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DARLENE LINGENFELTER and
HARRY LINGENFELTER, her
husband,
PLAINTIFFS
V.
LIBERTY MUTUAL INSURANCE
COMPANIES,
DEFENDANT
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
98-0762 CIVIL TERM
IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS
TO PLAINTIFFS' COMPLAINT
BEFORE BAYLEY, J. AND HESS, J.
OPINION AND ORDER OF COURT
BAYLEY, J., June 8,1998:-
Plaintiffs Darlene Lingenfelter and Harry Lingenfelter, her husband, Instituted
this suit against defendant, Liberty Mutual Insurance Companies. Plaintiffs aver in
their complaint that on August 27, 1995, there was in force an automobile Insurance
policy issued by defendant to plaintiffs covering their 1994 Chevrolet. The policy
contained first-party medical coverage. Plaintiffs aver that Darlene Lingenfelter was
injured while operating her motor vehicle on August 27, 1995. Medical bills incurred
by her treatment of those injuries were submitted to defendant for payment. They
included the costs for her treatment into 1997 by William K. Shaffer, D.C. In February,
1997, defendant informed plaintiff that her treatment by Dr. Shaffer was being
submitted to peer review by Claims Review Associates. The peer review resulted in a
determination that the chiropractic treatment provided by Dr. Shaffer beyond
December 28, 1995, was not reasonable or necessary. Plaintiff sought a
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reconsideration which Claims Review Associates conducted in June, 1997. The
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98-0762 CIVIL TERM
determination was the same as the prior review. Defendant has denied payment of
Dr. Shaffer's bills after December 28, 1995.
Count II of plaintiffs' complaint Is a claim for Bad Faith pursuant to the Judicial
Code at 42 Pa.C.S. Section 8371. Plaintiffs avers:
It is believed and therefore averred that the Defendant has
employed the reviewing organization, Claims Review Associates In bad
faith. Said organization does substantial review work for the Defendant
and, therefore, has a financial Interest In providing to Defendant a
biased review report. Moreover, said review organization has or may
have continuously been provIding negative review reports to
Defendant and other Insurance companies for the purpose of
maintaIning a steady source of business and therefore showIng
repetitive abuse of the review process.
Defendant, through its representatives, agents, and/or employees
has breached Its duty to act In good faith and conducted said peer
revIew for an ImpermissIble purpose by the fOllowing actions:
(a) Representing the Plaintiff, DARLENE LINGENFELTER,
would be covered by the full amount of the medical
benefits purchased under the above-referenced policy
when In fact said promise was wholly illusory;
(b) Purporting to offer a specified amount of medical coverage
when, in fact, Defendant had no intention of providing
coverage to said extent;
(c) Charging a premium based on a specified amount of
medical benefits when, in fact, Defendant purposely
avoided fulfilling its contract to provide said amount of
benefits;
(d) Denying Plaintiff, DARLENE LINGENFELTER, medical
benefits and/or payment of medical benefits without a
reasonable basis;
(e) Refusing to pay the Plaintiff's claim without conducting a
reasonable investigation based upon all available
information;
(~ Not attempting in good faith to effectuate prompt, fair and
equitable coverage of claims once the Defendant's
responsibility under its policy of insurance had become
reasonably clear;
(g) Failing to evaluate and determine Plaintiff's entitlement for
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(1) Award Interest on the amount of the claim from the date the
claim was made by the Insured in an amount equal to the prime
rate of Interest plus 3%.
(2) Award punitive damages against the Insurer.
(3) Assess court costs and attorney fees against the insurer.
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98-0762 CIVIL TERM
The relevant portions of 75 Pa. Section 1797(b) provide:
(b) Peer review plan for challenges to reasonableness and
necessity of treatment.-
(1) Peer review plan.--Insurers shall contract jointly or separately
with any peer review organization established for the purpose of
evaluating treatment, health care services, products or accommodations
provided to any Injured person. Such evaluation shall be for the
purpose of confirming that such treatment, products, services or
accommodations conform to the professional standards of performance
and are medically necessary. An Insurer's challenge must be made to a
PRO within 90 days of the insurer's rectlipt of the provider's bill for
treatment or services or may be made at any time for continuing
treatment or services.
,
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(4) Appeal to court.--A provider of medical treatment or
rehabilitative services or merchandise or an insured may challenge
before a court an insurer's refusal to pay for past or future medical
treatment or rehabilitative services or merchandise, the reasonableness
or necessity of which the insurer has not challenged before a PRO.
Conduct considered to be wanton shall be subject to a payment of
treble damages to the Injured party.
(6) Court determination In favor of provider or Insured.--If,
pursuant to paragraph (4), a court determines that medical treatment or
rehabilitative services or merchandise were medically necessary, the
insurer must pay to the provider the outstanding amount plus interest at
12%, as well as the cost of the challenge and all attorney fees.
Plaintiff has in essence pled that the peer review provided to her was a sham.
This court has Just reviewed a similar claim in Mcintyre v. State Farm Mutual
Automobile Insurance Co., No. 9B-0077 (June 5, 199B). In the opinion filed in
support of an order denying preliminary objections to plaintiffs' claim, it was stated:
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98-0762 CIVIL TERM
This Is the first time our Court has faced the Issue of whether an
Insurer can avoid a claim for bad faith under 42 Pa.C.S.A. ~ 8371 by
using the peer review procedure provided In 75 Pa.C.S.A. ~ 1797(b).
However, the Identical Issue has been addressed by numerous other
Common Pleas Courts throughout this Commonwealth, with divided
results.e In addition, a three JUdge panel of the Superior Court
addressed the Issue In Barnum v. State Farm Mut. Auto. Ins. Co., 430
Pa.Super. 488, 635 A.2d 155 (1993). While the Barnum Court held that
compliance with the provisions of 75 Pa.C.S.A. ~ 1797 would Insulate an
Insurer from liability under 42 Pa.C.S.A. ~ 8371, the case has no
precedentlal value because It was overturned by our Supreme Court,
albeit on other grounds. Barnum v. State Farm Mut. Auto. Ins. Co., 652
A.2d 1319 (pa. 1994).
Recognizing that there appears to be a conflict between Section
1797(b) and Section 8371, virtually all of the Courts addressing the Issue
have engaged In an exercise of statutory Interpretation and construction.
The rule of statutory construction applicable to the Issue at bar Is found
In 1 Pa.C.S.A. ~ 1933 which provides as follows:
~ 1933. Particular controls general
Whenever a general provision in a statute shall be In
conflict with a special provision In the same or another statute, the
two shall be construed, If possible, so that effect may be given to
both. If the conflict between the two provisions Is Irreconcilable,
the special provisions shall prevail and shall be construed as an
exception to the general provision, unless the general provision
5. Those cases which have held that Section 1797(b) bars a claim
under Section 8371 when the Peer Review Procedure Is utilized include
Conwav-West v. State Farm Ins. Co., 19 D & C 4th 84 (C.P. Monroe,
1993), Herd v. Nationwide, 116 Dauph. 141 (1996), and Snvder v. State
Farm Ins. Co., 91-56-05676-01, York County (1997). Those cases which
are contra Include Bacstrom v. State Farm Ins. Co., No. A. D. 1997-219,
Franklin County (1998), Hlce v. Prudential, 80 Westmoreland L.J. 27
(1997), Pierce v. State Farm, 27 D & C 4th 464 (C.P. Lackawanna, 1994),
Knox v. Worldwide Ins, Group, 140 P.L.J. 185 (1992), and Milton S.
Hershev Medical Ctr. v. State Farm Ins. Co., 21 D & C 4th 62 (C.P.
Franklin, 1992).
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98-0762 CIVIL TERM
shall be enacted later' and It shall be the manifest Intent/on of the
General Assembly that such general provision shall prevail.
Those courts concluding that Sect/on 1797 bars an act/on under
Sect/on 8371 have uniformly held that there is an irreconcilable conflict
between the two statutes. Therefore, under the rules set forth In 1
Pa.C.S.A. ~ 1933, the special provisions of Sect/on 1797(b) of the
MVFRL would prevail and bar a claim under the more general provision
of Section 8371 of the Judicial Code.7
While we agree that Sect/on 1797(b) Is more specific than Sect/on
8371, we do not agree that the two sections cannot be reconciled.
Section 1933 of the Statutory Construction Act provides that conflicting
provisions of statutes 'shall be constrUed, If possible, so that effect may
be given to both.' 1 Pa.C.S.A. ~ 1933 (emphasis added). In the Instant
case, we feel that It Is certainly possible to construe the provisions so as
to give effect to both.
Section 1797 and Section 8371 address different types of
grievances an Insured may have. Therefore, they are reconcilable. The
procedures set forth in 1797(b)(4) deal with the situation where an
Insurer refuses to pay medical benefits without challenging the
reasonableness or necessity of the treatment before a PRO. If its
conduct Is found to be 'wanton' It is subject to treble damages.
However, It does not address the situation alleged to be present In the
instant case, I.e. where the Insurer submits the Insured's claim to a
'sham' PRO In bad faith. Section 8371 can, therefore, be construed to
apply to the situation In the case at bar, thereby giving effect to both
provisions.
6. Section 1797 of the Motor Vehicle Financial Responsibility Law
and Section 8371 of the Judicial Code were enacted as part of the Act
of February 7, 1990, P.L. 11, No.6, effective April 5, 1990.
7. As the Barnum Court stated:
The several sections of the statute here being examined cannot
be reconciled. The damages specified by the legislature in the event of
wanton or bad faith conduct by an insurer are different, and the rate of
interest to be awarded is also different....
Because the two provisions were enacted at the same time and
cannot be reconciled, the specific provisions of 75 Pa.C.S. ~ 1797 must
be deemed an except/on to the general remedy for bad faith contained
in 42 Pa.C.S. ~ 8371.
635 A.2d at 158-159.
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98-0762 CIVIL TERM
By the Court,./ /
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Elizabeth A. Ontko, Esquire
1820 Llnglestown Road
P.O. Box 60545
Harrisburg, PA 17106-0545
For Plaintiffs
~v
Ed9'" B. 8.y,.y, J. ~
Robert A. Lerman, Esquire
110 South Northern Way
York, PA 17402-3737
For Defendant
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DARLENE LINGENFELTER and
HARRY LINGENFELTER, Her
Husband
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTy,PENNSYLVANIA
Plaintiffs
v.
NO. 9S~ 7ft-!-
(l L;L.~ e
LIBERTY MUTUAL INSURANCE
COMPANIES
Defendant
CIVIL ACTION LAW
JURY TRIAL DEMANDED
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 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(s). You
may lose money or property or other rights important to you,
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE.
IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE,
GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO
FIND OUT WHERE YOU CAN GET LEGAL HELP.
CUMBERLAND COUNTY BAR ASSOCIATION
2 LIBERTY AVENUE
CARLISLE, PA. 17013
(717) 249-3166
SHOLLENIlEIlGEIlI<< JANUZlI. 1.1.1'
1810 LINGLESTOWN nOAll . E~o. I\(.)X t"'H~ . ',,\HHISlIUIU i. "1\ 11ILVti.)H~
(717)Hf.l7l\l. MX(7J7Illi.Hlll
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DARLENE LINGENFELTER and
HARRY LINGENFELTER
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
v.
NO. 9 J'. n.z. C..;,J-z;....
LIBERTY MUTUAL INSURANCE
COMPANIES
Defendant
CIVIL ACTION LAW
JURY TRIAL DEMANDED
PEER REVIEW COMPLAINT
AND NOW comes the Plaintiffs, DARLENE LINGENFELTER and
HARRY LINGENFELTER, her husband, by and through their
attorneys, SHOLLENBERGER & JANUZZI, LLP, and does
respectfully represent the following:
1. Plaintiffs, DARLENE LINGENFELTER and HARRY
LINGENFELTER, her husband, are adult individuals who
currently reside at 206 April Drive, Camp Hill, Pennsylvania
17011.
2. Defendant, Liberty Mutual Insurance Co., is an
insurance company which is authorized to conduct business
and does conduct business as an insurance company within the
Commonwealth of Pennsylvania in Cumberland County and has an
office located at 18 Sentry Park West, Suite 200, P. O. Box
1128, Blue Bell, Pa. 19422-1128.
3. On August 27, 1995, there was in full force and
effect an automobile insurance policy between Plaintiffs and
the Defendant covering a 1994 Chevrolet Corsica. Pursuant
to the terms of that contract, the Plaintiff was entitled to
coverage under said insurance policy.
4. Said policy of insurance provided for first party
medical coverage in the amount of $10,000.00 and wage loss
coverage in the amount of $25,000.00. A copy of the
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declaration sheet io attached hereto a8 Exhibit "A."
5. On August 27, 1995, Plaintiff, DARLENE
LINGENPELTER, while operating a motor vehicle under the
above policy, was involved in a collision with another
vehicle in Camp Hill, Cumberland County, Pennsylvania.
6. As a direct result of the aforesaid collision,
Plaintiff, DARLENE LINGENPELTER, suffered serious and
permanent injuries, including but not limited to the
following:
(a) Severe strain and sprain of the muscles,
tendon, ligaments and other soft tissues at
or about the cervical spine;
(b) Severe strain and sprain of the muscles,
tendon, ligaments and other soft tissues at
or about the thoracic spine;
(c) Severe strain and sprain of the muscles,
tendon, ligaments and other soft tissues at
or about the lumbar spine;
(d) Aggravation of previously asymptomatic lumbar
degenerative disc disease;
(e) Straightening of the normal lordosis of the
cervical spine;
(f) L4-S bulging disc;
(g) L3-4 herniated disc;
(h) LS-S1 central disc protrusion;
(i) L2-3 anterior disc protrusion;
(j) Severe shock to the nerves and nervous
system; and,
(k) Extreme mental and physical anguish.
7. Subsequent to the aforesaid collision, Plaintiff,
DARLENE LINGENFELTER, applied for liable expenses pursuant
to and in accordance with the MVPRL.
8. Shortly after the collision, Plaintiff, DARLENE
LINGENPELTER, through her counsel, provided prompt
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notification to Defendant of the loss and thereafter
delivered to the Defendant extensive claim documentation and
fully cooperated with Defendant in all ways required by the
insurance policy.
9. Plaintiff, DARLENE LINGENFELTER, at all times
pertinent hereto, fully complied with all the terms and
conditions of the subject policy of insurance and all
conditions precedent and subsequent to the Plaintiff
insured's right to recover medical bills under said policy
of insurance.
10. All medical bills incurred by the Plaintiff,
DARLENE LINGENFELTER, were promptly submitted to the
Defendant through her attorney or directly by the provider
of the medical services. Plaintiff requested prompt payment
of those bills due to the serious nature of her injuries and
the clear obligation of the Defendant to provide those
benefits to the Plaintiff.
11. As a direct result of the aforesaid injuries,
Plaintiff, DARLENE LINGENFELTER, has been, or will continue
to be obliged to receive medical treatment and to expend
various sums of money or to incur various medical expenses
properly due and allowable under the terms of the subject
policy or may be obliged to continue to expend such sums
and/or incur such expenditures for an indefinite time into
the future.
12. On August 27, 1995, Plaintiff, DARLENE
LINGENFELTER, was examined at Holy Spirit Hospital for her
collision related injuries. She was diagnosed with cervical
sprain and strain.
13. The emergency doctor ordered x-rays of Plaintiff/s
cervical spine which revealed straightening of the usual
lordosis which raised "the question of muscle spasm."
