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Home My WebLink About09-3140THIS IS AN ARBITRATION MATTER ASSESSMENT OF DAMAGES HEARING NOT REQUIRED TABAS & ROSEN, P.C. BY: LEWIS C. TRAUFFER, ESQUIRE Attorney for Plaintiff Attorney I.D. #60267 1601 Market Street, Suite 2300 Philadelphia, PA 19103 (215) 569-5050 THE MILTON S. HERSHEY MEDICAL CENTER P.O. Box 853 Hershey, PA 17033 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 04 - 31116 VS WILLIAM FISHER 830 Margaro Road Enola, PA 17025 CIVIL ACTION COMPLAINT - CIVIL ACTION NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 17013 (717)249-3166 or(800)990-9108 COMPLAINT - CIVIL ACTION THE MILTON S. HERSHEY MEDICAL CENTER VS. WILLIAM FISHER 1. Plaintiff is a non-profit corporation located at the address indicated in the caption hereof. 2. Defendant is an individual who resides at the address indicated in the caption hereof. 3. As the result of a certain medical condition, defendant was treated by the plaintiff on Aug. 23, 2005 thru Aug. 24, 2005. 4. The amounts, quantities and nature of said medical care, the dates on which said medical care was rendered, and the charges therefore are set forth in Exhibit "A" which is incor- porated herein as if set forth at length. 5. Said medical care was commensurate with the condition of defendant and was necessary for the health and welfare of defendant. 6. At or about the time of defendant's treatment by plain- tiff, implied, constructive and oral contracts arose between defendant and plaintiff by the terms of which defendant became obligated to pay plaintiff the charges for the medical care rendered by plaintiff to defendant. 7. Defendant refuses to pay the balance due although plaintiff has made demand that defendant do so. 8. As a result of the foregoing, there is due and owing from defendant to plaintiff the sum 'indicated in Exhibit "A" WHEREFORE, plaintiff demands judgment against defendant for the sum of $12,398.18 plus six percent (6%) interest per annum from the date of discharge to the date of judgment, record costs and non-record costs. TABAS & ROSEN, P.C. LEWIS T FFER, ESQUIRE Attorney for Plaintiff MS HERSHEY MEDICAL CENTER PAGE: 500 UNIVERSITY DRIVE HERSHEY, PA 17033 Statement on: 10/31/06 at 11:36 AM Guarantor: FISHER WILLIAM M 830 MARGARO RD ENOLA, PA 17025-0000 Patient: FISHER WILLIAM M Visit #: 6502387 -------------------------------------------------------------------------------- Date I Svc Code I Description I Unitsl Debits I Credits -------------------------------------------------------------------------------- 08/23/05 16502 ADULT LEVEL II TRAUMA 1 2805.00 08/23/05 46061 IV SOLUTION 1 13.00 08/23/05 46068 OXISENSOR DIGIT DISPO 1 47.00 08/23/05 46111 PRIME MACRO/MICRO TUB 1 15.00 08/23/05 46121 URINALYSIS DI PSTIX PR 2 14.00 08/23/05 46122 HEMOCCULT, STOOL 1 7.00 08/23/05 46472 EMERGENCY VISIT, LEVE 1 559.00 08/23/05 46620 ROUTINE VENIPUNCTURE 1 13.00 08/23/05 46699 THERA/DIAG INJECTION 2 106.00 08/23/05 46716 NONINVAS PULSE OX, SI 1 59.00 08/23/05 46717 NONINVAS PULSE OX, MU 2 180.00 08/23/05 46794 IV PUMP, SINGLE LINE 1 3.00 08/23/05 46924 IV INFUSION TX 0-1 HR 2 394.00 08/23/05 46925 IV INF TX,EA ADDL HR 8 784.00 08/23/05 101003 ABO BLOOD GROUP 1 20.00 08/23/05 101004 ANTIBODY SCREEN 1 45.00 08/23/05 101005 RH TYPE 1 19.00 08/23/05 104009 AMYLASE, BLOOD 1 42.00 08/23/05 104042 CREATININE, BLOOD 1 13.00 08/23/05 104060 GLUCOSE, BLOOD 1 12.00 08/23/05 104131 POTASSIUM (K), BLOOD 1 13.00 08/23/05 104145 SODIUM (NA), BLOOD 1 13.00 08/23/05 105052 PARTIAL THROMBOPLAS T 1 36.00 08/23/05 105059 PROTHROMBIN TIME 1 22.00 08/23/05 105657 CBC W/PLT/DIFF AUTO 1 36.00 08/23/05 245206 LIDOCAINE 10MG/ML 1 3.00 08/23/05 247831 ACETAMINOPHEN 325 MG 2 3.00 08/23/05 272199 ONDANSETRON 2MG/ML 2M 4 54.50 08/23/05 305631 FOOT 3 OR MORE VIEWS 1 122.00 08/23/05 307101 CHEST 1 VIEW 1 114.00 08/23/05 307205 C-SPINE 2-3 VIEWS 1 147.00 08/23/05 307220 PELVIS 1-2 VIEWS 1 150.00 08/23/05 310501 CT HEAD UNENHANCED 1 719.00 08/23/05 310519 CT ABDOMEN ENHANCED 1 1029.00 