HomeMy WebLinkAbout09-4286CAPOZZI & ASSOCIATES, P.C.
By: Trudy A. Marietta Mintz, Esquire
Attorney I.D. No. 208523
2933 North Front Street
Harrisburg, PA 17110
(717) 233-4101
Attorneys for
Dialysis Corporation of America
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
DIALYSIS CORPORATION OF AMERICA
214 Senate Avenue
Ste. 300
Camp Hill, Pennsylvania 17011 109
Plaintiff Action at Law
V.
THE LOOMIS COMPANY
850 N. Park Road
PO BOX 7011
Wyomissing, Pennsylvania 19610-6011
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Defendant
and
LAUREL HEALTH SYSTEM, Inc.
22 Walnut Street
Wellsboro, PA 16901
Defendant
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NOTICE TO DEFEND
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 the 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 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
Cumberland County Bar Association
32 S. Bedford Street
Carlisle, PA 17013
1-800-990-9108
(717) 249-3166
AVISO
e han demandado a usted en la corte. Si usted quiere defenderse de estas de estas
demandas expuestas an las paginas signientes, usted tiene veinte (20) dias de plazo al partir
de is fecha de la demanda y is notificacion. Hace falta asentar una comparencia escrita o
en persona o con un abogado y entregar a la corte en forma escrita sus defensas o sus
objeciones a las demandas en contra de su persona. Sea avisado que si usted no se
defiende, le corte tomara medidas y puede continuar la demanda en contra suya sin previo
aviso o notificacion. Ademas, la corte puede decidir a favor del demandante y requiere que
usted cumpla con todas las provisiones de esta demanda. Usted puede perder dinero o sus
propiedades u ostros derechos importantes para usted.
LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE, SI NO TIENE ABOGADO O SI NO TIENE EL
DINERO SUFICIENTE DE PAGAR TAL SERVICIO. VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA
CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA
LEGAL.
LAWYER REFERRAL SERVICE
Cumberland County Bar Association
32 S. Bedford Street
Carlisle, PA 17013
Respectfully submitted,
CAPOZZI &ASSOCIATES P.C.
Date: (0 /S
By:
Trudy A. Marietta M' squire
Attorney ID N 8523
2933 North Front Street
Harrisburg, PA 17110
(717) 233-4101
Attorney for Plaintiff
CAPOZZI & ASSOCIATES, P.C.
By: Trudy A. Marietta Mintz, Esquire
Attorney I.D. No. 208523
2933 North Front Street
Harrisburg, PA 17110
(717) 233-4101
Attorneys for
Dialysis Corporation of America
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
DIALYSIS CORPORATION OF AMERICA
214 Senate Avenue
Ste. 300 ,
Camp Hill, Pennsylvania 17011
Plaintiff Action at Law
V.
THE LOOMIS COMPANY
850 N. Park Road
PO BOX 7011
Wyomissing, Pennsylvania 19610-6011
Defendant
and
LAUREL HEALTH SYSTEM, Inc.
22 Walnut Street
Wellsboro, PA 16901
Defendant
* *
*
*
*
*
*
*
* * * * * * *
COMPLAINT
COMES NOW the Plaintiff, DIALYSIS CORPORATION OF AMERICA, by
and through their counsel, CAPOZZI & ASSOCIATES and TRUDY A. MARIETTA
MINTZ, and alleges as its Complaint as follows:
PARTIES AND VENUE
1. Dialysis Corporation of America (hereinafter referred to as "DCA" or
"Plaintiff') is a Florida corporation with its principal place of business
located at 1302 Concourse Drive (Suite 204), Linthicum, Maryland 21090,
which conducted business in Pennsylvania at all times relevant hereto with
main offices located at 214 Senate Avenue (Suite 300), Camp Hill,
Pennsylvania 17011 and dialysis facilities in Camp Hill, Bedford, Carlisle,
Chambersburg, Huntingdon, Lemoyne, Mechanicsburg, Pottstown,
Selinsgrove, Wellsboro, and York.
2. Defendant The Loomis Company (herein after referred to as "Loomis" or
"Defendant") is a Pennsylvania corporation with its principal place of
business located at 850 Park Road, Wyomissing, Pennsylvania, which
conducted business with the Plaintiff in Pennsylvania at all times relevant
hereto; and
3. Defendant Laurel Health System, Inc. (hereinafter referred to as "Laurel") is
a Pennsylvania not-for-profit corporation who owns and operates an ERISA
self-funded group health plan known as the Laurel Health System Health
Plan, with its principle place of business located at 22 Walnut Street,
Wellsboro, Pennsylvania, which conducted business with Plaintiff in
Pennsylvania at all times relevant hereto.
4. Venue is proper in this Court pursuant to Pa. R. Civ. P. Rule 2179 because
the cause of action arose in Cumberland County and because Defendants
regularly conduct business in Cumberland County.
FACTS
5. Plaintiff is in the business of providing dialysis and other renal care services.
6. Defendant Loomis is a third party administrator contracted to provide such
services for Defendant Laurel's self-funded health plan (hereinafter, "the
Plan").
7. Defendant Laurel is operator of an ERISA self-funded group health plan
("the Plan") providing health care coverage, including that for a patient
whose services are the subject of this matter and who is further identified in
Plaintiff's March 12, 2008 demand for payment addressed to Defendant
Loomis (hereinafter "Patient"). The name and other identification of the
Patient are not specified herein to protect the Patient's privacy rights and
because the parties have previously communicated about payment for the
services for the Patient and therefore have knowledge of who the Patient is.
8. Defendant Loomis, at all relevant times, acted on behalf of Defendant
Laurel by interpreting the health insurance coverage to be provided to
members of the Plan, such as the Patient, including but not limited to, "in-
network" status of providers and amounts of reimbursement to be made to
such providers and entering into agreements with out-of-network providers,
such as Plaintiff, with respect to services for Plan participants, such as
Patient, for which there were no "in-network" providers.
9. Plaintiff is not a parry to the contract for insurance coverage between the
Patient and Defendant Laurel.
10. Plaintiff is neither a participant, nor a beneficiary of the Plan.
11. Plaintiff is not a party to the contract for administrative services between
Defendant Laurel and Defendant Loomis.
12. Plaintiff and Defendants do not have a written contract by which their
business transactions are governed; however, they have an oral agreement
with respect to payment for the services involved.
13. Patient's healthcare identification card, which was provided by Defendant
Laurel to its covered members, such as Patient, states that claims for
payment for services provided to Patient are to be submitted to The Loomis
Company, Claims Dept., PO BOX 7011, Wyomissing, PA 19610-6011.
14. Defendant Loomis subsequently identified themselves to Plaintiff as having
contracted with Defendant Laurel to administer Plaintiff's claims for
services to the Patient.
15. Prior to Plaintiff providing services to the Patient, Defendants confirmed
that the Patient was eligible and had coverage for Plaintiff s dialysis services
under the Plan.
16. At all relevant times, the Plan did not have any dialysis services providers in
their network of providers.
17. Prior to providing services to the Patient in April 2006, Plaintiff sought to
determine how Plaintiff would be paid for such services, since Plaintiff was
not a participating provider in the Plan's network of providers; and, inquired
of Defendant Laurel about payment for such out-of-network services.
18. Defendants advised Plaintiff on or about April 27, 2006, prior to Plaintiff's
providing any services for the Patient, that: (a) since the Plan had no in-
network providers for dialysis services, such services were available to its
beneficiaries on an "open access basis" under which beneficiaries could
obtain services from any available provider, including Plaintiff; (b) the Plan
agreed to pay Plaintiff for such services even though Plaintiff was not a
participating provider in the Plan based on Plaintiff's usual and customary
charges for such services; and, (c) the Plan had no written provisions
concerning "open access basis" payments for out-of-network dialysis
services and nothing in writing that they could provide to Plaintiff.
19. The Plan authorized referrals of the Patient to Plaintiff for all the dialysis
services provided by Plaintiff at issue in this matter knowing that Plaintiff
was not a participating in-network provider and had no written agreement
with the Plan with respect to any limitations on payment for charges for
dialysis services.
20. In reliance on Defendant's agreement to make payment to Plaintiff based on
Plaintiff's usual and customary charges for dialysis services for Patient even
though Plaintiff was not a participating provider in the Plan, Plaintiff
provided the services involved in this matter to the Patient at Plaintiff's
facilities in Wellsboro, Selinsgrove, and Mechanicsburg from April 27,
2006 through January 3, 2008.
21. Defendants contracted with Wellington Healthcare Group, LLC and with
The National Care Network to obtain discounts from non-participating
providers from the charges that such out-of-network providers were
permitted to bill for services to Plan beneficiaries and which discounted
amounts the out-of-network providers would agree not to bill to Plan
beneficiaries.
22. Defendants, at all relevant times, did not require out-of-network providers,
such as Plaintiff, to agree to discount their charges as a condition of
obtaining payment for services provided to Plan beneficiaries.