14. As a result of cervical, thoracic and lumbar back
pain, Plaintiff began treating with Dr. William K. Shaffer,
D.C., on August 28, 1995.
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SHOLl.ENIlERGER & JANUZZI. LLP
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15. On or about November 16, 1995, Dr. Shaffer ordered
an MRI of the Plaintiff's lumbar spine.
16. After receiving the results of the MRI, Dr.
Shaffer diagnosed the Plaintiff as suffering from
asymptomatic degenerative arthritic condition of her lumber
spine that was made symptomatic as a result of the motor
vehicle collision. SUbsequently, Dr. Shaffer ordered her
off from work.
17. Plaintiff continued to treat with Dr. Shaffer and
other doctors for her neck and low back pain through January
1997.
18. At all times relevant hereto, Plaintiff, DARLENE
LINGENFELTER submitted to Defendant, in writing, the amounts
of liable expenses incurred, which at the time of filing
amounted to $6,138.15.
19. As the insurer of Plaintiff, DARLENE LINGENFELTER,
Defendant has fiduciary, contractual and statutory duties
toward Plaintiff to act in good faith to see that the
providers of medical care to DARLENE LINGENFELTER are
promptly repaid for their services.
20. At all times relevant hereto, Plaintiff, DARLENE
LINGENFELTER, and the providers who treated her for her
collision related injuries, fully complied with the terms
and conditions of the subject policy of insurance and all
conditions precedent and subsequent to Plaintiff's right to
recover medical bills through said policy of insurance.
21. By letter dated February 27, 1997, Defendant
informed Plaintiff that her treatment with Dr. Shaffer was
being submitted for a peer review.
22. Defendant contracted with Claims Review Associates
to perform said review.
23. On April 9, 1997, said peer review was conducted
by Larry Roth, D.C.,. He determined that chiropractic
treatment beyond December 28, 1995 was not reasonable or
necessary.
4
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24. Dr. Roth performed an unauthorized "relatedness"
review outside of the Act VI peer review process. In his
peer review report, he indicated:
I cannot consider thoracic outlet syndrome or the
preexisting lower back conditions that reportedly
flared up several months post trauma as associated with
the incident of 8/27/95. The knee condition was also
shown to occur several months following the MVA
incident. Soft tissue components affecting the areas
of the neck and mid/upper back region are considered
appropriate regions regarding the incident in question.
A copy of said peer review report is attached hereto as
Exhibit "B."
25. On or about May 7, 1997, Dr. William Shaffer
requested a reconsideration of the April 9, 1997 peer
review.
26. Defendant again contracted with Claims Review
Associates and on or about June 16, 1997, a reconsideration
was performed by Daniel S. Bowerman, D.C.
27. Dr. Bowerman agreed with the initial peer review
that treatment from August 28, 1995 through December 28,
1995 was appropriate and necessary. He also determined that
treatment beyond December 28, 1995 was not appropriate.
28. As a result, Defendant denied payment of Dr.
Shaffer's medical bills accrued after December 28, 1995.
29. Despite the 1990 Act VI Amendments to the
Pennsylvania Motor Vehicle Financial Responsibility Law
(MVFRL) which put into effect the peer review process, the
initial reviewer, Larry Roth, D.C., performed a unauthorized
"relatedness" review outside of the Act VI peer review
process.
30. As a result of the Defendant's failure to pay
first party benefits, Plaintiff, DARLENE LINGENFELTER, has
been forced to incur attorney's fees and legal expenses in
an effort to collect the amount that is now past due.
31. Plaintiff believes and therefore alleges that
Defendant may refuse payment of other allowable expenses
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which become overdue after commencement of this suit, and
therefore seek payment of same as they become due.
COUNT I
BREACH OF CONTRACT
32. Paragraphs 1 through 31 of Plaintiffs' Complaint
are incorporated herein by reference and are made a part
hereof as if set forth in full.
33. Plaintiff has satisfied all of her obligations
under the above-referenced automobile insurance policy,
including, but not limited to, all conditions precedent and
all conditions subsequent.
34. The actions of the Defendant, as described above,
constitute a breach of the contract of insurance issued by
the Defendant which provides coverage to their named
insured, DARLENE LINGENFELTER. A copy of the policy is not
attached hereto because the Defendant has the original
policy in its possession.
WHEREFORE, Plaintiff, DARLENE LINGENFELTER, demands
judgment against the Defendant for past-due medical bills
with interest at a rate of 12% per year, penalties as
provided by statute, treble damages as provided by statute
and reasonable and actual attorney's fees.
COUNT II
BAD FAITH
35. Paragraphs 1 through 34 are incorporated herein
and made a part hereof as if set forth in full
36. It is believed and therefore averred that the
Defendant has employed the reviewing organization, Claims
Review Associates in bad faith. Said organization does
substantial review work for the Defendant and, therefore,
has a financial interest in providing to Defendant a biased
review report. Moreover, said review organization has or
may have continuously been providing negative review reports
to Defendant and other insurance companies for the purpose
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IH20 lINGLE..""'TOWN ROAn . Po.l\OX llO54; . HAluu~nURn.I'A 11Il'tH.1';.fS
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of maintaining a steady source of business and therefore
showing repet i ti ve abuse of the review process.
37. Defendant, through its representatives, agents,
and/or employees has breached its duty to act in good faith
and conducted said peer review for an impermissible purpose
by the following actions:
(a) Representing that Plaintiff, DARLENE
LINGENFELTER, would be covered by the full
amount of the medical benefits purchased
under the above-referenced policy when in
fact said promise was wholly illusory;
(b) Purporting to offer a specified amount of
medical coverage when, in fact, Defendant had
no intention of providing coverage to said
extent;
(c) Charging a premium based on a specified
amount of medical benefits when, in fact,
Defendant purposely avoided fulfilling its
contract to provide said amount of benefits;
(d) Denying Plaintiff, DARLENE LINGENFELTER,
medical benefits and/or payment of medical
benefits without a reasonable basis;
(e) Refusing to pay the Plaintiff's claim without
conducting a reasonable investigation based
upon all available information;
(fl Not attempting in good faith to effectuate
prompt, fair and equitable coverage of claims
once the Defendant's responsibility under its
policy of insurance had become reasonably
clear;
(g) Failing to evaluate and determine Plaintiff's
entitlement for treatment rendered based upon
the terms of the policy providing coverage to
Plaintiff, DARLENE LINGENFELTER, compelling
the Plaintiff co institute litigation to
recover amounts due under the applicable
insurance policy provided by the Defendant;
(hl By intentionally ignoring the authorized peer
review process of the Act VI Amendments to
the MVFRL;
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(i) Conducting an unauthorized "relatedness"
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SIIOLLENIlEIIGER & JANUZZI. LLP
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review outside the scope of the peer review
process, in violation of Pa. Code 31 569.51;
and,
(j) By allowing a person unfamiliar with the peer
review procedures, standards and practices
to determine that the peer review was
necessary, in violation of 31 Pa. Code
569.52(a).
38. For the reasons set forth above, including but not
limited to the fact that Defendant has violated 42 Pa.
C.S.A. Section 8371, Defendant is liable for interest on the
claim from the date the claim was made in an amount equal to
the prime rate of interest plus three percent (3%), court
costs, attorney's fee and punitive damages.
39. The actions by the Defendant, as described above,
constitute willful and/or outrageous conduct.
WHEREFORE, Plaintiff, demands compensatory,
consequential and punitive damages, plus interest, costs and
attorney's fees from Defendant, in an amount in excess of
the amount requiring compulsory arbitration.
.
J
1
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,
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COUNT III
UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW
i
,
,
40. Paragraphs 1 through 39 of the Plaintiffs'
Complaint are incorporated by reference herein as if set
forth in full.
41. For the reasons set forth above, including, but
not limited to, failing to promptly offer indemnification to
the Plaintiff, failing to objectively and fairly evaluate
the Plaintiff's claim and by concocting a frivolous defense,
the Defendant has committed unfair and deceptive business
practices prohibited by the Pennsylvania Unfair Trade
Practices and Consumer Protection Law, 73 P.S. Section 201.1
et sea. for which the Defendant is liable for treble
damages, plus attorney's fees.
WHEREFORE, Plaintiff demands treble damages from the
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SllOLLENUEltmm & JANUZZI. LLJI
1/'110 I.INtiI.E.,>;TOWN !tOAD . I~n BOX bOSH . 11/\IUUSnURG, "" 17I('16.0'i4S
(711) 214.1700 . J:AX (717) 214.HZ!!
Defendant in an amount in excess of the amount requiring
compulsory arbitration.
COUNT IV
DECEIT
42. Paragraphs 1 through 41 of the Plaintiffs'
Complaint are incorporated by reference herein as if set
forth in full.
43. The conduct of the Defendant constitutes
misrepresentation, fraud and deceit in that, inter alia,
Defendant knowingly, willfully and/or recklessly refused and
failed to comply with the terms and conditions of the
subject insurance policy, including but not limited to, the
policy's implied covenant of good faith and fair dealing,
the statutes of the Commonwealth of Pennsylvania, and the
regulations of the insurance department of the Commonwealth
of Pennsylvania, and in otherwise violating its fiduciary
contractual and statutory duties in dealing with the
Plaintiff.
44. Plaintiff justifiably relied upon Defendant's
representations in the policy and/or in public advertising
that all claims would be fairly and promptly paid, which
representations were false when made and, therefore, the
Defendant's conduct constitutes the common law tort of
deceit for which Plaintiff seeks compensatory and
consequential damages.
WHEREFORE, Plaintiffs, DARLENE LINGENFELTER and HARRY
LINGENFELTER, demand compensatory, consequential and
punitive damages from the Defendant in an amount in excess
of the amount requiring compulsory arbitration.
Respectfully submitted,
SHOLLENBERGER & JANUZZI, LLP
ByrL~LtL O,j}
Elizabe~h A. Ontko, Esq.
Attorney I.D. #78053
Dated: February 4, 1998
SllOLLENIlEIlGEl1 & JANUZZI, LU'
IH20 lINGlE."iTOWN !tOAD. P.O.I\t1X 60~"S . 1I/\IUUSf\UIHi,l':\ 17Il'lH.1SH
(1/7) 214.1700 . 9\x (717) 2JHi!l!
u
EXHIBIT
11-
LIB];.". ( MU'rUAL FIHE INSURANCE COl. ,INY
LIDEH'l'YGUAHD AU'rO POLICY DECLARATIONS
BOSTON, MASSACHUSE~rS
T1IESE OECLAI1ATlONS EFFECTIVE I 04 /04/951
FOR SERVICE CALL OR WRITE:
FRESE C A
5021 LOUISE DR PO BOX 2007
MECHANICSBURG PA 17055
7l7-795-8703/BOO-722-5l64
CLAIMS: BOO-362-569B
r0UCY NlAlOEn
JA02-2Bl-639B3l-B05 9
NA"'E INSUREO ANO "'AiliNG AOORESS
DARLENE M LINGENFELTER
HARRY E LINGENFELTER
206 APRIL DR
CAMP HILL FA 17011-5006
POLICY PERIOD: 01/16/95 TO 01/16/96 12:01AM STANDARD TIME AT THE ADDRESS OF THE
NAMED INSURED AS STATED IN THE POLICY.
CHANGES MADE: SUBSTITUTE VEH 2 -- CHANGE OTHER OWNER'VEH 2
ADD PASSIVE RESTRAINT VEH 2 -- ELIMINATE OTHER OWNER'VEH 2
ADD ANTI-LOCK BRAKE VEH 2
ADD LOSS PAYEE'VEH 2
PREMIUM ADJUSTMENT FROM 04/04/95 TO 01/16/96:
VEHl
VEH2
B4
s
TOTAL ADJUSTMENT: S 106.00
TOTAL ADJUSTMENT INCLUDES: SAFE DRIVER SURCHARGE ADJUSTMENT OF S
22.00
COVERAGES AND LIMITS UNDER YOUR AUTO POLICY:
COVERAGE IS PROVIDED WHERE A
PREMIUM IS SHOWN FOR THE COVERAGE
VEHl VEH2
PART
A.LIABILITY
BODILY INJURY S 100,000 EACH PERSON
S 300,000 EACH ACCIDENT
PROPERTY DAMAGE S 50,000 EACH ACCIDENT
C.UNINSURED MOTORISTS
BODILY INJURY S 50,000 EACH PERSON
S 100,000 EACH ACCIDENT
UNDERINSURED MOTORISTS
BODILY INJURY S 50,000 EACH PERSON
S 100,000 EACH ACCIDENT
LIMITED TORT OPTIONS SELECTED
PART A, C, UNDERINSURED MOTORISTS PREMIUM
FIRST PARTY BENEFITS
10,000 MEDICAL EXPENSE
1,500 FUNERAL EXPENSE
25,000 INCOME LOSS
o ACCIDENTAL DEATH
S 176
S 51
177
41
fj OHICE hcr Noll hUll :i,1ic
~ 57 4
~JACKET 5 12 9
~X357B62DUNN"/ /
.
CONTINUED NEXT PAGE
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RESTRAINT 5200
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CLAIMS lu~vmw ASSOCIATES
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RECEIVED I
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BLUE BELL I
Date: April 9, 1997
LIBERTY MUTUAL
18 SENTRY PARK WEST
PO BOX 1128
BLUE BELL, PA 19422
Claimant: DARLENE LINGENFELTER
Account File: AL830-032447-0 I
CRA File: 001597048-01
Insured: SAME
Date ofInjury: Aug 27, 1995
Enclosed, please find the report for the above-mentioned claimant. The review addressed treatment rendered
by the treating physician(s). The reviewer, LARRY ROTH D.C., has expressed the following opinions based upon
the medical records available at the time of the review.
PROVIDER IS WM. SHAFFER, D.C
I) TREATMENT THROUGH 12/28/95 WAS REASONABLE AND APPROPRIATE.
2) TREATMENT BEYOND 12/28/95 WAS NOT REASONABLE OR NECESSARY.
Thank you for allowing CRA to perfonn this review.
660 AMER[CAN AVENUE. SUITE 103. K[NG OF PRUSSIA, PA [9406. PHONE (6[0)337-8913. FAX (6[0) 337-1637
CLAIMS REVIEW ASSOCIATES
^ IIIVISION OJ' c.n..\,
~I::CEIVED ,
" . ~ 1 1 1997
bLUE BELL I
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ACT6
PENNSYLVANIA A UTOMOBILE INSURANCE
"-
MEDICAL COST CONTAINMENT
-
REQUEST FOR RECONSIDERATION OF AN ORIGINAL PF:ER RF:VIF:W
,
69.52.h Peer Review Procedures. "An insurer, provider, or insured may request, in writing, reconsideration of the initial
PRO determination within 30 days from the date the initial detemlination is effected. A PRO may seta reasonable
charge for the reconsideration but in no case shall the charge for the reconsideration exceed the charge for tFte initial
review. An insurer shall make full paymellt of the charge for reconsideration to the PRO, but the amount paid for the
reconsideration shall be ultimately borne by the party against whom a reconsideration determination is made.
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04/de/1997. 13:03 2156246331
LARRY A. ROTH, D.C.
PAGE 01
RECEIVED '1
I f"J/ I I 1997
BLUE BELL I
- ~...----
LAR/~Y A. ROTI-I, D. C.
~ 54 5 RYAN AVE.
PHILADELPHIA, PA
Aprile, 1997
Ruth Lillie R.N.