08/23/05 310567 CT PELVIS ENHANCED 1 1169.00 08/23/05 310703 OMNIPAQUE 300MG/ML 10 1 53.00 08/24/05 46925 IV INF TX,EA ADDL HR 8 784.00 08/24/05 70211 XD OBS EMERGENCY DEPT 17 1496.00 02/13/06 902040 AUTO/WORK COMP PAYMEN -1 * - Not posted 3658.32- Balance: 7455.18 -------------------------- STATEMENT OF PHYSICIAN SERVICES pFjyj?p? WILLIAM M FISHER 830 MARGARO RD IV The Milton S. HmsoL Medical Cent ENOLA PA 17025 The College of Medidine STATEMENT DATE: 10181/06 LAST STATEMENT DATE: 10124106 1of2 ACCOUNT # 7002578 IF ANY QUESTIONS, PLEASE CONTACT: MSHMC PATIENT FINANCIAL SERVICES 6502387 PERFORMED BY: MARCELO C DASILVA MD TRAUMA SURGERY DIV PLACE OF SVC: EMERGENCY ROOM 08/23/05 9924521 959.8 TRAUMA TEAM DIAL EVAL INT 3127.00 D4/04/06 MAXIMUM BENEFITS PAID 0.00 3127.00 PERFORMED BY: TUNC A IYRIBOZ ND DIV OF DIAL RADIOLOGY PLACE OF SVCc OP HOSPITAL DIV25105 7045026 851.00 CT HEAD UENHANCED 266.00 D4/D4/06 ML04M BENEFITS PAID D.DO 265.00 PERFORMED BY: NABEEL I SARNANR MD DIV OF DIAL RADIOLOGY 08/23105 7416026 959.19 C T ABDOMEN ENHANCED 393.00 04/04/06 MAXIMUM BENEFITS PAID 0.00 393.00 08/23/O6 7219326 959.19 CT PELVIS ENHANCED 359.00 04/D4/06 MAXIMUM BENEFITS PAID BAD 359.00 ?D BY: JANET A NEUM ND DIV OF DIAG RADIOLOGY 011/23105 7101026 959.19 CHEST 1 VIEN 57.00 04/04/06 MAXIMUM BENEFITS PAID D.OD 57.00 08/23!06 7363026 825.25 FOQT COMPLETE MIN 3 VIENS 54.00 04/04/06 MAXIMUM BENEFITS PAID D.DD 54.00 08/23/05 7217026 959.6 PELVIS MTERPOSTER 54.00 04/04/06 MAXDI M BENEFITS PAID 0.00 54.00 D8/23105 7204026 722.4 SPINE CERVIC ANR/POS LAT 69.00 04/04/06 MAXIMUM BENEFITS PAID 0.00 69.00 PERFORMED BY: JAMES E GREENSfM MD DIV OF ANESTHESIA PLACE OF SVC. EMERGBMCY ROM 08/23105 99241 959.8 OFFICE CONSULTATION 109.00 04/04/06 MAXIMUM BENEFITS PAID 0.00 109.00 PERFORMED BY.- C JAMES 1DLLIEMAN MD DIV OF ENERS ROOM 08/23/05 99285 959.8 ENEWeV VISIT 322.00 04/0/06 MAXIMUM BENEFITS PAID 0.00 322.00 PERFORMED BY: D PATRIdC BRYANT MD TRAUMA SURGERY DIV PLACE OF SVC: SURGERY - SHORT STAY 08/24/05 99217 959.8 OBSERV CARE DISC DAY MW 134.00 04/04/06 MAXIMUM BENEFITS PAID DAD L%. an BALANCE: MMILLIAM M FISHER 44943.00 Iq -)--, BOX AND ENTER ANY ADDRESS OR INSURANCE CORRECTIONS ON BACK STATEMENT OF PHYSICIAN SERVICES PENNSWE WILLIAM M FISHER 830 MARGARO RD The Mitft S. Hershey Medical Center ENOLA PA 17025 The College of Medicine ACCOUNT # 7002578 IF ANY QUA, PLEASE CONTACr. MSHMC PATIENT COMPANY PAID, CONTACT THEM DIRECTLY. FOR ANY OTHER QUESTIONS REGARDING Y= BALANCE, PLEASE CONTACT OUR OFFICE. IF PAYMENT HAS BEEN MADE, THANK YOU AND DISREGARD THIS BILL. SaaR8MljeeF THANK YOU FOR USING MSHMC PHYSICIANS 0 0 FOR YOUR PHYSICIAN SERVICES. IF YOU HAVE ANY QUESTIM REGARDING THIS BILL, PLEASE CONTACT IS AT 717-31-5064 OR $00-254-2619, BErNM 6:0011111 AM 5:30PM MONDAY THROUGH IEDNESDAY OR BETMEN SARAH AND 4:30M THURSDAY AND FRIDAY. FED T BALANCE SUMMARY RESPONSIBLE PARTY POLICY # TOTAL GUARANTDR RESPONSIBILITY S 4943.00 2 of 2 .. .. . ........ INPORTANT:.P.LEASE DETACH AND RETURN BQTTQM. PORTION Of STAt Mfg ENT MNTN YOUR PAYS STATEMENT DATE: GUARANTOR RESPONBIBILITY: MINIMUM PAYMENT BF6 10131106 $ 4943.00 $ 4943.00 MSHMC PHYSICIANS GROUP BIWMG SERVICES P O BOX 8514 HERSHEY PA 17053-0854 00007002578 UP 0000000000494300103106 II??11?1.IIIII?IIII??IIIIIIIII?uII?It.IlIII1?II?IlI111.lIIl11 nralr MSHMC PHYSICIANS GROUP WILLIAM M FISHER .To. 830 MARGARO RD PO BOX 643313 ENOLA PA 17025 PITTSBURGH PA 15264-3313 OFFICE USE ONLY FOR CREDIT CARD PAYMENT, PLEASE FILL IN INFORMATION HEU)W CRECKDNE I I I I I I I I) I I I I I I i l 7002578 M/C CARD NUMBER EXP DATE VI5A 4943.00 1112111 HC: Faso -DISC CARDHOLDER NAME (PRINT) TYP : DMND CREDIT CARD SIGNATURE MSHMC PHYSICIANS GROUP ? CHECK BOX AND ENTER ANY ADDRESS OR INSURANCE CORRECTIONS ON BACK !I? STATEMENT DATE: 10131106 LAST STATEMENT DATE: 10/24/06 FISHER, WILLIAM #7002578 $7,455.18 (Hosp) 4,943.00 (Phys) VERIFICATION LINDA SCHLADER hereby states that she is the Team Manager, Customer Service of the Milton S. Hershey Medical Center and verifies that the statements made in the foregoing pleading are true and correct to the best of her knowledge, information and belief. The undersigned understands that the statements therein are made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities. l M LINDA SCHLADER DATE: q I -11d q OQ FI'LE OF TH.