23. Plaintiff expressly declined each and all of Defendants' requests that
Plaintiff voluntarily agree to discount Plaintiff's charges for services,
including those requests specifically addressed to the services to be provided
to the Patient; and, did not agree to make any voluntary discounts to
Plaintiff's usual and customary charges for any of the services Plaintiff
provided to the Patient.
24. Plaintiff billed Defendants Plaintiff s usual and customary charges for the
services provided to the Patient from April 27, 2006 through January 5,
2008.
25. Defendants paid Plaintiff in full Plaintiff s billed charges for services
provided to the Patient for Dates of Services April 27, 2006; May 2, 2006;
June 1-29, 2006; July 1-29, 2006; August 1-31, 2006; September 2, 2006;
October 3, 2006; November 2, 2006; December 2-30, 2006; January 2-30,
2007; February 1-27, 2007; and, March 1-20, 2007, with no excluded
charges and no discount claimed.
26. Defendants payment to Plaintiff for the dates of service identified in ¶25,
above, are consistent with the terms and rates of payment agreed to by the
parties in April 2006.
27. On information and belief, between April 27, 2006 and January 3, 2008,
there were no changes to the Patient's eligibility and coverage under the
Plan for Plaintiff s services.
28. Beginning with Plaintiff s invoice for services for the Patient for April 3-28,
2007 and continuing for the invoices for May 1, 2007; June 2, 2007; July 3-
31, 2007; August 2, 2007; September 1, 2007; October 4, 2007; November
1-29, 2007; December 1-31, 2007; and, January 3-5, 2008, Defendants did
not pay Plaintiff s billed charges in full and deducted a "Discount Amount"
which Defendants described on their Explanation of Benefits statements,
sent to DCA and to the Patient, as follows:
"The amount in the discount column represents a discount offered
by the Provider of Care. You should not be billed for this amount.
*** COMMENTS *** Paid according to DCC"
29. Plaintiff did not offer or agree to any discount with respect to Plaintiff's
services to the Patient for the dates identified in ¶28 above.
30. Defendants did not advise Plaintiffs of any change to their previously agreed
upon basis for billing and payment for services provided by Plaintiff to the
Patient from April 3, 2006 through January 5, 2008; did not provide Plaintiff
with any written notice of Defendants' intention or desire to change the
payment rate or the basis for payment that Defendants applied to pay
Plaintiff's billed services for the Patient from April 27, 2006 to March 20,
2007 for any period thereafter; and, did not provide Plaintiff with any
provision of the Plan that required any change.
31. By correspondence of June 17, 2008 addressed to Plaintiff, Defendant
Loomis conceded that the "Discount Amount" withheld by Defendants from
each of the payments referred to in ¶28, above, was not, in fact, a "discount
offered by the Provider of Care," but was, instead, a discount "taken through
Dialysis Cost Containment" and "based on the Usual, Customary and
Reasonable fees for the services provided."
32. The Explanation of Benefit statements identified in ¶28, above, contain no
explanation or definition of the phrase "Paid according to DCC" and no
information on how the amount of the alleged discount was calculated other
than as the amount allegedly agreed to by the Provider of Care.
33. The total amount of the "discounts" withheld by Defendants and not paid to
Plaintiff for Plaintiff's services to the Patient on the payment notices sent by
Defendants to Plaintiff for the services identified in 128, above, is
$53.675.40.
COUNT I - BREACH OF CONTRACT
[Both Defendants]
34. Plaintiff incorporates by reference the allegations in paragraphs 1-33 above
as if fully set forth herein.
35. On March 12, 2008, Plaintiff demanded payment from Defendants in the
amount of $53,675.40 with respect to services involved in this matter, which
amount Defendants have refused to pay and have not paid to date.
36. All conditions precedent to Plaintiff's demand for payment have been
performed and occurred.
WHEREFORE, Plaintiff requests this Court to award judgment in favor of
Plaintiff and against Defendants, jointly and severally, in the amount of $53,675.40, plus
the costs of this action and such other relief as this Court shall deem just.
COUNT II - QUANTUM MERUIT
[Both Defendants]
37. Plaintiff incorporates by reference the allegations in paragraphs 1 through
36 as if fully set forth herein.
38. Plaintiff provided dialysis services to the Patient and thereby conferred
benefits on Defendant Laurel.
39. Plaintiff did not provide its services to the Patient gratuitously but rather
provided them with an express expectation of compensation and notified
Defendant Laurel of such by ascertaining benefits prior to treatment and
submitting billing to its agent, Defendant Loomis.
40. Defendant Laurel accepted the services provided to its covered member and
acknowledged the benefits and expectation of compensation thereof by full
payment, through its agent Defendant Loomis, of bills sent by Plaintiff for
the periods from April 27, 2006 through March 20, 2007, but did not make
full payment for the dates of service from April 3, 2007 through January 5,
2008.
41. Defendant Laurel's acceptance of services without rendering payment in full
is inequitable; and
42. The reasonable value of services received, which has not been paid to date,
is $53,675.40.
WHEREFORE, Plaintiff requests this Court to award judgment in favor of
Plaintiff and against Defendants, jointly and severally, in the amount of $53,675.40, plus
the costs of this action and such other relief as this Court shall deem just.
COUNT III - PROMISSORY ESTOPPEL
[Both Defendants]
43. Plaintiff incorporates by reference the allegations in paragraphs 1 through
42 as if fully set forth herein.
44. Defendants made promises to Plaintiff with respect to the rate and basis for
payment to Plaintiff for the services to be provided to the Patient for the
purpose of inducing Plaintiff to provide dialysis services to the Patient.
45. Plaintiff reasonably relied on the promises made by Defendant to Plaintiff
referred to in ¶44, above.
46. Defendants' promises to Plaintiff and Plaintiff's reasonable reliance thereon
have resulted in detriment and damages suffered by Plaintiff in the amount
of $53,675.40, for which damages Plaintiff is entitled to recover.
WHEREFORE, Plaintiff requests this Court to award judgment in favor of
Plaintiff and against Defendants, jointly and severally, in the amount of $53,675.40, plus
the costs of this action and such other relief as this Court shall deem just.
COUNT IV - ACCOUNT STATED
47. Plaintiff incorporates by reference the allegations in paragraphs 1 through
46 as if fully set forth herein.
48. Pursuant to the parties' agreement with respect to payment for Plaintiff s
services for the Patient, Defendants agreed to payment Plaintiff for those
services.
49. Plaintiff provided the services for the Patient.
50. Defendants, without justification, excuse or dispute of Plaintiff's invoices
for the services identified in ¶28, above, has not paid Plaintiff in full for the
amount invoiced.
WHEREFORE, Plaintiff requests this Court to award judgment in favor of
Plaintiff and against Defendants, jointly and severally, in the amount of $53,675.40, plus
the costs of this action and such other relief as this Court shall deem just.
JURY DEMAND
51. Plaintiff hereby demands a jury of twelve.
Respectfully submitted,
CAPOZZI & AS IATES, P_.C.
Date: June 12, 2009
TRUDY A. MARI A M Z
ID No. 208523
2933 North Front Street
Harrisburg, PA 17110-1250
(717) 233-4101
Attorneys for Plaintiff
VERIFICATION
I, Edward J. Newett, Jr., in my capacity as the Senior Director of Reimbursement
and Finance for Dialysis Corporation of America, hereby state that I am authorized to
make this verification on their behalf and that the facts set forth in the attached Complaint
filed in this matter are true and correct to the best of my knowledge, information, and
belief, and that this verification is being made subject to 18 Pa. C.S. § 4904, relating to
unsworn falsification to authorities.
Edward J. New , Jr.
DATE: ! ?5?0 9
FP,
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Sheriffs Office of Cu? berland County
R Thomas Kline FL ;
Sheriff
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Ronny R Anderson
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Chi
eputy
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Jody S Smit h `rJ 4
Civil Process Sergeant OFFICE OF TI'$ ` ERIFF CS`FYI __,_
Edward L Schorpp r i` %l' ' ' -
Solicitor
Dialysis Corporation of America
vs.
The Loomis Company
Case Number
2009-4286
SHERIFF'S RETU
06/26/2009 R. Thomas Kline, Sheriff who being duly sworn acc
inquiry for the within named defendant, to wit: The
bailiwick. He therefore deputized the Sheriff of Bei
according to law.
OF SERVICE
ling to law states that he made a diligent search and
omis Company, but was unable to locate them in his
County, PA to serve the within Complaint and Notice
06/26/2009 R. Thomas Kline, Sheriff who being duly sworn accor ing to law states that he made a diligent search and
inquiry for the within named defendant, to wit: Laurel Health Systems, Inc., but was unable to locate them
in his bailiwick. He therefore deputized the Sheriff of Tioga County, PA to serve the within Complaint and
Notice according to law.
