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HomeMy WebLinkAbout99-06565 Zr 'r11 \0 I RS ? ,. Y . V x.t?t+ n I ? V d 1 u t ?H ii l . k. n ? v 2 ? t t fj } ?y ? f<' t t, txyv t s ? y ? w r " ? 2 r 3 ? n ct a r - 4 x*_nY .?C the F S1l oil, _ y {. Y t ? l1 Yak 4 j5g* ?`{i AK f .1 f ? .e ^ ~M? M? ° : Y {} Now,' LAW OFFICES OF PATRICK J. MCDONNELL BY: PATRICK J. MCDONNELL, ESQUIRE IDENTIFICATION NO.: 62310 BY: KAREN L. GREEN, ESQUIRE IDENTIFICATION NO.: 74258 TWO PENN CENTER PLAZA SUITE 910 PHILADELPHIA, PA 19102 (215) 6364474 Nicholas Ressetar, plaintiff on behalf of himself and those similarly situated v. Wal-Mart Stores, Inc. TO: NICHOLAS RESSETAR YOU ARE HEREBY NOTIFIED TO PLEAD TO THE ENCLOSED PRELIMINARY OBJECTIONS WITHIN TWENTY (20) DAYS FROM THE SERVICE HEREOF OR A DEFAULT JUDGMENT MAY BE ENTERED AGAINST YOU. Attomey r Wal-Mart Stores. Inc ` IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. NO. 99-6565 CIVIL CLASS ACTION JURY TRIAL DEMANDED DEFENDANT WAL-MART STORES, INC'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT Defendant Wal-Mart Stores, Inc. ("Wal-Mart"), by and through its undersigned counsel, hereby preliminarily objects to plaintiff's Complaint as follows: 1. This is a purported class action whereby plaintiff allege that Wal-Mart violated certain provisions of the Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa. C.S.A. § 1701 ct sea. ["MVFRL"]. A true and correct copy of plaintiffs Complaint is attached hereto as Exhibit "A". 2. Plaintiff Nicholas Ressetar seeks to represent a class of persons who were injured in automobile accidents in Pennsylvania, were covered by an insurance policy under the MVFRL and who, at any time after April 15, 1990, purchased prescription drugs from Wal-Mart stores in Pennsylvania. 3. Plaintiff claims that he was involved in a motor vehicle accident in October 1999 and that he maintained an automobile insurance policy pursuant to the MVFRL. 4. Plaintiff allegedly sustained injuries in the referenced automobile accident, and his insurance allegedly provided first party medical payments applicable to prescription drugs. 5. According to plaintiff, § 1797 of the MVFRL requires providers of medical products and services who choose to treat persons involved in automobile accidents to charge only 80% of the usual and customary charge for the medical service or product. 6. Plaintiff further alleges that § 1797 mandates providers to bill the insurance company for payment of medical services or products rather than the insured. 7. Plaintiff claims that he presented prescriptions to a Wal-Mart pharmacy and verbally explained that he was covered under an automobile insurance policy pursuant to the MVFRL. He alleges Wal-Mart violated the provisions of § 1797 when it required plaintiff, himself, to pay 100% of the usual and customary charge for prescriptions rather than submitting a charge for 80% of the cost to plaintiffs insurer. 9. Based on this factual scenario, plaintiff concludes that Wal-Mart engaged in it systematic violation of the MVPRL. On behahl'of himself and others similarly situated, phaintifl' asserts five causes of action and seeks monetary, declaratory and injunctive relief*. 1. PRELIMINARY OBJECTION BASED ON LACK OF STANDING A. Individual Standine 10. Plaintiff lacks legal standing to bring these claims. 11. It is well-scaled law in this Commonwealth that standing to bring an action can on be conferred only on one who has suffered an ascertainable injury. 12. A putative plaintiff must have a substantial, direct and fnuucdlate interest in the claim sought to be litigated. 13. Here, plaintiff fuils to plead lacts proving any ascertainable loss and any real interest in the action which he challenges. 14. There are no provable factual allegations in the Complaint that Wal-Mart %%,its required to "treat" plaintiff or accept his insurance coverage lair prescriptions, 15. Plaintiff has not pleaded any lasts as to why he was entitled to it special price for prescriptions at Wal-Mart. 16. Plaintiff failed to allege that he presented any evidence, written or otherwise, that his prescription would be paid by his insurer under the provisions of the MVPRL. 17. Indeed, plaintiff received prescriptions at it lair market price, and he certainly was 3 free to choose another pharmacy who accepted such an arrangement to fill his prescriptions. 18. Plaintiff has failed to show that he has a special interest in Wal-Mart's alleged noncompliance with the MVFRL. 19. As such, plaintiff has not sustained any injury by Wal-Mart's refusal to participate in his insurance plan. 20. Without standing, plaintiffs claims must fail. WHEREFORE, defendant Wal-Mart respectfully requests that this Court sustain its preliminary objections and dismiss the Complaint with prejudice. B. Glass Standing rind Certification 21. The class alleged by plaintiff requires an individualized analysis of each member's transaction with an individual pharmacist. 22. A deposition of each alleged class plaintiff and individual pharmacist will be required to determine whether or not the claimant: a) was injured in a motor vehicle accident within the scope of the MVFRL; b) was covered by the benefits defined in the MVFRL; c) presented a prescription to Wal-Mart for treatment related to an injury covered by the MVFRL; d) presented the prescription during a time when benefits were not exhausted; C) voluntarily disclosed to the pharmacist that he was injured in a motor 4 vehicle accident within the scope otthe MVFRL; 0 voluntarily disclosed to the pharmacist that ho was covered by benefits under the MVFRL; S) presented sufficient verbal or written evidence that Iite prescription was covered by the MVFRL; h) received it response front the pharmacist which violated the MVFRL; i) was charged in it manner which violated the MVFRI.; and/or j) was billed in it manner which violated the MVFRL. 23. As set forth above, there arc no questions of law or filet common to the alleged class since there are virtually nn infinite number of factual secourios related to each transaction. 24. Moreover, each Wal-Mart pharmacist has numerous different defenses or reasons why a prescription was filled or not filled and the tine or manner in which the claimant was charged. 