- Py 2010 9 NmY 18 PM 2• 8 ` Y, g?78.50 ?d e&' gia33 x.22 s.18( Sheriffs Office of Cumberland County R Thomas Kline 6.°°osg ofambj,r Edward L Schorpp Sheri rj Solicitor Ronny R Anderson` Jody S Smith Chief Deputy CFF" OF THE IF Civil Process Sergeant SHERIFF'S RETURN OF SERVICE 05/21/2009 06:30 21,2( Road, SHERIFF COST: May 22, 2009 2009-314C Milton S. - Shawn Harrison, Deputy Sheriff, who being duly sworn according to law, states that on May at 1830 hours, he served a true copy of the within Complaint and Notice, upon the within named t, to wit: William Fisher, by making known unto Pearl Fisher, mother of defendant, at 830 Margo ola, Cumberland County, Pennsylvania, 17025 its contents and at the same time handing to her y the said true and correct copy of the same. SO ANSWERS, 5±t%RIFF Hershey Medical Center V William Fisher c? N i . , IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA THE MILTON S. HERSHEY MEDICAL CENTER, Plaintiff V. WILLIAM FISHER, Defendant CIVIL ACTION - LAW : NO. 09-3140 : (JURY TRIAL DEMANDED) NOTICE TO PLEAD TO: Lewis C. Trauffer, Esquire, Attorney for The Milton S. Hershey Medical Center, Plaintiff You are hereby notified to file a written response to the enclosed DEFENDANT'S ANSWER WITH NEW MATTER & COUNTERCLAIMS within twenty (20) days from service hereof or a judgment may be entered against you. Date: 22 d ' G? y William Fisher 830 Margaro Road Enola, PA 17025 Pro Se Defendant 1 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA THE MILTON S. HERSHEY MEDICAL CENTER, Plaintiff V. WILLIAM FISHER, Defendant CIVIL ACTION - LAW NO. 09-3140 (JURY TRIAL DEMANDED) ANSWER WITH NEW MATTER & COUNTERCLAIM 1. Admitted. 2. Admitted. 3. Denied. On the contrary, the amount sought by Plaintiff does not represent the reasonable value of services allegedly provided to Defendant. 4. Denied. On the contrary, the amount sought by Plaintiff does not represent the reasonable value of services allegedly provided to Defendant. 5. Denied. On the contrary, Plaintiff Milton S. Hershey Medical Center ("Hospital"), provided defendant with hospital services and facilities which were not medically necessary, breached its implied contract to render only reasonable and necessary services to defendant and would be unjustly enriched by any judgment requiring payment for the unnecessary services at issue in this case. 6. Denied. Denied that any valid implied, constructive or oral contract exists or default thereof for the reasons set forth in Defendant's New Matter, which averments are incorporated by reference as if set forth at length herein; and, accordingly, Plaintiff is not entitled to the relief requested. 2 7. Denied. Denied that any amount is due for the reasons set forth in Defendants' New Matter,'which averments are incorporated by reference as if set forth at length herein; and, accordingly, Plaintiff is not entitled to the relief requested. 8. Denied. The allegations contained in paragraph 8 contain mere conclusions of law to which no response is required. By way of further answer, it is denied that any valid contract exists or default thereof for the reasons set forth in Defendants' New Matter, which averments are incorporated by reference as if set forth at length herein; and, accordingly, Plaintiff is not entitled to the relief requested. WHEREFORE, Defendant respectfully requests that Plaintiffs claim be dismissed, and that judgment be entered in favor of Defendant with costs and against Plaintiff. NEW MATTER 9. Defendant incorporates his answers to paragraphs 1 through 8 above as if set forth at length herein 10. Defendant, an automobile accident victim, was treated by the plaintiff. 