07/01/2009 03:15 PM - Tioga County Return: And now July 1, 2
County, Pennsylvania, do herby certify and return the
the within named defendant, to wit: Laurel Health S)
Operations Coordinator at 22 Walnut Street Wellsboi
handing to her personally the said true and correct o
07/02/2009 09:30 AM - Berks County Return: And now July 2, 2
Barks County, Pennsylvania, do herby certify and rel
upon the within named defendant, to wit: The Loomi
Human Resource Director at 850 N. Park Road Wyo
handing to her personally the said true and correct o
9 at 1515 hours I, John L. Perry, Sheriff of Tioga
I served a true copy of the within Complaint, upon
ems, Inc. by making known unto Maria Smith,
PA 16901 its contents and at the same time
v of the same.
)9 at 0930 hours I, Eric J. Weaknecht, Sheriff of
rn that I served a true copy of the within Complaint,
Company by making known unto Kathy Wolfe,
issing, PA 19610 its contents and at the same time
v of the same.
SHERIFF COST: $62.00
July 15, 2009
SO ANSWERS,
y 'j ° LujXr-
r02-R THOMAS KLINE, SHERIFF
COUNTY OF
yvil" ? SHERIF
w Courthouse- 3`d Floor
d 633 Court Street
Z Reading, PA 19601
Eric J. Weaknecht, Sheriff
S. c
AFFIDAVIT OF
DOCKET NO. 09-4286
COMMONWEALTH OF
PENNSYLVANIA:
COUNTY OF BERKS
Personally appeared before me, JOHN PHILLIPS, De
633 Court Street, Reading, Pennsylvania, who being c
JULY 2, 2009 at 9:30 AM, he served the annexed CC
COMPANY, within named defendant, by handing a c
at 850 N. PARK ROAD, WYOMISSING, PA 19610,
contents thereof.
Sworn and subscribed before me
,%s9 TH day of JULY, 2009
NOTARY LIC, ADING, BEIM - CO., PA
ERKS, PENNSYLVANIA
S DEPARTMENT
Phone: 610.478.6240
Fax: 610.478.6222
Anthony Damore, Chief Deputy
VICE
r for Eric J. Weaknecht, Sheriff of Berks County,
sworn according to law, deposes and says that on
LAINT IN CIVIL ACTION upon THE LOOMIS
thereof to KATHY WOLFE, H.R. DIRECTOR,
•ks County, Pa., and made known to defendant the
'?7L &9_7? ?U
DEPU HERIFF OF BE RS CO., PA
Service made as set forth above.
NOTARIAL SEAL
REBECCA OXENREIDER
Notary Public
READING CITY, BERKS COUNTY
My Commission Expires Feb 22, 2012
Sheriffs Costs in Above Proceedings
$ 100.00 DEPOSIT
$ 29.50 ACTUAL COST OF CASE
$ 70.50 AMOUNT OF REFUND
So Answers,
SHERIPFF OF BERK.S COUNTY, PA
All Sheriff s Costs shall be due and payable when service
demand and receive from the party instituting the proceec
unpaid sheriffs fees on the same before he shall be oblig
Sec. 2, Act of June 20, 191
s are performed, and it shall be lawful for him to
lings, or any part liable for the costs thereof, all
ited by law to make return thereof.
., P.L/ 1072
Dedicated to public service with integrity, virtue & excellence
1 0.
In The Court of Common Pleas of Cumber
Dialysis Corporation of America
vs.
The Loomis Company
850 North Park Road
Wyomissing, PA 19610
d County, Pennsylvania
Civil No. 2009-4286
Now, June 26, 2009, I, SHERIFF OF CUMBER
Berks County to execute this Writ, this deputation being
) COUNTY, PA, do hereby deputize the Sheriff of
at the request and risk of the Plaintiff.
Sheriff of Cumberland County, PA
Affidavit of Service
Now, , 20 , at o'clock M, served the
within
upon
at
by handing to.
and made known to
Sworn and subscribed before
me this day of ,20
So answers,
the contents thereof.
COSTS
SERVICE_
MILEAGE
AFFIDAVIT
County, PA
copy of the Cori
In The Court of Common Pleas of Cumb
Dialysis Corporation of America
VS.
Laurel Health Systems, Inc.
22 Walnut Street
Wellsboro, PA 16901
?, Aft nsylvania
03AI333H
1009 JUN 2 9 P 1: 4 5
Civil No. 2009-4286
Now, June 26, 2009, I, SHERIFF OF CUMBER
Tioga County to execute this Writ, this deputation being
D COUNTY, PA, do hereby deputize the Sheriff of
at the request and risk of the Plaintiff.
Sheriff of Cumberland County, PA
Affidavit of Service
Now, u / at- , 200q , at 3 ,1 o'clock h M, served the
within ftjohe f- I ecrnn (a_ c n-?
upon to-a tct 4atth JL13
at J, Wo-tn L.ct- Stm&
by handing to l1/tQ1'' G t-5m1+fi
a
and made known to h e-r
IV ( nc-
??c c.t??U rb T4 / b 9 b
attorc C?DOrdlnQ-t?Y
copy of the original
So answers,
Sheriff
COSTS
Sworn and subscribed before SERVICE
me this day of (tLLJ ,20 09 MILEAGE-
AFFIDAVIT
COMMONWEALTH OF PENNSYLVANIA
NctsuW Seal
A P. W44 Notary Pubk
Wdeb=ft%TbW County
My Cam *don E>gattea July 14,2W9
Member, Pennsylvania Aswgation. of No4o"
the contents thereof.
v? 71-0 co
PA
DIALYSIS CORPORATION OF AMERICA,
Plaintiff
VS.
THE LOOMIS COMPANY,
Defendant
and
LAUREL HEALTH SYSTEM, INC.,
Defendant
IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PA
: ACTION AT LAW
: NO. 09-4286 CIVIL
NOTICE TO PLEAD
To: Dialysis Corporation of America, Plaintiff
Capozzi & Associates, P.C.
Trudy A. Marietta Mintz, Esquire
2933 North Front Street
Harrisburg, PA 17110
You are hereby required to file a response to the within Preliminary Objections within
twenty (20) days after the Preliminary Objections are served upon you. You are warned that if
you fail to so do, the case may proceed without you, and judgment may be entered against you
by the court without further notice. 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
Cumberland County Bar Association
32 S. Bedford Street
Carlisle, PA 17013
RIV047
Date
OWLETT & LEWIS, P.C.
By: '--J .
Brian S. Duff, Esquire
Attorney for Defendants
PA ID # 85997
One Charles Street, P.O. Box 878
Wellsboro, PA 16901
(570) 723-1451
BSD@owlettlewis.com
DIALYSIS CORPORATION OF AMERICA,
Plaintiff
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PA
VS.
THE LOOMIS COMPANY,
Defendant
and
LAUREL HEALTH SYSTEM, INC.,
Defendant
: ACTION AT LAW
: NO. 09-4286 CIVIL
PRELIMINARY OBJECTIONS
And now, this _Oday of August, 2009, come Defendant Laurel Health System, Inc.
("Defendant LHS") and Defendant The Loomis Company ("Defendant Loomis"), by and
through their attorney, Owlett & Lewis, P.C., for the purpose of filing Preliminary Objections to
Plaintiff's Complaint as follows:
Preliminary Objection #1:
Insufficient Specificity of Pleading under Rule 1028(a)3 as to all Counts
1. Plaintiff, in each of its five (5) Counts against Defendants, asserts that the treatments
allegedly provided by Plaintiff took place during a range of dates from April 3, 2007
through and including January 5, 2008 (see Complaint ¶ 28).
2. However, nowhere in Plaintiff's Complaint are the alleged treatments broken down
by date, or by amount charged per treatment, or by actual services provided, or by
location where the alleged services were provided.
3. In addition, there are no Exhibits attached to Plaintiff's Complaint that would guide
Defendants regarding how much Plaintiff is seeking per alleged treatment, or when
the alleged treatments took place, or what specific services were provided during each
alleged treatment.
4. In addition, Plaintiff s Complaint refuses to identify the Patient, either by name or by
Social Security Number, so it is impossible for Defendants to check their own records
to either confirm or deny that the alleged treatments were given by Plaintiff to
Page I of 5
OWLETT & LEWIS, P.C. * ATTORNEYS AT LAW * WELLSBORO, PA
Patient, or to confirm or deny the amounts that were allegedly paid and/or allegedly
withheld by Defendants.
5. It would be patently unfair and inequitable to force Defendants to respond to the
Complaint as drafted, because the Complaint lacks the specificity required by the PA
Rules of Civil Procedure, such as dates, amounts, services provided, and the identity
of the Patient.
WHEREFORE, Defendants pray Your Honorable Court dismiss Plaintiffs Complaint, or
in the alternative, enter an Order directing Plaintiff to file an Amended Complaint to remedy the
lack of specificity in all Counts of Plaintiff s Complaint.
Preliminary Objection #2:
Failure of Complaint to Conform to Law under Rule 1028(a)2 as to all Counts
6. Defendants hereby incorporate by reference all of Paragraphs 1 through 5 as if set
forth in full herein.
7. In ¶ 31 of Plaintiffs Complaint, Plaintiff alleges that there was a written
correspondence dated June 17, 2008 from one of the Defendants to Plaintiff, allegedly
explaining the discounts that were taken; however, Plaintiff did not attach a copy of
the alleged correspondence to its Complaint.
