miller Electric consisted of the following: (a) failing to discover the defect in the design of the Miller Legend gasoline powered welding machine; (b) failing to take the necessary measures to a create a safer design; (c) failing to properly test the welder; (d) otherwise being negligent, careless and reckless in the design and manufacture of the welder. Wherefore, Plaintiff demands judgment against Defendant Miller Electric in excess of fifty thousand dollars, plus interest and costs. COUNT II I ROBERTS VS. HOFFMAN, BROWN AND LESNIEWSKI MEDICAL MALPRACTICE 18. Plaintiff, Phillip Roberts, incorporates by reference all of the preceding paragraphs of this Complaint as if each and every one were individually set forth within this Count. 19. On May 31, 1992, plaintiff severely injured his left foot while working at the State Correctional Facility at Camp Hill, pennsylvania. ,~ 1-'" 9QZ795-001S2 20. Plaintiff sought immediate medical care at the prison dispensary. 21. Plaintiff was examined by Defendant Dr. John Lesniewski on May 31, 1992 regarding the injury to his left foot. 22. Plaintiff was examined by Defendant Dr. Carl A. Hoffman for the injuries to his left foot on June 4, 1992. 23. Plaintiff was examined by Defendant Dr. Richard A. Brown for injuries to his left foot on June 8, 1992. 24. From May 31, 1992, until his release from the State Correctional Facility at Camp Hill, Plaintiff was under the care of Defendants Hoffman, Brown, and Lesniewski for the injuries to his left foot. 25. Despite the severity of Plaintiff's injuries, no remedial treatment was rendered to Plaintiff by Defendants Hoffman, Brown and Lesniewski until June 12, 1992, at which time a cast was applied to Plaintiff's foot. 26. The malpractice of the Defendants Hoffman, Brown and Lesniewski consisted of the following: (a) failure to possess the requisite degree of skill and care ordinarily exercised in similar cases by other physicians; (b) failure to exercise the requisite degree of skill and care; (c) failure to possess the degree of knowledge and skill ordinarily possessed by other physicians; (d) failure to conform to the requisite standards of care under the circumstances; -. t-"'" (e) failure to properly di~~hl~S-~~eat the injuries to Plaintiff within a reasonable period of time; (f) failure to properly examine and treat Plaintiff; (g) failure to perform the necessary medical testing; (h) failure to properly perform, read, interpret, and report medical tests and procedures, including, but not limited to, x-rays; (i) failure to exercise reasonable care in the diagnosis and treatment of Plaintiff's condition for which prompt diagnosis and treatment were critical for effective medical treatment; (j) failure to properly refer the Plaintiff to necessary medical specialists who would have made the diagnosis of Plaintiff's condition; (k) being otherwise negligent, careless, reckless under the circumstances; (l) negligence as a matter of law; (m) failure to exercise reasonable care under the circumstances; 27. As a direct and proximate result of the malpractice of Defendants Hoffman, Brown and Lesniewski, Plaintiff's left foot is permanently disfigured and deformed. 28. As a direct and proximate result of the malpractice of Defendants HOffman, Brown and Lesniewski, Plaintiff has suffered, is suffering, and will continue to suffer pain and discomfort in his left foot. "'"" 1"', 29. As a direct and proximate ~~~i~5oPOJ~malPractice of Defendants Hoffman, Brown and Lesniewski, Plaintiff has suffered, is suffering and will continue to suffer great bodily pain and discomfort, as well as mental anxiety and nervousness, to his great detriment and loss. 30. As a direct and proximate result of the malpractice of Defendants Hoffman, Brown and Lesniewski, plaintiff has suffered a loss of earnings and/or earning capacity. 31. As a direct and proximate result of the malpractice of Defendants Hoffman, Brown and Lesniewski, Plaintiff has suffered an interruption of his daily habits and pursuits to his great and permanent detriment and loss. 32. As a direct and proximate result of the malpractice of Defendants Hoffman, Brown and Lesniewski, Plaintiff has sustained various expenses and charges for which he has not been compensated. WHEREFORE, Plaintiff demands judgment against Defendants Hoffman, Lesniewski, and Brown in an amount in excess of fifty thousand dollars, plus interest and costs. ~~.~ Thomas S. Algeol'alquire Attorney for Plaintiff Atty. ID# 52806 95 N. Main Street P.O. Box 543 Sellersville, PA 18960 (215) 257-3333 1"1 ", i".i.. ") : !ill I l' i C... . I ~...H., JIO I (,/I'l;rvo- -~-~.r-- 11.11_, 1 h.reby d.pull,. Ih. 6h.,1I1 of l~l __U\lJWIN-------- Counly to ...... Ih. wllhln ------.-- ClVIL ___.___.___ ...:o,rn Enclol.d 10' ..,ylc. Pt.... UI. Ihll c.,1I I Oil' I.."n h.nk you, ~J' ".,~.J ~. leh..II, 6h.,lff 01 luckl County ""o,nlY. '1lIH\'l S AIlW, 1':1). " -l101311"yole. m.lI.d on --/ --/-, , 6pecl.llnll,ucllonl I . ) , hi t:I Ill,n it , . \ I , l I Ii c \ I I i ~I '" '" I " ~I -' ~ I I C'l %~ " 0 I \D a: Ill: ~ 0. I . . [' ~I 111 ~ " t- - <( ; " l Cl a: I t- o Q, l- I H < 111 a: U 111 111 Q, a: 0 <S>~(Il(ll (Il(ll U1(1lU1<S> <S><S> . . . . . . <0 . .-<<S> . <S> N' . (TI . (') I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Ca! . . . . . . ;, . . 0 :z tll <( ;.. .;.. . '-' J: I- Vl U .1 .:.: i .J:Z t.. :z \- .....: :I:U <0 t.. ::><Ctlll- Ultll H 0 01-'-'0 <c:I: .1- :I: UUl<C1- uu UlU\Jl <c'<l' . (TIUl .-<<c 1'<c..1'<l' \Jl;l:H(Il..1 U1 0:> I iY. U1:J:H'<l'<C (Il f- 0 ()'\ U . . . . \ . . . . a: . . . , I tllJ: .0:: ,I, I alO .tll I :0: 0:::>: al I ::>t..0J: I' :J: H::>t- " 01-:>::>: r I-tllClo <( i, CIo:>HI-Cl I I HHct:lJJ~ tlltllU:':11l I , UUUlUt.. I tlllJltll 0111 J a:a:Cl'.)O I I .~ "' \ hEOOO-LSLZh6 , ,-, -' .0"""\, t'""'\ ,~ form ~.2' . .' . COMMONWEALTH OF p~AtlOOO~ COUNTY OF BUCKS 9-10U.11.\tj No. .................:........ Term, 19 ...... IN TIlE COURT OF COMMON PLEAS OF BUCKS COUNTY PIIILLIP ROBERTS 909 Market Street Perkasie, PA 18944 versus MILLER ELECTRIC MAilUFACTURING COMPANY, and CARL A. 1i0FntAll IInd RICHARD A. BROln! and JOHN LESIlIEWSKI ' to. .... ..... ..... .0.. .... ...... '0' .......... to. .... ........... to. .... ..... ..... .... " .0' To tf~HH .~~l!Gt,r.i,c. t(flJll'f,c;~'!Ii~I1~ .C,OJllP!I!lY. \11;14 .Qad A. lioffman and Richard A. Brown and John Lesniewalti You are notified that Phillip Roberts \~ .... '.