25. Plaintilf'has alleged no filets sutficicnl to demonstrate that he can effectively represent the interests of the parties in this manner mfr has he alleged facts to show that a class action is a fair and efficient monster in which to proceed. PRELIMINARY ON,IF.C PIONS IN TIIR NATURE OF A DEMURRER 26. Plaintiff's action stems from the tactual scenario in which he presented f prescriptions to be filled at Wal-Mart and was advised that Wal-Mart did not participate in his automobile insurance plan. 27. These facts, as set forth by plaintiff, do not constitute any viable cause of action under Pennsylvania law. Wal-Mart Is Not Required To Accept Plnintiffs Prescri to ions 28. Plaintiff has failed to plead essential facts demonstrating that Wal-Mart was legally required to participate in plaintiffs automobile insurance plan. 29. Case law interpreting the MVFRL makes clear that providers can choose to treat, or not treat, patients covered under an automobile insurance policy. 30. Plaintiff merely sets forth facts whereby he informed Wal-Mart that he was covered by a policy pursuant to the MVFRL, and the pharmacist informed plaintiff that Woi-Mart did not participate in the plan. Complaint T13. 31. There are no allegations or legal support for the proposition that Wal-Mart violated the MVFRL when it so advised plaintiff that it did not accept his insurance and would not "treat" him as an automobile insurance patient. 32. Moreover, the regulations to § 1797 propounded by the insurance commissioner outline several factual scenarios in which a provider, who chooses to treat a covered patient, can bill the patient directly. 6 33. Plaintiff has not set forth factual avenncnts showing that lie proved to the Wal- Mart pharmacy that he was, in fact, covered by an automobile insurance policy and that such coverage had not been exhausted. 34. Without such facts, plaintiff cannot prove that Wal-Mart violated §1797 by directly billing plaintiff. WHEREFORE, defendant Wal-Mart respectfully requests that this Court sustain its preliminary objections and dismiss the Complaint with prejudice. Plaintiff Fails To Plead A Viable Fraud Claim 35. In Counts IV and VI of the Complaint, plaintiff attempts to stale causes of action for fraudulent nondisclosure and intentional concealment. 36. The essence of these claims is that Wal-Mart failed to disclose the applicability of § 1797 to the prescriptions it sold. 37. However, as discussed above, plaintiff fails to set forth any factual averments showing that pharmaceuticals sold by Wal-Mart are subject to the provisions of § 1797 in all instances. 38. Moreover, an action for fraud under Pennsylvania law requires proof of a knowing or reckless misrepresentation. 39. According to plaintiff's own factual averments, Wal-Mart candidly informed plaintiff that it did not participate in plaintiffs insurance plan and would not submit a bill for 80% of the usual and customary charge to plaintiffs insurer. Complaint 113. 40. As such, plaintiff cannot point to any affirmative misrepresentation concerning the applicability of § 1797. 41. Likewise, there are no facts illustrating any deliberate nondisclosure as Wal- Mart's position on the acceptance of automobile insurance coverage for prescriptions was communicated openly to plaintiff. 42. Plaintiff also cannot state a cause of action for nondisclosure because he has failed to allege any facts showing Wal-Mart had a duty to advise him on any aspects of § 1797. WHEREFORE, defendant Wal-Mart respectfully requests that this Court sustain its preliminary objections and dismiss Counts IV and VI of the Complaint with prejudice. Plaintiff Cannot State A Cause Of Action Under The Unfair Trade Practices And Consumer Protection Law 43. In Count 1 of the Complaint, plaintiff attempts to plead a cause of action for violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. §201-1 et sea. ["UTPCPL"]. 44. He claims that Wal-Man's alleged violation of § 1797 constituted an unfair trade practice under the UTPCPL. 45. The Pennsylvania courts have explained that the UTPCPL does not apply to providers of medical services and products; thus, plaintiff cannot allege that Wal-Mart. as a provider of pharmaceuticals, violated the statute. lS 8 WHEREFORE, defendant Wal-Mart respectfully requests that this Court sustain its preliminary objections and dismiss all counts of the Complaint with prejudice. Respectfully submitted, 10 LAW OFFICES OF McDONNELL & ASSOCIATES, P.C. CERTIFICATE OF SERVICE I hereby certify that on the date indicated below a copy of the foregoing Defendant Wal-Mart Stores, Inc's Preliminary Objections to Plaintiffs Complaint was served via First Class Mail, postage prepaid, upon the following: Date: November 24, 1999 Anthony Stefanon 407 North Front Street P.O. Box 12027 Harrisburg, PA 17108-2027 ¦ Patrick J. McDonnell NOV-11-99 THU 09:26 AM . Nicholas Ressetar, plaintiff on behalf of himself and those similarly situated v. Wal-Mart Stores, Inc. P. 04 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNT??Y9 PENNA. NO. qq (PS70J? l?l.tH? ? CLASS ACTION JURY TRIAL DEMANDED 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 afier this Complaint and Notice are served, by entering a written appearance personally or by attomcy and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE- THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. LAWYER REFERRAL SERVICE Court Administrator Cumberland Cc-anty Courthouse Carlisle, PA 17013 (717) 240-6200 TRW copy FROM hw In ?nd ftf {Rpm ?OOf' I two Unto Beal Of $a U at G7tllwe reel 5 .1 . - W-4-4? NOV-11-99 THU 09:26 AN . Nicholas Ressetar, plaintiff on behalf of himself and those similarly situated v. Wal-Mart Stores, Inc. P. 05 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. NO. CLASS ACTION JURY TRIAL DEMANDED COMPLAINT (CIVIL ACTION) CLASS ACTION 1. NATURE OF ACTION 1. This is a class action brought by plaintiff on behalf of himself and all others similarly situated, pursuant to the common law and statutes of the Commonwealth of Pennsylvania, seeking monetary, declaratory and injunctive relief. II. PARTIES 2. Plaintiff, Nicholas Ressetar is an adult individual, who resides at 5501 Locust Lane, Harrisburg, Dauphin County, Pennsylvania 17109. 