8. PA Rule of Civil Procedure 1019(1) provides that "When any claim or defense is
based upon a writing, the pleader shall attach a copy of the writing, or the material
part thereof, but if the writing or copy is not accessible to the pleader, it is sufficient
so to state, together with the reason, and to set forth the substance in writing.
9. Plaintiff s Complaint fails to attach a copy of the writing referred to in ¶ 31, and also
fails to state that the writing is unavailable; therefore, Plaintiff s Complaint is
deficient under both Rule 1028(a)2 and Rule 1019(i).
10. In ¶ 3 and ¶ 7of Plaintiff s Complaint, Plaintiff alleges the existence of a written
health insurance plan ("Plan"), yet Plaintiff s Complaint fails to attach a copy of the
Plan, or the material parts thereof, and fails to state that the Plan is not available;
therefore, Plaintiffs Complaint is deficient under both Rule 1028(a)2 and Rule
1019(1).
WHEREFORE, Defendants pray Your Honorable Court dismiss Plaintiff s Complaint, or
in the alternative, enter an Order directing Plaintiff to file an Amended Complaint to remedy the
failure to attach a copy of the writing relied upon by Plaintiff in ¶'s 3, 7 and 31 of its Complaint.
Page 2 of 5
OWLETT & LEWIS, P.C. * ATTORNEYS AT LAW * WELLSBORO, PA
Preliminary Objection #3:
Improper Venue under Rule 1028(a) I
11. Defendants hereby incorporate by reference all of Paragraphs 1 through 10 as if set
forth in full herein.
12. Plaintiff, in ¶ 4 of its Complaint, alleges that venue in the Cumberland County Court
of Common Pleas is proper because "the cause of action arose in Cumberland County
and because Defendants regularly conduct business in Cumberland County."
13. Defendant LHS is a Pennsylvania nonprofit corporation with a Wellsboro (Tioga
County) address; Defendant LHS has health centers and regularly conducts business
only in the following northern tier counties: Tioga, Bradford, Lycoming and Sullivan
Counties; Defendant LHS does not regularly conduct business in Cumberland
County.
14. Plaintiff, in ¶ 20 of its Complaint, alleges that services were provided by Plaintiff to
Patient at three (3) different facilities: Wellsboro (Tioga County), Selinsgrove
(Snyder County) and Mechanicsburg (Cumberland County); but again, because
Plaintiff's Complaint fails to break down the alleged services by date and by location,
it is unclear from the Pleadings where the cause of action "arose." It could have
arisen in any one of the three (3) Counties referenced in 120 of Plaintiff s Complaint.
15. Because Defendant LHS does not regularly conduct business in Cumberland County,
venue in Cumberland County can only be proper under Rule 2179(a)3, the "county
where the cause of action arose," as opposed to Rule 2179(a)2, the "county where
(Defendant) regularly conducts business."
16. It is logical to presume that Patient is a resident of the northern tier counties
referenced in ¶ 12 of these Preliminary Objections, because Patient allegedly has
health insurance coverage through Defendant LHS; therefore, it is more logical to
presume that Patient had dialysis services performed at the Wellsboro (Tioga County)
facility rather than at the Mechanicsburg (Cumberland County) facility. Therefore,
the cause of action, if any, "arose" in Tioga County and not in Cumberland County.
WHEREFORE, Defendants pray Your Honorable Court enter an Order dismissing
Plaintiff's Complaint for improper venue under Rule 2179, together with any other relief deemed
necessary or appropriate by Your Honorable Court.
Page 3 of 5
OWLETT & LEWIS, P.C. * ATTORNEYS AT LAW * WELLSBORO, PA
Preliminary Objection #4:
Lack of Jurisdiction over the Subject Matter under Rule 1028(a)1
17. Defendants hereby incorporate by reference all of Paragraphs 1 through 16 as if set
forth in full herein.
18. Even if Your Honorable Court would find that venue in Cumberland County (as
opposed to Tioga County) is proper under the circumstances (which Defendants
expressly deny), jurisdiction is still not proper in this Court, because the health
insurance plan at issue is an ERISA plan, as admitted by Plaintiff in its Complaint
(see 13 of Plaintiff s Complaint).
19. All state-law claims arising out of an ERISA plan (like those pled by Plaintiff in its
Complaint) are specifically preempted by the Federal ERISA Statute. See 29 U.S.C.
1144.
20. Because said state-law claims such as breach of contract, promissory estoppel and
quantum meruit are specifically preempted by a Federal Statute, this Court lacks
subject matter jurisdiction to even hear the case as pled by Plaintiff in its Complaint.
WHEREFORE, Defendants pray Your Honorable Court enter an Order dismissing
Plaintiff's Complaint, with prejudice, for lack of subject matter jurisdiction, together with any
other relief deemed necessary or appropriate by Your Honorable Court.
Preliminary Objection #5:
Failure to Exhaust Statutory Remedies under Rule 1028(a)7
21. Defendants hereby incorporate by reference all of Paragraphs 1 through 20 as if set
forth in full herein.
22. The health insurance plan at issue is an ERISA plan, as admitted by Plaintiff in its
Complaint (see ¶ 3 of Plaintiff s Complaint).
23. The Federal Statute governing ERISA plans sets forth in detail what administrative
steps a Plaintiff must take prior to filing a civil action, none of which have been taken
by Plaintiff in this case prior to filing the above-captioned civil action. See 29
U.S.C. § 1133.
24. Specifically, before an aggrieved party may file a civil action against a Plan or against
the Administrator of a Plan, the aggrieved party must seek a "full and fair review by
the appropriate named fiduciary of the decision denying the (aggrieved party's)
claim." See 29 U.S.C. § 1133(2).
Page 4 of 5
OWLETT & LEWIS, P.C. * ATTORNEYS AT LAW * WELLSBORO, PA
25. Plaintiff has not taken the appropriate steps as outlined above, and therefore Plaintiff
has not exhausted its administrative or statutory remedies, and therefore Plaintiff s
Complaint is deficient under Rule 1028(a)7.
WHEREFORE, Defendants pray Your Honorable Court enter an Order dismissing
Plaintiff s Complaint for failure to exhaust all of its administrative or statutory remedies,
together with any other relief deemed necessary or appropriate by Your Honorable Court.
Respectfully Submitted,
OWLETT & LEWIS, P.C.
'711-907
Date
By: i/? A -
Brian S. Duff, Esquire
Attorney for Defendants
PA ID # 85997
One Charles Street
P.O. Box 878
Wellsboro, PA 16901
(570) 723-1451
BSDgowlettlewis.com
Page 5 of 5
OWLETT & LEWIS, P.C. * ATTORNEYS AT LAW * WELLSBORO, PA
DIALYSIS CORPORATION OF AMERICA,
Plaintiff
VS.
THE LOOMIS COMPANY,
Defendant
and
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PA
ACTION AT LAW
: NO. 09-4286 CIVIL
LAUREL HEALTH SYSTEM, INC.,
Defendant
CERTIFICATE OF SERVICE
I, BRIAN S. DUFF, Esquire, Attorney for Defendants, The Loomis Company and Laurel
Health System, Inc., in the above captioned matter, do hereby certify that I served a true and correct copy
of Defendants' Preliminary Objections by forwarding the same via US Mail, First Class, ostage prepaid
by depositing same with the US Postmaster, Wellsboro, Tioga County, PA, on this L day of August,
2009, addressed as follows:
Capozzi & Associates, P.C.
Trudy A. Marietta Mintz, Esquire
Attorney for Plaintiff
2933 North Front Street
Harrisburg, PA 17110
OWLETT & LEWIS, P.C.
FIX * By: 11f ?, -1? - &
Date Brian S. Duff, Esquire
Attorney for Defendants
PA ID # 85997
One Charles Street
P.O. Box 878
Wellsboro, PA 16901
(570) 723-1451
OWLETT & LEWIS, P.C. * ATTORNEYS AT LAW * WELLSBORO, PA
4f, rTA.TARY
FN'S AUG 14 PM 2 56
A?,4D PB*S&V"
PRAECIPE FOR LISTING CASE FOR ARGUMENT
(Must be typewritten and submitted in duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next
Argument Court.)
CAPTION OF CASE
(entire caption must be stated in full)
DIALYSIS CORPORATION OF AMERICA,
Plaintiff
vs.
THE LOOMIS COMPANY,
Defendant
and
LAUREL HEALTH SYSTEM, INC. No 09-4286 CIVIL Term
Defendant
1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to
complaint, etc.):
Defendants' Preliminary objections
2. Identify all counsel who will argue cases:
(a) for plaintiffs:
Trudy Mintz, Esquire, Capozzi & Associates, PC 2933 North Front St., Harrisburg, PA 17110
(Name and Address)
(b) for defendants:
Brian S. Duff, Esq., Owlett & Lewis, P.C. P.O. Box 878, Welslboro, PA 16901
(Name and Address)
3. 1 will notify all parties in writing within two days that this case has been listed for
argument.