-j; '~"-l . I . the plalntifl{l) ha 13, . . . . " commenced an action in ,cJ.l1U. (\Ct~QO. . . . . . . . . . . . . . . . . ; . . . . .;; . . ';;'. . . . . . ~~ ' - . :~.~ - _"to \.':1 .. ,ol ,- .~-, l.",l .~.. .-' Date: ......../.j(~p(... ~',' 1, c..r'\ U1 SEAL OF THE COURT PATRlCIAL.BACHTLE / Prothonotary " . , , ) , By. 01~!!!<~(~.. ,~I/(! ~'~-.. . ... ... . . y..1. Deputy r " 1"""'1 9~2757-00D3~tJ . : . . '.. . I 0070523 0/. /2-3 r-: E eEl P T SHE R r r F ' S D,E P n R T MeN T \~C:ST cHeSTEp. CHESTG~ COUNTY, PENI'ISYLVI.~4 U\ , NO. 940C04146 T~~U PLA r NT 1 FF 1'1-1 I LL 1 P r.:OI3EF:TS DCFD~DANT R I CIIAr-:D 1\ LWmJN FILED BY THmtMi:3 {4L loCO I){\TE 1)[-,/21/':14 TYPE OF TFAN~,ACTInN c) 1 Er;I.T,:llW 100. (It) RCI1ARI<S 1, C I,JF: I T GALr:S TAX TOH,L 0.00 100.00 100.0(1 0.00 CHEt:.l, If 321') CASH k CHARGE PCJA _, _ ' __ .------ '-' ... ' = . )" ~ - ,~ '.~ !:: . ," I", :-..., ~::;...--,;:. I... \~ ........... 11... I' ,., -~.. C":) ~ I':~" I " ~... '--~ I .: ...) '11 ":"'i...e I....J~ _..ill' , .;t.i'" &.';j ~U .. = -::71' VI .:p - -- - ''- ;; LAW orFlCES or DUANE, t-lORRIS 8 HECKSCHER 305 NORTH FRONT STREET. p,o, BOX 1003 HARRISBURG, PA 17108'1003 " .' . PHILLIP ROBERTS, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, v. MILLER ELECTRICAL MANUFACTURING COMPANY, and CARL A. HOFFMAN, and RICHARD A. BROWN, and JOHN LESNIEWSKI, No. 95-6716 Civil Defendants. ANSWER AND NEW MATTER OF DEFENDANT RICHARD A. BROWN. M.D. TO PLAINTIFF'S AMENDED COMPLAINT Defendant, Richard A. Brown, M.D. ("Answering Defendant"). by and through his attorneys, Duane, Morris and Heckscher, respectfully represent the following: 1. Admitted and denied. It is admitted that Plaintiff Is an adult individual. After reasonable investigation, Answering Defendant lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegation that Plaintiff resides at 1730 Easton Road, Doylestown, Bucks County, Pennsylvania. Accordingly, said allegation Is denied and strict proof thereof is demanded at time of trial. 2. Denied. After reasonable investigation, Answering Defendant lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegation that Defendant Miller Electric Manufscturing Company ("Miller Electric") Is a business with a principal plsce of business located at Appleton, Wisconsin. Accordingly, said allegation Is denied and strict proof thereof Is demsnded at time of trial. 3. Admitted. 4. Admitted and Denied. The allegations In Paragraph four (4) ere admitted except that It Is denied that Dr. Brown's office is located in Montgomery County. To the contrary, Dr. Brown's office is located In Chester County. 6. Admitted and denied. It Is admitted that Defendant John Lesniewski, D.O. is an adult Individual and at all time material hereto was a practicing physician. It Is denied that his offille is currently located at 6265 Strathmore Drive, Mechanics- burg, Cumberland County, Pennsylvania. 6. Denied. After reasonable investigation, Answering Defendant lacks knowledge or Information sufficient to form a belief as to the truth or falsity of the allegation that on or about May 31, 1993, Plaintiff was working at the State Correc- tional Facility at Camp Hill ("SCI-CH"). Accordingly, said allegation is denied and strict proof thereof is demanded at time of trial. 7. Denied. After reasonable investigation, Answering Defendant lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegation that on or about May 31, 1992, Plaintiff was operating a Welder, designed and manufactured by Miller Electric. Accordingly, said allegation is denied end strict proof thereof Is demanded at time of trial. 8. Admitted and denied. It is admitted that on May 31, 1992, Plaintiff sought medical attention. After reasonable investigstlon, Answering Defendant lacks knowledge or Information sufficient to form a belief as to the truth or falsity of the allegations that on Msy 31. 1992, Plaintiff was Injured while operating a Mllier Elllctrlc .2- to an evulsion fracture of the left distal metatarsal, avulsion fracture of the left anterior calcaneus (heel bone), sprain and strain, and other permanent, disfiguring and dis- abling injuries. Accordingly, said allegations are denied and strict proof thereof Is c1emanded at time of trial. 13. Denied. After reasonable Investigation, Answering Defendant lacks knowledge or Information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph thirteen (13) of Plaintiff's Amended Complaint. Accordingly, said allegations are denied and strict proof thereof is demanded at time of trial. 14. Denied. After reasonable Investigation, Answering Defendant lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph fourteen (14) of Plaintiff's Amended Complaint. Accordingly, said allegations are denied and strict proof thereof Is demanded at time of trial. 15. Denied. After reasonable investigation, Answering Defendant lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph fifteen (15) of Plaintiff' 5 Amended Complaint. Accordingly, said allegations are denied and strict proof thereof is demanded at time of trial. WHEREFORE, Answer Defendant, Richard A. Brown, M.D., demands judgment be entered in his favor and against the Plaintiff together with interests and costs. - 4 - 25. Denied. It Is denied that Plaintiff's Injuries were severe end that no remedial treatment was provided on or before June 8, 1992. 26. Admitted and denied. It Is admitted that Plaintiff was again examined by Dr. Hoffman on June 9, 1992. It Is further admitted that Dr. Hoffman wrapped Plain- tiff's left foot in an "Ace wrap" and that there was the possibility of a fracture of the distal left metatarsal. It is denied that Dr. Hoffman wrappad Plaintiff's foot In an Ace wrap despite the possibility of the fractured distalleh metatarsal. To the contrary, an Ace wrap was not contra-Indicated given the Plaintiff's possible condition. 27. Admitted. 28. Admitted and denied. It Is admitted that on June 11, 1992, Plaintiff was examined by Defendant Dr. Hoffman; that Dr. Hoffman diagnosed Plaintiff as suffering from an evulsion fracture of the anterior calcaneus and an evulsion fracture of the left distal metatarsal. It is denied that the diagnosis of a frscture of the left distal metatarsal was a prior diagnosis. 29. Admitted and denied. It Is admitted a cast was applied to Plaintiff's foot. It Is denied that Plaintiff's Injuries were severe or that no remedial treatment was rendered to Plaintiff by Defendants Hoffman, Brown and Lesniewski until June 12, 1992. 