3. Defendant Wal-Mart Stores, Inc. is a corporation with a principal place of business at 702 S.W. 81' Street. Bentonville, Arkansas. Wal-Mart Stores, Inc, is licensed to do business, and regularly does business, in Pennsylvania, maintaining numerous retail stores therein. 4. Wal-Mart Stores, inc. is engaged in the retail sale of pharmaceuticals, prescription drugs, and medical products. III. MATERIAL FACTS 5. On or about October 9, 1999, plaintiff suffered physical injuries in an automobile accident. At the time of the accident, plaintiff maintained automobile insurance coverage NOV-11.99 THU 09:27 AM P.06 pursuant to the Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa.C.S.A. §1701, et seq. ["MVFRL"). Plaintiffs insurance provided "first patty medical payments" applicable to prescription drugs. 6. After the accident, plaintiff received medical treatment for his injuries, and, in the course of that treatment, his physicians prescribed medication to him. 7. On October 26, 1999, plaintiff had his prescription filled at a retail store owned and operated by Wal-bfart Stores, Inc. in Harrisburg, Pennsylvania, and plaintiff paid for the medications he received from Wal-Mart Stores, Inc.. 8. In §18 of the Act of February 7, 1990, P.L. 11, Act No. 90-6 ["Act 6"), the General Assembly amended §1797 of MVFRL, governing the amount and manner in which a provider of medical products can collect payments from Pennsylvania consumers injured in automobile accidents. 9. §1797 of the MVFRL provides in pertinent part that: a person or institution providing ... products or services to an injured person for an injury covered by liability or uninsured and underinsured benefits or first parry medical benefits... shall not require, request or accept payment for thc...products or services in excess of [specific limits]. 75 Pa.C.S. A. § 1797(a). 10. Under §1797, the specific limit applicable to the medications sold by Wal-Mart Stores, Inc. to plaintiffs is "80% of the provider's usual and customary charge." Id. 11. § I 797(a) further provides that: NOU-11-99 THU 09:27 AM providers subject to this section may not bill the insured directly, but must bill the insurer for a determination of the amount payable. The provider shall not bill or otherwise attempt to collect from the insured the difference between the provider's full charge and the amount paid by the insurer. !d. P. 07 12. Under the MVFRL, providers of medical products may bill victims of automobile accidents directly where no automobile insurance coverage is available, or where it has been exhausted. Even then, however, under regulations promulgated by the insurance Commissioner, the provider must first make a reasonable inquiry about available automobile insurance coverage before billing a consumer directly. 31 Pa. Code §69.22(h); Pennsylvania Medical Society v. Foster, 147 Pa. Cntwlth,528, 608 A.2d 633, 642 (1992). 13. Plaintiff advised Wal-Mart's employee that he was covered by a policy pursuant to the MVFRL. The employee advised that Wal-Mart's computers would not accommodate the procedures mandated by the MVFRL, and that Plaintiff would have to pay 100% of Walmart's usual and customary charge for the prescription, but that he could submit a claim to his carrier for an 80% reimbursement. , 14. Thus, the medication sold to plaintiff, Wal-Mart Stores, Inc. directly charged Plaintiff for more than 801/o of its usual and customary charge he was "out of pocket" for the prescription. 15. Before, during and after its transactions with plaintiff, Wal-Mart Stores, Inc., through its agents, servants and employees: a) failed to disclose to plaintiff the applicability of NOV-1119 THU 09:27 All § 1797 to its transactions with him; b) failed to disclose to plaintiff the limitations imposed on the price of its products by §1797; c) charged plaintiff prices in excess of the limitations imposed by § 1797; P. 08 d) failed to bill plaintiffs automobile insurance carrier directly and, instead charged plaintiff directly, in violation of §1797; e) failed to obtain a determination by plaintiffs automobile insurance carrier of the amount payable for its products; and n collected from plaintiff the difference between its full charge and the amount which would have been made by plaintiffs's automobile insurance carrier. 16. The conduct of Wal-Mart Stores, Inc. was pan of a continuous course of conduct in violation of the MVFRL and the regulations promulgated thereunder, beginning with the effemive date of cost•comainment provisions of the MVFRL, and continuing through the present time, This pattern of conduct also was otherwise illegal and/or inequitable as alleged in greater detail hereinbelow. 17. Wal-Mart Stores, Inc.'s illegal and inequitable conduct toward plaintiff was consistent with a policy implemented by Wal-Mart Stores, Inc. throughout the Commonwealth to contravene the limitations of the cost-containment provisions of the M VFRL, thereby overcharging a large number of Pennsylvania consumers. 18. As a result of Wal-Mart Stores, Ine.'s illegal and inequitable conduct, named plaintiff suffered significant financial tosses, in an amount less than 575,000.00, exclusive of interest and costs. NOV-11-99 THU 09;27 AM P.09 IN'. CLASS ACTION 19. Plaintiff brings this action in his own right, and on behalf of all others similarly situated. The class which plaintiff seeks to represent consists of all persons: a) who were injured in automobile accidents in Pennsylvania; and b) were covered by an automobile insurance policy under the MVFRL, who c) at any time after April 15, 1990, purchased from Wal-Mart Stores, Inc. stores in Pennsylvania prescription drugs or other products for the treatment of their injuries. 20. Plaintiffs estimate the number of class members to exceed 10,000. 21. A class of such size is so numerous that joinder of all members is impracticable. 