4. Argument Court Date:
Signature
Brian S. Duff
Print your name
9/x/09 Attorney for Defendants
Date:
INSTRUCTIONS:
1. Two copies of all briefs must be filed with the COURT ADMINISTRATOR
(not the Prothonotary) before argument.
2. The moving party shall file and serve their brief 12 days prior to argument.
3. The responding party shall file their brief 5 days prior to argument.
4. If argument is continued new briefs must be filed with the COURT
ADMINISTRATOR (not the Prothonotary) after the case is relisted.
CA /AL
FLT( r1' "
N RE
2009'S;E Fri fy'
f
CAPOZZI & ASSOCIATES, P.C.
By: Michael M. Jerominski, Esquire
Attorney I.D. No. 92977
2933 North Front Street
Harrisburg, PA 17110
(717) 233-4101
Attorneys for
Dialysis Corporation of America
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
DIALYSIS CORPORATION OF AMERICA
214 Senate Avenue
Ste. 300
Camp Hill, Pennsylvania 17011
THE LOOMIS COMPANY
850 N. Park Road
PO BOX 7011
Wyomissing, Pennsylvania 19610-6011
Defendant
and
LAUREL HEALTH SYSTEM, Inc.
22 Walnut Street
Wellsboro, PA 16901
Defendant
* * *
RESPONSE TO PRELIMINARY OBJECTIONS OF DEFENDANTS THE
LOOMIS COMPANY AND LAUREL HEALTH SYSTEM, INC.
V.
Plaintiff Action at Law
*
* No. 09-4286
*
*
*
*
* * * * * * *
The Plaintiff, DIALYSIS CORPORATION OF AMERICA, by and through their
counsel, CAPOZZI & ASSOCIATES and MICHAEL M. JEROMINSKI, hereby submits
this response to the Preliminary Objections of the Defendants, The Loomis Company and
Laurel Health Systems (hereinafter referred to as "Defendants") and alleges as follows:
Procedural Background
1. Plaintiff Dialysis Corporation of America (hereinafter "DCA" or "Plaintiff") filed
a Complaint on June 25, 2009, in which it alleged that Defendants failed to pay
the Plaintiff for services performed and accepted by the Defendants.
2. On or about July 16, 2009, Defendants filed Preliminary Objections to the
Complaint on the grounds that Plaintiffs failed to plead with specificity under
Rule 1028(a)(3), the Complaint failed to conform to law under Rule 1028(a)(2),
improper venue, lack of jurisdiction over subject matter under Rule 1028(a)(1),
and failure to exhaust statutory remedies under Rule 1028(a)(7).
The Plaintiff hereby incorporates by reference the facts and allegations contained
in their Complaint as if set forth herein. A true and correct copy of the Complaint
is attached hereto and made a part of this document with the designation of
Exhibit A.
4. The Plaintiff files this Response to the Preliminary Objections to the Complaint
filed by the Defendants The Loomis Company and Laurel Health Systems.
Preliminary Obiection #1: Insufficient Specificity of Pleading under Rule 1028(a)(3)
as to All Counts
5. The Plaintiff incorporates by reference Paragraphs 1-4 herein as if set forth in full.
6. Defendants correctly state that Plaintiffs set forth a range of treatment dates
spanning April 3, 2007, to January 5, 2008, for the patient whose gave rise to the
current litigation.
7. Defendants further allege that Plaintiff's Complaint fails to state with specificity
locations of treatment, dates, amounts, services provided, and the identity of the
patient. Defendants' Preliminary Objections at ¶ 2, 5.
8. Rule 1028(a)(3) is to be interpreted with an eye toward whether the complaint is
sufficiently clear to enable the defendant to prepare his defense or whether the
plaintiffs complaint informs the defendant with accuracy and completeness of the
specific basis on which recovery is sought so that he may know without question
upon what grounds to make his defense. McNeil v. Jordan, 814 A.2d 234, 237-
38, 2002 PA Super 400, ¶ 9 (2002).
9. As to location, Plaintiff's Complaint states that Plaintiff provided treatment at
Plaintiff's facilities in Wellsboro, Selinsgrove, and Mechanicsburg. Plaintiff's
Complaint at ¶ 20.
10. As to dates, Plaintiff provided dates of the services provided as set forth in
Plaintiff's Complaint at T¶ 20, 24-25, and 28.
11. As to amounts, Plaintiff sets forth the amount in question in Plaintiff's Complaint
at ¶T 33, 35, 42, and 46.
12. As to services provided, Plaintiff provided dialysis services.
13. As to the identity of the Patient, the Patient is Defendant Laurel Health Systems'
insured, and such information is in their possession.
14. Plaintiff has provided sufficient information to meet the dictates of McNeil v.
Jordan.
WHEREFORE, the Plaintiff respectfully requests that the Court deny the
Preliminary Objections of the Defendants regarding Insufficient Specificity of
Pleading under Rule 1028(a)(3) as to All Counts, and order any other relief deemed
equitable and just.
Preliminary Obiection #2• Failure of Complaint to Conform to Law under Rule
1028(a)(2) as to All Counts
15. The Plaintiff incorporates by reference Paragraphs 1-14 herein as if set forth in
full.
16. Defendants contend that Plaintiff's Complaint does not conform to law due to
failing to attach the writing referenced in ¶ 31 of Plaintiff's Complaint.
17. PA Rule of Civil Procedure 1019(h) requires that when "any claim or defense is
based upon an agreement, the pleading shall state specifically if the agreement is
oral or written." Plaintiff specifically stated that the agreement that forms the
basis of this matter is oral, not written. Plaintiff's Complaint at ¶ 12.
18. The writing referenced in ¶ 31 of Plaintiff's Complaint is evidentiary in nature,
not the underlying agreement itself. Merely evidentiary writings do not need to
3
be attached to Complaints. Department of Transp. v. Bethlehem Steel Corp.,
368 A.2d 888, 28 Pa.Cmwlth. 214, Cmwlth.1977.
19. The agreement is an oral one; therefore, PA Rule of Civil Procedure 1019(i) does
not apply to the writing referenced in ¶ 31 of Plaintiff's Complaint.
20. Paragraphs 3 and 7 of Plaintiff's Complaint refer to a plan already in the
possession of the Defendants.
21. Furthermore, the current action concerns representations made regarding payment
outside of the plan.
WHEREFORE, the Plaintiff respectfully requests that the Court deny the
Preliminary Objections of the Defendants regarding Failure of Complaint to Conform
to Law under Rule 1028(a)(2) as to All Counts, and order any other relief deemed
equitable and just.
Preliminary Obiection #3• Improper Venue under Rule 1028(a)(1) as to All Counts
22. The Plaintiff incorporates by reference Paragraphs 1-21 herein as if set forth in
full.
23. Defendants assert that Defendant Laurel Health Systems regularly conducts
business only in the Counties of Tioga, Bradford, Lycoming, and Sullivan, and
fails to address the significance of PA Rule of Civil Procedure 1006(c), and its
relation to Defendant The Loomis Company.
24. Defendant Laurel Health Systems regularly conducted business in Cumberland
County by virtue of regularly conducting business with Plaintiff's main
Pennsylvania office, located in Camp Hill, Cumberland County, and by having
the Patient obtain services at, among other locations, Plaintiff's Mechanicsburg
location. Plaintiff's Complaint at ¶¶ at 1, 20.
25. As Defendant Laurel Health Systems regularly conducted business in Cumberland
County, venue is proper under Rule 2179(a)(2).
26. Defendant The Loomis Company regularly conducted business in Cumberland
County by virtue of regularly conducting business with Plaintiff's main
Pennsylvania office, located in Camp Hill, Cumberland County, and by having
the Patient obtain services at, among other locations, Plaintiff's Mechanicsburg
location. Plaintiff's Complaint at T¶ at 1, 20.
4
27. Defendant The Loomis Company also corresponded directly with regard to
matters affecting the Patient through Plaintiff's main Pennsylvania office in Camp
Hill, Cumberland County. Plaintiff's Complaint at T¶ 1, 31.
28. As Defendant The Loomis Company regularly conducted business in Cumberland
County, venue is proper under Rule 2179(a)(2).
29. In reliance on Defendants' agreement to make payment to Plaintiff based on
Plaintiff's usual and customary charges for dialysis services, Plaintiff provided
said services to the Patient at their facilities, including their Mechanicsburg
facility.
30. Defendants failed to make payment for said services.
31. As the failure to snake payment to an entity with a main Pennsylvania office
situated in Camp Hill, Cumberland County, arose from services provided in,
among other locations, Mechanicsburg, Cumberland County, venue is proper
under Rule 2179(a)(3).
32. Defendants' Preliminary Objections do not state any objection to venue as it
relates to Defendant The Loomis Company.
33. In actions alleging joint or joint and several liability against two or more
defendants, venue is proper if it is proper to any one defendant. PA Rule of Civil
Procedure 1006(c)(1).
34. The relief requested for every count of Plaintiff's Complaint includes, inter alia, a
request for judgment in favor of the Plaintiff and against the Defendants, jointly
and severally.
