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HomeMy WebLinkAbout00-7081 CivilESTATE OF GEORGE G. STEWART, plaintiff V. CLAREMONT NURSING AND REHABILITATION CENTER, Defendant · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA · CIVIL ACTION - LAW · No. 00-7081 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT, CLAREMONT NURSING AND REHABILITATION CENTER, TO SECOND AMENDED COMPLAINT BEFORE HOFFER, P.J., OLER and GUIDO, JJ. ORDER OF COURT AND NOW, this 9t~ day of April, 2001, it is ordered and directed as follows: 1. A Rule is issued upon Plaintiff to show cause why Defendant is not entitled to the relief requested in its preliminary objections; 2. Plaintiff shall file an answer to the preliminary objections within 21 days of the date of this order; 3. The preliminary objections shall be decided in accordance with the procedures of Pa. R.C.P. 206.7; 4. Depositions shall be completed within 49 days of the date of this order; 5. Argument shall be held on Monday, June 25, 2001, at 3:45 p.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania. 7. Briefs shall be submitted at least seven days prior to argument. BY THE COURT, ~jWesley O~., J. - /~ Hilda B. Stewart 1296 Warwick Road Camp Hill, PA 17011 Deanna K. Collins 46 Willow Street Highspire, PA 17034 Charles E. Wasilefski, Esq. 2931 North Front Street Harrisburg, PA 17110 ESTATE OF GEORGE G. STEWART, Plaintiff V. CLAREMONT NURSING AND REHABILITATION CENTER, Defendant · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA · CIVIL ACTION - LAW · No. 00-7081 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT, CLAREMONT NURSING AND REHABILITATION CENTER, TO SECOND AMENDED COMPLAINT BEFORE HOFFER, P.J., OLER and GUIDO, JJ. OPINION and ORDER OF COURT This case, commenced in 2000, arises out of the alleged negligence of Defendant Claremont Nursing and Rehabilitation Center in caring for George G. Stewart, deceased. The alleged negligence purportedly occurred on several occasions during the decedent's stay at Defendant's facility from November 2, 1998, through November 7, 1998; the decedent died on November 9, 1998, according to the complaint.~ The decedent's personal representative, Hilda B. Stewart, initiated this suit. For disposition at this time are Defendant's preliminary objections to a second amended complaint. Based upon the lack of evidence in the record, and for the reasons stated in this opinion, an order will be entered to facilitate development of a record £or purposes of consideration of the preliminary objections. PROCEDURAL HISTORY This action was commenced by the filing of a praecipe for writ of summons on October 13, 2000. A complaint was filed on November 20, 2000. On November 27, 2000, an amended complaint was filed, to which Defendant filed preliminary objections on December 6, 2000. On December 13, 2000, a second ~ Ammended [sic] Complaint of Medical Negligence and Wrongful Death, filed December 13, 2000. amended complaint was filed, to which Defendant again filed preliminary objections on January 11, 2001. Briefs were submitted, and argument was heard on Defendant's preliminary objections to the second amended complaint on February 14, 2001. STATEMENT OF FACTS Defendant raises in its preliminary objections the issue of a discrepancy between the caption of the second amended complaint and the caption that appeared on the praecipe for writ of summons. The praecipe for writ of summons is captioned "Plaintiff: ESTATE of GEORGE G. STEWART vs. CLAREMONT NURSING and REHABILITATION CENTER.''2 Ms. Stewart's signature as well as her name and address appear on the praecipe.3 The second amended complaint, on the other hand, is captioned "HILDA B. STEWART-EXECUTORIX of the ESTATE OF GEORGE G. STEWART AND DEANNA K. COLLINS--Plaintiffs In Pro Per vs. CLAREMONT NURSING AND REHABILITATION CENTER Defendant? This complaint refers to Ms. Collins as a plaintiff at several placesfi Finally, the document is signed "Hilda B. Stewart, EXECUTORIX (wife) Deanna K. Collins, (daughter) Plaintiff In Pro Per? Defendant's preliminary objections to the second amended complaint include, first, a motion to strike the reference to Deanna K. Collins as an additional plaintiff in the caption of and throughout the second amended 2 Praecipe for Writ of Summons, filed October 13, 2000. 3Id. 4 See Ammended [sic] Complaint of Medical Negligence and Wrongful Death. The original and first amended complaints are captioned "DEANNA K. COLLINS-Trustee ad litem for the ESTATE OF GEORGE G. STEWART Plaintiff in Pro Per vs. CLAREMONT NURSING AND REHABILITATION CENTER Defendant." s See Ammended [sic] Complaint of Medical Negligence and Wrongful Death. 6Id. 2 complaint.7 Defendant argues that Ms. Collins may not be brought in as an additional plaintiff subsequent to the expiration of the applicable statute of limitationsfi Second, Defendant's preliminary objections include a motion to disqualify Ms. Collins from representing the estate of George G. Stewart.9 Defendant asserts that, because Ms. Collins is neither a party nor a licensed attorney, her representation of the estate constitutes the unauthorized practice of law.~° In a responsive brief, it is asserted that Ms. Collins is authorized to represent the estate in that at some point Ms. Stewart withdrew as personal representative of the decedent, and Ms. Collins was appointed thereafter as the decedent's personal representative.~l The record, however, contains nothing to support and chronicle these alleged events. DISCUSSION With respect to preliminary objections, Pennsylvania Rule of Civil Procedure 1028(c)(2) provides: The court shall determine promptly all preliminary objections. If an issue of fact is raised, the court shall consider evidence by depositions or otherwise. The court is of the view that a clearer factual record is necessary for proper consideration of Defendant's preliminary objections. For this reason, the following order will be entered: 7 See Preliminary Objections of Defendant, Claremont Nursing and Rehabilitation Center to Plaintiff's Second Amended Complaint, filed January 11, 2001. 8 See Brief of Defendant, Claremont Nursing and Rehabilitation Center, to Plaintiffs Second Amended Complaint. 9 See Preliminary Objections of Defendant, Claremont Nursing and Rehabilitation Center, to Plaintiff's Second Amended Complaint, filed January 11, 2001. l° Id. il See Trial Brief for Argumentative Hearing, para. 4, dated February 9, 2001. ORDER OF COURT AND NOW, this 9th day of April, 2001, it is ordered and directed as follows: 1. A Rule is issued upon Plaintiff to show cause why Defendant is not entitled to the relief requested in its preliminary objections; 2. Plaintiff shall file an answer to the preliminary objections within 21 days of the date of this order; 3. The preliminary objections shall be decided in accordance with the procedures of Pa. R.C.P. 206.7; 4. Depositions shall be completed within 49 days of the date of this order; 5. Argument shall be held on Monday, June 25, 2001, at 3:45 p.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania. 6. Briefs shall be submitted at least seven days prior to argument. BY THE COURT, Hilda B. Stewart 1296 Warwick Road Camp Hill, PA 17011 Deanna K. Collins 46 Willow Street Highspire, PA 17034 Charles E. Wasilefski, Esq. 2931 North Front Street Harrisburg, PA 17110 /s/J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. 4