30. Denied. It Is denied that from May 31, 1992 until his rolease from SCI- CH, Plaintiff was under the care of Defendants Hoffman, Brown and Lesniewski for the injuries to his left foot. - 7 - , 31. Denied. The allegations contained In paragraph thirty.one (311 of Plain. tiff's Amended Complaint constitute conclusions of law to which no response is required. To the extent, however, that said allegations are deemed to be factual in nature, It Is denied that Defendants Hoffman, Brown and Lesniewski committed mal. practice or that the alleged malpractice consisted of the following: (a) failing to possess the requisite degree of skill and care ordinarily exercised in similar cases by other physicians. It is further denied that the Defendants failed to properly diegnose Plaintiff's condition for nearly two weeks after the accident occurred or that Plaintiff's injuries were of the type that should have been properly diagnosed upon examining the x-rays taken on June 4, 1992. It is admitted that Dr. Hoffman, on June 4, 1992, made a differential diagnosis thst Plaintiff was possibly suffering from an evulsion fracture of the left distal metatarssl. It is denied that he failed to provide a proper treatment, a cast, for that possible fracture. (bl failing to possess the degree of knowledge and skill ordinsrily possessed by other physicians or that they failed to properly diagnose and treat the Plaintiff within a reasonable period of time. It is denied that the Defendants repeatedly misdiagnosed Plaintiff's condition and/or failed to properly identify the injury for nearly two weeks. It Is admitted that they have access to diagnostic equlp- ment and that such equipment was used in the diagnosis and - 8 - treatment of the Plaintiff. It Is admitted that x-rays of Plaintiff's Injured foot were taken on June 4, 1992. It Is denied that the actual Injuries went undiagnosed for an additional nine deys. (e) failing to conform to the requisite standards of care under the circumstances. It Is denied that upon discovering the possibility of an evulsion fracture of the left distal metatarsal, furthar diagnostic tests should have baen performed by the Defendants which were not performed. It Is denied that no further tests were performed nor any remedial measures taken. (d) failing to properly diagnose and treat the injuries to Plaintiff within a reasonable period of time. It Is admitted that Plaintiff fractured both the anterior calcaneus, and the left distal metatarsal. It is denied that Plaintiff was Initially diagnosed as suffering from a sprain and advised to remain off his feet. It is denied that the proper treatmant for those Injuries Is to reset the bones and apply a cast. It is danled that this was not done for nearly two weeks after the accident or that there was any delay In providing Plaintiff appropriate treatment. It 15 denied that the alleged delay was unreasonable or that those types of injuries take approximately four to silt weeks to completely heal, thereby allowing the bones to partially heal before the cast was spplied on June 12, 1992. - 9. (e) falling to properly examine and treat the Plaintiff. It Is denied that any examination was Improperly performed or that It should have revealed the alleged actual injuries sustained by Plaintiff prior to the time they were diagnosed. (f) failing to perform the necessary medical testing to determine the type and extent of Plaintiff's Injuries. It Is denied that upon discovering the possibility of an evulsion frecture, Defendants should have performed the necessary tests to either confirm or refute their diagnosis or that such was not done. It Is denied that there was a failure to render proper tests to confirm that diagnosis or a failure to render treatment in a timely manner. (g) failing to properly perform, read, intarpret, and report medical tests and procedures, Including, but not Iimitsd to, x-rays. It Is admit- ted that x-rays were taken of Plaintiff's left foot on June 4, 1992 and June 11, 1992. It is denied that the proper diagnosis was not made until June 12, 1992, when a cast was applied to Plaintiff's left foot. It is denied that Defendants failed to properly Interpret the x-rays of Plaintiff's injured left foot taken on June 4, 1992. (h) failing to exercise reasonable care In the diagnosis and treatment of Plaintiff's condition or that prompt diagnosis and treatment were critical for effective medical treatment of Plaintiff's condition. It Is admitted that a cast was not spplled to Plaintiff's foot until 13 - 10 - days after the alleged accident. It Is denied thllt Plaintiff's foot had already begun to heal In a deformed condition due to the fact that a cast was not Immediately applied to properly support and shape Plaintiff's fractured left foot. It is denied that a cast was not applied within a reasonable period of time to properly support and shape Plaintiff's fractured left foot. iii failing to properly refer the Plaintiff to necessary medical specialists who would have made the diagnosis of Plaintiff's condition. It Is admitted that Plaintiff was an Inmate In a state correctional facility. It is admitted that Plaintiff was unable to obtain treatment from the physician of his own choosing. It is denied that Plaintiff was limited to the services of Drs. Hoffman,. Brown and Lesniewski unless one or all of them permitted Plaintiff to be treated by a specialist. It is admitted that Plaintiff was In fact treated by a specialist, an orthopedic physician named Dr. Grady, who made a proper diagnosis and applied the cast to Plaintiff's left foot on June 12, 1 992. (ll failing to exercise reasonable care under the circumstances. It Is denied that Defendants failed to exercise reasonable care in this case, that they fsiled to properly diagnose the Injuries sustained by Plaintiff. that they failed to provide the necessary treatment so Plaintiff would make a full rscovery, thst they misinterpreted x. . 11 . i ! rays taken of Plaintiff's injured left foot, and that they delayed in , ,~ 1 providing the proper treatment to Plaintiff for nearly two weeks. 