11. At the time of the treatment defendant had no health insurance, a low income, and no significant assets. He is unable to pay the plaintiffs bill. 12. The plaintiff billed defendant its full, un-discounted charges. 13. Had defendant possessed health insurance at the time service was rendered to him, or had he been covered by a governmental health insurance such as Medicaid or Medicare, the plaintiff would have accepted as full 3 reimbursement an amount equal to one-fourth to one-half the amounts now sought. 14. The actions of the plaintiff, as set out above, are unconscionable under Pennsylvania common law in that: a. charging uninsured, low-income patients two to four times the rate that insured patients pay for identical services--price-gouging the poor-- shocks the conscience of a reasonable person; b. the transaction between the plaintiff and the defendant was not a negotiated transaction; a disparity in bargaining power existed, with all power residing in the plaintiff; and c. the plaintiff is a sophisticated health care provider while defendant has little commercial sophistication or formal education. 15. At the time of the hospitalization which is the subject of this action, defendant had been working at a low-paying job, with no provision for sick pay, and at no time relevant hereto did he have health insurance. 16. Defendant informed plaintiff hospital, its agents, employees, or representatives of his lack of health insurance and his inability to pay for the expenses of his hospitalization. 17. During the hospitalization in question and within a period of time during which timely application could have been made, plaintiff hospital was aware, or should have been aware, of defendant's need for assistance in meeting all or part of the expenses for necessary care delivered by plaintiff. 18. At all times relevant hereto, defendant was eligible for Medicaid or medical assistance. 19. Plaintiff hospital had an obligation to initiate action on an application for Medicaid or medical assistance to pay for defendant's hospital and/or other medical bills. 4 20. At no time relevant hereto did plaintiff initiate any action on an application for Medicaid or file a claim for such benefits, and plaintiff thereby violated its duty to defendant. 21. Had timely application been made, the expense which is subject of plaintiff's complaint would have been paid to plaintiff by the Pennsylvania Department of Public Welfare and/or available medical assistance programs. 22. At no time relevant hereto did plaintiff initiate any action on an application for Medicaid or file a claim for such medical assistance benefits, and plaintiff thereby violated its duty to defendant. 23. Upon information and belief, plaintiff hospital has applied for charitable exemption from ad valorem (property) taxation. Subsequently said hospital received such charitable exemption from ad valorem taxation, to its financial benefit. 24. At all times relevant to this cause, plaintiff hospital was exempt from ad valorem taxation, as a charitable organization. 25. As a charitable organization exempt from ad valorem taxation, plaintiff hospital was and is required to provide free or below-cost services to persons unable to pay for said services. 26. As a person unable to pay for hospital services, defendant at all times mentioned herein was a person to whom plaintiff owed a statutory duty to provide free or below-cost hospital services. 27. At the time of the admission of the defendant to plaintiff hospital, plaintiff hospital violated its duty to the injury of the defendant by (1) failing to make a determination as to defendant's eligibility for free and below-cost services (hereinafter "determination of eligibility"); (2) failing to provide services free of charge to him, in accordance with said determination of eligibility; (3) 5 subsequently demanding payment for said service; and (4) instituting legal action against them, all in violation of plaintiffs legal and/or statutory duty. WHEREFORE, defendant prays that the complaint be dismissed and costs be assessed in favor of defendant. COUNTERCLAIM 28. Defendant incorporates her answers to paragraphs 1 through 27 above as if set forth at length herein. 