22. There are questions of law or fact common to the class, including but not limited to: a) the applicability of the MVFRL to retail pharmacies such as Wal-Mart Stores, Inc.; b) the actionability of defendant's violations of the MVTRL under the Pennsylvania Unfair Trade Practices and Consumer Protection Law; c) the nature of the financial losses suffered by class members; d) the appropriateness of declaratory and injunctive relief; e) Wal-Mart Stores, Inc.'s actions on grounds generally applicable to the class, and whgther these actions were "unfair" and/or "deceptive" NOV-1199 THU 09:28 AM 0 the existence and nature of Wal-Mart Stores, Inc.'s Commonwealth-wide practices or policy of contravening the MVFRL; g) the amount of unjust enrichment inuring to Wal- Mart Stnres, Inc.'s benefit as a result of its conduct. F.10 23. The claims of the representative plaintiff are typical of those of the class; indeed. except as to the amount of financial damages, class members' claims are identical. 24. The representative plaintiff will fairly and adequately assert and protect the interests of the class, inasmuch as: a) plaintiff has chosen counsel who are experienced and competent in the prosegttion of class actions, consumer protection cases, MVFRL- related cases, and complex litigation; b) representative plaintiff has no conflicts of interest in the maintenance of a class action, and c) plaintiff has entered into a fee agreement with his counsel providing that counsel shall advance costs associated with the maintenance of a class action, assuring that the interests of the class will not be harmed by a lack of financial resources necessary for the prosecution of this case. 25. A class action provides a fair and efficient method for adjudication of this controversy, because: a) the questions of law or fact common to the class predominate over any question affecting only individual members; b) although the class is large, any difficilities in the management of the action as a class action are HOV-11-99 THU 09:28 AM comparatively slight. Class members may be identified through the records of defendant and/or automobile insurance carriers; adequate notice to the class may be provided through conventional means; the class has been precisely and narrowly defined; c) prosecution of separato actions by individuals members of the class would engender a risk of inconsistent adjudications confronting defendant with inconsistent standards of conduct; d) -to plaintiffs knowledge, no members of the class have initiated litigation involving the issues presented herein; e) this forum is appropriate for the litigation of the claims of the entire class, as this court Is competent to adjudicate the claims, all of which arise under Pennsylvania law, and venue is appropriate in Cumberland County under Pa.&C.P. 2179(a); f) the complexity of the issues relevant to the claims of the class, and the likely expenses of litigation are so great that individual actions would not be practical, creating a risk that defendant's violations of the law and a significant public policy would go without redress; S) the expense and effort of administering a class action herein will not be excessive and will bear a reasonable and proportionate relationship to the amounts recovered by individual class members; maintenance of a class action will create economies of scale providing benefit to all class members; h) Wal-Mart Stores, Inc. has acted on grounds generally applicable to the class, making final equitable and declaratory relief appropriate with respect to the class. P. 11 NOV-11-99 THU 09;28 AM V. CAUSES OF ACTION Violation o f the Pennsy COU lvania Unf NTI air Trade Pr actices and Consumer ' " Prot ection Law, 7 P.S. 62 01-1 _ et seq 1TP . r PL 1 P.12 26. Plaintiff incorporates by reference herein paragraphs 1 through 25 as though each were fully set forth herein at length. 27. Plaintiff and the members of his class purchased goods from defendant primarily for personal, family or household purposes. 28. Wal-Mart Stores, Inc.'s conduct toward plaintiff and the members of his class comprised unfair or deceptive acts or practices as defined in §2 of the UTPCPL, 73 P.S. §201.2(4). 29. Wal-Mart Stores, Ine.'s acts or practices were unfair and deceptive because they: a) were unconscionable commercial practices; b) unjustly enriched Wal-Mart Stores, Inc. at plaintiffs expense; c) caused likelihood of confusion or misunderstanding as to the amount of payment approved for defendant's goods; d) represented that defendant's goods were approved for payment at a rate greater than that for which they were actually approved; c) comprised false, or misleading statements of fact conceming the reasons for, existence of, or amounts of price reductions; f) violated provisions of the MVFRL and associated regulations intended to protect consumers in the position of plaintiff and his class; g) comprised unlawful acts under 73 P.S. §201.3; h) were otherwise deceptive, creating a likelihood of confusion or misunderstanding. NOV-11-99 THU 09:28 AM P..13' 30. As a result of Wal-Mart Stores, Int.'s illegal conduct, plaintiff and his class suffered the Cnancial losses averred in paragraph 18 above. These losses comprise "ascertainable losses" as defined by the MCPL. 73 P.S. §201.9.2. WHEREFORE, plaintiff asks the Court to enter judgment in favor of himself and his class, and against defendant, and to award the following relief.. a) a declaration that defendants' conduct was illegal; b) a reimbursement of each class member's ascertainable financial loss, in the amount of actual damage, or $100.00, whichever is greater; c) a trebling of the damages awarded to plaintiff and his class; d) an injunction ordering defendant to refrain from further illegal conduct; e) an injunction ordering defendant to adopt policies and practices which will assure full compliance with the MVFRL; 0 an award of costs and reasonable attorney's fees; and g) such interest as allowed by law. ' 31. Plaintiff incorporates by reference herein paragraphs 1 through 30 as though each were fully set forth bercin at length. 32. The conduct of defendant resulted in its obtaining monies from plaintiff to which it was not entitled under law or equity. NOV-I1-99 THU 09:29 AM P.14 33. Defendant was unjustly enriched by its culpable conduct, to the detriment of plaintiff and his class. WHEREFORE, plaintiff asks the Court for judgment in favor of his and his class, and to order that defendant disgorge its illegally obtained profits, and give restitution to plaintiffs in the same amount. 