32. Denied. The allegations contained in paragraph thirty-two (32) of Plaln- tiff's Amended Complaint constitute conclusions of law to which no response is required. To the extent, however, that said allegations are deemed to be factual in nature, it is danlad that Dafendants Hoffman, Brown and Lesniewski committed mal. practice or that as a direct and proximate result of that alleged malpractice Plaintiff's left foot is permanently diSfigured and deformed. By way of further answer, after reasonable investigation, Answering Defendant lacks knowledge or information suffl. cient to form a belief as to the truth or falsity of the allegation that Plaintiff's left foot Is permanently diSfigured and deformed. Accordingly, said allegation is denied and strict prOof thereof is demanded at time of trial. 33. Denied. The allegations contained in paragraph thirty-three (33) of Plain. tiff's Amended Complaint constitute conclusions of law to which no response is required. To the extent, however, that said allegatlon'i are deemed to be factual in nature, it is denied that Defendants Hoffman, Brown and Lesniewski committed mal. practice or that as a direct and proximate result of that alleged malpractice Plaintiff has suffered, Is SUffering, and will continue to suffer pain and discomfort in his left foot. By way of further answer, after reasonable investigation, Answering Defendant lacks knowledge or information sufficient to form a belief as to the truth or felslty of the allegation that Plaintiff has suffered, Is suffering, and will continue to suffer pain and . 12. discomfort in his left foot. Accordingly, said allegations are denied and strict proof thereof is demanded at time of trial. 34. Denied. The sllegatlons contained in paragraph thirty-four (34) of Plain- tiff's Amended Complaint constitute conclusions of law to which no response Is required. To the extent, however, that said allegations are deemed to be fsctual in nature, It Is denied that Defendants Hoffman, Brown and Lesniewski committed mal- practice or that as a direct snd proximate result of that alleged malpractice Plaintiff has suffered, is suffering and will continue to suffer great bodily pain and discomfort, as well as mental anxiety and nervousness, to his great detriment and loss. By way of further answer, after reasonable investigation, Answering Defendant lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegation that Plaintiff has suffered, is suffering and will continue to suffer great bodily pain and discomfort, as well as mental anxiety and nervousness, to his great detriment and loss. Accordingly, said allegations are denied and strict proof thereof is demanded at time of trial. 35. Denied. The allegations contained In paragraph thirty-five (35) of Plain- tiff's Amended Complaint constitute conclusions of law to which no response Is required. To the extent, however, that said allegations are deemed to be factual in nature, it is denied that Defendants Hoffman, Brown and Lesniewski committad mal- practice or that as a direct and proximate result of that alleged malpractice Plaintiff has suffered a loss of earnings and/or earning capacity. By way of further answer, after reasonable investigation, Answering Defendant lacks knowledge or Information suffi- - 13 - cient to form a belief es to the truth or falsity of the allegation that Plaintiff has suffered a loss of earnings and/or earning capacity. Accordingly, said allegations are denied and strict proof thereof is demanded at time of trial. 36. Denied. The allegations contained in paragraph thirty-six (36) of Plain- tiff's Amended Complaint constitute conclusions of law to which no response is required. To the extent, however, that said allegstions are deemed to be factual In nature, it is denied that Defendants Hoffman, Brown and Lesniewski committed mal- practice or that as a direct and proximate result of that alleged malpractice Plaintiff has suffered an interruption of his dally habits and pursuits to his great and permanent detriment and loss. By way of further answer, after reasonable investigation, Answer- ing Defendant lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegation that Plaintiff has suffered an interruption of his dally habits and pursuits to his great and permanent detriment and loss. Accordingly, said allegations are denied and strict proof thereof is demanded at time of trial. 37. Denied. The allegations contained in paragraph thirty-seven (37) of Plain- tiff's Amended Complaint constitute conclusions of law to which no response is required. To the extent, however, that said allegations are deemed to be factual in nature, it is denied that Defendants Hoffman, Brown and Lesniewski committed mal- practice or that as a direct and proximate result of that alleged malpractice Plaintiff has sustained various expenses and charges for which he has not been compensated. By way of further snswer, after reallonsble investigation, Answering Defendant lacks knowledge or Information sufficient to form a belief as to the truth or falsity of the - 14- allegation that Plaintiff has sustained various expenses and charges for which he has not been compensated. Accordingly, said allegations are denied and strict proof thereof is demanded at time of trial. 38. Denied. The allegations contained in paragraph thirty-eight (38) of Plain- tiff's Amended Complaint constitute conclusions of law to which no response Is required. To the extent, however, that said allegations sre deemed to be factual in nature, it Is denied that Defendants Hoffman, Brown and Lesniewski jointly provided medical care to the Plaintiff from May 31, 1992 through June 12, 1992, or that Defendants Hoffman, Brown and Lesniewski are jointly or jointly and severally liable to the Plaintiff. WHEREFORE, Answer Defendant, Richard A. Brown, M.D., demands judgment be entered in his favor and against the Plaintiff together with interests and costs. NEW MATTER 39. Plaintiff has failed to state a claim upon which relief be granted under Pennsylvania Law. 40. Plaintiff has failed to properly plead csuses of action against Answering Defendant. 41. The Plaintiff's cause of action, the existence of which is denied, is barred by the applicable statute of limitations or statute of repose under Pennsylvania Law. 42. Answering Defendsnt, believes, snd therefore avers, that the facts accumulated In discovery and/or propounded at trial will establish that Plaintiff was contributorily/comparatively negligent and/or assumed the risk and In order to protect . 15 - Answering Defendant's right to plead such defenses, he hereby plesds contributory and comparative negligence and assumption of the risk as formal defenses. 43. Plaintiff's claims are barred by the doctrines of estoppel, waiver, and/or latches. 