29. Defendant brings this Counterclaim as an action for damages, an injunction and declaratory relief for the plaintiff's violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73. P. S. Section 201-1 et seq. (hereinafter "CPL"). 30. Plaintiff provided medical services to defendant. 31. At the time of the treatment defendant had no health insurance, a low income, and no significant assets. He remains unable to pay the plaintiff's bill. 32. The plaintiff billed defendant its full, un-discounted charges. 33. Had defendant possessed health insurance at the time service was rendered to him, or had he been covered by a governmental health insurance such as Medicaid or available medical assistance programs, the plaintiff would have accepted as full reimbursement an amount significantly less than that now sought. 6 34. At all pertinent times plaintiff engaged in trade or commerce within the meaning of the CPL, and defendant was a consumer within the Act's coverage. 35. The plaintiffs actions, as set out above, constitute unfair acts and practices within the meaning of and in violation of Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73. P.S. Section 201-1 et seq., in that: a. charging the uninsured poor rates that are double and triple the rates charged to insured persons is immoral, unethical, and oppressive in that there is no justification for variable charges which discriminate against persons on the lowest rung of our economy; and b. the acts of the plaintiff, as set out above, injure all uninsured, low-income patients of the plaintiff by requiring them to pay rates that exceed those charged to insured patients. 36. Plaintiff's acts, as set out above, were wilful and deliberate and have caused defendant stress, aggravation and inconvenience. 37. Defendant was damaged in the amount that plaintiff's charges exceeded those charged to insured patients for the same services. 38. A remedy at law is insufficient; defendant needs equitable relief to assure that the hospital does not impose unreasonable charges the next time he is admitted. WHEREFORE, defendant prays that this Court: A. Declare that the actions of the plaintiff, as set out above, constitute unfair acts or practices under the CPL; B. Enter an injunction enjoining the hospital from charging uninsured persons more than it charges the insured. C. Enter judgment for the defendant and against the plaintiff for (1) compensatory damages equal to the amount of the plaintiffs bill that exceeded 7 that charged to insured patients for the same services; (2) $3000 for stress, inconvenience and aggravation; and (3) treble damages; and D. Grant such other relief as the Court deems just and proper. Dated: Respectfully submitted, William Fisher 830 Margaro Road Enola, PA 17025 Pro Se Defendant 8 VERIFICATION I, William Fisher, hereby acknowledge that I am Defendant in the foregoing Answer With New Matter and Counterclaims, that I have read the foregoing, and the facts stated therein are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein are made subject to penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. DATE: Z ?' " Wi iam Fisher 9 CERTIFICATE OF SERVICE I hereby certify that I served the foregoing DEFENDANTS' ANSWER WITH NEW MATTER & COUNTERCLAIMS by placing a true and correct copy thereof in the United States mail, first class postage prepaid, addressed as follows: Lewis C. Trauffer, Esquire TABAS & ROSEN, P.C. 1601 Market Street, Suite 2300 Philadelphia, PA 19103 Attorney for Plaintiff Dated: ip Y 6 - ? ?