35. Therefore, venue is proper as to both Defendants.
WHEREFORE, the Plaintiff respectfully requests that the Court deny the
Preliminary Objections of the Defendants regarding Improper Venue under Rule
1028(a)(1) as to All Counts, and order any other relief deemed equitable and just.
Preliminary Obiection #4• Lack of Jurisdiction over the Subject Matter under Rule
1028(a)(1)
36. The Plaintiff incorporates by reference Paragraphs 1-35 herein as if set forth in
full.
37. Defendants contend that all state law claims arising from an ERISA plan are
specifically pre-empted by 29 U.S.C. § 1144.
38. Pre-emption under § 514(a) of ERISA, 29 U.S.C. § 1144(a), must be
distinguished from complete pre-emption under § 502(a) of ERISA, 29 U.S.C. §
I I32(a). Pascack Valley Hosp. v. Local 464A UFCW Welfare Reimbursement
Plan, 388 F.3d 393, 398 (3' Cir. 2004).
39. Only 29 U.S.C. § I I32(a) pen-nits removal of what would otherwise be a state law
claim under the well-pleaded complaint rule. Under § 514(a), ERISA supersedes
state laws that "relate to" an ERISA plan. 29 U.S.C. § 1 144(a). Unlike the scope
of § 502(a), which is jurisdictional and creates a basis for removal to federal
court, § 514(a) merely governs the law that will apply to state law claims,
regardless of whether the case is brought in state or federal court. Lazorko v. Pa.
Hosp., 237 F.3d 242, 248 (3d Cir.2000). Section 514(a), therefore, does not
permit removal of an otherwise well-pleaded complaint asserting only state law
claims. Pascack Valley Hosp. v. Local 464A UFCW Welfare Reimbursement
Plan, 388 F.3d 393, 398 (3rd Cir. 2004).
40. Plaintiff's Complaint relies upon Pennsylvania state law to allege breach of
contract, quantum meruit, promissory estoppel, and account stated claims.
41. Plaintiff's state law claims do not relate to ERISA, but rather an oral agreement
for payment separate from and outside of ERISA's framework. Plaintiff s
Complaint at ¶T 12, 17-20.
42. Therefore, subject matter jurisdiction is proper in This Honorable Court.
WHEREFORE, the Plaintiff respectfully requests that the Court deny the
Preliminary Objections of the Defendants regarding Lack of Jurisdiction over the
Subject Matter under Rule 1028(a)(1), and order any other relief deemed equitable
and just.
Preliminary Obiection #5• Failure to Exhaust Statutory Remedies under Rule
1028(a)(7)
43. The Plaintiff incorporates by reference Paragraphs 1-42 herein as if set forth in
full.
44. Defendants contend that Plaintiff did not exhaust statutory remedies under
ERISA.
45. Plaintiff had an agreement separate from and outside of any ERISA obligations.
6
46. Therefore, Plaintiff is not bound to take steps to exhaust ERISA statutory
remedies.
WHEREFORE, the Plaintiff respectfully requests that the Court deny the
Preliminary Objections of the Defendants regarding Failure to Exhaust Statutory
Remedies under Rule 1028(a)(7), and order any other relief deemed equitable and
just.
Respectfully submitted,
Date: October 2, 2009 /&01/? "a'? .
Michael M. Jerominski, Esquire
Attorney I.D. No.: 92977
Capozzi & Associates, P.C.
2933 N. Front Street
Harrisburg, PA 17110
(717) 233-4101
CAPOZZI & ASSOCIATES, P.C.
By: Trudy A. Marietta Mintz, Esquire
Attorney I.D. No. 208523
2933 North Front Street
Harrisburg, PA 17110
(717) 233-4101
Attorneys for
Dialysis Corporation of America
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
DIALYSIS CORPORATION OF AMERICA
214 Senate Avenue
Ste. 300
Camp Hill, Pennsylvania 17011
Plaintiff Action at Law
V.
THE LOOMIS COMPANY
850 N. Park Road
PO BOX 7011
Wyomissing, Pennsylvania 19610-6011
*
Defendant
and
LAUREL HEALTH SYSTEM, Inc.
22 Walnut Street
Wellsboro, PA 16901
Defendant
* * * * * * * * * *
NOTICE TO DEFEND
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 the 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 Plaintiff. You may lose money or
property or other rights important to you.
EXHIBIT A
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
Cumberland County Bar Association
32 S. Bedford Street
Carlisle, PA 17013
1-800-990-9108
(717) 249-3166
EXHIBIT A
AVISO
e han demandado a usted en la corte. Si usted quiere defenderse de estas de estas
demandas expuestas an las paginas signientes, usted tiene veinte (20) dias de plazo al partir
de is fecha de la demanda y is notificacion. Hace falta asentar una comparencia escrita o
en persona o con un abogado y entregar a la corte en forma escrita sus defensas o sus
objeciones a las demandas en contra de su persona. Sea avisado que si usted no se
defiende, le corte tomara medidas y puede continuar la demanda en contra suya sin previo
aviso o notificacion. Ademas, la corte puede decidir a favor del demandante y requiere que
usted cumpla con todas las provisioner de esta demanda. Usted puede perder dinero o sus
propiedades a ostros derechos importantes para usted.
LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE, S1 NO TIENE ABOGADO O SI NO TIENE EL
DINERO SUFICIENTE DE PAGAR TAL SERVICIO. VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA
CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA
LEGAL.
LAWYER REFERRAL SERVICE
Cumberland County Bar Association
32 S. Bedford Street
Carlisle, PA 17013
Respectfully submitted,
CAPOZZI & ASSOCIATES, P.C.
Date:
By:
Trudy A. Marietta Mintz, Esquire
Attorney ID No. 208523
2933 North Front Street
Harrisburg, PA 17110
(717) 233-4101
Attorney for Plaintiff
EXHIBIT A
CAPOZZI & ASSOCIATES, P.C.
By: Trudy A. Marietta Mintz, Esquire
Attorney I.D. No. 208523
2933 North Front Street
Harrisburg, PA 17110
(717) 233-4101
Attorneys for
Dialysis Corporation of America
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
DIALYSIS CORPORATION OF AMERICA
214 Senate Avenue
Ste. 300
Camp Hill, Pennsylvania 17011
Plaintiff Action at Law
V.
THE LOOMIS COMPANY
850 N. Park Road
PO BOX 7011
Wyomissing, Pennsylvania 19610-6011
Defendant
and
LAUREL HEALTH SYSTEM, Inc.
22 Walnut Street
Wellsboro, PA 16901
Defendant
* * *
*
*
*
*
*
* * * * * * *
NOTICE TO DEFEND
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 the 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 Plaintiff. You may lose money or
property or other rights important to you.
Exhibit A
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
Cumberland County Bar Association
32 S. Bedford Street
Carlisle, PA 17013
1-800-990-9108
(717) 249-3166
Exhibit A
AVISO
e han demandado a usted en la corte. Si usted quiere defenderse de estas de estas
demandas expuestas an las paginas signientes, usted tiene veinte (20) dias de plazo al partir
de is fecha de la demanda y is notificacion. Hace falta asentar una comparencia escrita o
en persona o con un abogado y entregar a la corte en forma escrita sus defensas o sus
objeciones a las demandas en contra de su persona. Sea avisado que si usted no se
defiende, le corte tomara medidas y puede continuar la demanda en contra suya sin previo
aviso o notificacion. Ademas, la corte puede decidir a favor del demandante y requiere que
usted cumpla con todas las provisiones de esta demanda. Usted puede perder dinero o sus
propiedades u ostros derechos importantes para usted.
LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE, SI NO TIENE ABOGADO O SI NO TIENE EL
DINERO SUFICIENTE DE PAGAR TAL SERVICIO. VAYA EN PERSONA O LLAME POR TELEFONO ALA OFICINA
CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA
LEGAL.
LAWYER REFERRAL SERVICE
Cumberland County Bar Association
32 S. Bedford Street
Carlisle, PA 17013
Date: /S
Respectfully submitted,
CAPOZZI & ASSOCIATES P.C.
By:
Trudy A. Marietta M' squire
Attorney ID N 8523
2933 North Front Street
Harrisburg, PA 17110
(717) 233-4101
Attorney for Plaintiff
Exhibit A
CAPOZZI & ASSOCIATES, P.C.
By: Trudy A. Marietta Mintz, Esquire
Attorney I.D. No. 208523
2933 North Front Street
Harrisburg, PA 17110
(717) 233-4101
Attorneys for
Dialysis Corporation of America
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
DIALYSIS CORPORATION OF AMERICA
214 Senate Avenue
Ste. 300
Camp Hill, Pennsylvania 17011
Plaintiff Action at Law
V.
THE LOOMIS COMPANY
850 N. Park Road
PO BOX 7011
Wyomissing, Pennsylvania 19610-6011
*
Defendant
and
LAUREL HEALTH SYSTEM, Inc.