44. Plaintiff's claimed injuries and/or damages, the existence of which are denied, were caused in whole or In part by acts or omissions of another or others for whom Answering Defendant was not responsible and whose conduct Answering Defendant had no reason to anticipate. 46. Answering Defendant provided all information sufficient to enable Plaintiff to make an informed consent regarding the medical care requested from him and, therefore, Answering Defendant pleads consent as an affirmative defense. 46. Any alleged injuries/illness and damages, if any, of the Plaintiff resulted from an act of God and were not caused in any way by any act or omission on the part of Answering Defendant. 47. Answering Defendant gives notice that he Intends to rely on such other and further defenses as may become available or apparent during discovery in this action and hereby reserves the right to assert any such defense or defenses. 48. The Plaintiff's claims are barred by his consent to the medical procedures performed upon him, or failure to consent to appropriate and/or additional procedures. - 16 - WHEREFORE, Answer Defendant, Richard A. Brown, M.D., demands Judgment be entered In his favor and against the Plaintiff together with Interests and costs. R'3spectfullv submitted, DUANE, MORRIS & HECKSCHER Date: /" II h,1/'7c:; I J , /l "'." .( fA BV: )'/(l'" --' I nlt-~L{"l~ MARY P PATTERSON, ESQUIRE / 1.0. Num er 47620 306 North Front Street Fifth Floor P. O. Box 1003 Harrisburg, PA 17108-1003 (7171 238-8210 Attornevs for Defendants Carl A. Hoffman, Jr., D.O.; John C. Lesniewski, D.O.; and Richard A. Brown, M.D. - 17. VERIFICATIOl'{ I, RICHARD A. BROWN, M.D., hereby depose and state that I am a Defendant in the above matter and that the answers set forth in the foregoing ANSWER AND NEW MATTER OF DEFENDANT RICHARD A. BROWN, M.D. TO PLAINTIFF'S AMENDED COMPLAINT arc true and correct to the best of my information, knowledge and belief. This statement is made subject to the penalties of 18 Pa. C.S.A. ~4904 relating to unsworn falsification to authorities. t:t/:<9/15 Date I -4fr.:~~~/M.P- CHARD A. BRO , M.D. L/"1 en ;io~ l- .T,. = .., t". """ 1.:1- ",0. (.,; . ,. ." I~: ~.' .., :r h, " > t:)t. , .1 - " ~.t .. - ,:... _ .lli~ " ..;" I. '; ,- 0, _J .... _~,uJ ~ ,~ c..> ., ..... "-:JU = . , . . \ LAW or"IC[5 or DuANE, MORRIS e HECKSCHER 308 NORTH FRONT STRttT, P,O. BOX 1003 HARRISBURG. PA 11108.1003 . ..-...- PHILLIP ROBERTS, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, v. No. qS - I. 7 /..S CIVl~ 'TUUI\ MILLER ELECTRICAL MANUFACTURING COMPANY, CARL A. HOFFMAN, RICHARD A. BROWN, and JOHN LESNIEWSKI, Defendants. NOTICE TO PLEAD TO: PHILLIP ROBERTS AND THOMAS S. ALGEO, ESa. 95 NORTH MAIN STREET BOX 543 SELLERSVILLE, PA 18960 You are hereby notified to file e written response to the enclosed ANSWER AND NEW MATTER OF DEFENDANT JOHN C. LESNIEWSKI, D.O. TO PLAINTIFF'S AMENDED ~OMPLAINT within twenty (201 deys from service hereof or a judgment may be entered against you. Dated: I 1/3 (J/9:;- / I ./1' , / J 'j II" I I . -' , By: :fl~1 f ,,~-~ MAR p,. PATTERSON, ESa. I,D. Number 47620 DUANE, MORRIS & HECKSCHER 305 North Front Street Fifth Floor P. O. Box 1003 Harrisburg, PA 17108-1003 (717) 237-5531 Attorneys for Defendants Carl A. Hoffman, Jr., D.O.; John C. Lesniewski, D.O.; end Richard A. Brown, M.D. 0-....... PHILLIP ROBERTS, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, v. MILLER ELECTRICAL MANUFACTURING COMPANY, and CARL A. HOFFMAN, and RICHARD A. BROWN, and JOHN LESNIEWSKI, No. 95.6715 Civil Defsndants. ANSWER AND NEW MATTER OF DEFENDANT JOHN C. LESNIEWSKI. D.O. TO PLAINTIFF'S AMENDED COMPLAINT Defendant, John C. Lesniewski, D.O. (" Answering Defendant"), by and through his attorneys, Duane, Morris and Heckscher, respectfully represent the following: 1. Admitted and denied. It Is admitted that Plaintiff is an adult Individual. After reasonable investigation, Answering Defendant lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allsgatlon that Plaintiff resides at 1730 Easton Road, Doylestown, Bucks County, Pennsylvania. Accordingly, said allegation is denied and strict proof thereof is demanded at time of trial. 2. Denied. After reasonable Investigation, Answering Defendant lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegation that Defendant Miller Electric Manufacturing Company ("Miller Electric") is a business with a principal place of business located at Appleton, Wisconsin. Accordingly, said allegation is denied and strict proof thereof Is demanded at time of trial. 3. Admitted. 4. Admitted end denied. It is edmitted thet Defendant Richard A. Brown, M.D. is an sdult Individual and at all times material hereto was a duly licensed and practicing physician. It is denied that his office Is currently located at 1288 Valley Forga Road, Suite 74, Valley Forge, Montgomery County, Pennsylvania. 6. Admitted and denied. It is admitted that Dafendant John Lesniewski, D.O. is an adult individual and at all time material hereto was a practicing physician. It Is denied that his office Is currently located at 6266 Strathmore Drive, Mer:hanlcsburg, Cumberland County, Pennsylvania. 6. Denied. After reasonable Investigation, Answering Defendant lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegation that on or about May 31, 1993, Plaintiff was working at the State Correctional Facility at Camp Hili ("SCI-CH"I. Accordingly, said allegation is denied and strict proof thereof Is demandsd at time of trial. 7. Denied. After reasonable Investigation, Answering Dafendant lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegation that on or about May 31, 1992, Plaintiff was operating a Welder, designed and manufactured by Miller Electric. Accordingly, said allegation Is denied and strict proof thereof is demanded at time of trial. 8. Admitted and denied. It Is admitted that on May 31, 1992, Plaintiff sought medical attention. After reasonable Investigation, Answering Defendant lacks knowledge or Information sufficient to form s belief as to the truth or falsity of the allegations that on May 31, 1992, Plaintiff was Injured while operating a Miller Electric .2. calcaneus (heel bone), sprain and strain, and other permanent, disfiguring and disabling Injuries. Accordingly, said allegations are denied and strict proof thereof is demanded at time of trial. 13. Denied. After reasonable Investigation, Answering Defendant lacks knowledge or Information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph thirteen (13) of Plaintiff's Amended Complaint. Accordingly, said allegations are denied and strict proof thereof is demanded at time of trial. 