/'? V-, ?' William Fishe 830 Margaro Road Enola, PA 17025 Pro Se Defendant 10 Q. TABAS & ROSEN, P.C. BY: LEWIS C. TRAUFFER Attorney I.D. 60267 1601 Market Street, Suite 2300 Philadelphia, PA 19103 (215) 569-5050 MILTON S. HERSHEY MEDICAL CENTER V. WILLIAM FISHER To the Defendant, you hereby notified by the Attorney for Plaintiff to file a written response to Preliminary Objections within twenty (20) days from service hereof or a judgment will be entered against you. Attorney for Pl intiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY NO. 09-3140 CIVIL ACTION - LAW y -Plaintiff, Milton S. Hershey Medical Center, through its attorneys, Tabas and Rosen, P.C., files the following Preliminary Objections to defendant's Counterclaim filed on June 23, 2009, and in support thereof avers the following: COUNT H. On May 18, 2009 Plaintiff filed a Complaint against defendant seeking payment of medical bills incurred by defendant from August 23 to August 24, 2005. 2. Plaintiffs Complaint was served on the defendant by the Sheriffs Office of Cumberland County on May 21, 2009. 3. Plaintiff s Complaint included a Notice to Plead which, inter alia, advised defendant that he had twenty (20) days from service to enter an appearance personally or by attorney and filing in writing with the Court [his] defenses or objections to the claims set forth against [him]. 4. On June 23, 2009 defendant filed an Answer with New Matter and Counterclaim to the Complaint. 5. The defendant's Answer with New Matter and Counterclaim fails to comply with Pa.R.C.P. 1026(a) because it was filed beyond twenty (20) days of service of the Complaint. 6. Plaintiff raises preliminary objections pursuant to Pa.R.C.P. 1028(a)(2) to defendant's New Matter and Counterclaim for failure to conform to law or Rule of Court. WHEREFORE, for the foregoing reasons, plaintiff respectfully requests that the New Matter and Counterclaim of defendant be stricken for failure to conform to law or rule of court, and judgment be entered in its favor and against defendant plus its costs and interest available at law. COUNT II. PRELIMINARY OBJECTION IN THE NATURE OF A DEMURRER TO DEFENDANT'S COUNTERCLAIM PURSUANT TO PA.R.C.P.1028 (a)(4) LEGAL INSUFFICIENCY OF A PLEADING Plaintiff incorporates the foregoing averments as if restated herein at length. Defendant in Paragraph 29 of his Counterclaim pled an action for damages, an injunction and declaratory relief for plaintiff s alleged violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. Section 201-1 et seq. (hereinafter referred to as "UTPCPL." Defendant in Paragraph 31 averred that he "had no health insurance, a low income, and no significant assets. He remains unable to pay the plaintiffs bill." to. Defendant in Paragraph 32 averred that plaintiff billed defendant its full, undiscounted charges. it. Defendant in Paragraph 33 proceeds to describe that had he been eligible for government health insurance his bill would have been paid at an amount significantly less than what he was billed as a non-participant in a government health insurance plan. 12. Defendant in Paragraph 35 alleges that the hospital acted unfairly and in violation of the UTCCPL by not offering the same rates to "poor uninsured" that plaintiff is required to accept 2 pursuant to Commonwealth and/or Federal law for patients who are in fact insured through governmental health insurance programs. 13. Defendant in Paragraph 35 averred that not offering the contracted or statutory medical bill rates is immoral, unethical, and oppressive in that there is no justification for variable charges which discriminate against persons on the lowest rung of our economy. 14. Defendant in Paragraph 37 averred that the he was damaged by plaintiff not charging him the rates that would be charged to insured patients for the same services. 15. Defendant does not aver plaintiff misrepresented that its bills were reasonable and customary. 16. Defendant fails to state under which definition of unfair or deceptive acts or practices that plaintiff s acted providing contractual or statutory discounts to eligible patients falls pursuant to 73 P.S. § 201(4). 17. Assuming, arguendo, defendant alleges violation of UTPCPL through the statute's catch-all definition, "[e]ngaging in any other fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding" defendant fails to allege how the medical bills are fraudulent or deceptive pursuant to 73 P.S. § 201(xxi). 