Claims Review Associates
700 American Ave. Suite 300
King of Prussia, PA 19406
RE: Darlene Lingenfelter
Claim: AI830-D32447-D1
CRA #: 001597048-01
DOl: 8/27/95
Dear Ms. lillie:
In reference to your request of March 25, 1997 I have reviewed the fOllowing records and
documents relating to the above mentioned claimant.
1. William Shaffer, DCIShaffer Chiropractic
Request for Teleconference 2128/97
Thrust Chart 8/28/95-1/24/97
Dally Notes 9/1195-1124197
Initial Report 9/6/95
Medical Source Statement of Claimant's Ability 6/10/96
Range of Mot/on Chart NID
Disability Certificates 2/21/96, 6/28/96-9/30/96
Automobile Accident History N/D
Absence Authorization 1/2197 '
Billing Statements 8/28/95-8/30/95, 1/3197-1124197
Supplemental Report 2/17/97
Report 12/1/95
Allending Physician's Statement 2/5/96
Correspondence 12122/95
2. Edwin Aquino, MD Report 9124196
3. Commonwealth of PA
Bureau of Disability Determinal/on BDD Serviced Invoice 6/6/96
Medical Assessment Form 5/8/96
4. East Shore Orthopedic Associates, PC Report 1211/95
5. The AZ Ritzman Associates, Inc. Reports 10/6/92, 4/23/94, 11/16/95
6. Holy Spirit Hospital Examination 9128195
7. Physicians Imaging Center
MRI ROF Lumbar Spine 11/16/95
MRI ROF Right Knee 1/23196
Billing Slatement1/15/96
04/~B/1997' 13:03
2156246331
LARRY A. ROTH, D.C.
PAGE 02
RE: Darlone Lingenfeltor
Page 2
-"REceIVED I
'L A,PR I 1 1997 .
BLUE BELL ~
. . .. . ....,..-
8. Healthsouth Rehab of Mechanicsburg
Billing Statoments 1/24/97-2/5/97
Physical Therapy Cara Plan-Spine 1/24/97
Treatment Plan 2/3/97
Lumbar/Lower Quarter Evaluation 1/24/97
Progress Notes 1/24/97-2/5/97
Aquatic Therapy Progress Note 1/28/97-2/5/97
Work Hardening Summary Report
Work Capacities Assessment Summary Report
9. James Hamsher, MD Report 4/25/96
10. Wage and Salary Verification 1/16/96
11. Authorization 9/21/95
12. Nirmal Joshi, MD Office Note /Billing Statement 8/29/95
13. Statement of Claims 9/21/95
I have been provided with the above-listed documentation regarding evaluation and treatment
performed to Darlene Lingenfelter, a currently 34 year old female. It was indicated in the sub-
mitted records that Ms. Lingenfelter was involved in a motor vehicle accident which occurred
on August 27, 1995, when the claimant proceeded through a green traffic signal and was
struck broadside by another vehicle, that had reportedly run through a red signal. ER services
were reportedly performed through Holy Spirit Hospital although no triage or examination
records have been presented A cervical radiographic study was shown performed on 8/27/95
noting some straightening of the lordotic curve, fair range of motion for nexion/extenslon views
as well as findings .of small bilateral cervical ribs. The conclusion included negative findings
for fracture or for significant degenerative changes, along with the findings for the small bilat-
eral cervical ribs.
On 8/28/95, one day post trauma, Ms. Lingenfelter presented to the office of William Schaffer,
DC with presenting complaints of dizziness, headaches and upper middle back pain. The
claimant stated on the completed entrance form that she did not lose consciousness fOllowing
the incident. The Initial Report dated 9/6/95 listed objective findings as positive for Kemp's
and Milgram's, diminished grip strength on the left, bilaterally absent triceps reflex and
decreased motion in cervical and lumbar planes. Hypolordosis, restriction of flexion/extension
motion and vertebral rotation were noted from cervical radiographic analysis. The diagnosis
was presented as cervical sprainlstrain, cervicalgia, thoracic subluxation and thoracic outlet
syndrome. Treatment in the form of spinal adjustments along with use of some dates of elec-
tric stimulation were shown utilized by Dr. Schaffer through to a 1/17/97 date.
Dr. Shaffer has submitted several progress/interim reports over the Course of care. In subse-
quent evaluations the practitioner indicated additional areas, complaints and diagnoses for
Ms. Lingenfelter. A 12/1/95 letter mentioned "severe low back pain and leg pain" with an
insidious onset on 11/11/95. It was mentioned in this correspondence that at the time of the
8/27/95 MVA, the claimant was undergoing treatment with a podiatrist for plantar warts and
was taking OTC medication for same. When the condition improved the medication was
reduced, and subsequently pain was reportedly experienced in the right hip and low back. A
2/9/96 evaluation reported subjective cornplaints of right knee pain, low back pain with leg
pain. It was further mentioned that an interim aggravation/accident occurred when the "right
knee collapsed on 1/1/96 while climbing stairs". A 2/21/96 evaluation remarked "less leg pain
from resting in hospital -low back pain from jammed facets from laying alot". Ms, Lingenfelter
04/oi/1991. 13:03
2156246331
LARRY 1\. ROTH, D.C.
PI\GE 03
RE: Darlene Lingenfelter
'RECEIVED I
~ APR I 1 1997
, BLUE BELL
Page 3
,
slay /n Ihe hospital was menlloned as lhe result of "deprossion". An exam/nation performed
on 1/24/97 lisled diagnoses of subluxalions of L4/S, spondylosis, lumbar disc disPlacomenl,
pain In pelvis and thigh, multiple cervical subluxalions, cervical spraln/slrain, Sliff jolnls and
myofascllls. Complainls of moderate 10 severe, constant low back pain and cons tan I knee
pain were mentioned for lhis evaluation, with findings of mlsalignmenls of L4 and TB with fixa.
tions of the 1';gl1t scapula. Aggravations were cited as "working too many hours on her feel
aggravating the lOwer lumbar discs. Therapy was mentioned parformed at that lime through
Health South. The prognosis on this visit was deferred, with the provider slallng "Patient
shows lillle symptomalic relief and progress is minimal. Aim of treatment is to stabilize
pallent's condition to a subclinical level". The dally progress notes during the course of care
revealed minimal, at best, Subjectlve/obJecllve improvements for Ms. Lingenfelter, with condi-
tions persisting during this time period through 10 Ihe 1/17/97 dale. Approximately 56 ses-
sIons Were shown over the trealmenl perIOd with several gaps shown durIng Ihls span.
An evaluallon was shown performed by Nirmal JOShi, MD on 8/29/95 with lhe cleimant pre-
senting with a bruise over the right chest with localized tenderness. Nausea without vomlling
was further mentioned. The affected area was mentioned as lender 10 palpation wilh subcuta.
neous ecchymosis.
----
Dr. Shaffer referred Ms. Lingenfelter for several oulside evaluations/consullalions. An ortho-
pedic consult was performed on 11/28/95 by John Frankeny, II, MD/Orthopedic Inslitute of
Pennsylvania. Mention was made In regards to lhe onset of low back and leg paIn since
11/11/95. Examinelion findings InclUded exquisile Superficial tenderness in Ihe lumbar spine,
axial compression and rotallonal pain, noling no spasm or curve reversal. Straight leg testing,
neurologic, roll tests of the hips end tests for pelvic instability were considered negative.
When queried if the low back pain was associated with the MVA, the practitioner stated "' told
her that I felt this was very unlikely since she had Such a long periOd of time withoul symptoms
between the accident and the onset of her jow back pain. She asked if taking the ibuprofen
and analgesics could have suppreSsed this pain from an injury to her low back that occurred
at the time of Ihe incident. I told her this was essentially impossible. I explained to her Ihat
80-90% of people with acute low back pain have no obvIous reason for its onset". The practi-
lioner further cited degenerative Changes and Slight disc bulging from MRI studies and consid-
ered 'Ihese changes likely have been present for many years".
Dr. Shaffer referred the claimant for anolher orthopedic evaluation, performed on 1211/95 by
Keith Zelinger, DO/East Shore Orthopedic Associalion. Presenting complaints were the
same/similar as previously mentioned by Dr. Frankeny. A past medical history Was prasented
for a "knot in her back" some 10 years earlier, trealed succeSSfUlly by chiropractic. The
examination performed by Dr. Zelinger noted good flexibility in the lumbar spine, with the abil-
ity to bend and almost touch her toes, resulting in PUlling across the bullocks and down the
hamstrings. No muscle weakness or DTR deficits were reported. Arthritic Changes and disc
pathology were further mentioned upon reviewing MRI and radiographic stUdies. This practi-
tioner concluded that the arthritic and desiccated discs were pre-eXisting, but the MVA aggra-
vated conditions that were asymptomatic prior to the event In question. Continued chiroprac_
tic care for a lumbar strain was recommended.
A further evaluation was performed by Edwin Aquino. MD/PM&R, on 9/24/96, now some 13
months post trauma, with Complaints inVOlving the low back, and right knee. The right knee
was mentioned to have "bUckled" In December 1995 when she was Walking down her cel/ar
04/08/1997' 13:03
215624&331
LARRV A. ROTH, D.C.
PAGE 0,1
RE: Darlene Lingenfelter
-RECEIVED I
APR 1 1 1997
BLUE BELL f
-_.~_..
Page 4
,
steps and almost foil. Arthroscopic surgory was sCheduled and subsequonlfy canceled for the
knee, Low back pain was remarkod as constant. moro on tho left side than the right, The
examination revealed mild palpatory tendernoss In the lumbosacral rogion and mild end range
complaints In forward flexion. SLR was 80 degreos on Ihe right and 70 degrees on the left
with low back complaints and hamstring lightness, Patrick lest increased low.-back pain with
Lasegue's considered negative. MUscle strength, tone, AROM, ankle motion, sensory and
DTR findings In the lower extremities were considered normal
Diagnostic reports of findings have been submitted dating from 10/6/92. Radiographic and
MRI studies were all addressed to Dr. Shaffer. A 10/6/92 lumbosacral radiographic report of
findings' revealed impressions of mild scoliosis. moderate narrowing of the L2-3 and lA-5 disc
spaces and mild degenerative changes. A radiographic study was performed on 8/23/94 con-
ClUding a normal stUdy for the pelvis, but a moderate thoracolumbar scollosis to the right with
moderate disc degenerative changes at all lumbar levels, most prominent at L4-5 with no
acute abnormality. A lumbar spine radiographic study, performed on 11/16/95, approaching 3
months post trauma remarked mild disc narrowing at L2-3 and moderate narrOWing at L4-5
with associated degenerative Changes and no significant changes since the 8/23/94 study.
An,MRI of the lumbar spine performed on 11/16/95 noted an L4-5 disc protrusion with charac.
teristics of herniated nuclear material, right laterel disc protrUSion probably displacing L4
nerve root within neural foramen, L3-4 and L5/S1 small disc protrusions and l2-3 anterior disc
protrusion as well as mild to moderate foraminal stenosis at inferior three levels and mild cen-
tral canal stenosis from L2-3 through L4-5. An MRI study of the right knee addressed to Dr.
Zelinger, dated 1/15/96 mentioned apparent marked degeneration in the posterior horn of the
medial meniscus, with suspicion of a tear and Possible associated loose joint body. An ACL
partial tear of some chronicity and small joint effusion collection Were further revealed.
The records have also included an Independent Medical Examination performed by James
Hamsher, MD on 4/25/96. Neck pain was considered "drametically decreased so that she
only has some diScomfort in the neck on the right and left with some extremes of motion but
this is not on a constant basis. Low back and knee complaints were also mentioned.
Records have also included documentation regarding work hardening therapy performed
through Heallh South - Mechanicberg. Treatment was performed for a diagnosis of chronic
lumbosacral strain/sprain, onset 8/27/95. Six sessions were shown from 1/24/97 through
2/5/97, with discharge on the last date.
I discussed this case with Dr. Shaffer on 3/28/97. I was informed that the MVA was severe.
Prior to the MVA upper back complaints were experienced, however since the occurrence
upper and lower back complaints have occurred. The incident reportedly aggravated disc
conditions in the lower back according to this practitioner. Dr. Shaffer mantioned it was diffi-
cult for the claimant to perform work duties. The gaps shown in regards to treatment rendered
were mentioned as associated with letters from the carrier concerning coverage. The last visit
was performed on 1/24/97. Treatment by Dr. Shaffer was mentioned to include low force chi-
ropractic adjustments, intersegmental distraction, ultrasound and electric muscle stimulation. I
was also Informed of the work hardening program noting that this facility did not want concur-
rent Chiropractic services. The conversation ended shortly thereafter.
04/08/1997' 13:03
2156246331
LARRY A. ROTH, D.C.
PAGE 05
RE: Darlene Lingenfelter
RECEIVED I
I
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APR 1 1 1997
BLUE BELL f
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Page 5
DISCUSSION
j
I have reviewed the records and documentation presented rogardlng this case. as well as dis-
cussed the file with the treating provider, William Shaffer, DC. Based on the information
reviewed it is my professional Impression and determination that a limited course of chiroprac-
tic services may be considered reasonable and necessary regarding soft tissue complaints
associated with the MVA of 8/27/95 involving Darlene Lingenfelter.
Records have shown that Ms. Lingenfelter had pre-existing conditions affecting the lower
back, as was shown through radiographic studies performed several years prior to the Inci-
dent In' question. This was contrary to Dr. Shaffer's commElnts during our discussion, which
he indicated only prior upper back complaints. The claimant was shown to treat with this prac-
titioner for unknown diagnoses back to at least 10/92, noting lumbosacral radiographic studies
to this date. In Dr. Shaffer's initial evaluation he revealed lower back objective findings
(Kemp's and Milgram's), but failed to list any diagnoses for this region. He also Indicated as
part of the original diagnosis a thoracic outlet syndrome, yet failed to submit subjective or
objective components associated wllh this condition. The practitioner further Indicated that
Ihe onsel of the lower back conditions were not experienced until mid November 1995, some
2 Yo monlhs post trauma and only after Ms. Lingenfelter decreased over the counter analgesic
medication for plantar warts. I fall to understand how/why this medication fully masked lower
back complaints but the upper back and neck complaints were still experienced by the claim-
ant during the initial stages of care. If an aggravation occurred to the pre-existing lower back
conditions by way of the aforementioned MVA, I would expect that complaints would be expe-
rienced in the affected within a very short time period follOWing the incident whether analgesic
medication was or was not taken. Again the claimant did experience headaches, neck and
upper back complaints even with the medication taken. I would also assume that since posi-
tive findings were shown to affect the lower back during the initial evaluation, thaI a diagnosis
treatment would be offered 10 the claimant. This was not shown In Ihe earlier stages of care
and performed as part of the same manipulative and Iherapy procedures performed.
With the documentation presented I cannot consider Ihoracic outlet syndrome or the pre-
existing lower back conditions that reportedly flared up several months post trauma as associ-
ated wilh the incidenl of 8/27/95. The knee condition was also shown to occur several months
following the MVA incident. Soft tissue conditions affecting the areas of neck and mid/upper
back region are considered appropriate regions regarding Ihe incident in question. II is my
impression thaI care has extended far too long withoulthe practitioner revealing positive and
long termed improvements In conditions associaled with the same incident. Given Ihe circum-
stances of the incident and the presenting complaints, conditions and findings I believe thaI
up 10 a 4 month period of time should have been more than sufficient to address Ihe soft tis-
sue components. Dates of service Ihrough to the 12/28/95 date are considered appropriate
and necessary regarding Ihe soft tissue conditions presented in regards to this case. Addi-
tional same/similar treatment has not been shown as either reasonable or necessary since
very minimal progress. at best, has been accomplished during and even beyond this treatment
prolocol.