22 Walnut Street
Wellsboro, PA 16901
Defendant
* * * * * * * * * *
COMPLAINT
COMES NOW the Plaintiff, DIALYSIS CORPORATION OF AMERICA, by
and through their counsel, CAPOZZI & ASSOCIATES and TRUDY A. MARIETTA
MINTZ, and alleges as its Complaint as follows:
Exhibit A
PARTIES AND VENUE
1. Dialysis Corporation of America (hereinafter referred to as "DCA" or
"Plaintiff") is a Florida corporation with its principal place of business
located at 1302 Concourse Drive (Suite 204), Linthicum, Maryland 21090,
which conducted business in Pennsylvania at all times relevant hereto with
main offices located at 214 Senate Avenue (Suite 300), Camp Hill,
Pennsylvania 17011 and dialysis facilities in Camp Hill, Bedford, Carlisle,
Chambersburg, Huntingdon, Lemoyne, Mechanicsburg, Pottstown,
Selinsgrove, Wellsboro, and York.
2. Defendant The Loomis Company (herein after referred to as "Loomis" or
"Defendant") is a Pennsylvania corporation with its principal place of
business located at 850 Park Road, Wyomissing, Pennsylvania, which
conducted business with the Plaintiff in Pennsylvania at all times relevant
hereto; and
3. Defendant Laurel Health System, Inc. (hereinafter referred to as "Laurel") is
a Pennsylvania not-for-profit corporation who owns and operates an ERISA
self-funded group health plan known as the Laurel Health System Health
Plan, with its principle place of business located at 22 Walnut Street,
Wellsboro, Pennsylvania, which conducted business with Plaintiff in
Pennsylvania at all times relevant hereto.
4. Venue is proper in this Court pursuant to Pa. R. Civ. P. Rule 2179 because
the cause of action arose in Cumberland County and because Defendants
regularly conduct business in Cumberland County.
Exhibit A
FACTS
5. Plaintiff is in the business of providing dialysis and other renal care services.
6. Defendant Loomis is a third party administrator contracted to provide such
services for Defendant Laurel's self-funded health plan (hereinafter, "the
Plan").
7. Defendant Laurel is operator of an ERISA self-funded group health plan
("the Plan") providing health care coverage, including that for a patient
whose services are the subject of this matter and who is further identified in
Plaintiff s March 12, 2008 demand for payment addressed to Defendant
Loomis (hereinafter "Patient"). The name and other identification of the
Patient are not specified herein to protect the Patient's privacy rights and
because the parties have previously communicated about payment for the
services for the Patient and therefore have knowledge of who the Patient is.
8. Defendant Loomis, at all relevant times, acted on behalf of Defendant
Laurel by interpreting the health insurance coverage to be provided to
members of the Plan, such as the Patient, including but not limited to, "in-
network" status of providers and amounts of reimbursement to be made to
such providers and entering into agreements with out-of-network providers,
such as Plaintiff, with respect to services for Plan participants, such as
Patient, for which there were no "in-network" providers.
9. Plaintiff is not a party to the contract for insurance coverage between the
Patient and Defendant Laurel.
10. Plaintiff is neither a participant, nor a beneficiary of the Plan.
Exhibit A
11. Plaintiff is not a party to the contract for administrative services between
Defendant Laurel and Defendant Loomis.
12. Plaintiff and Defendants do not have a written contract by which their
business transactions are governed; however, they have an oral agreement
with respect to payment for the services involved.
13. Patient's healthcare identification card, which was provided by Defendant
Laurel to its covered members, such as Patient, states that claims for
payment for services provided to Patient are to be submitted to The Loomis
Company, Claims Dept., PO BOX 7011, Wyomissing, PA 19610-6011.
14. Defendant Loomis subsequently identified themselves to Plaintiff as having
contracted with Defendant Laurel to administer Plaintiff's claims for
services to the Patient.
15. Prior to Plaintiff providing services to the Patient, Defendants confirmed
that the Patient was eligible and had coverage for Plaintiffs dialysis services
under the Plan.
16. At all relevant times, the Plan did not have any dialysis services providers in
their network of providers.
17. Prior to providing services to the Patient in April 2006, Plaintiff sought to
determine how Plaintiff would be paid for such services, since Plaintiff was
not a participating provider in the Plan's network of providers; and, inquired
of Defendant Laurel about payment for such out-of-network services.
Exhibit A
18. Defendants advised Plaintiff on or about April 27, 2006, prior to Plaintiff s
providing any services for the Patient, that: (a) since the Plan had no in-
network providers for dialysis services, such services were available to its
beneficiaries on an "open access basis" under which beneficiaries could
obtain services from any available provider, including Plaintiff; (b) the Plan
agreed to pay Plaintiff for such services even though Plaintiff was not a
participating provider in the Plan based on Plaintiff's usual and customary
charges for such services; and, (c) the Plan had no written provisions
concerning "open access basis" payments for out-of-network dialysis
services and nothing in writing that they could provide to Plaintiff.
19. The Plan authorized referrals of the Patient to Plaintiff for all the dialysis
services provided by Plaintiff at issue in this matter knowing that Plaintiff
was not a participating in-network provider and had no written agreement
with the Plan with respect to any limitations on payment for charges for
dialysis services.
20. In reliance on Defendant's agreement to make payment to Plaintiff based on
Plaintiff s usual and customary charges for dialysis services for Patient even
though Plaintiff was not a participating provider in the Plan, Plaintiff
provided the services involved in this matter to the Patient at Plaintiff's
facilities in Wellsboro, Selinsgrove, and Mechanicsburg from April 27,
2006 through January 3, 2008.
Exhibit A
21. Defendants contracted with Wellington Healthcare Group, LLC and with
The National Care Network to obtain discounts from non-participating
providers from the charges that such out-of-network providers were
permitted to bill for services to Plan beneficiaries and which discounted
amounts the out-of-network providers would agree not to bill to Plan
beneficiaries.
22. Defendants, at all relevant times, did not require out-of-network providers,
such as Plaintiff, to agree to discount their charges as a condition of
obtaining payment for services provided to Plan beneficiaries.
23. Plaintiff expressly declined each and all of Defendants' requests that
Plaintiff voluntarily agree to discount Plaintiff s charges for services,
including those requests specifically addressed to the services to be provided
to the Patient; and, did not agree to make any voluntary discounts to
Plaintiff s usual and customary charges for any of the services Plaintiff
provided to the Patient.
24. Plaintiff billed Defendants Plaintiff's usual and customary charges for the
services provided to the Patient from April 27, 2006 through January 5,
2008.
Exhibit A
25. Defendants paid Plaintiff in full Plaintiff's billed charges for services
provided to the Patient for Dates of Services April 27, 2006; May 2, 2006;
June 1-29, 2006; July 1-29, 2006; August 1-31, 2006; September 2, 2006;
October 3, 2006; November 2, 2006; December 2-30, 2006; January 2-30,
2007; February 1-27, 2007; and, March 1-20, 2007, with no excluded
charges and no discount claimed.
26. Defendants payment to Plaintiff for the dates of service identified in ¶25,
above, are consistent with the terms and rates of payment agreed to by the
parties in April 2006.
27. On information and belief, between April 27, 2006 and January 3, 2008,
there were no changes to the Patient's eligibility and coverage under the
Plan for Plaintiff's services.
28. Beginning with Plaintiff's invoice for services for the Patient for April 3-28,
2007 and continuing for the invoices for May 1, 2007; June 2, 2007; July 3-
31, 2007; August 2, 2007; September 1, 2007; October 4, 2007; November
1-29, 2007; December 1-31, 2007; and, January 3-5, 2008, Defendants did
not pay Plaintiff's billed charges in full and deducted a "Discount Amount"
which Defendants described on their Explanation of Benefits statements,
sent to DCA and to the Patient, as follows:
"The amount in the discount column represents a discount offered
by the Provider of Care. You should not be billed for this amount.
*** COMMENTS *** Paid according to DCC"
Exhibit A
29. Plaintiff did not offer or agree to any discount with respect to Plaintiff's
services to the Patient for the dates identified in ¶28 above.
30. Defendants did not advise Plaintiffs of any change to their previously agreed
upon basis for billing and payment for services provided by Plaintiff to the
Patient from April 3, 2006 through January 5, 2008; did not provide Plaintiff
with any written notice of Defendants' intention or desire to change the
payment rate or the basis for payment that Defendants applied to pay
Plaintiff's billed services for the Patient from April 27, 2006 to March 20,
2007 for any period thereafter; and, did not provide Plaintiff with any
provision of the Plan that required any change.
31. By correspondence of June 17, 2008 addressed to Plaintiff, Defendant
Loomis conceded that the "Discount Amount" withheld by Defendants from
each of the payments referred to in 128, above, was not, in fact, a "discount
offered by the Provider of Care," but was, instead, a discount "taken through
Dialysis Cost Containment" and "based on the Usual, Customary and
Reasonable fees for the services provided."
32. The Explanation of Benefit statements identified in ¶28, above, contain no
explanation or definition of the phrase "Paid according to DCC" and no
information on how the amount of the alleged discount was calculated other
than as the amount allegedly agreed to by the Provider of Care.