34. Plaintiff incorporates by reference herein paragraphs 1 through 33 as though each were fully set forth herein at length. 35. By engaging in the culpable conduct averred herein above, defendant knowingly and intentionally took money from plaintiff and his class, to which it was not entitled. 36. Defendant's conduct comprised an illegal conversion of money and benefits belonging to plaintiff and his class, resulting in financial loss to plaintiff and his class. 37. Defendant's conduct was wanton and outrageous, solely calculated to make financial gain at the expense of Pennsylvania consumers, In blatant and knowing violation of the law. WHEREFORE, plaintiff asks the Court for judgment in favor of his and his class, and for an award of compensatory and punitive damages in excess of the amount requiring compulsory arbitration under the Cumberland County Rules of Civil Procedure. COUNT TV FRAUDULENT NONDTSCLOSIJRE 38. Plaintiff incorporates by reference herein paragraphs 1 through 37 as though each MOV-11-99 THU 09;29 AM P.15 were fully set forth herein at length. 39. At all times material hereto, defendant was under apublic duty to disclose to plaintiff and his class: (a) the applicability of §1797 of the MVFRL to products sold by defendant; (b) the , limitations imposed by law on the amounts charged by defendant to plaintiff and his class; and (c) the potential availability of insurance coverage to defray and Emit those charges. 40. Defendant knowingly and/or negligently failed to disclose the existence of these facts. although it knew that they might justifiably induce plaintiff and the members of his class to enter into transactions with defendant or refrain from doing so. 41. As a result of defendant's culpable nondisclosure, plaintiff and his class suffered the aforesaid losses. WHEREFORE, plaintiff asks the Court forjudgment in favor of his and his class, and for an award of compensatory and punitive damages In excess of the amount requiring compulsory arbitration under the Cumberland County Rules of Civil Procedure. CQtNT VI iNTFNTIONAI. CONCEALMENT 42. Plaintiff incorporates herein by reference the foregoing paragraphs 1 through 41. 43. Defendant had actual knowledge of its obligations under the applicable provisions of Section 1797 of the MVFRL, when it sold the products to the Plaintiff and to those similarly situated, as set forth in the foregoing paragraphs. 44. Defendant intentionally concealed from its customers the existence of those facts known to it, and intentionally induced the Plaintiffs and the members of the class to enter into the transactions with Defendant at illegal prices. 6-11-99 THU 09;29 AM P.16 ' . 45. As the result of Defendant's intentional concealment of the facts (mown to it. Plaintiff and his class suffered the aforesaid losses. WHEREFORE, Plaintiff asks the court for judgment in his favor and in favor of the class, and for an award of compensatory and punitive damages in excess of the amount requiring compulsory arbitration under the Cumberland County Rules of Civil Procedure. V. JURY DENIAND 46. Plaintiff demands a jury determination of all issues so triable. Respectfully submitted, 407 No Front Harris 17 (717)232.0511 GERALD J. WILLIAMS, ESQUIRE Williams &Cuker One Penn Center at Suburban Station 1617 JFK Boulevard, Suite 800 Philadelphia, PA 19103-2030 (215) 557-0099 Counsel for Plaintiff i NOV-11-99 THU 09:29 AM VERIFICATION P..17 I, Nicholas Ressetar, verify that the statements made in the foregoing document and true and correct. I understand that any false statements herein are made subject to the penalties of 198 Pa. C. S. Section 4904, relating to unsworn falsification to authorities. lSnL Nicholas Ressetar Dated: October 27. 1999 ?s r t r y i r s [.r S ? x' cn 4. fir N x t Y ,... u? .x U f r.. t _ iz 4* a: IT l?x Nicholas Ressetar, plaintiff on behalf of himself and those similarly situated v. Wal-Mart Stores, Inc. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. NO. q' 9 - & S' CLASS ACTION JURY TRIAL DEMANDED 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 atlcr 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 arc warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief rcqucstcd by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. LAWYER REFERRAL SERVICE Court Administrator Cumberland County Courthouse Carlisle, PA 17013 (717) 240-6200 Nicholas Ressetar, plaintiff on behalf of himself and those similarly situated IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. NO. Cj 9 ^ b S6 S" 7z24, v. CLASS ACTION Wal-Mart Stores, Inc. JURY TRIAL DEMANDED COMPLAINT (CIVIL ACTION) CLASS ACTION 1. NATURE OF ACTION 1. This is a class action brought by plaintiff on behalf of himself and all others similarly situated, pursuant to the common law and statutes of the Commonwealth of Pennsylvania, seeking monetary, declaratory and injunctive relief. If. PARTIES 2. Plaintiff, Nicholas Ressetar is an adult individual, who resides at 5501 Locust Lane, Harrisburg, Dauphin County, Pennsylvania 17109. 3. Defendant Wal-Mart Stores, Inc. is a corporation with a principal place of business at 702 S.W. 8`h Street, Bentonville, Arkansas. Wal-Mart Stores, Inc. is licensed to do business, and regularly does business, in Pennsylvania, maintaining numerous retail stores therein. 4. Wal-Mart Stores, Inc. is engaged in the retail sale of pharmaceuticals, prescription drugs, and medical products. 111. MATERIAL FACTS 5. On or about October 9, 1999, plaintiff suffered physical injuries in an automobile accident. At the time of the accident, plaintiff maintained automobile insurance coverage pursuant to the Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa.C.S.A. §1701, et seq. ["MVFRL"]. Plaintiff's insurance provided "first party medical payments" applicable to prescription drugs. 