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It is noled in the GUIDELINES FOR CHIROPRACTIC QUALITY ASSURANCE AND PRAC-
TICE PARAMETERS, Proceedings of the Mercy Center Consensus Conference, 1993, in
chapter 8, page 124 1. Acute Disorders: After a maximum of two trial therapy series of man-
ual procedures lasling up 10 two weeks each (four weeks total) withoul significant documented
improvement, manual procedures may no longer be appropriate and alternative care should
04/08/1997 13:03
2156246331
LARRY A. ROTH, D.C.
PAGE 06
RECEIVED ,
J APR 1 1 1997 I
RE: Dorothy Lingenfolter Pago 6 'BLUE BELL I
be c~nsldered. 2. Unrosponslvo Acute, Subacute, or Chronic Disorders: R~;;~;tOd ~e of
passive treatmonVcare normally dosigned to mana go acuto conditions should be avoided as it
tend~ to pr~mote p~ysician depende~ce and chronicity, 3. System.ic Interview of tho pallent
and Immediate family should be carned out In search for complicating or extenuating factors
responslbla for prolonged recovery. 4. Specific treatmanVcare goals should be written to
address each issue 5. Continued failure shoUld result In pallent discharge as Inappropriate
for chiropractic care, or having achieved maximum therapeullc benefit.
In the same publication, on page 118, a further statement is noted that "chronicity should be
prevented whenever possible. Patients who are al risk for becoming chronic show characteris.
tic patterns involving their Illness and life situation. Warning signs include: 1. Sometic com-
plaints that remain stalic Idnger Ihan 2.3 weeks. 2. Anxiety or depression. 3. Functional or
emotional disability. 4. Family turmoil 5. Drug dependence: recreational, non-prescription or
prescription. Repeated use of acute care measures alone generally fosters chronicity, physi-
cian dependency and over utilization.
According to Guidelines for Chiropractic Quality Assurance and Practice Parameters.
1993, Chapter 8, Page 124, "Specific recommendations related to acute, subacute, and
chronic presentations are given below. In general, more aggressive in-office intervention
(three to five sessions per week for one to two weeks) may be necessary early. Progressively
declining frequency is expected to disCharge of the patient or conversion to elective care."
In an article entilled "Find It, Fix It, and Leave It Alone: Time To Re-Embrace An Old Chiro-
practic Principle", written by John Hart, D.C. and appearing in The Digest of Chiropractic
Economics", MarchlApril 1994, the author states "Unfortunately, the harmful effects of
unnecessary or prolonged care do not stop at the physical. Chronic treatment of the chronic
condillon tends to encourage illness behavior and unhealthy doctor dependence." The author
cites several chiropractic references for this statement.
An article appearing in American Journal of Pain Managemont, Vol. 4, No.3, July 1994.
entitled Chronic Pain Syndrome: What Is It, And How Can We Help?, written by Kevin Murphy,
Ph.D., the author states "In most cases. approaching chronic pain as jf it were acute actually
exacerbates the situation. The attempted solution, then, sadly becomes part of the ongOing
problem."
In addressing the Time lag between accident and back pain, Vert Mooney, MD in The Jour-
nal of Musculoskeletal Medicine, October 1994, states "It is no unusual for these persons
to claim minimal initial complaints - especially when they are distracted by the events of the
collision. Frequently they provide a history of increasing pain that evening which often
becomes far worse the following day. At that point they seek assistance of a physician." The
article goes on to relate "Sometimes there is even a delay of 2 days. I think, however, that
this amount of time is the justifiable limit if we make the assumption that the soft tissue strain
that occurred on the occasion of collision Is the source of the pain. I am unaware of a struc-
tural justification for pain complaints that emerge weeks after the event of injury. Two to 3
days should be the limit."
Chiropractic services have been considered warranted and necessary regarding this case
through to a 12128/95 date. Maximum chiropractic benefits should be considered attained by
this date. The documentation has not supported a reasonableness of ongoing samelsimilar
services beyond this date. noting the very limited long termed benefits shown during this time
period.
,-,
!"""'\
.AFF:mA.vrr
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF DAUPHIN
SS
I, DARLENE LINGENFELTER , being duly sworn according to
law deposes and says that I AM ilS( the PLAINTIFF in
the foregoing action; that the facts and allegations
contained herein are based upon facts given by the
PLAINTIFF to HER counsel and are true and
correct to the best of MY knowledge, information and
belief; that the language of said COMPLAINT
is that of
~ relied
counsel and
making this
based upon
that
I HAVE
upon counsel in
COMPLAINT
PLAINTIFF'S
information.
IlJ~~, a j}1". 'tAA?~ fJj-~
Sworn to and subscribed before me,
a Notary Public, this c;-Ot.... day of
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MAR.IORIF rdr.~i/;(.;rlJ"'r~:r',_1~ .
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~._--_._,....-:,,:-..~::~_~.__,_ ..1](10
lAW OffiCES OF
TIMOl1lY A. SIIOI.LENUEIlGER ..
IIUO LINOLI;STOWN HOAD . P.O. BOX 605015 . IIAItIUSIlUI',G. M 17IC~.OJi5
1lI1) 2J.1.J700 . FAX 11Ill 2li.811l
IN THE COURT OF COMMON PLEAS, CUMIIERLANI> COUNTY, I'ENNSVLVANIA
DARLENE LINGENFELTER and
HARRY LINGENFELTER her husband,
No. 98-762
Plaintiffs
V.
LIBERTY MUTUAL INSURANCE
COMPANY,
Civil Action - Law
Defendant
NOTICE TO PLEAD
TO: Darlene Lingenfelter
Harry Lingenfelter, her husband
c/o: Elizabeth A. Ontko
Shollenberger & Januzzi
1820 Linglestown Road
P.O. Box 60545
Harrisburg, P A 17106-0545
,
i
You are hereby notified to file a written response to the enclosed preliminary objections
within twenty (20) days of the service hereof or a judgement may be entered against you.
GRIFFITH, STRICKLER, LERMAN,
SOL YMOS & CALKINS
BY: akIn he-
ANN MARGARET aRAB, ESQUIRE
Attorney for Defendant
Supreme Court J.D. # 55986
I 10 South Northern Way
York, Pennsylvania 17402
Telephone: (717) 757-7602
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IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA
DARLENE LINGENFELTER and
HARRY LINGENFELTER hcr husband,
No. 98-762
Plaintiffs
V.
LIBERTY MUTUAL INSURANCE
COMPANY,
Civil Action - Law
Defendant
PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT
AND NOW, comes the Defendant, Liberty Mutual Insurance Company, by its counsel,
Robert ALerman and Ann M. Grab, Griffith, Strickler, Lerman, Solymos and Calkins and files
the following preliminary objections to Plaintiffs Complaint, the grounds for which are as
follows;
I. MOTION FOR MORE SPECIFIC PLEADING _
ALLEGATIONS OF MISREPRESENTATION, FRAUD AND DECEIT.
I. In Count IV, paragraph 43, Plaintiffs allege that Defendant engaged in fraudulent
conduct by failing to comply with the terms of its contract.
2. Plaintiff's grounds for the allegcd fraud, dcceit and/or misrcpresentation are not specific;
they lack any facts to support how Plaintiff contends Defendant acted with fraud or deceit, i.e
how, when or what facts or policy provisions werc misrepresentcd, and in what way an implied
covcnant of good faith and fair dealing was breached.
3. A verments of fraud, misrepresentation and deceit must be particular and clearly and
explicitly set out.
4. Plaintiff's Compliant lacks specificity violates Pennsylvania Rule of Civil Procedure 10 19
(a) and (b) and interpretive case law.
WHEREFORE, Defendant requests this Honorable Court issue an Order directing
Plaintiff to amend the Complaint to state with particularity and specificity the pertinent facts
and/or policy provisions upon which the allegations set forth in Count IV are based.
II. MOTION TO DlSMISSIDEMURRER _
FAILURE TO STATE A CAUSE OF ACTION FRAUD, DECEIT.
S. Paragraphs I through 4 are incorporated herein by reference as though fully set forth at
length.
6. Because of the absence of clear, explicit, or particular allegations of fraud
misrepresentation or deceit, Count IV of Plaintiff's Complaint fails to state a cause of action upon
which relief can be granted.
WHEREFORE, Defendant requests this Honorable Court grant a demurrer and dismiss
Count IV of Plaintiffs Complaint.
r'
III. MOTION TO DlSMISSfDEMURER - FAILURE
TO CONFORM TO LAW - FAILURE TO ASSERT A LEGAL CAUSE OF ACTION.
7. Paragraphs I through 6 arc incorporated herein by reference as though fully set forth at
length.
8. Count IV, paragraphs 42 through 44 of Plaintiffs Complaint purports to assert a cause
of action for deceit for refusal by the Defendant to pay certain first party medical benefits.
9. Paragraph 4 of Plaintiff's Complaint alleges that the policy of insurance at issue provides
for first party medical coverage and paragraph 7 pleads the applicability of the Pennsylvania
Motor Vehicle Financial Responsibility Law.
10. The Pennsylvania Motor Vehicle Financial Responsibility Law, 75 PA.C.S.A. ~ 1701,
et.seq., as amended provide the exclusive remedy for extra contractual damages arising out of a
claim for first party medical benefits.
II. Count IV of Plaintiffs Complaint violates the law of this Commonwealth.
WHEREFORE, Defendant respectfully request this Honorable Court request grant its
demurrer and dismiss Count IV of Plaintiffs Complaint.
IV. MOTION TO DlSMISSfDEMURRER - FAILURE
TO CONFORM TO LAW - FAILURE TO ASSERT A LEGAL CAUSE OF ACTION
~
12. Paragraphs I through II arc incorporated herein by reference as though fully set forth at
length.
.'~
,""
IN THE COURT OF COMMON I>LEAS, CUMBERLAND COUNTY, PENNSYLVANIA
DARLENE LINGENFELTER and
HARRY LINGENFELTER hcr husband,
Plainti ffs
No. 98-762
AND NOW, this Iv
day of March, 1998, we, Robert A. Lerman, Esquire and
follows:
Elizabeth A. Ontko, Esquire
Shollenberger & Januzzi
1820 Linglestown Road
P.O. Box 60545
Harrisburg, PA 17106-0545
GRIFFITH, STRICKLER, LERMAN,
SOL YMOS & CALKINS
Ann M. Grab Esquire, Esquire, members of the firm of GRIFFITH, STRICKLER, LERMAN,
BY: ~m M-
ANN MARGARET GRAB
Supreme Court I.D. No. 55986
110 South Northern Way
York, PA 17402
Telephone No. (717) 757-7602
SOL YMOS & CALKINS, Esquires, hereby certify that we have, this date, served a copy of our
Preliminary Objections to Plaintiff's Complaint on behalf of Defendant, Liberty Mutual
V.
LIBERTY MUTUAL INSURANCE
COMPANY,
Civil Action - Law
Defendant
CERTIFICATE OF SERVICE
Insurance Company, by United States Mail, addressed to the party or attorney of record as
'I
,
,
BY: ~h-..J A~
ROBERT A. LERMAN
Supreme Court 1.0. No. 07490
,;~
IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA
DARLENE LINGENFELTER and
HARRY LINGENFELTER,
No. 98-762
v.
Plaintiffs
LIBERTY MUTUAL INSURANCE
COMPANY,
Civil Action - Law
Defendant
PRAECIPE FOR ENTRY OF APPEARANCE PURSUANT TO Pa.R.C.p. 1012
TO THE PROTHONOTARY:
Kindly enter the appearance of Robert A. Lerman, Esquire and Ann Margaret Grab,
Esquire of Griffith, Strickler, Lerman, Solymos & Calkins, as attorneys for Defendant, Liberty
Mutual Insurance Company, in the above-captioned matter and mark the docket accordingly.
GRIFFITH, STRICKLER, LERMAN,
SOL YMOS & CALKINS
BY: u,] l?-vl /> ~o'-
ROBERT A. LERMAN
Supreme Court I.D. No. 07490
~
Date: March 3, 1998
BY: ()/m )7:ir&/o, 'o -( h tl
ANN MARGA GRAB'"
Supreme Court I.D. No. 55986
110 South Northern Way
York, PA 17402
Telephone No. (717) 757-7602
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PRAECIPE FOR LISTI:-IG CASE FOR ARGt:~IE:-IT
\~IUSI be typewritten md submitted in dupllc:lle I
TO THE PROTHONOTARY, OF C01BERL.~'iD COC:-ITY:
Ple:l.Se :Ist the '.vtthln mailer for :he ne:t::
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..l,rgument C~urt
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. CAPTION OF C.~E
(entire c2ptlon mu.u be stated in iuIl)
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DARLENE LINGENFELTER AND
HARRY ~INGENFELTER. her husband
vs.
LIBERTY MUTUAL INSURANCE COMPANY
(Deiendant)
vs.
s~. 98-762
C." Action Law
1'........
'098
1.-
1. State m2tter to be :I%'gIIed (L ~.. pWntiirs motion for new :ri2l.
defend:u1t's demUlTer to ~ompWnt, etc.):
Defendant's Preliminary Objections to Plaintiff's Complaint
~
Identify counsel who will argue ~:l.Se:
. Elizabeth Ontko, Shollenberger & Januzzi
(~ furpWnill~ 1820 Linglestown Road, P.O. Box 60545
Address: Harrisburg, PA 17106-0545
(b) iordeienlbnt: Ann M. Grab, Griffith, Strickler, Lerman,
Address: Solymos & Calkins
110 S. Northern Way, York, PA 17402
I will notify :ill parties in writing 'oVi:hin twO days :.'Iat :his ~:l.Se n:l.S be.n
Usted ior 3lgummt._
3.
4. Argument Court Date: April 15, 1998
An~]?1 (/~'Cc
(Attorney for Defendant Liberty
Mutual Insurance Company)
Dated: March 10, 1998
'"'
SHERIFF'S RETURN
PROTHONOTARY #
:11- 652
DEFENDANT
: LIBERTY MUTUAL INSURANCE COMPANIES
DOCUMENT SERVED
CIVIL
INDIVIDUAL SERVED
:LORRAINE YOCUM
RELATIONSHIP TO DEFENDANT_: PERSON IN CHARGE
DATE AND PREVAILING TlME_:FEB. 20,1998@ 11:40
LOCATION
SENTRY PARK WEST STE 200, BLUE BELL,
PA
THE ABOVE DOCUMENT WAS SERVED ON THE DEFENDANT AS PER
INFORMATION LISTED ABOVE IN THE COUNTY OF MONTGOMERY,
COMMONWEALTH OF PENNSYL VANIA.
AFFIRMED AND SUBSCRIBED BEFORE ME ON
THIS DAY. February 27, 1998
SO ANSWERS,
0j,lRM' ~
NOTAR PUBLIC
-;~ P. ~at~
FRANK P. LALLEY
SHERIFF OF MONTGOMERY
NOTARIAL SEAL
IlELENE FRIEDMAN. Not.ry Public
Norrlatown, Montgomery Co., PI\
MV Commllllon Expires Aprl11, ~;':...~
PADOVA
DEPUTY SHERIFF
~p~
In The Court of Common Pleas of Cumbcl'l:lI1d County, Pcnnsyl\'uniu
Darlene Lingenfelter and Harry Lingenfelter he husband
VS.