Exhibit A
33. The total amount of the "discounts" withheld by Defendants and not paid to
Plaintiff for Plaintiffs services to the Patient on the payment notices sent by
Defendants to Plaintiff for the services identified in 128, above, is
53 675.40.
COUNT I - BREACH OF CONTRACT
[Both Defendants]
34. Plaintiff incorporates by reference the allegations in paragraphs 1-33 above
as if fully set forth herein.
35. On March 12, 2008, Plaintiff demanded payment from Defendants in the
amount of $53,675.40 with respect to services involved in this matter, which
amount Defendants have refused to pay and have not paid to date.
36. All conditions precedent to Plaintiff's demand for payment have been
performed and occurred.
WHEREFORE, Plaintiff requests this Court to award judgment in favor of
Plaintiff and against Defendants, jointly and severally, in the amount of $53,675.40, plus
the costs of this action and such other relief as this Court shall deem just.
COUNT II - QUANTUM MERUIT
[Both Defendants]
37. Plaintiff incorporates by reference the allegations in paragraphs 1 through
36 as if fully set forth herein.
38. Plaintiff provided dialysis services to the Patient and thereby conferred
benefits on Defendant Laurel.
Exhibit A
39. Plaintiff did not provide its services to the Patient gratuitously but rather
provided them with an express expectation of compensation and notified
Defendant Laurel of such by ascertaining benefits prior to treatment and
submitting billing to its agent, Defendant Loomis.
40. Defendant Laurel accepted the services provided to its covered member and
acknowledged the benefits and expectation of compensation thereof by full
payment, through its agent Defendant Loomis, of bills sent by Plaintiff for
the periods from April 27, 2006 through March 20, 2007, but did not make
full payment for the dates of service from April 3, 2007 through January 5,
2008.
41. Defendant Laurel's acceptance of services without rendering payment in full
is inequitable; and
42. The reasonable value of services received, which has not been paid to date,
is $53,675.40.
WHEREFORE, Plaintiff requests this Court to award judgment in favor of
Plaintiff and against Defendants, jointly and severally, in the amount of $53,675.40, plus
the costs of this action and such other relief as this Court shall deem just.
COUNT III - PROMISSORY ESTOPPEL
[Both Defendants]
43. Plaintiff incorporates by reference the allegations in paragraphs 1 through
42 as if fully set forth herein.
Exhibit A
44. Defendants made promises to Plaintiff with respect to the rate and basis for
payment to Plaintiff for the services to be provided to the Patient for the
purpose of inducing Plaintiff to provide dialysis services to the Patient.
45. Plaintiff reasonably relied on the promises made by Defendant to Plaintiff
referred to in ¶44, above.
46. Defendants' promises to Plaintiff and Plaintiff's reasonable reliance thereon
have resulted in detriment and damages suffered by Plaintiff in the amount
of $53,675.40, for which damages Plaintiff is entitled to recover.
WHEREFORE, Plaintiff requests this Court to award judgment in favor of
Plaintiff and against Defendants, jointly and severally, in the amount of $53,675.40, plus
the costs of this action and such other relief as this Court shall deem just.
COUNT IV - ACCOUNT STATED
47. Plaintiff incorporates by reference the allegations in paragraphs I through
46 as if fully set forth herein.
48. Pursuant to the parties' agreement with respect to payment for Plaintiff's
services for the Patient, Defendants agreed to payment Plaintiff for those
services.
49. Plaintiff provided the services for the Patient.
50. Defendants, without justification, excuse or dispute of Plaintiff's invoices
for the services identified in ¶28, above, has not paid Plaintiff in full for the
amount invoiced.
Exhibit A
WHEREFORE, Plaintiff requests this Court to award judgment in favor of
Plaintiff and against Defendants, jointly and severally, in the amount of $53,675.40, plus
the costs of this action and such other relief as this Court shall deem just.
JURY DEMAND
51. Plaintiff hereby demands a jury of twelve.
Respectfully submitted,
CAPOZZI & AS IATES, P_
Date: June 12, 2009
TRUDY A. MARI A M Z
ID No. 208523.
2933 North Front Street
Harrisburg, PA 17110-1250
(717) 233-4101
Attorneys for Plaintiff
Exhibit A
L L ?
DIALYSIS CORPORATION OF AMERICA, IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
V.
THE LOOMIS COMPANY and
LAUREL HEALTH SYSTEM,
Defendants
Docket No.: 09-4286
Civil Action - Law
CERTIFICATE OF SERVICE
I hereby certify that I have this day caused a copy of the foregoing Plaintiff's Response to
Preliminary Objections of Defendants to be served by first class United States Mail, postage
prepaid, addressed to the following:
Date: October 2, 2009
Brian S. Duff, Esquire
Owlett & Lewis, P.C.
One Charles Street
P. O. Box 878
Wellsboro,PA 16901
Michael M. Jerominski, Esquire
Attorney I.D. No.: 92977
Capozzi & Associates, P.C.
2933 N. Front Street
Harrisburg, PA 17110
(717) 233-4101
FILED Vii: "E
OF TEE
2009 OCT -2 f'? 2: 10
CUIMI 4,L ha t [ ?y tt
DIALYSIS CORPORATION
OF AMERICA,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY,
PENNSYLVANIA
V.
THE LOOMIS COMPANY,
Defendant
: NO. 2009 - 4286 CIVIL TERM
V.
LAUREL HEALTH SYSTEM,
Defendant
: CIVIL ACTION LAW
IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS
BEFORE HESS, OLER, JR., GUIDO, JJ.
ORDER OF COURT
AND NOW, this 19TH day of OCTOBER, 2009, an evidentiary hearing is
scheduled for FRIDAY, DECEMBER 4, 2009, at 9:30 a.m. in Courtroom # 3 of
the Cumberland County Courthouse, Carlisle, Pa. to resolve factual issues in
connection with Defendants' preliminary objection to venue.
B e Court,
Edward E. Guido, J.
? Trudy Mintz, Esquire
rian S. Duff, Esquire
Court Administrator - Pba-a?,,J) L
???
12 ?
x ID 71 _
2009 OCT 20 All ' H: : 01
I *r
DIALYSIS CORPORATION OF AMERICA, IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
V.
THE LOOMIS COMPANY and
LAUREL HEALTH SYSTEM,
Defendants
Docket No.: 09-4286
: Civil Action -Law
JOINT MOTION FOR CONTINUANCE
AND NOW, comes Plaintiff, Dialysis Corporation of America, by and through its
attorneys, Capozzi & Associates, P.C., and files this Joint Motion for Continuance and
avers as follows:
1. On or about June 12, 2009, Plaintiff filed its Complaint in the instant
action averring breach of contract against the Defendants.
2. On or about August 12, 2009, Defendants filed Preliminary Objections
alleging improper venue under Rule 1028(a)1.
3. On October 2, 2009, Plaintiff filed its response to Defendants' Preliminary
Objections.
4. An evidentiary hearing has been scheduled for December 4, 2009 to
resolve the factual issues in connections with Defendants' Preliminary Objections.
5. Settlement between the parties is highly likely and the parties would like
some time to negotiate an amicable resolution to this matter.
' t 'I
WHEREFORE, the parties, through their respective counsel, respectfully request
a continuance of sixty (60) days of the hearing currently scheduled for December 4, 2009,
and request this Honorable Court to set a new date on the pending matters.
Respectfully submitted,
Date: I Z 1' /01 By: Asw /;P?I . .
Michael M. Jeromins i, Esquire
Attorney I.D. No.: 92977
Capozzi & Associates, P.C.
2933 North Front Street
Harrisburg, PA 17101
(717) 233-4101
• of Y
DIALYSIS CORPORATION OF AMERICA, IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
V.
Docket No.: 09-4286
THE LOOMIS COMPANY and
LAUREL HEALTH SYSTEM, :
Civil Action -Law
Defendants
CERTIFICATE OF CONCURRENCE
The undersigned hereby certifies that on December 1, 2009, he contacted counsel
for Defendants, Brian S. Duff, Esquire, for concurrence or non-concurrence in the
foregoing Motion. Brian S. Duff, Esquire concurs with this Motion.
Date: I-0/01
Michael M. Jerominsl , Esquire
Attorney I.D. No.: 92977
Capozzi & Associates, P.C.
2933 North Front Street
Harrisburg, PA 17101
(717) 233-4101
A -Y
DIALYSIS CORPORATION OF AMERICA,
Plaintiff
V.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Docket No.: 09-4286
THE LOOMIS COMPANY and
LAUREL HEALTH SYSTEM,
Civil Action -Law
Defendants ;
CERTIFICATE OF SERVICE
I hereby certify that I have this day caused a copy of the foregoing Joint Motion for
Continuance to be served by first class United States Mail, postage prepaid, addressed to the
following:
Brian S. Duff, Esquire
Owlett & Lewis, P.C.
One Charles Street
P. O. Box 878
Wellsboro, PA 16901
Date: December 1, 2009
A4?? /k
Michael M. Jerominsk', Esquire
Attorney I.D. No.: 92977
Capozzi & Associates, P.C.
2933 N. Front Street
Harrisburg, PA 17110
(717) 233-4101