6. Afler the accident, plaintiff received medical treatment for his injuries, and, in the course of that treatment, his physicians prescribed medication to him. 7. On October 26, 1999, plaintiff had his prescription filled at a retail store owned and operated by Wal-Mart Stores, Inc. in Harrisburg, Pennsylvania, and plaintiff paid for the medications he received from Wal-Mart Stores, Inc.. 8. In § 18 of the Act of February 7, 1990, P.L. 11, Act No. 90-6 ["Act 6"], the General Assembly amended § 1797 of MVFRL, governing the amount and manner in which a provider of medical products can collect payments from Pennsylvania consumers injured in automobile accidents. 9. §1797 of the MVFRL provides in pertinent part that: a person or institution providing ... products or services to an injured person for an injury covered by liability or uninsured and underinsured benefits or first party medical benefits... shall not require, request or accept payment for the...products or services in excess of [specific limits]. 75 Pa.C.S.A. §I797(a). 10. Under § 1797, the specific limit applicable to the medications sold by Wal-Mart Stores, Inc. to plaintiffs is "80% of the provider's usual and customary charge." Id. 1 I. § 1797(a) further provides that: providers subject to this section may not bill the insured directly, but must bill the insurer for a determination of the amount payable. The provider shall not bill or otherwise attempt to collect from the insured the difference between the provider's full charge and the amount paid by the insurer. Id. 12. Under the MVFRL, providers of medical products may bill victims of automobile accidents directly where no automobile insurance coverage is available, or where it has been exhausted. Even then, however, under regulations promulgated by the Insurance Commissioner, the provider must first make a reasonable inquiry about available automobile insurance coverage before billing a consumer directly. 31 Pa. Code §69.22(h); Pennsylvania Medical Society v. Foster, 147 Pa. Cmwlth.528, 608 A.2d 633, 642 (1992). 13. Plaintiff advised Wal-Mart's employee that he was covered by a policy pursuant to the MVFRL. The employee advised that Wal-Mart's computers would not accommodate the procedures mandated by the MVFRL, and that Plaintiff would have to pay 100% of Walmart's usual and customary charge for the prescription, but that he could submit a claim to his carrier for an 80% reimbursement. 14. Thus, the medication sold to plaintiff, Wal-Mart Stores, Inc. directly charged Plaintiff for more than 80% of its usual and customary charge he was "out of pocket" for the prescription. 15. Before, during and after its transactions with plaintiff, Wal-Mart Stores, Inc., through its agents, servants and employees: a) failed to disclose to plaintiff the applicability of §1797 to its transactions with him; b) failed to disclose to plaintiff the limitations imposed on the price of its products by §1797; C) charged plaintiff prices in excess of the limitations imposed by §1797; d) failed to bill plaintiffs automobile insurance carrier directly and, instead charged plaintiff directly, in violation of § 1797; C) failed to obtain a determination by plaintiffs automobile insurance carrier of the amount payable for its products; and Q collected from plaintiff the difference between its full charge and the amount which would have been made by plaintiffs's automobile insurance carrier. 16. The conduct of Wal-Mart Stores, Inc. was part of a continuous course of conduct in violation of the MVFRL and the regulations promulgated thereunder, beginning with the effective date of cost-containment provisions of the MVFRL, and continuing through the present time. This pattern of conduct also was otherwise illegal and/or inequitable as alleged in greater detail hereinbelow . 17. Wal-Mart Stores, Int.'s illegal and inequitable conduct toward plaintiff was consistent with a policy implemented by Wal-Mart Stores, Inc, throughout the Commonwealth to contravene the limitations of the cost-containment provisions of the MVFRL, thereby overcharging a large number of Pennsylvania consumers. 18. As a result of Wal-Mart Stores, Ine.'s illegal and inequitable conduct, named plaintiff suffered significant financial losses, in an amount less than $75,000.00, exclusive of interest and costs. IV. CLASS ACTION ALLEGATION 19. Plaintiff brings this action in his own right, and on behalf of all others similarly situated. The class which plaintiff seeks to represent consists of all persons: a) who were injured in automobile accidents in Pennsylvania; and b) were covered by an automobile insurance policy under the MVFRL, who c) at any time after April 15, 1990, purchased from Wal-Mart Stores, Inc. stores in Pennsylvania prescription drugs or other products for the treatment of their injuries. 20. Plaintiffs estimate the number of class members to exceed 10,000. 21. A class of such size is so numerous that joinder of all members is impracticable. 22. There arc questions of law or fact common to the class, including but not limited to: a) the applicability of the MVFRL to retail pharmacies such as Wal-Mart Stores, Inc.; b) the actionability of defendant's violations of the MVFRL under the Pennsylvania Unfair Trade Practices and Consumer Protection Law; c) the nature of the financial losses suffered by class members; d) the appropriateness of declaratory and injunctive relief; e) Wal-Mart Stores, Inc.'s actions on grounds generally applicable to the class, and whether these actions were "unfair" and/or "deceptive"; 4 the existence and nature of Wal-Mart Stores, Inc.'s Commonwealth-wide practices or policy of contravening the MVFRL; g) the amount of unjust enrichment inuring to Wal- Mart Stores, Inc.'s benefit as a result of its conduct. 23. The claims of the representative plaintiff are typical of those of the class; indeed, except as to the amount of financial damages, class members' claims arc identical. 