Liberty Mutual Insuracne Companies
No. 98
762
19_
Now, Febr.ua rv 9. 19..2.lL. I SHERIFF OF CUMBERLAND COUNTY, PA do hereb~' depullze tbe SberlITof
MOn tgomery County to execute this Writ, this depututlon being mode utlhe relluesl und risk oflhe PlulntllT.
~a~_",,,, //.~'d
or /~'~""""'1 -~".........
SherlITofCumberlund Coun~', Pu.
Affidavit of Service
Now.
within
upon
ut
by hondlng t6
ottested copy of the orlglnul
the contents thereor.
19
,ot
o'clock
M. ser"ed the
u true und
und mode known to
So answers,
SheriIT of
Coun~', Pu.
COSTS
SWorn und suhscribed berore
me this duyof
19__
SERVICE
MILEAGE
AFFIDA VIT
S
s
Commonwealth of Pennsylvania, and in otherwise violating its fiduciary,
contractual and stalutory duties in dealing wilh the Plaintiff.
3. Denied as stated. Pennsylvania Rule of Civil Procedure 1 019(b) requires
allegalions of fraud or mistake to be averred with particularity.
4. Denied. Plaintiffs' Complaint is specific as to allegations of fraud, deceit
and misrepresentation; does not violate Pennsylvania Rule of Civil Procedure
1 019(a) and/or (b); nor does it violate inlerpretive case law.
WHEREFORE, Plaintiffs respeclfully request this Honorable Court dismiss
Defendant's preliminary objections to Plaintiffs' Complaint and direct that said
Complaint be answered.
II. MOTION TO DISMISS/DEMURRER _
FAILURE TO STATE A CAUSE OF ACTION FRAUD, DECEIT
5. Paragraphs 1 through 4 are incorporated herein by reference as though fully
set forth at length.
6. Denied. Count IV of Plaintiffs' Complaint states a cause of action upon
which relief can be granted. Plaintiff has alleged that Defendant knowingly,
willfully and/or recklessly refused and failed 10 comply with the terms and
conditions of the subject insurance policy and that Plaintiff justifiably relied upon
Defendant's representations in Ihe policy and/or in public advertising that all
claims would be fairly and promptly paid.
WHEREFORE, Plaintiffs respectfully request this Honorable Courl dismiss
Defendant's preliminary objections to Plaintiffs' Complaint and direct that said
Complaint be answered.
III. MOTION TO DISMISS/DEMURRER-FAILURE TO CONFORM
TO LAW-FAILURE TO ASSERT A LEGAL CAUSE OF ACTION
7. Paragraphs 1 Ihrough 6 are incorporated herein by reference as though fully
set forth at length.
2
SIIOLLENIIEIIGER & JANUZZI, LLJ'
IH20 I.INlJU:."iTOWN nOAll . I~o. BOX 60HS . 1-'^URISIIUHG,I'A 17106.05-1';
17171lJ.H700 . FAX (717) '?J.f.Il!ll
,".
8. Denied as slated. Plaintiff has alleged thai the Defendant not only refused
to pay certain firsl party medical benefits but also knowingly, willfully and/or
recklessly refused to comply with the terms and conditions of lhe subject insurance
policy, causing Plaintiff to justifiably rely upon Defendant's representations in the
policy and/or in public adverlising Ihat all claims would be fairly and promptly
paid which representations were false when made, therefore, constituting deceit for
which the Plaintiff soughllseeks compensatory and consequential damages.
9. Denied as slated. Paragraph 4 of Plaintiffs' Complaint alleges that the
policy of insurance at issue provides for first party medical coverage. Paragraph 7
alleges that Plaintiff applied for liable expenses in accordance with the
Pennsylvania Motor Vehicle Financial Responsibility Law.
10. Paragraph 10 is in the nature of a conclusion of law which requires no
response. To the extent that an answer is required, paragraph 10 is specifically
denied in that Act 6 has no express provision to justify Defendant's assertion.
11. Paragraph 11 is in the nature of a conclusion of law which requires no
response. To the exlentthat an answer is required, paragraph 11 is specifically
denied and a common law cause of action for deceit applies to a claim for first
party benefits. Defendanl has not produced case law to the contrary.
WHEREFORE, Plaintiffs respectfully request this Honorable Court dismiss
Defendant's preliminary objections to Plaintiffs' Complaint and direct that said
Complaint be answered.
IV. MOTION TO DISMISS/DEMURRER.FAILURE TO CONFORM
TO LAW-FAILURE TO ASSERT A LEGAL CAUSE OF ACTION
12. Paragraphs 1 through 11 are incorporated herein by reference as though
fully set forth at length.
3
SHOLLENIlERGER & JANUZZI. LLP
Itl20 lINl'iLE....-rOWN RO,\!) . r.o. [lOX 6OH5 . liARRISHUIlG.I'A 17Il'fJ.OHS
1711l21H7OO . FAX 1111) 214-'212
13. Denied as stated. Count II of Plaintiffs' Complaint, paragraphs 35 through
38, asserts a cause of action for bad faith pursuant to 42 Pa.C.S.A. based on the
following averrnents:
a. Employing said peer review organization in bad faith;
b. Represenling that Plaintiff, DARLENE LINGENFELTER, would be covered
by the full amount of the medical benefits purchased under the above-
referenced policy when in fact said promise was wholly illusory;
c. Purporting to offer a specified amount of medical coverage when, in
fact, Defendant had no intention of providing coverage to said extent;
d. Charging a premium based on a specified amount of medical benefits
when, in fact, Defendant purposely avoided fulfilling its contract to
provide said amount of benefits;
e. Denying Plaintiff, DARLENE LINGENFELTER, medical benefits and/or
payment of medical benefits without a reasonable basis;
f. Refusing to pay the Plaintiff's claim without conducting a reasonable
investigation based upon all available information;
g. Not attempting in good faith to effectuate prompt, fair and equitable
coverage of claims once the Defendant's responsibility under its policy
of insurance had become reasonably clear;
h. Failing to evaluate and determine Plaintiff's entitlement for treatment
rendered based upon the terms of the policy providing coverage to
Plaintiff, DARLENE LINGENFELTER, compelling the Plaintiff to institute
litigation to recover amounts due under the applicable insurance policy
provided by the Defendant;
i.
By intentionally ignoring the authorized peer review process of the
Act VI Amendments to the MVFRL;
j.
Conducting an unauthorized "relatedness" review outside the scope of
the peer review process, in violation of Pa. Code 31 969.51; and,
4
SIlOLlENBEIlGEIl & JANUZZI. LU'
IH20 lINt'jI.E.<';TllWN Hllt\ll . I~n 1\l1X foOS~lj . IIARRISnURO,I'A 171L't1.0HS
(717) !H. \700 . FAX (717) 214.HZI!
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k. By allowing a pcrson unfamiliar with the peer review procedures,
standards ami practices to determine that the peer review was
necessary, in violation of 31 Pa. Code 969.52(a).
14. Dcnied as stalcd. Paragraph 4 of Plaintiffs' Complaint alleges that the
policy of insurance at issue provides for first party mcdical coverage. Paragraph 7
alleges that Plaintiff applied for liable expenses in accordance with the
Pennsylvania Motor Vehicle Financial Responsibility Law.
15. Paragraph 15 is in the nature of a conclusion of law which requires no
response. To the extent that an answer is required, paragraph 15 is specifically
denied. 42 Pa.C.S.A. 98371 and 75 Pa.C.S.A. 91701, et sea., are remedies for
extra contractual damages arising out of a claim for first party benefits. The two
sections co-exist.
16. Paragraph 16 is in the nature of a conclusion of law which requires no
response. To the extent that an answer is required, paragraph 15 is specifically
denied. Count II of Plaintiffs' Complaint does not violale the law of this
Commonwealth. Latchford v. Donegal Mutual Ins. Co., 115 Dauphin 242 (1995);
Seeger v. Allstate. 776 F.Supp. 986 (M.D. Pa. 1991); Dvsinger v. Pennsvlvania
National Ins. Co.. No. A.D. 1995-336 (CCP Franklin County), Number A.D. 1995-
336 (October, 9, 1995); Milton Hershev Medical Center v. State Farm Ins. Co.,
21 Pa. D & C 4th 62 (1992); and Pierce v. State Farm Ins. Co., 27 Pa. D & C 4th
464 (1994); Bacstrom v. State Farm Insurance Co., PICS case No. 98-0463 (C.P.
Franklin Jan. 26, 1998).
5
SIIOLLENIlEUGER & JANUZZI. LLI'
IHZOlINUI.E..;TllWN)tOAn . I'.O.l\llXW~"lj . 11/\HI\lSIIUIHi,I'r\ 17Il'(1'O~"S
(717)Z14.17l\J. Fi\XnI7}ZH..'IZIZ
'~
WHEREFORE, Plaintiffs respectfully requestlhis Honorable Courl dismiss
Defendant's preliminary objections to Plaintiffs' Complaint and direct that said
Complaint be answered.
Respectfully submitted,
SHOLLENBERGER & JANUZZI, LLP
By,~.l1i 0. (Ojj
Eliz eth A. Ontko, Esq.
Attorney I.D. #78053
Date: March 26, 1998
6
SHOLLENBERGER & IANUZZI. LLP
1820 LINOLESTOWN ROAD . "0. BOX 60111 . IIARRISIIURO. PA 11106,0141
1111121Hloo . FAX (711) lH.821l
DARLENE LINGENFELTER and
HARRY LINGENFELTER, Her
Husband
Plaintiffs
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY,PENNSYLVANIA
v.
: NO. 98762
UBERTY MUTUAL INSURANCE
COMPANIES
Defendant
: CIVIL ACTION LAW
: JURY TRIAL DEMANDED
Certificate of Service
AND NOW this 261/1 day of Marc/1, 1998 I hereby certify that I have served
Plaintiff's Answer to Defendant's Preliminary Objections to Complaint on the
following by depositing a true and correct copy of same in the United Stales mail,
postage prepaid, addressed to:
Robert A. Lerman, Esq.
Ann Margaret Grab, Esq.
Griffith, Strickler, Lerman, Solymos & Calkins
110 South Northern Way
York, Pa. 17402
Respectfully submitted,
SHOLLENBERGER & JANUZZI, LLP
"yf~:1i c ruL
Eliz eth A. Ontl<o, Esq.
Attorney I.D. #78053
Date: March 26, 1998
SIIOI.LENIlEIlGER & JANUZZI. lLl'
IH20 L1NGI.E!-lTOWN IK1An . P,O.1l0X 6OH~ . JI^ItRISIIUHG, I'" 171(16.054~
17171 HH100 . FAX I7lll 2lHll2
Defendant paid medical and wage loss benefits properly submitted by the I'luintilr until
December of 1997. [On April 18, 1997 Dr. Larry A. Roth performed a peer review for Liberty
Mutual in complete compliance with IIle Motor Vehicle Financial Rcsponsibility Law's (MVFRL)
peer review proeedures and concluded thut with respect to the soft tissue conditions affecting the
areas of the neck and mid/upper back regions treatment had been extended far too long. 75 Pa.
C.S.A. ~ 170l.J et seq. Dr. Roth opined that four (4) months should have been more than
sufficient to address the iqjuries and IImt dates of service after December 28, 1995 therefore could
not been shown to either be reasonable or neeessary. The Plaintiff requested reconsideration and
a second peer review was performed, again in complete compliance with the peer review
provisions of the MVFRL, by Dr. Daniel S. Bowerman. Dr. Bowerman agreed with Dr. Roth
that chiropractic treatment beyond December 28, 1995, or four (4) months post accident was not
appropriate or necessary for injuries sustained in the motor vehicle accident.
The Plaintiff alleges that the Defendant breached its contract of insurance with her by
failing to continue to pay medical bills beyond December 28, 1995. The Plaintiff also alleges
that Liberty Mutual Insurance Company acted in bad faith toward her by failing to pay her first
party medical benefits and by utilizing the peer review organization chosen. Finally, Plaintiff
alleges that the Defendant aeted fraUdulently and deceitfully in failing to pay first party medical
benefits to her.
The Defendant contends that the Plaintiffs Complaint is deficient. Specifically, the
Complaint pleads fraud and deceit in broad generalized terms failing to describe specifically how
or when Liberty Mutual so ucted. Defcndunt ulso contends that the cJuims for bud fuith pursuunt
to 42 Pa. C.S.A. ~8371 should be dismissed becausc cxtra contractuul dumugcs ure not
rccovcrablc undcr thc Pcnnsylvania MVFRL for non-paymcnt of first party bcnefits,
III. ISSUES
I. Is Count IV of PlaintilT's Complaint dcficicnt and non-spccific with rcgurd to thc
allegations of misrepresentation, fraud und dcccit?
SUGGESTED ANSWER: YES
2. Should Count IV of PlaintilT's Complaint bc dismisscd and Dcfendant's Dcmurrer
granted for failurc to statc a cause of action for fraud and deccit?
SUGGESTED ANSWER: YES
3. Should Count II of Plaintiffs Complaint be dismissed and Defendant's Demurrer
granted for failure to confonn to law and failure to assert a legal cause of action?
SUGGESTED ANSWER: YES
IV. ARGUMENT
Rule 1019 (a) and (b) of the Pennsylvania Rules of Civil Procedurc, relating to the
contents of pleadings provide that the material facts upon which a cause of action of defcnse is
based shall be slated in concise and summary form and that avermcnts of fraud or mistake must
be averred with particularity.
Count IV is titlcd "Deccit" howevcr in Count IV I'luintiff allcges thlltthe Defcndant's
conduct constitutcs misrcprcsentlltion, fmud, and deccit in willfully failing to comply with thc
tenns and conditions of the policy. Thc Complaint fails to statc what conduct of thc Dcfendunt
was fraudulent or dcceitful or which specific conditions of the policy werc not complicd with.
Plaintiff Complaint is complctely void of any matcrial facts or spccific averments of fraud upon
which a Complaint can bc bascd.
A Plaintiff allcging fraud must sct forth cxact statements or actions which allegcdly
constitutc fraudulent misrcpresentations. McClcnllcn v. Health Maintcnancc Orl!anization of
Pennsvlvani!!, 604 A. 2d 1053, (PA Super 1992), appcalcd dcnicd, 616 A. 2d 1985; McGinn v.
Valoti, 525 A. 2d 732, (PA Supcr 1987) appcalcd dcnicd, 538 A. 2d 500.
Plaintiff's Complaint allcges that thc Defcndant violatcd ccrtain acts or practiccs outlincd
in thc Unfair Tradc Practices and Consumer Protcction Law, 73 PA. C. S. 1/201-1 ct scq,
("CPL"). In Con bv Creamcr v. Monumcntal Propertv. Inc., 314 A. 2d 333 (PA Cmwlth 1973)
affinned in part, reversed on other grounds, 329 A. 2d 812, 459 PA 450, on remand 365 A. 2d
442, 26 PA Cmwlth 399, the Court found the Complaint filed under the CPL was insufficient for
lack of specificity and pleading fraud. The Court found the Complaint deficient because it was
impossible to dctennine what the Defcndant had done since the gcneral averments of fraud in no
way set forth the basis of the charge of fraud but only described conclusions of law. Thercforc
the allegations of Count III of Plaintiff's Complaint of violations of the CPL cannot be proffercd
as the basis for thc allcgations of fraud contained in Count IV because thcy are nothing morc than
conclusions of law.