1 g. Defendant fails to aver the elements of common law fraud on the part of plaintiff hospital in establishing its usual and customary charges upon which defendant was billed which is required pursuant to the catchall provision of the UTPCPL. Hammer v. Nikol, 659 A.2d 617 (Pa. Cmwlth 1995). 19. Defendant fails to allege illegality in accepting "discounted" rates from insurance providers for subscribers which are set through negotiated contractual rates or set by statute through government health plans. 20. Defendant fails to allege malfeasance, improper performance of contractual obligation required to form a cause of action under the UTPCPL. Horowitz v Federal Kemper Life 3 Assam C.A.3 (Pa.) 1995, 57 F.3d 300, on remand 946 F.Supp. 384. 21. The Pennsylvania Superior Court has held that unfair trade practices and consumer protection law was inapplicable to providers of medical services. Fofly en v R Zemel M.D. (PCI, 420 Pa.Super 18, 614 A.2d 1345 (1992). WHEREFORE, for the foregoing reasons, plaintiff respectfully requests that the Counterclaim of defendant be stricken for legal insufficiency because of its failure to state a cause of action upon which relief can be granted, and judgment be entered in its favor and against defendant plus its costs and interest available at law. DATE: July 9, 2009 TABAS & ROSEN, P.C. BY: L IS C. TRAU ER, ESQUIRE Attorney for Plaintiff 4 CERTIFICATE OF SERVICE I, Lewis C. Trauffer, Esquire, certify that on July 9, 2009 a true and correct copy of plaintiffs Preliminary Objections to Defendants' New Matter and Counterclaim was served on the following individual(s) via United States mail, first class, postage pre-paid, and addressed as follows: Mr. William Fisher 830 Margaro Road Enola, PA 17025 LEWI ' C. TRA FER Attorney for Plaintiff t \ 17 1C?G9 ?UL 10 I : I J 1 ;mv TABAS & ROSEN, P.C. To the Defendant, you hereby notified by the BY: LEWIS C. TRAUFFER Attorney for Plaintiff to file a written response Attorney I.D. 60267 to Preliminary Objections within twenty (20) 1601 Market Street, Suite 2300 days from service hereof or a judgment Philadelphia, PA 19103 entered against you. gment will be (215) 569-5050 i Attorney for Pl mtiff MILTON S. HERSHEY MEDICAL CENTER V. WILLIAM FISHER tl` IN THE COURT OF COMMON PL EAS OF CUMBERLAND COUNTY n N NO. 09-3140 -- C- -T '7-? CIVIL ACTION - LAW ,4S TO DEFENDANT'S COUNTE A IAfI _ E ?wz) c? < Plaintiff, Milton S. Hershey Medical Center, through its attorneys, Tabas and Rosen, P.C., files the following Preliminary Objections to defendant's Counterclaim filed on June 23, 2009, and in support thereof avers the following: COUNT II. 1 On May 18, 2009 Plaintiff filed a Complaint against defendant seeking payment of medical bills incurred by defendant from August 23 to August 24, 2005. 2. Plaintiffs Complaint was served on the defendant by the Sheriffs Office of Cumberland County on May 21, 2009. 3• Plaintiffs Complaint included a Notice to Plead which, inter alia, advised defendant that he had twenty (20) days from service to enter an appearance personally or by attorney and filing in writing with the court [his] defenses or objections to the claims set forth against [him]. 4. On June 23, 2009 defendant filed an Answer with New Matter and Counterclaim to the Complaint. 5. The defendant's Answer with New Matter and Counterclaim fails to comply with Pa.R.C.P. 1026(a) because it was filed beyond twenty (20) days of service of the Complaint. 6. Plaintiff raises preliminary objections pursuant to Pa.R.C.P. 1028(a)(2) to defendant's New Matter and Counterclaim for failure to conform to law or Rule of Court. WHEREFORE, for the foregoing reasons, plaintiff respectfully requests that the New Matter and Counterclaim of defendant be stricken for failure to conform to law or rule of court, and judgment be entered in its favor and against defendant plus its costs and interest available at law. COUNT II. INSUFFICIENCY OF A PLEADING 4 7. Plaintiff incorporates the foregoing averments as if restated herein at length. 