24. The representative plaintiff will fairly and adequately assert and protect the interests of the class, inasmuch as: a) plaintiff has chosen counsel who are experienced and competent in the prosecution of class actions, consumer protection cases, MVFRL- related cases, and complex litigation; b) representative plaintiff has no conflicts of interest in the maintenance of a class action, and c) plaintiff has entered into a fee agreement with his counsel providing that counsel shall advance costs associated with the maintenance of a class action, assuring that the interests of the class will not be harmed by a lack of financial resources necessary for the prosecution of this case. 25. A class action provides a fair and efficient method for adjudication of this controversy, because: a) the questions of law or fact common to the class predominate over any question affecting only individual members; b) although the class is large, any difficulties in the management of the action as a class action are comparatively slight. Class members may be identified through the records of defendant and/or automobile insurance carriers; adequate notice to the class may be provided through conventional means; the class has been precisely and narrowly defined; c) prosecution of separate actions by individuals members of the class would engender a risk of inconsistent adjudications confronting defendant with inconsistent standards of conduct; d) to plaintiff's knowledge, no members of the class have initiated litigation involving the issues presented herein; e) this forum is appropriate for the litigation of the claims of the entire class, as this court is competent to adjudicate the claims, all of which arise under Pennsylvania law, and venue is appropriate in Cumberland County under Pa.R.C.P. 2179(a); Q the complexity of the issues relevant to the claims of the class, and the likely expenses of litigation arc so great that individual actions would not be practical, creating a risk that defendant's violations of the law and a significant public policy would go without redress; g) the expense and effort of administering a class action herein will not be excessive and will bear a reasonable and proportionate relationship to the amounts recovered by individual class members; maintenance of a class action will create economics of scale providing benefit to all class members; h) Wal-Mart Stores, Inc, has acted on grounds generally applicable to the class, making final equitable and declaratory relief appropriate with respect to the class. V. CAUSES OF ACTION COUNTI Violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law. 73 P.S. §201-I. et seq, ["UTPCPL."I 26. Plaintiff incorporates by reference herein paragraphs I through 25 as though each were fully set forth herein at length. 27. Plaintiff and the members of his class purchased goods from defendant primarily for personal, family or household purposes. 28. Wal-Mart Stores, Inc.'s conduct toward plaintiff and the members of his class comprised unfair or deceptive acts or practices as defined in §2 of the UTPCPL, 73 P.S. §201-2(4). 29. Wal-Mart Stores, Inc.'s acts or practices were unfair and deceptive because they; a) were unconscionable commercial practices; b) unjustly enriched Wal-Mart Stores, Inc. at plaintiffs expense; c) caused likelihood of confusion or misunderstanding as to the amount of payment approved for defendant's goods; d) represented that defendant's goods were approved for payment at a rate greater than that for which they were actually approved; c) comprised false, or misleading statements of fact concerning the reasons for, existence of, or amounts of price reductions; f) violated provisions of the MVFRL and associated regulations intended to protect consumers in the position of plaintiff and his class; g) comprised unlawful acts under 73 P.S. §201-3; It) were otherwise deceptive, creating a likelihood of confusion or misunderstanding. 30. As a result of Wal-Mart Stores, Inc.'s illegal conduct, plaintiff and his class suffered the financial losses averred in paragraph 18 above. These losses comprise "ascertainable losses" as defined by the UTPCPL, 73 P.S. §201-9.2. WHEREFORE, plaintiff asks the Court to enter judgment in favor of himself and his class, and against defendant, and to award the following relief- a) a declaration that defendants' conduct was illegal; b) a reimbursement of each class member's ascertainable financial loss, in the amount of actual damage, or $100.00, whichever is greater; c) a trebling of the damages awarded to plaintiff and his class; d) an injunction ordering defendant to refrain from further illegal conduct; e) an injunction ordering defendant to adopt policies and practices which will assure full compliance with the MVFRL; I) an award of costs and reasonable attorney's fees; and g) such interest as allowed by law. 31. Plaintiff incorporates by reference hcrcin paragraphs 1 through 30 as though each were fully set forth herein at length. 32. The conduct of defendant resulted in its obtaining monies from plaintiff to which it was not entitled under law or equity. 33. Defendant was unjustly enriched by its culpable conduct, to the detriment of plaintiff and his class. WHEREFORE, plaintiff asks the Court forjudgment in favor of his and his class, and to order that defendant disgorge its illegally obtained profits, and give restitution to plaintiffs in the same amount. 34. Plaintiff incorporates by reference herein paragraphs I through 33 as though each were fully set forth herein at length. 35. By engaging in the culpable conduct averred herein above, defendant knowingly and intentionally took money from plaintiff and his class, to which it was not entitled. 36. Defendant's conduct comprised an illegal conversion of money and benefits belonging to plaintiff and his class, resulting in financial loss to plaintiff and his class. 37. Defendant's conduct was wanton and outrageous, solely calculated to make financial gain at the expense of Pennsylvania consumers, in blatant and knowing violation of the law. WHEREFORE, plaintiff asks the Court for judgment in favor of his and his class, and for an award of compensatory and punitive damages in excess of the amount requiring compulsory arbitration under the Cumberland County Rules of Civil Procedure. 38. Plaintiff incorporates by reference herein paragraphs I through 37 as though each were fully set forth herein at length. 39. At all times material hereto, defendant was under a public duty to disclose to plaintiff and his class: (a) the applicability of § 1797 of the MVFRL to products sold by defendant; (b) the A limitations imposed by law on the amounts charged by defendant to plaintiff and his class; and (c) the potential availability of insurance coverage to defray and limit those charges. 