Beeuuse COUIlI IV 'hiled to pleud with speeilieity how the /)elcndunt Acted fruudulently
Count IV should bc stricken for fililllre to slute u cuusc of uction upon which relief eun be
grlll1ted. Alternatively, Plaintiff should be required to amend COllnt IV to plead with specilicily
those actions of the Defendant whieh were deceitful and/or fraudulent.
Count II of Plaintiffs Complaint alleges that the Defendant actcd in bad faith in the
selection of the peer review organization chosen, and in failing to investigate and properly
evaluate her claim for lirst party medical benefits.
The MVFRL permits insurers to utilize a peer review organization (PRO) to evaluate
utility and medical necessity of medical treatment provided to a person injured in a motor vehicle
accident. 75 Pa. C.S.A. !i 1797, 1797(b), I 797(b)(2). If an insurer uses a peer review process
to detennine whether a claim submitted by an insured was for medically necessary treatment, its
potential liability is limited to the amount of the claim plus interest. Barnum v. Auto Insurance
Co., 635 A. 2d 155 430 Pa Super 488 (/993), reversed on other grounds 652 A 2d 1319, _ Pa
- (1994). If a carrier fails to use the peer review process and denies a claim or a Court finds
that an insurer acted wantonly in denying a claim Treble may be awarded. Barnum, supra.
However, an insured may not seek punitive damages pursuant to 42 Pa. C.S.A. !i 8371
for failure to pay first party medical expenses where a disputed claim was submitted to a peer
review organization. In so holding, the Bamum Court found that the MVFRL and its provisions
for handling first party claims and the bad faith statute are irreconcilable. 75 Pa. C.S.A. !i 1797,
42 Pa. C.S.A. !i 8371.
The Superior Court decisioll ill B"rnum held thut * 1797 or the MVFRL. to the exelusioll
of * 8371, governs ullegutiolls ofb"d lilith pertuining to un insurers hundling of cluims undcr the
PRO procedure estublished by the MVFRL. See ulso, Gemini Phvsicul Theruov v. Stutc Furm
Mutual Auto Insurancc Comoanv, 40 F. 3rd 63 (3rd Circuit 1(94).
The PRO proccdures wcre followed by the Defendant in the instant case. Plaintiff alleges
that the peer reviewer, Dr. Roth perfonned a "relatedness" analysis which is not permitted by the
PRO procedures.
The Defendant did not ask the PRO reviewer to determine questions pertaining to the
causal relationship between the accident and the injuries alleged. Rather, as evidenced by exhibit
I, Dr. Roth was asked by Claims Review Associates to provide opinions relating to the
appropriateness and necessity of treatment and whether or not maximum medical improvement
had been or would be achieved. While there is an "x" in a box marked other areas to be
addressed, this box is marked only to provide a telephone number for the Plaintiffs primary
treating physician.
Plaintiff alleges that Dr. Roth's conclusion, "With the documentation presented I cannot
consider thoracic outlet syndrome or the pre-existing low back condition that reportedly flared
up several months post trauma as associated with the incident of 8/27/95", is an unauthorized
relatedness review outside to scope of a proper peer review. Dr. Roth is doing nothing more with
t11is statement than providing for the Defendant the parameters within which his opinion is given.
He is limiting his opinions to the soft tissue injuries because of the documentation provided to
him. His opinion is clear, "Based upon the information reviewed it is my professional impression
nnd detenninntion thnt n limited course of ehiroprnetie services I11n)' he considered rensonnhle nnd
neeessnry regnrding son tissue eomplnints Il~Sllcinled with the MV ^ uf 8/27/95 involving Dnrlcne
Lingcnfelter."
Whilc thcrc hnvc bccn decisions on thc issuc by luwcr Courts on buth sides, thc on Iv
Pcnnsylvnnia Supcrior Court dccision found which squnrcly nddresscs thc issuc of cxtra
contrnctual damagcs for bad faith in n first pnrty mcdicnl contcxt is Bnrnul11, suprn.
[n Bnrnul11, thc Supcrior Court held thnt dnmagcs for failurc to pay first party mcdical
bcncfits arc Iimitcd to thc nmount ofthc mcdical bills found to bc pnynblc (*[797 (b) (4) (n)),
12% intercst (*[797 (b) (5)), and costs and nltorncy's fccs (*1797 (b) (6) nnd *[798 (b).)
Thc Third Circuit has followcd thc Superior Court holding in Barnum in Gemini Phvsicnl
Thcrapv v. Statc Farm Mutual Auto Insurancc Companv, Suprn, thc Gcmini Court statcd,
"In Barnum v. State Farm (supral, the Court held that the provisions
of ~ 1797 and not ~ 8371 arc to be applied to claims for first party
benefits under the Motor Vehicle Financial Responsibility Law... The
Court concluded that because the two provisions were enacted at the
same time and cannot be reconciled, the specific provisions of 75 Pa.
C.S.A. ~ 1797 must be deemed an exception to the general remedy for
bad faith contained 42 Pa. C.S.A. ~ 8371, id. at 159 (citing supporting
District Court cases). We find that statutory construction to be
convincing and predict the Pennsylvania Supreme Court will similarly
rule on this maUer." Thus, the District Court did not err in
dismissing Gemini's claim brought under 42 Pat C.S.A. ~ 8371.
~~
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[n an Eastcrn District dccision, McGraine v. Libcrtv Mutuallnsurancc Companv. No. 94-3280
,.
i.
(Novcmber 16, 1994) thc Honorablc Lcwis B. Bcchtlc similarly rulcd that damagcs undcr * 8371
. "
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:
arc not availablc in an action bascd on thc dcnial of lirst party hcnclits undcr thc MVFRL. In
that cnsc, the PlaintilT argucd tllllt because the insurer had notutili".cd thc PRO proccss. therc wus
no connict betwccn thc penaltics provided by the MVFRL und Ii 8371 und thcrefore he was not
entitled to damages for bud fuith under Ii 8371. In rejecting this urgument Judge Bechtle upplied
the reusoning of DiOrio v. Nutionwide Insurance Company, No. 92-6206 (E.D. Pa. May 25,
1993), affinned, 17 S. 3rd 657 (3rd Circuit 1994), which refused to allow damages under Ii 8371
to claims on automobile insurance policies unless:
I. An insurance poliey is revoked without cause or for an improper cause or
2. The claim is for benelits other than first party benefits."
Bas"d upon Barnum and the Federal decisions cited above, Plaintiffs claim for extra
contractual damages for first party medical benefits arising out the motor vehicle accident are
limited to the extra contractual remedies specifically outlined in the MVFRL. (75 Pa. C.S.A. Ii
1797). See also, Conwav - West v. State Farm Insurance Company. 19 D & C 4th 84 (/993),
Cacchiotti v. Material Damage Adjustment Com., No. 47595 (Pa. C.C.P. Dauphin County 1995),
Cohen v. State Farm Insurance Company, No. 1778 (Pa. C.C.P. Monroe County 1996),
Rosensweig v. Keystone Insurance Company, No. 96SU02844 (Pa. C.C.P. York County 1996)
In light of the aforesaid case law, the Defendant requests this Court grant its Demurrer
and dismiss Count" of Plaintiff Complaint.
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CLAIMS REVU . ASSOCIATES
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11
Dale: March 25. 1997
LARRY ROTH D,C,
3545 RYAN AVENUE
PHILADELPHIA. PA 19136
Claimant
Account File:
CRA File:
Insured:
Date of Injury:
DARLENE LINGENFELTER
AL830.032447-0 I
00 I 597048.0 I
SAME
Aug 27. 1995
DEAR REVIEWER:
Enclosed ple:1Se find the medical records on the above name claimant for your review.
THIS 34 YEAR OLD FEMALE WAS INVOLVED IN A MVA ON 8/27/95. SHE ALLEGEDLY SUSTAINED INJURY. ALL
A V AILABLE MEDIC LA RECORDS HAVE BEEN SENT FOR YOUR REVIEW. THANK YOU.
PROVIDER IS SHAFFER CHIROPRACTIC
After you have reviewed the enclosed medicals, please RENDER AN OPINION REGARDING THE FOLLOWING
DESIGNATED QUESTIONS:
[Xl Appropriateness and necessity oftreatment?
[Xl Has maximum medical improvement been achieved, or when do you expect it to be achieved?
[Xl Please call the provider, as per their request.
[Xl Other areas to be addressed:
PROVIDER NUMBER IS 717.737.6770
Per our agreement, please complete and return your report within 10 working days. Enclosed is a self-addressed stamped envelope
for the return of all medical records. your PEER Review Report, and billing.
Sincerely,
Ruth Linle, R.N.
MED. REVIEW COORDINATOR
LIBERTY MUTUAL INSURANCE
18 SENTRY PARK WEST
P.O. BOX 1128
BLUE BELL, PA. 19422
700 AMERICAN A VENUE. SUITE 300. KING OF PRUSSIA, PA 19406. PHONE (610) 337-8913. FAX (610) 331-1637
,
DARLENE LINGENFELTER and
HARRY LINGENFELTER, Her
Husband
Plaintiffs
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PA.
v.
: NO. 98-762
LIBERTY MUTUAL
INSURANCE CO.
Defendant
: CIVIL ACTION LAW
: JURY TRIAL DEMANDED
PLAINTIFf'S BRIEF IN SUPPORT OF HER ANSWER
TO DEFENDANT'S PRELIMINARY OBJECTIONS
I. STATEMENT OF FACTS
This action arises out of a motor vehicle collision that occurred on August 27,
1995 at the intersection of Simpson Ferry Road and St. John's Church Road, Camp
Hill, Pennsylvania. As a result of said collision, Plaintiff, Darlene Lingenfelter,
sustained serious and permanent injuries. Plaintiffs, Darlene and Harry
Lingenfelter, were insured through a private passenger motor vehicle policy with
Liberty Mutual Insurance Company since 1991. Said policy of insurance provided
$10,000.00 in medical benefits.
On or about February 27, 1997, Defendant submitted Plaintiff's file to a peer
review organization. Upon review of Plaintiff's medical records, it was
determined that Plaintiff's treatment was not reasonable or necessary beyond
December 28, 1995. The reviewer also conducted an unauthorized "relatedness"
review outside of the Act 6 peer review process.
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SflOLLENDERGER 6. JANUZZI. LLP
(H20 L1NGLE."',.OWN IK1An . r.oo (K1X 6054~ . HARRISBURG. rA 171(16,0545
17111lH.1700 . FAX 17I71lH.SlIl
II. PROCEDURAL HISTORY
On or about February 6, 1998, Plaintiff insliluted this civil aclion by
Complaint which was subsequently served on the Defendant. Plaintiff alleged
Breach of Contract (Count I), Bad Faith (Count II), Unfair Trade Practices and
Consumer Protection Law (Count III) and Deceit (Count IV).
On or about March 10, 1998, Defendant filed preliminary objeclions to
Plainliff's Complaint. Specifically, Defendant contends that the allegalions set
forlh in Count IV, fraud, misrepresentation and deceit, are too general and broad.
Defendant also contends that Count II, bad faith, pursuant 10 42 Pa.C.S.A. s8371
should be dismissed because extra contractual damages are not recoverable under
the Motor Vehicle Financial Responsibility Law for non-payment of first party
benefits.
III. ISSUES
1. Whether Count IV of Plaintiff's Complaint, which alleges fraud,
misrepresentation and deceit by the Defendant, is averred with
particularity, is legally sufficient and therefore should not be stricken?
Suggested Answer: YES
2. Whether Plaintiff has asserted a legal cause of action for bad faith
pursuant to 42 Pa.C.S.A. s8371 against the Defendant?
Suggested Answer: YES
IV. ARGUMENT AND lAW
Standard in reviewing preliminary objections
Preliminary objections should be sustained and a complaint dismissed only in
cases which are clear and free from doubt. Legman v. Scranton School District,
432 Pa. 342, 247 A.2d 566 (1968); Todd v. Skellv. 384 Pa. 423, 120 A.2d 906
(1956). To sustain preliminary objections in the nature of a demurrer, it must
appear with certainty that, upon the facts averred, the law will not permit
recovery by the plaintiff. Where any doubt exists as to whether or not the
2.
SHOLLENDERGER & jANUZZI. LLP
1810 LINGLESTOWN ROAP . P.Q, DOX 60liS . HARRISBURO, PA 11106.0IH
17I111lHlOO . FAX (1llllH,Slll
preliminary objection should be sustained, the doubt should be resolved by
refusing to sustain the objections. Birl v. PhiladellJhia Electric Co., 402 Pa. Pa.
297, 167 A.2d 472 (1960); Sun Rav Drug Co.. v. Lawler, 366 Pa. 571, 79 A.2d
262 (1951).
1. COUNT IV OF PLAINTIFF'S COMPLAINT, WHICH AllEGES
FRAUD, MISREPRESENTATION AND DECEIT BY THE DEFENDANT, IS
AVERRED WITH PARTICULARITY, IS lEGAllY SUFFICIENT AND
THEREFORE SHOULD NOT BE STRICKEN.
Pa.R.C.P. 1019 (b) requires "averments of fraud or mistake" to be alleged with
particularity." Plaintiff has complied with the Pennsylvania Rules of Civil
Procedure and averred Count IV of her Complaint with particularity.
Paragraph 43 of Plaintiff's Complaint alleges the following:
The conduct of the Defendant constitutes misrepresentation, fraud and
deceit in that, inter alia, Defendant knowingly, willfully and/or
recklessly refused and failed to comply with the terms and conditions of
the subject insurance policy, including but not limited to, the policy's
implied covenant of good faith and fair dealing, the statutes of the
Commonwealth of Pennsylvania, and the regulations of the insurance
department of the Commonwealth of Pennsylvania, and in otherwise
violating its fiduciary contractual and statutory duties in dealing with
the Plaintiff.
Paragraph 44 further alleges with particularity:
Plaintiff justifiably relied upon Defendant's representations in the policy
and/or in public advertising that all claims would be fairly and promptly
paid, which representations were false when made and, therefore, the
Defendant's conduct constitutes the common law tort of deceit for
which Plaintiff seeks compensatory and consequential damages.
Plaintiff believes that she has complied with Pa.R.C.P. 1 019(a) and averred
allegations of fraud, misrepresentation and deceit with particularity.
In Pekular v. Eich. 513 A.2d 427, 355 Pa.Super. 276 appeal denied, 533 A.2d
93, 516 Pa. 635 (1986), the Courl held that "the insureds stated a common law
action for fraud and deceit by alleging that they had justifiably relied to their
detriment on allegedly intentional misrepresentation made by their insurance
agent." Id. at 434.
3.
SflOLLENDERGER & jANUlZI. LLP
1820 L1NGLESTOWN ROAO . r.o, DOX 60141 . f1ARRISBURG. rA 11106,0145
(1171114.1100 . FAX 11I711l4.SlIl
In Pekular, the insurcds brought a three-count complaint against the insurer
bascd on allcged common-law fraud and deccit and alleged violations of the
unfair trade practices and consumer protection law.
Like thc insureds in Pl'kular, Plaintiff, Darlene Lingenfelter, has alleged that
shc had justifiably relied upon Defendant's representations in the policy and
public advertising that all claims would be fairly and promptly paid. (Complaint,
para. 44). Moreover, Plaintiff went even further by alleging:
1. that the Defendant knowingly, willfully and/or recklessly refused and
failed to comply with the terms of her insurance policy;
2. that this refusal and failure to comply violated the policy's implied
covenant of fair dealing, the statutes of the Commonwealth of PA., the
regulations of the insurance department, and its fiduciary, contractual
and statutory duties in dealing with the Plaintiff.