14. Denied. After reasonable investigation, Answering Defendant lacks knowledge or Information sufficient to form s belief as to the truth or falsity of the allegations contained in paragraph fourteen (141 of Plaintiff's Amended Complaint. Accordingly, said allegations are denied and strict proof thereof is demanded at time of trial. 15. Denied. After reasonable investigation, Answering Defendant lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph fifteen (151 of Plaintiff's Amended Complaint. Accordingly, said allegations are denied and strict proof thereof is demanded at time of trial. WHEREFORE, Answer Defendant, John C. Lesniewski, D.O., demands judgment be entered in his favor and against the Plaintiff together with interests and costs. - 4 - COUNT II ROBERTS V. MILLER ELECTRIC NEGLIGENCE 16. Answering Defendant hereby incorporates by reference his responses to paragraphs one (1) through fifteen (16) of Plaintiff's Amended Complaint as if fully set forth herein. 17. Denied. After reasonable investigation, Answering Defendant lacks knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph seventeen (17) of Plaintiff's Amended Complaint. Accordingly, said allegations are denied and strict proof thereof is demanded at time of trial. WHEREFORE, Answer Defendant, John C. Lesniewski, D.O., demands judgment be entered in his favor and against the Plaintiff together with interests and costs. COUNT III ROBERTS V. HOFFMAN, BROWN AND LESNIEWSKI MEDICAL MALPRACTICE 18. Answering Defendant hereby incorporates by reference his responses to paragraphs one (1) through ssventeen (17) of Plaintiff's Amended Complaint as if fully set forth herein. 19. Admitted and denied. It is admitted that on May 31, 1992, Plaintiff presented to the Infirmary with complaints of his left foot being run over by a welding cart. It is denied that Pleintiff severely injured his left foot while working at SCI-CH. - 5 - i ... ......~"- 20. Denied. After reasonable Investigation, Answering Defendant lacks knowledge or Information sufficient to form a belief as to the truth or falsity of the allegation that Plaintiff sought immediate medical care at the prison dispensary. Accordingly, said allegation is denied and strict proof thereof Is demanded at time of trial. 21. Admitted and denied. It Is admitted that Plaintiff was examined by De!endant Dr. John Lesniewski on May 31, 1992 regarding the injury to his left foot. It Is denied that Dr. Lesniewski diagnosed Plaintiff as suffering from a severe strain and sp~aln of the left foot. 22. Admitted and denied. It is admitted that on June 4, 1992, Dr. Carl A. Hoffman examined Plaintiff and reviewed x-rays that had been taken of Plaintiff's left foot. It is denied that Dr. Hoffman diagnosed Plaintiff as possibly suffering from an evulsion fracture of the distal left metatarsal. To the contrary, the records indicate that the results show a questionable tiny, evulsion fracture distal left metatarsal. 23. Denied. It is denied that Plaintiff's injuries were severe. It Is further denied that no remedial treatment was provided on or before June 4, 1992 to Plaintiff. 24. Admitted and denied. It is admitted that on June 8, 1992, Plaintiff was examined by Dr. Richard A. Brown for an alleged Injury to his 111ft foot. It Is denied that the injury occurred on June 8, 1992. It is admitted that Dr. Hoffman on June 4, 1992 and Dr. Brown on June 8, 1992 suspected a tiny, evulsion fraction of the distal left metatarsal snd that there were the differentisl diagnoses made by the physicians at that time. It Is denied that there was any definitive diagnosis or that the diagnoses - 6 - were consistent In that Dr. Brown ordered that the plaintiff be seen in consult with an orthopedic surgeon on June 12, 1992 to have a definitive diagnosis made. 26. Denied. It is denied that Plaintiff's injuries were severe and that no remedial treatment was provided on or before June 8, 1992. 26. Admitted and denied. It is admitted that Plaintiff was again examined by Dr. Hoffman on June 9, 1992. It is further admitted that Dr. Hoffman wrapped Plaintiff's left foot in an "Ace wrap" and that there was the possibility of a fracture of the distal left metatarsel. It is denied that Dr. Hoffman wrapped Plaintiff's foot in an Ace wrap despite the possibility of the fractured distal left metatarsal. To the contrary, an Ace wrap was not contra-indicated given the Plaintiff's possible condition. 27. Admittad. 28. Admitted and denied. It is admitted that on June 11, 1992, Plaintiff was examined by Defendant Dr. Hoffman; that Dr. Hoffman diagnosed Plaintiff as suffering from an evulsion fracture of the anterior calcaneus and an evulsion fracture of the left distal metatarsal. It is denied that the diagnosis of a fracture of the left distal metatarsal was a prior diagnosis. 29. Admitted and denied. It is admitted a cast was applied to Plaintiff's foot. It is denied that Plaintiff's injuries were severe or that no remedial treatment was rendered to Plaintiff by Defendants Hoffman, Brown and Lesniewski until June 12, 1992. - 7 - 30. Denied. It is denied that from May 31, 1992 until his release from SCI- CH, Plaintiff was under the care of Defendants Hoffmen, Brown and Lesniewski for the injuries to his left foot. 31. Denied. The allegations contained In paragraph thirty-one (31) of Plain- tiff's Amended Compl!lint constitute conclusions of law to which no response is re- quired. To the extent, however, that said allegations are deemed to be factual in nature, it is denied that Defendants Hoffman, Brown and Lesniewski committed mal- practice or that the alleged malpractice consisted of the following: (al failing to possess the requisite degree of skill and care ordinarily exercised in similar cases by other physicians. It is further denied that the Defendants failed to properly diagnose Plaintiff's condition for nearly two weeks after the accident occurred or that Plsintiff's injuries were of the type that should have been properly diagnosed upon examining the x-rays taken on June 4, 1992. It is admitted that Dr. Hoffman, on June 4, 1992, made a differential diagnosis that Plaintiff was possibly suffering from an evulsion fracture of the left distal metatarsal. It is denied that he failed to provide a proper treatment, a cast, for that possible fracture. (b) failing to possess the degree of