40. Defendant knowingly and/or negligently failed to disclose the existence of these facts, although it knew that they might justifiably induce plaintiff and the members of his class to enter into transactions with defendant or refrain from doing so. 41. As a result of defendant's culpable nondisclosure, plaintiff and his class suffered the aforesaid losses. WHEREFORE, plaintiff asks the Court for judgment in favor of his and his class, and for an award of compensatory and punitive damages in excess of the amount requiring compulsory arbitration under the Cumberland County Rules of Civil Procedure. 42. Plaintiff incorporates herein by reference the foregoing paragraphs 1 through 41. 43. Defendant had actual knowledge of its obligations under the applicable provisions of Section 1797 of the MVFRL, when it sold the products to the Plaintiff and to those similarly situated, as set forth in the foregoing paragraphs. 44. Defendant intentionally concealed from its customers the existence of those facts known to it, and intentionally induced the Plaintiffs and the members of the class to enter into the transactions with Defendant at illegal prices. 45. As the result of Defendant's intentional concealment of the facts known to it. Plaintiff and his class suffered the aforesaid losses. WHEREFORE, Plaintiff asks the court for judgment in his favor and in favor of the class, and for an award of compensatory and punitive damages in excess of the amount requiring compulsory arbitration under the Cumberland County Rules of civil Procedure. V. JURY DEMAND 46. Plaintiff demands a jury determination of all issues so triable. Respectfully submitted, 407 (717) 232-0511 71 GERALD J. WILLIAMS, ESQUIRE Williams & Cuker One Penn Center at Suburban Station 1617 JFK Boulevard, Suite 800 Philadelphia, PA 19103-2030 (215) 557-0099 Counsel for Plaintiff VERIFICATION I, Nicholas Ressetar, verify that the statements made in the foregoing document and true and correct. I understand that any false statements herein arc made subject to the penalties of 198 Pa. C. S. Section 4904, relating to unswom falsification to authorities. Nicholas Rcssetar Dated: October 27. 1999 N ? 4i U }, any!! 2 gi sy3 +% t S A it ?'t i. tr{- yt f?M C? t rt?" r +tn;Y into j •iA [. not McDONNELL & ASSOCIATES BY: Patrick J. McDonnell, Esquire Attorney ID No: 62310 BY: Karen L. Green, Esquire Attorney ID No: 74258 Two Penn Center Suite 910 Philadelphia, PA 19102 (215)636-0888 Attorneys for Defendant, Wal-Mart Stores, Inc. Nicholas Ressetar, Plaintiff on behalf of himself and those similarly situated V. Wal-Mart Stores, Inc. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. NO. 99-6565 CIVIL CLASS ACTION JURY TRIAL DEMANDED CERTIFICATE OF SERVICE KAREN GREEN, ESQUIRE hereby certifies that a true and correct copy of Defendant, Wal-Mart Stores, Inc.'s Praecipe for Argument was served by United States first class mail, postage prepaid on February 1 , 2000 to the counsel below named: Anthony J. Stefanon, Esquire 407 North Front Street P.O. Box 12027 Harrisburg, PA 17108-2027 b1cDONNELL & ASSOCIATES BY: t `Q 1?(\ k j ".1 n KAREN GREEN, ESQUIRE Cl. a, U O McDONNELL & ASSOCIATES BY: PATRICK J. McDONNELL, ESQUIRE ATTORNEY I.D. NO.:62310 BY: KAREN L. GREEN, ESQUIRE ATTORNEY I.D. NO.: 74258 Two Penn Center Plaza Suite 910 Philadelphia, PA 19102 (215)636-0888 NICHOLAS RESSETAR, Plaintiff on behalf of himself and those similarly situated IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. NO. 99-6565 CIVIL V. WAL-MART STORES, INC. CLASS ACTION JURY TRIAL DEMANDED PRAECIPE FOR ARGUMENT Defendant Wal-Mart Stores, Inc. ("Wal-Mart"), by and through its undersigned counsel, hereby submits the following praecipe for argument. 1. Matter to be argued: Defendant's Preliminary Objections To Plaintiffs' Complaint. 2. Counsels' name and address: Counsel for Plaintiff: Anthony Stefanon 407 North Front Street P.O. Box 12027 Harrisburg, PA 17108 (717)232-0511 Counsel for Defendant: Patrick J. McDonnell McDonnell & Associates Two Penn Center Plaza, Suitc 910 Philadelphia. PA Counsel for defendant 3. The undersigned hereby represents that he will notify all parties within two (2) days that the above matter has been listed for argument 4. Date of argument: March 1, 1999. L. GREEN, ESQUIRE nin C7 :-?,r wl-- 4? EJ C , C -7 '-r r:+y .it'rl v. it ?u ?I? PRAECIPE FOR LISTING CASE FOR ARGUMENT (Mist be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. CAPTION OF CASE (entire caption must be statad in full) NICHOLAS RESSETAR (Plaintiff) vs. mu,mRT STORES, INC. ( Defendant ) No. 0565 Civil 19 9q 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Defendant's Preliminary objections to Plaintiff's Complaint 2. Identity counsel who will argue case: (a) for plaintiff: Anthony Stefanon, Esquire Address: 407 North Front Street, P.O. Box 12027, Harrisburg, PA 17108 (b) for defendant: Patrick J. McDonnell, Esquire Address: Suite 910, Two Penn Center Plaza, Philadelphia, PA 19102 3. I will notify all parties in writing within two days that this case has been listed for argument. Yes 4. Argument Court Date: March 1, Dated: In. Ifs v L C', - ` Cl- n s ' . ?? U r , , f e s a ri r ?i 'i {M ist l NICHOLAS RESSETAR, Plaintiff on behalf of himself and those similarly situated, V. WAL-MART STORES, INC., Defendant IN THE COURT OF COMMON PLEAS . CUMBERLAND COUNTY, PENNSYLVANIA No. 99-69rc nt.a, CLASS ACTION JURY TRIAL DEMANDED PRAECIPE FOR DISCONTINUANCE TO THE PROTHONOTARY: Please mark the above-captioned matter discontinued. DATE : 7 /? " liwy 7 Harrisburg, PA 17108-2027 (717) 232-0511 k25497- --'---- 407 Nort Fr t Street P.O. Bo CERTIFICATE OF SERVICE The undersigned hereby certifies that, on the date below he served a true copy of the Praecipe for Discontinuance on the person listed below, at the address set forth, by First Class Mails PATRICK J. McDONNELL, ESQUIRE McDonnell & Associates Suite 910 Two Penn Center Plaza Philadelphia, PA 19102 j P Y.1V ., YYyYiLO N25497 ' 407 No Front Street P.O. ox 12027 Harrisburg, PA 17108-2027 (717) 232-0511 DATE: r,14 -24%;W d c cl '. i yG t t^: i :. LL 0 o e; nF.