8. Defendant in Paragraph 29 of his Counterclaim pled an action for damages, an injunction and declaratory relief for plaintiffs alleged violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. Section 201-1 et seq. (hereinafter referred to as "UTPCPL." 9. Defendant in Paragraph 31 averred that he "had no health insurance, a low income, and no significant assets. He remains unable to pay the plaintiffs bill." 10. Defendant in Paragraph 32 averred that plaintiff billed defendant its full, undiscounted charges. ] 1 • Defendant in Paragraph 33 proceeds to describe that had he been eligible for government health insurance his bill would have been paid at an amount significantly less than what he was billed as a non-participant in a government health insurance plan. 12. Defendant in Paragraph 35 alleges that the hospital acted unfairly and in violation of the UTCCPL by not offering the same rates to "poor uninsured" that plaintiff is required to accept 2 pursuant to Commonwealth and/or Federal law for patients who are in fact insured through governmental health insurance programs. 13. Defendant in Paragraph 35 averred that not offering the contracted or statutory medical bill rates is immoral, unethical, and oppressive in that there is no justification for variable charges which discriminate against persons on the lowest rung of our economy. 14. Defendant in Paragraph 37 averred that the he was damaged by plaintiff not charging him the rates that would be charged to insured patients for the same services. 15. Defendant does not aver plaintiff misrepresented that its bills were reasonable and customary. 16. Defendant fails to state under which definition of unfair or deceptive acts or practices that plaintiffs acted providing contractual or statutory discounts to eligible patients falls pursuant to 73 P.S. § 201(4). 17. Assuming, arguendo, defendant alleges violation of UTPCPL through the statute's catch-all definition, "[e]ngaging in any other fraudulent or deceptive conduct which creates a like] ihood of confusion or of misunderstanding" defendant fails to allege how the medical bills are fraudulent or deceptive pursuant to 73 P.S. § 201(xxi). 18. Defendant fails to aver the elements of common law fraud on the part of plaintiff hospital in establishing its usual and customary charges upon which defendant was billed which is required pursuant to the catchall provision of the UTPCPL. Hammer v. Nikol 659 A.2d 617 (Pa. Cmwlth 1995). 19. Defendant fails to allege illegality in accepting "discounted" rates from insurance providers for subscribers which are set through negotiated contractual rates or set by statute through government health plans. 20. Defendant fails to allege malfeasance, improper performance of contractual obligation required to form a cause of action under the UTPCPL. Horowitz v. Federal Kem er Life 3 Assur Co, C.A.3 (Pa.) 1995, 57 F.3d 300, on remand 946 F.Supp. 384. 21. The Pennsylvania Superior Court has held that unfair trade practices and consumer protection law was inapplicable to providers of medical services. Foflyen v. R. Zemel M D (PCI, 420 Pa.Super 18, 614 A.2d 1345 (1992). WHEREFORE, for the foregoing reasons, plaintiff respectfully requests that the Counterclaim of defendant be stricken for legal insufficiency because of its failure to state a cause of action upon which can be granted, and judgment be entered in its favor and against defendant plus its costs a relief and interest available at law. TABAS & ROSEN, P.C. DATE: July 9, 2009 BY: Lt :':'IS C: T RAUV ER, ESQUIRE Attorney for Plaintiff 4 CERTIFICATE OF SERVICE I, Lewis C. Trauffer, Esquire, certify that on July 9, 2009 a true and correct copy of plaintiffs Preliminary Objections to Defendants' New Matter and Counterclaim was served on the following individ via United States mail, first class, postage pre-paid, and addressed as follows: individual(s) Mr. William Fisher 830 Margaro Road Enola, PA 17025 LEWI ' C. TRA FER Attorney for Plaintiff