knowledge and skill ordinarily possessed by other physicians or that they failed to properly diagnose and treat the Pleintiff within a reasonable period of time. It is denied that the Defendants repeatedly misdiagnosed Plaintiff's condition and/or failed to properly identify the injury for nearly two - 8 - weeks. It is admitted that they have access to diagnostic equip- ment and that such equipment was used in the diagnosis and treatment of the Plaintiff. It is admitted that x-rays of Plaintiff's injured foot were taken on June 4, 1992. It is denied that the actual injuries went undiagnosed for an additional nine days. (cl failing to conform to the requisite standards of care under the circumstances. It is denied that upon discovering the possibility of an evulsion fracture of the left distal metatarsal, further diagnostic tests should have been performed by the Defendants which were not performed. It is denied that no further tests were performed nor any remedial measures taken. (dl failing to properly diagnose and treat the injuries to Plaintiff within a reasonable period of time. It is admitted that Plaintiff fractured both the anterior calcaneus, and the left distal metatarsal. It is denied that Plaintiff was initially diagnosed as suffering from a sprain and advised to remain off his foet. It is denied that the proper treatment for those injuries is to reset the bones and apply a cast. It is denied that this was not done for nearly two weeks after the accident or that there was any delay in providing Plaintiff appropriate treatment. It is denied that the alleged delay was un- reasonable or that those types of injuries take approximately four to six weeks to completely heal, thereby allowing the bones to partially hesl before the cast was applisd on June 12, 1992. - 9 - (e) failing to properly exemlne and treat the Plaintiff. It Is denied that any examination was improperly performed or that it should have revealed the allaged actuel injuries sustained by Plaintiff prior to the time they were diagnosed. (f) failing to perform the necessary madical testing to determine the type and extent of Plaintiff's Injuries. It Is denied that upon discovering the possibility of an evulsion fracture, Defendsnts should have performed the necessary tests to either confirm or refute their diagnosis or that such was not done. It is denied that there was a failure to render proper tests to confirm that diagnosis or a failure to render treatment in a timely manner. (g) failing to properly perform, read, interpret, and report medical tests and procedures, including, but not limited to, x-rays. It is admit- ted that x-rays were taken of Plaintiff's left foot on June 4, 1992 and June 11, 1992. It is denied that the proper diagnosis was not made until June 12, 1992, when a cast was applied to Plaintiff's left foot. It is denied that Defendants failed to properly interpret the x-rays of Plaintiff's injured left foot taken on June 4, 1992. (hI failing to exercise reasonable care In the diagnosis and treatment of Plaintiff's condition or that prompt diagnosis and treatment were critical for effective medical treatment of Plaintiff's condition. It is admitted that a cast was not applied to Plaintiff's foot until 13 days after the alleged accident. It Is denied that Plaintiff's foot - 10 - had already begun to heal or that it healed In a deformed condition dua to the fact that a cast was not Immediately applied to properly support and shape Plaintiff's fractured left foot. It Is denied that a cast was not applied within a reasonable period of time to properly support and shape Plaintiff's fractured left foot. (l) falling to properly refer the Plaintiff to necessary medical specia- lists who would have made the diagnosis of Plaintiff's condition. It Is admitted that Plaintiff was an Inmate in a state correctional facility. It is admitted that Plaintiff was unable to obtain treatment from the physician of his own choosing. It Is denied that Plaintiff was limited to the services of Drs. Hoffman, Brown and Lesniewski unless one or all of them permitted Plaintiff to be treated by a specialist. It Is admitted that Plaintiff was in fact treated by a specialist, an orthopedic physician named Dr. Grady, who made a proper diagnosis and applied the cast to Plaintiff's left foot on June 12, 1992. Ul failing to exercise reasonable care under the circumstances. It is denied that Defendants failed to exercise reasonable care In this case, that they failed to properly diagnose the injuries sustained by Plaintiff, that they failed to provide the necessary treatment so Plaintiff would make a fuil recovery, that they misinterpreted x. rays taken of Plaintiff' c injured left foot, and that they delayed in providing the proper treatment to Plaintiff for nearly two weeks. . 11 . 32. Denied. The allegations contained in paragraph thirty-two (321 of PlaIn- tiff's Amended Complaint constitute conclusions of law to which no response Is re- quired. To the extent, however, that said allegations are deemed to be factual in nature, it is denied that Defendants Hoffman, Brown and Lesniewski committed mal- practice or that as a direct and proximate result of that alleged malpractice Plaintiff's left foot is permanently disfigured and deformed. By way of further answer, after reasonable Investigation, Answering Defendant lacks knowledge or information suffi- cient to form a belief as to the truth or falsity of the allegation that Plaintiff's left foot Is permanently disfigured and deformed. Accordingly, said allegation Is denied and strict proof thereof is demanded at time of trial. 