Based upon the above, Count IV of Plaintiff's Complaint, which alleges fraud,
misrepresentation and deceit by the Defendant, is averred with particularity, is
legally sufficient, and therefore should not be stricken.
2. THE PLAINTIFF HAS ASSERTED A lEGAllY SUFFICIENT CAUSE OF
ACTION FOR BAD FAITH PURSUANT TO 42 PA. C.S.A ~8371
AGAINST THE DEFENDANT.
Count II of Plaintiff's Complaint asserts a cause of action for bad faith pursuant
to 42 Pa.C.S.A. s8371. Defendant argues that Plaintiff is not entitled seek
punitive damages pursuant to 42 Pa.C.S.A. s8371 for failure to pay first party
medical expenses. On the contrary, Plaintiff believes that she is entitled to assert
a cause of action for bad faith against the the Defendant.
In its' brief, the Defendant cites Barnum v. Auto Insurance Co., 635 A.2d 155,
430 Pa.Super. 488 (1993), reversed, 652 A.2d 319, 539 Pa. 673 (1994) and
federal cases to support its' argument that Plaintiff cannot assert an s8371 claim.
However, the Barnum decision has been reversed. Therefore, the Barnum
decision lacks precedential value.
In Dvsinger v. Pennsvlvania National Insurance Co., No. A.D. 1995-336 (CCP
Franklin County October 9, 1995), the court allowed plaintiff's bad faith claim to
stand stating:
4 .
SfloLLENDERGER & jANUZZI. LLP
1820 L1NGLESToWN ROAD . PO, I\OX 6OH\ . f1ARRISnURG, PA 171Co.oH5
(1I7IlH.17OO . FAX (717) 1lI.8m
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The Pennsylvania Supreme Court's reversal and remand of [Barnuml
without any published indication of its reasons renders the Superior
Court's decision to be of no precedential value. Although the
Defendant correctly asserts that there are federal cases which adopt the
reasoning of Barnum, these were only done with an expectation that
the Supreme Court of Pennsylvania would adopt the Superior Court's
Barnum analysis. Since the Supreme Court reversed Barnum, . . . these
federal decisions have also lost their persuasive value.
At this juncture, an appellate court has yet to speak on the issue of whether 42
Pa.C.S.A. s8371 applies to a claim for first party benefits. Plaintiff asserts that 75
Pa.C.S.A. S 1797 and 42 Pa.C.S.A. s8371 can co.exist and urges this Court to
follow the rationale that the follOWing lower courts have espoused.
In Pierce v. State Farm, 95 Lackawanna Jurist, 38 (1994), the court held that
disputes regarding causation of the injury for which payment is refused is not
covered under s1797. (citing Booo v. Allstate, No. 93-1790 (CCP Blair County,
February 2, 1994).
In dicta, the court indicated that a s8371 claim should be allowed regardless
of whether the peer review procedure was properly invoked. The court stated,
disallowing plaintiffs to go forward under s8371 because their medical
claims were given to a PRO for review, would remove. . . a forum for
bad faith claims whenever the PRO system is involved - even if the
PRO is invoked improperly. The net effect of which would be that the
PRO system would serve as an umbrella under which insurance
companies could always be insulated from s8371 sanctions. s8371 is
designed to protect the insured from bad faith on the part of the
insurance providers, irrespective of whether or not the bad faith action
occurs after the insurance company chooses to use the PRO system.
!Q. at 42.
In the instant case, Plaintiff alleges that the Defendant did not follow the
proper peer review procedures, and that the reviewing doctor conducted a
relatedness review, in violation of Pa. Code 31 s69.51. When a PRO renders an
opinion on causation for which there is no statutory authority, then there is no
conflict between s1797 and s8371. Pierce, supra, at 41-42; Knox v. Worldwide
Ins. Groug, 140 Pitts. L.J. 185, 189 (1992).
5.
SIIOLLENnERGER & JANUZZI. LLP
IH20 I.INl1lb.ll\l/N IlOAD . l~o.l\OX WH~ . HAIlRISnURG. rA 171C6.0HS
1711) 214.1700 . FAX (711) 214,811l
\
In Mil on S. Hershe Medical Center et al. v. State Farm Insurance Co, No.
A.D. 1992-298, (CCP Franklin County, December 8, 1994), the court held that
S 1797 and ~8371 are reconcilable because S 1797 does not have a remedy for
bad faith on the pari of the insurer. The court slressed Ihat insurers cannot be
presumed to act in good faith.
The court was suspect to the assertion thai an insurer's submission of a
contested claim to a PRO was necessarily done in good faith. The court indicated
that s8371 should be an available avenue to the insured because of two primary
reasons: (1) the insurer unilaterally selects a PRO and (2) a financial relationship
exists between a PRO and an insurer. The court put it best when it said, "there
are very few [PROs] that will bite the hand that feeds them."
In latchford v. Donegal Mutual Ins. Co., 115 Dauphin 242 (1995), the court
found that the plaintiff could bring a action under s8371 in conjunction with an
action under S 1798(b) and S 1716. S 1716 states that benefits are overdue if not
paid within 30 days. S 1798(b) allows an insured to pursue an action against the
insurer for unreasonable refusal to pay benefits.
The Latchford Court relied on the decision set forth in Seeger v. Allstate. 776
F.Supp. 986 (M.D. Pa. 1991), which found no conflict between s8371 and
s 1798(b) and s 1716.
While the instant case is not based upon a S 1716 and s 1798(b) claim, the
Latchford and Seeger decisions illustrate the point that the provisions of the Motor
Vehicle Financial Responsibility Law and 42 Pa.C.S.A. s8371 are reconcilable and
not in conflict with one another and, Iherefore, the extra-contractual damages
found in each section should be made available.
Plaintiff further believes that she can pursue a s8371 case based on public
policy grounds, similar to the arguments made by the court in Milton S. Hershev
Medical Center. et al. v. State Farm Insurance Co.
Insurers have the right to submit an insured's medical records to a peer review
organization of its' choosing. The insured has no say in selecting a peer review
organization. In addition, the tie that binds insurer and the peer review
organization is purely financial. Insurers keep these organizations in business,
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SIIOLLENDERGER & JANUZZI, LLP
IH10 I.INlllE."'.OWN nOAI) . 1'.0. BOX 60HS . fIARRISnURG, PA 17IlY,.0545
(717) Hf.J7(\.1 . FAX (717) 214.H212
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IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYL VANIA
DARLENE LINGENFELTER and
HARRY LINGENFELTER,
No. 98-762
v.
Plaintiffs
LIBERTY MUTUAL INSURANCE
COMPANY,
Civil Action - Law
Dcfendant
ANSWER AND NEW MATTER OF DEFENDANT, LIBERTY MUTUAL INSURANCE
COMPANY TO PLAINTIFF'S COMPLAINT
I. Denied. After reasonable invcstigation. Answering Defendant is without knowledge
or infonnation sufficient to fonn a belief as to the truth of the allegations set forth in paragraph no. I
of Plaintiffs Complaint and same are denied and strict proofthereofis hereby demanded.
2. Admitted.
3. Admittcd.
4. Admitted.
5. Denied. After reasonable investigation, Answering Defendant is without knOWledge
or infonnation sufficient to fonn a belief as to the truth of the allegations set forth in paragraph no.5
of Plaintiffs Complaint and same are denied and strict proof thereof is hereby demanded.
6. Denied. After reasonable investigation, Answering Defendant is without knowledge
or infonnation sufficient to fonn a belief as to the truth of the allegations set forth in paragraph no.6
of Plaintiffs Complaint and same are denied and strict proofthereofis hereby demanded.
7. Dcnicd. It is spccifically dcnicd that subscqucntto thc aforcsaid collisiun, Plaintiff,
Darlcnc Lingcnfcltcr. applicd for Iiablc cxpcnscs pursuant to and in accordancc with thc Motor
Vehiclc Financial Rcsponsibility Law. On thc contrary, it is avcrrcd that Plaintiffsubmittcd a claim
to thc Dcfcndant for first party benefits.
8. Denicd. It is spccifically dcnied that shortly aftcr the collision, Plaintiff, Darlcnc
Lingenfclter, through hcr counscl provided prompt notification to thc Dcfcndant of thc loss and
thcrcaftcr dclivercd to the Dcfendant cxtcnsivc claim documcntation and fully coopcrated with thc
Defcndant in all ways required by the insurance policy. On the contrary, it is averred that Darlenc
Lingenfelter through her counsel provided notification to the Dcfcndant of thc loss and delivcred
documcntation to thc Defcndant in that regard.
9. Denicd. It is specifically denicd that Plaintiff, Darlene Lingenfelter, at all timcs
pertincnt hercto fully complied with all the terms and conditions ofthc subject policy ofinsurancc and
all conditions precedent and subsequcnt to thc Plaintiffs insureds right to rccover mcdical bills undcr
said policy ofinsurancc. On thc contrary, it is averred that the medical bills submitted under the
policy of insurance were for medical treatment which was neitherreasonable or neccssary as the result
of the motor vehicle accident.
10. Denied. It is specifically denied that all medical bills incurred by the Plaintiff, Darlene
Lingenfelter were promptly submitted to the Defendant through her attorney or directly by the
provider of the medical services. It is further denied that Plaintiffrequested prompt payment of those
bills due to the serious nature of her injuries and the clear obligation of the Defendant to provide
those benefits to the Plaintiff. On thc contrary, it is averred that Defendant has complied in every
respect with its policy ofinsurancc with the Plaintiff. Morcover, it is averred that Plaintiffs counsel
and PlaintilT's hcalth carc providcr submittcd mcdical bills to thc Dcfcndant for mcdieal trcatment
which was neithcr rcasonablc or necessary.
11. Dcnicd. Aftcr rcasonable investigation, Answering Defcndant is without knowledgc
or information sufficient to form a beliefas to thc truth of the allegations set forth in paragraph no. 1 I
of Plain tilT's Complaint and samc arc denicd and strict proof thercof is hercby dcrnandcd.
12. Denied. Aftcr rcasonable investigation. Answering Dcfcndant is without knowlcdgc
or information sufficient to form a bclicf as to thc truth of the allegations sct forth in paragraph no.12
of Plaintiffs Complaint and same arc denied and strict proofthcrcofis hereby demanded.
13. Denied. After reasonable invcstigation, Answering Defendant is without knowlcdge
or information sufficient to form a bcliefas to thc truth of the allegations set forth in paragraph no.13
of Plain tilT's Complaint and same arc denied and strict proofthereofis hereby demanded.
14. Denied. After reasonable investigation, Answering Defendant is without knowledge
orinformation sufficient to form a belicf as to the truth of the allcgations set forth in paragraph no.14
of Plain tilT' s Complaint and same arc denied and strict proof thereof is hereby demanded.
15. Denied. After reasonable investigation, Answering Defendant is without knowledge
or infommtion sufficient to form a belief as to the truth of the allegations set forth in paragraph no.15
of Plain tilT's Complaint and same are denied and strict proof thereof is hereby demanded.
16. Denied. After reasonable investigation, Answering Defendant is without knowledge
or information suffieicnt to form a belief as to the truth of the allegations set forth in paragraph no. I 6
of Plaintiffs Complaint and same are denied and strict proof thereof is hereby demandcd.
17. Denicd. After reasonable investigation, Answering Dcfendant is without knowledge
or information sufficient to form a belicf as to thc truth of the allegations set forth in paragraph no.17
ofPlaintiIT's Complaint and same arc denied and strict proof thereof is hereby demanded.
18. Denied. It is specifically denied that at all times relevant hereto Plaintiff, Darlene
Lingenfelter, submitted to Defendant, in writing the amounts ofliable expenses incurred which at the
time ofliling amounted to $6.138.15. On the contrary, it is averred that the Defendant has complied
in every respect with its policy of insurance with the Plaintiff and that Plaintiff submitted bills for
medical treatment which was neither reasonable or necessary.
19. Paragraph 19 constitutes a conclusion of law to which no responsive pleading is
necessary and same is deemed denied.
20. Denied. It is specifically denied that at all times relevant hereto Plaintiff, Darlene
Lingenfelter, and the providers who treated her for her collision related injured fully complied with
the terms and conditions of the subject policy of insurance and all conditions precedent and
subsequent to Plaintiffs right to recover medical bills through said policy of insurance. On the
contrary, it is averred at all times relevant hereto answering Defendant acted in complete compliance
with every aspect ofits policy of insurance with the Plaintiff and that the medical bills submitted by
the Plaintiff were neither reasonable or necessary.
21. Admitted.
22. Admitted.
23. Admitted.
24. Denied. It is specifically denied that Dr. Roth performed an unauthorized relatedness
review outside of Act VI Peer Review Process. On the contrary, it is averred that answering
Defendant and all ofits agents, servants, and employees acted in full and complete compliance with
its policy of insurance with the Plaintiff and that the denial of medical benefits to the Plaintiffwas
done so because the treatment was neither reasonable or necessary.
25. Admitted.
26. Admitted.
27. Admitted.
28. Admitted.
29. Denied. It is specifically denied that despite the 1990 Act VI Amendments to the
Pcnnsylvania Motor Vehicle Financial Responsibility Law which put into effect the peer review
process, the initial reviewer, Larry Roth, D.C., perfonned an unauthorized relatedness review outside
of the Act VI Peer Review Process. On the contrary, it is averred that answering Defendant and all
of its agents, servants and employees acted in complete and absolute compliance with its policy of
insurance with the Plaintiff. By way of further response. it is averred that the peer review was
perfonned in compliance with the Motor Vehicle Financial Responsibility Law.
30. Denied. After reasonable investigation, Answering Defendant is without knowledge
or infonnation sufficient to fonn a beliefas to the truth of the allegations set forth in paragraph no.30
of Plaintiff's Complaint and same are denied and strict proofthereofis hereby demanded.
31. Denied. After reasonable investigation, Answering Defendant is without knowledge
or infonnation sufficient to fonn a belief as to the truth of the allegations set forth in paragraph no.
31 of Plaintiff's Complaint and same are denied and strict proofthereofis hereby demanded.
COUNT I
BREACH OF CONTRACT
32. Paragraph I through 31 of Defendant's Answer are incorporated herein as though
fUlly set forth at length.
33. Dcnicd. It is spccifically dcnicd that PlaintifThas satisficd all ofhcrobligations undcr
thc abovc rcfcrcnccd automobilc insurancc policy, including, but not Iimitcd to. all condition
prcccdcnt and all conditions subscqucnt. On thc contrary, it is avcrrcd in dcrivation ofhcr policy of
insurancc with thc Dcfcndant thc PlaintifThas submittcd mcdical bills fortrcatmcnt which was ncithcr
rcasonablc or ncccssary following hcr motor vchiclc accidcnt.
34. Dcnied. It is spccifically dcnicd that thc actions ofthc Dcfcndant, as dcscribcd abovc,
constitutc a brcach of contract ofinsurance issued by the Defendant which provides covcrage to their
nwned insurcd, Darlene Lingenfcltcr. On the contrary, it is averred that at all timcs relcvant hereto
answering Defendant acted in complete compliance with its policy ofinsurancc issued to the Plaintiff.
WHEREFORE, answering Dcfendant, Liberty Mutual Insurance Company, demands
judgment in its favor and against the Plaintiff together with intcrest and cost of suit.
COUNT II
BAD FAITH
35. Paragraph 1 through 34 of Defcndant's Answcr are incorporated herein as though
fully set forth at length.