33. Denied. The allegations contained in paragraph thirty-three (331 of Plain- tiff's Amended Complaint constitute conclusions of law to which no response is re- quired. To the extent, however, that said allegations are deemed to be factual in nature, It is denied that Defendants Hoffman, Brown and Lesniewski committed mal- practice or that as a direct and proximate result of that alleged malpractice Plaintiff has suffered, is suffering, and will continue to suffer pain and discomfort In his left foot. By way of further answer, after reasonable Investigation, Answering Defendant lacks knowledge or information sufficient to form e belief as to the truth or falsity of the allegation that Plaintiff has suffered, is suffering, and will continue to suffer pain and discomfort in his left foot. Accordingly, said allegations are denied and strict proof thereof Is demanded at time of trial. - 12 - 34. Denied. The allegations contained in paragraph thirty-four (341 of Plain. tiff's Amended Complaint constitute conclusions of law to which no response is re- quired. To the extent, however, that said allegations are deemed to be factual In nature, It is denied that Defendants Hoffman, Brown and Lesniewski committed mal- practice or that as a direct and proximate result of that alleged malpractice Plaintiff has suffered, is suffering and will continue to suffer great bodily pain and discomfort, as well as mental anxiety and nervousness, to his great detriment and loss. By way of further answer, after reasonable investigation, Answering Defendant lacks knowledge or Information sufficient to form a belief as to the truth or falsity of the allegation that Plaintiff has suffered, is suffering and will continue to suffer great bodily pain and discomfort, as well as mental anxiety and nervousness, to his great detriment and loss. Accordingly, said allegations are denied and strict proof thereof is demanded at time of trial. 35. Denied. The allegations contained In paragraph thirty-five (351 of Plain- tiff's Amended Complaint constitute conclusions of law to which no response is re- quired. To the extent, however, that said allegations are deemed to be factual in nature, it Is denied that Defendants Hoffman, Brown and Lesniewski committed mal. practice or that as a direct and proximate result of that alleged malpractice Plaintiff has suffered a loss of earnings and/or earning capacity. By way of further answer, after reasonable Investigation, Answering Defendant lacks knowledge or Information suffi- cient to form a belief as to the truth or falsity of the allegation that Plaintiff has suffered a loss of earnings and/or earning capacity. Accordi'1gly, said allegations are denied and strict proof thereof is demanded at tima of trial. - 13 - 36. Denied. The allegations contained In paragraph thirty-six (36) of Plain- tiff's Amended Complaint constitute conclusions of law to which no response Is re- quired. To the extent, however, that said allegations are deemed to be factual in nature, it is denied that Dllfendants Hoffman, Brown and Lesniewski committed mal- practice or that as a direct and proximate result of that alleged malpractice Plaintiff has suffered an interruption of his dally habits and pursuits to his great and permanent detriment and loss. By way of further answer, after reasonable Investigation, Answering Defendant lacks knowledge or Information sufficient to form a belief as to the truth or falsity of the allegation that Plaintiff has suffered an Interruption of his daily habits and pursuits to his great and permanent detriment and loss. Accordingly, said allegations are denied and strict proof thereof Is demanded at time of trial. 37. Denied. The allegations contained In paragraph thirty-seven (371 of Plain- tiff's Amended Complaint constitute conclusions of law to which no response Is re- quired. To the extent, however, that said allegations are deemed to be factual in nature, it Is denied that Defendants Hoffman, Brown and Lesniewski committed mal- practice or that as a direct and proximate result of that alleged malpractice Plaintiff has sustained various expenses and charges for which he has not been compensated. By way of further answer, after reasonable Investigation, Answering Defendant lacks knowledge or Information sufficient to form a belief as to the truth or falsity of the allegation that Plaintiff has sustained various expenses and charges for which he has not been compensated. Accordingly, said allegations are denied and strict proof thereof is demanded at time of trial. .14 - 38. Denied. The allegations contained In paragraph thirty-eight (381 of Plain- tiff's Amended Complaint constitute conclusions of law to which no response Is re- quired. To the extent, however, that said allegations are deemed to be factual In nature, it is denied that Defendants Hoffman, Brown and Lesniewski jointly provided medical care to the Plaintiff from May 31, 1992 through June 12, 1992, or that Defendants Hoffman, Brown and Lesniewski are jointly or jointly and severally liable to the Plaintiff. WHEREFORE, Answer Defendant, John C. Lesniewski, D.O., demands Judgment be entered in his favor and against the Plaintiff together with Interests and costs. NEW MATTER 39. Plaintiff has failed to state a claim upon which relief be granted under Pennsylvania Law. 40. Plaintiff has failed to properly plead causes of action against Answering Defendant. 41. The Plaintiff's cause of action, the existence of which Is denied, Is barred by the applicable statute of limitations or statute of repose under Pennsylvania Law. 42. Answering Defendant, believes, and therefore avers, that the facts accumulated In discovery and/or propounded at trial will establish that Plelntlff was contributorily/comparatively negligent and/or assumed the risk and In order to protect Answering Defendant's right to plead such defenses, he hereby pleads contributory and comparative negligence and assumption of the risk as formal defenses. - 15 - 43. Plaintiff's claims are barred by the doctrines of estoppel, waiver, and/or latches. 44. Plaintiff's claimed injuries and/or damages, the existence of which are denied, were caused in whole or in part by acts or omissions of another or others for whom Answering Defendant was not responsible and whose conduct Answering Defendant had no reason to anticipate. 45. Answering Defendant provided all Information sufficient to enable Plaintiff to make an informed consent regarding the medical care requested from him and, therefore, Answering Defendant pleads consent as an affirmative defense. 46. Any alleged injuries/illness and damages, if any, of the Plaintiff resulted from an act of God and were not caused in any way by any act or omission on the part of Answering Defendant. 47. Answering Defendant gives notice that he intends to rely on such other and further defenses as may become available or apparent during discovery in this action and hereby reserves the right to assert any such defense or defenses. 48. The Plaintiff's claims are barred by his consent to the medical procedures performed upon him, or failure to consent to appropriate and/or additional procedures. - 16 - ., "., .~. i LAW omen or DUANE, MORRIS Ii HECK5CHER 305 NORTH rRONT STREET. P.O. BOX 1003 HARRISBURG, PA 11108.1003 " .- . , . ~