36. Admittcd in part. Denied in part. It is admitted that answering Defendant employed
Claims Review Associates to schedule a peer review in this matter. It is specifically denied that said
organization does substantial rcview work for the Dcfcndant, and thercforc has a financial intercst
in providing to the Defendant a biased rcview report. It is further denied that said review
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organization has or may have continuously bcen providing negative review rcports to Defendant and
other insurancc companies for the purpose of maintaining a steady source of business and therefore
showing rcpetitivc abuse of the revicw proccss. On the contrary. it averrcd that answering
"
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Dcfcndant, Libcrty Mutuallnsurancc Company, actcd at alltimcs rclcvant hcrcto carcfully, lawfully.
and prudcntly.
37. Dcnicd. It is spccifically dcnicd that Dcfcndant, through its rcpresentativc, agcnts,
and/or employees has breachcd its duty to act in good faith and conductcd said pccr rcview for an
impcrmissible purpose by the following actions:
a. Rcprcsenting that PlaintilT. Darlene Lingcnfelter, would bc covered by the full
amount ofthc medical bcnefits purchascd undcr thc above refcrcnced policy
when in fact said promisc was wholly illusory;
b. Purporting to alTer a spccificd amount of medical bcnefits when, in fact.
Dcfcndant had no intention of providing coverage to said extent;
c. Charging a premium based on a specified amount of medical benefits when,
in fact, Dcfcndant purposely avoided fulfilling its contrnctto provide said
amount of bcnefits;
d. Denying Plaintiff, Darlcne Lingenfclter, medical bcnefits and/or paymcnt of
mcdical bcncfits without a reasonable basis;
e. Rcfusing to pay the PlaintifTs claim without conducting a reasonable
investigation bascd upon all available information;
f. Not allempting in good faith to elTectuate prompt, fair and equitable coverage
of claims once the Defendant's responsibility underits policy of insurance had
become reasonably clear;
g. Failing to evaluate and determine Plaintiffs entitlement for treatment rendered
based upon the terms of thc policy providing coverage to Plaintiff, Darlcnc
Lingenfelter, compelling the PlaintilTto institute litigation to recover amounts
due under the applicable insurancc policy provided by the Defendant;
h. By intentionally ignoring the authorized peer review process ofthc Act VI
Amcndmcnts to thc Motor Vehicle Financial Responsibility Law;
i. Conducting an unauthorizcd "rclatedness" review outside thc scope of the
pccr revicw proccss. in violation of Pa. Codc 31 ~69.51; and,
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COUNT III
UNFAIR TRADE PRACTICES AND CONSUMER PROTECTION LAW
40. Paragraphs I through 39 ofDcfcndant's Answcr arc incorporatcd hcrcwith as though
fully sct forth at Icngth.
41. Dcnicd. It is spccifically dcnicd that forthc rcasons sct forth abovc, including, but not
Iimitcd to, failing to promptly offcr indcmnification to thc Plaintiff. failing to objcctively and fairly
evaluate the Plaintiff's claim and by concocting a frivolous dcfense, the Defcndant has committed
unfair and deccptive busincss practices prohibitcd by the Pennsylvania Unfair Tradc Practice and
Consumer Protection Law, 73 P.S. ~201.1 ct scq., for which thc Dcfendant is liable for treblc
damages, plus attorney's fces. On the contrary, it is averred that Paragraph 41 constitutes a
conclusion oflaw to which no rcsponsive plcading is necessary and same is deemed denied. In the
event a responsc is deemed necessary it is avcrred that answering Defendant, Liberty Mutual
,
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insurance with the Plaintiff and with the utmost good faith and fair dealing.
WHEREFORE, answering Defendant, Liberty Mutual Insurance Company, demands
judgment in its favor and against the Plaintiff together with interest and cost of suit.
COUNT IV
DECEIT
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42. Paragraphs I through 41 of Defcndant's Answer are incorporated herein as though
fully set forth at length.
43. Denied. It is spccifically denied that thc conduct of the Defendant constitutes
misreprcsentation, fraud and dcccit in that, intcr alia, Dcfendant, knowing, willfully, and/or recklessly
refused and Ihiled to comply with the terms and conditions ofthe subject insurance policy. including
but not limited to the policy's implied covenant of good faith and Ihir dealing, the statutes of the
Commonwealth of Pennsylvania, and the regulations of the insurance department of the
Commonwealth of Pennsylvania, and in otherwise violating its fiduciary eontructual and statutory
duties in dealing with the Plaintiff. On the contrary, it is averred that Paragraph 43 constitutes a
conclusion oflaw to which no responsive pleading is necessary and same is deemed denied. In the
event a response is deemed necessary it is averred that at all time relevant hereto answering
Defendant, Liberty Mutual Insurance Company, acted carefully, lawfully, prudently and in full
compliance with its policy ofinsurance with Darlene Lingenfelter and with the utmost good faith and
fair dealing.
44. Denied. It is specifically denied that Plaintiff justifiably relied on Defendant's
representations in the policy and/or in public advertising that all claims would be fairly and promptly
paid. which representations were falsely made and therefore, the Defendant's conduct constitutes the
common law tort of deceit for which Plaintiff's seeks corn pen sa tory and consequential damages. On
the contrary, it is averred that all times relevant hereto answering Defendant, Liberty Mutual
Insurance Company, acted in complete compliance with its policy of insurance with the Plaintiff.
WHEREFORE, answering Defendant, Liberty Mutual Insurance Company, demands
judgment in its favor and against the Plaintiff together with interest and cost of suit.
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NEW MATTEI{
45. Paragraphs I through 44 of Dcfcndant's Answcr arc incorporatcd hcrcin as though
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fully sct forth at Icngth.
46. Plaintiffs Complaint fails to statc a causc of action against answcring Dcfcndant upon
which relicf can be grantcd.
,
47.
No act or failure to act by thc Defcndant has resulted in damage or detriment to the
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Plaintiff.
,
48.
Plaintiff's claim for payment of medical bills are for medical services which are not
reasonable and neccssary pursuant to the requircmcnts ofthc Pennsylvania Motor Vehicle Financial
Responsibility Law. (75 Pa. C.S.A. gl701 et seq.)
49. Defendant's denial of medical bills submitted by the Plaintiff is lawful and proper
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pursuant to the policy ofinsurance issued by the Defendant to the Plaintiff.
50.
Defendant's denial of the payment of medical bills submitted by the Plaintiffis based
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upon a reasonable, good faith interpretation of the policy of insurance issued to the Plaintiff and
pursuant to the provisions of the Pennsylvania Motor Vehicle Financial Responsibility Law and in
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accordance with and pursuant to the Pennsylvania Code Regulations for the peer review process set
forth at 31 Pa. Code ~69.51 et seq.
51. Defendant's denial ofPlaintitI's claim which is the subject of this suit was proper and
was based upon applicable provisions of the Pennsylvania Motor Vehicle Financial Responsibility Law
and the Pennsylvania Code Regulations with respcct to administration of that law in addition to the
policy of insurance issued by the Defendant to Darlene Lingenfeltcr..
52. At all times relevant hercto Dcfendant actcd carefully, lawfully, prudently and
IN THE COURT OF COMMON PLEAS, CUMIIERLANI> COUNTY,I'ENNSYLV ANIA
DARLENE LINGENFELTER and
I'IARRY LINGENFELTER hcr husband,
Plaintiffs
No. 98-762
V.
LIBERTY MUTUAL [NSURANCE
COMPANY,
Civil Action - Law
Dcfcndant
,
CERTIFICATE OF SERVICE
AND NOW, this /l)~ay of July, 1998, wc, Robcrt A. Lcnnan, Esquirc and Ann M.
Grab Esquire, Esquirc, membcrs ofthc linn of GRIFFITH, STRICKLER, LERMAN, SOL YMOS
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& CALKINS. Esquires. hereby certify that we have. this date, servcd a copy of our Answcr and New
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Matter, by United States Mail, addressed to the party or attorney of record as follows:
Elizabeth A. Ontko, Esquire
Shollenberger & Januzzi
1820 Linglestown Road
P.O. Box 60545
Harrisburg, PA 17106-0545
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SOL YMOS & CALKINS
BY: QC~tl~QJ- A ~~
ROBERT A. LERMAN
Supr Court I.D. No. 07490
BY:
A MARGA ET GRAB
uprcme Court I.D. No. 55986
110 South Northern Way
York, PA [7402
Telephone No. (717) 757-7602
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DARLENE LINGENFELTER and
HARRY LINGENFELTER
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintif fs
v.
NO. 98-762
LIBERTY MUTUAL INSURANCE
COMPANIES
Defendant
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
PLAINTIFFS' ANSWER TO DEFENDANT'S NEW MATTER
AND NOW comes the Plaintiffs, DARLENE LINGENFELTER and
HARRY LINGENFELTER, Her Husband, by and through their
attorneys, SHOLLENBERGER & JANUZZI, LLP, and files the
following Answer to Defendant's New Matter:
46. Denied as a legal conclusion pursuant to Pa.
R.C.P. l029(e).
47. Paragraph 47 of the Defendant's New Matter is in
the nature of a conclusion of law and to that extent
requires no answer and the same are therefore denied. To
the extent that an answer is required, Plaintiff is, after
reasonable investigation, without knowledge sufficient to
form a belief as to the truth of said averments and the same
are therefore denied and strict proof is demanded at time of
trial.
48. Denied as a legal conclusion pursuant to Pa.
R.C.P. l029(e).
49. Paragraph 49 of the Defendant's New Matter is in
the nature of a conclusion of law and to that extent
requires no answer and the same are therefore denied. To
the extent that an answer is required, Plaintiff is, after
reasonable investigation, without knowledge sufficient to
form a belief as to the truth of said averments and the same
are therefore denied and strict proof is demanded at time of
trial.
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1717) Hf.\7l\1 . F,\X (717) HHlZIZ
50. Paragraph 50 of the Defendant's New Matter is in
the nature of a conclusion of law and to that extent
requires no answer and the same are therefore denied. To
the extent that an answer is required, Plaintiff is, after
reasonable investigation, without knowledge sufficient to
form a belief as to the truth of said averments and the same
are therefore denied and strict proof is demanded at time of
trial.
51. Denied as a legal conclusion pursuant to Pa.
R.C.P. 1029(e).
52. Denied as a legal conclusion. Plaintiffs reaver
paragraphs 1 through 44 of their Complaint.
53. Denied. The Defendant is responsible for payment
of medical services provided to the Plaintiff after December
28, 1995 because the peer review was conducted for an
improper purpose and Defendant intentionally ignored the
authorized peer review process of Act 6 Amendments to the
Motor Vehicle Financial Responsibility Law, inter alia.
WHEREFORE, Plaintiffs, DARLENE and HARRY LINGENFELTER,
respectfully request this Honorable Court to enter judgment
in their favor and against the Defendant and to dismiss the
Defendant's New Matter with prejudice and grant them the
relief requested in their Complaint as a matter of law.
Respectfully submitted,
SHOL~ERGER & JANUZZI, LLP
By: 5i~.kif ~tt! Esq.
Att~ey I.D. #78053
Date: Julyl~, 1998
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SHOLLENBERGER &. JANUZZI, LU'
IHIO I.INGLE....TOWN ROAD . r.o. nox 6OH5 . llAHRISIlUIKi, PA 17106.0545
(717) HI.};(,\) . FAX (71712H.H~12
D^RLENE LINGENFELTER and
"^RRY LINGENFELTER
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,PENNSYLVANIA
Plaintiffs
v.
NO. 98-762
LIBERTY MUTUAL INSURANCE
COMP^NIES
Defendant
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
Certificate of Service
AND NOW this Il.( day of July, 1998 I hereby certify
that I have served the following Answer to New Matter on the
fOllowing by depositing a true and correct copy of same in
the United States mail, postage prepaid, addressed to:
Robert A. Lerman, Esq., and
Ann Margaret Grab, Esq.
Griffith, Strickler, Lerman,
Solymos & Calkins
110 South Northern Way
York, Pa. 17402-3737
RespectfUlly submitted,
GER & JANUZZI, LLP
By:
Dated: July It-, 1998
SflOLLENIlEIlGER & jANUZZI, LLP
IliZO I.INGI.F.STOWN 1(0:\1) . 1'.0. BOX 6O'i-lS . IIARRISnUlta, rA 17106.0545
(717) 21;.}700 . FAX (717) 214.8212
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IN THE couln 01<' COMMON I'LEAS, CUMIJEIU..ANU COUNTY,I'I<:NNSYLV ANIA
DARLENE LINGENFELTER IInd
I.IARRY LINGENFELTER hcr husbllnd.
I'llIintilrs
No. 98-762
V.
LIBERTY MUTUAL INSURANCE
COMPANY,
Civil Action - Lllw
Dcfcndant
CERTIFICATE OF SERVICE
1rfl--
AND NOW, this day of January, 1999, I, Ann M. Grab Esquirc, Esquirc, a
member of the firm of GRIFFITH, STRICKLER, LERMAN, SOL YMOS & CALKINS.
Esquires, hereby certify that I have, this date, served a copy of Dcfendants Praccipc to Substitutc
Verification by United Statcs Mail, addresscd to the party or attorncy ofrccord as follows:
,
Elizabeth A. Ontko, Esquire
Shollenberger & Januzzi
1820 Linglestown Road
P.O. Box 60545
Harrisburg,PA 17106-0545
GRIFFITH, STRICKLER, LERMAN,
SOL YMOS & CALKINS
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BY: (2~. AP-
ANN MARGARET GRAB
Supreme Court J.D. No. 55986
110 South Northern Way
York, PA 17402
Telephone No. (717) 757-7602
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DARLENE LINGENFELTER and
HARRY LINGENFELTER hcr husband,
No. 98.762
Plaintiffs
V.
LIBERTY MUTUAL INSURANCE
COMPANY,
Civil Action. Law
Defendant
CERTIFICATE OF SERVICE
AND NOW, thiJ U day of November, 1999, I, Ann Margaret Grab, a member of the finn
of GRIFFITH, STRICKLER, LERMAN, SOL YMOS & CALKINS, hereby certify that I have
this date served a copy of the Notice of Deposition by United States Mail, addressed to the party
or attorney of record as follows:
Karl J. Januzzi, Esquire
Shollenberger & Januzzi
1820 Linglestown Road
P.O. Box 60545
Harrisburg, PAl 7 106-0545
GRIFFITH, STRICKLER, LERMAN,
SOL YMOS & CALKINS
)
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AM Margaret Grab, Esquir
Supreme Court ID No. 55986
110 South Northern Way
York, Pennsylvania 17402
(717) 757-7602
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SHOLLENBERGER & JANUZZI, LLP
1820 Llnglestown Road
P.O. Box 60545
Harrisburg, Pennsylvania 17106-0545
Telephone Number: (717) 234-3700
Fax Number: (717) 234-8212
Attorne s for Plaintiff
DARLENE LINGENFELTER and IN THE COURT OF COMMON PLEAS
HARRY LINGENFELTER, CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
v. NO. 98-762
LIBERTY MUTUAL INSURANCE
COMPANIES, CIVIL ACTION _ LAW
Defendants JURY TRIAL DEMANDED
Certificate of Service
AND NOW this 191h day of April, 2001, I hereby certify that I have served the
within Praecipe to End, Settle and Discontinue on the following by forwarding a true
and correct copy of same in the United States mail, postage prepaid, addressed to:
Ann Margaret Grab, Esq
Griffith, Strickler, Lerman Solymos & Calkins
110 South Northern Way
York, PA 17402
Respectfully submitted,
By:
Dated:
April 19,2001
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