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HomeMy WebLinkAbout14-5080 x Supreme Court of Pennsylvania Court of Common Pleas For Prothonotwy Use Only: 1_ 1Civil Cover Sheet Docket No: ton l~� County IV-- 56 8-0 Commencement of Action: S [Complaint ❑ Writ of Summons ❑ Petition E ❑ Transfer from Another Jurisdiction [3Declaration of Taking C Le Plaintiff's Name: Lead Defendant's Nam: T prd e Ceo-S Dollar Amount Requested: within arbitration limits I Are money damages requested? alYes ❑ No (check one) ❑outside arbitration limits Q N Is this a Class Action Suit? ❑Yes M"No Is this an MD+JAppeal? ❑ Yes ❑ No A Name of Plaintiff/Appellant's Attorney: El Nature of the Case: Place an"X"to the left of the ONE case category that most accurately describes your PRfMARYCASE. If you are making more than one type of claim,check the one that you consider most important. TORT(do not include Mass Tort) CONTRACT(do not include Judgments) CIVIL APPEALS ❑Intentional ❑Buyer Plaintiff Administrative Agencies ❑Malicious Prosecution ❑Debt Collection:Credit Card ❑ Board of Assessment ❑Motor Vehicle ❑Debt Collection:Other ❑ Board of Elections Nuisance Dept.of Transportation S Premises Liability 8 Statutory Appeal:Other ❑Product Liability(does not include [3Employment Dispute; E mass tort) ❑Slander/Libel/Defamation Discrimination C ❑Other: ❑Employment Dispute:Other ❑Zoning Board T ❑ Other: r: Q MASS TORT kGr;, c&"tze ❑ Asbestos uraa N ❑ Tobacco ❑ Toxic Tort-DES ❑ Toxic Tort-Implant REALPROPERTY MISCELLANEOUS ❑ Toxic Waste ❑Other; ❑Ejectment ❑Common LawlStatutory Arbitration Bi ❑Eminent Domain/Condemnation ❑Declaratory Judgment ❑Ground Rent 8Mandamus ❑ Landlordfrenant Dispute Non-Domestic Relations ❑Mortgage Foreclosure:Residential Restraining Order PROFESSIONAL LIABLITV ❑Mortgage Foreclosure:Commercial ❑Quo Warranto ❑ Dental ❑Partition ❑ eplevin ❑ Legal ❑Quiet Title 0 O(t�her. ❑ Medical ❑Other: t/til , S YtY r6.lmej ❑ Other Professional: Updated 1/1/2011 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA -P DOROT1 Y WEIGEL plaintiff Q `7 - defendant CIVIL ACTION—LAVr � S' JURY TRIAL DEMAN*- rD CD 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 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 OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED BY THE DEFENDANT. 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. MID PENN LEGAL SERVICES 401 E. Louther Street Suite 103 Carlisle, PA 17013 (717) 243-9400 Toll Free (800) 822-5288 Joseph T Sucec, Esq. Attorney for Plaintiff 325 Peach Glen-Idaville Road Gardners, PA 17324 717-315-2359 joesucec@gmail.com IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DOROTHY WEIGEL plaintiff / 5-6Y-0 v CAPITAL BLUE CROSS defendant CIVIL ACTION—LAW JURY TRIAL DEMANDED COMPLAINT Plaintiff DOROTHY WEIGEL, through her attorney Joseph T. Sucec, Esq., hereby files this Complaint in Breach of Contract and, in the alternative, Unjust Enrichment, averring as follows: 1 Dorothy Weigel is an adult individual residing in Cumberland County, Pennsylvania, at 335 Wesley Drive,Apartment 610, Mechanicsburg, PA 17055 2 CAPITAL BLUE CROSS is a Pennsylvania Corporation with a corporate address of 2500 Elmerton Avenue, Harrisburg, Pa 1717, and is determined by law to be a "person." 3 Since the parties both exist within the Commonwealth of Pennsylvania, and Plaintiff resides in Cumberland County,jurisdiction is properly held by this Court OPERATIVE FACTS 4 On or about July 14. 2012,, Plaintiff, as a result of her husband Kenneth Gene Weigel's employment with Hempt Brothers, was enrolled, as a third-party beneficiary, a health insurance contract with Defendant entitled Senior Blue Pro (see attached exhibits) 5 Within said contract, allowed coverage includes but is not limited to physical therapy. 6 Hempt Brothers has never, to the best of Plaintiffs knowledge, failed to meet premium costs under the plan 7 On June 15, 2013, Plaintiff sustained a fall at her assisted living apartment, at Bethany Village, Mechanicsburg, PA, Plaintiff sustained injuries consisting of a displaced hip and other related maladies. 8 Plaintiff was, after emergency treatment of her injuries, transferred to the rehab section of Bethany Village. Oaks Nursing, Mechanicsburg, PA 9 On or about, Plaintiff received a letter, informing her that her treatment would be terminated, because of the alleged "unlikelihood of full recovery" 10 Plaintiff has shown, with adequate therapeutic treatment, that she has recovered at least partial mobility. 1 i Despite this, and despite repeated contact from both her attorney and various members of her family, Defendant has repeatedly denied coverage under said plan, forcing here care provider, Oaks Nursing, to either terminate coverage or find alternative insurance coverage COUNT 1 - BREACH OF CONTRACT 12 The above paragraphs are incorporated herein as if set forth at length. 13 A valid and enforceable contract exists between Defendant and Hempt Brtothers, with Plaintiff an intended third-party beneficiary. 14 Hempt Brothers performed her duty under the contract flawlessly. 15 Defendant, despite its stated reasons for doing so, materially breached said contract when denying necessary insurance coverage to Plaintiff that was clearly covered under the contract. WHEREFORE, Plaintiff respectfully prays that this Court, in the alternative to Count 11 of this Complaint, require Defendant to do the following: 1 Return to Plaintiff the amount of expenses sustained when the Seniors Policy under which she is covered bas breached, with reasonable interest payments, or 2 Perform Defendant's duties under said contract, by paying for the physical therapy conducted by Oaks Nursing 3 Pay Plaintiff no less than $100,000 in punitive damages, based on the willful behavior and reckless disregard for Plaintiff exhibited by Defendant. 4 Any other remedies that this Court may see fit to award Plaintiff. COUNT II - UNJUST ENRICHMENT 16 The above paragraphs are incorporated herein as if set forth at length. 17 The binding precedent in Pennsylvania on Unjust Enrichment, Schenck v K.E. David, Ltd., 446 Pa.Super. 94, 666 A.2d 327 (1995), holds that "The elements necessary to prove unjust enrichment are:(1) benefits conferred on defendant by plaintiff, (2) appreciation of such benefits by defendant; and (3) acceptance and retention of such benefits under such circumstances that it would be inequitable for defendant to retain the benefit without payment of value" 18 Should this Court find the contract so described in Count I of this Complaint somehow unenforceable, the elements for Unjust Enrichment are present in this matter: A Hempt Brothers, on behalf on Plaintiff, paid its premiums in a timely fashion, conferring a monetary benefit on Defendant, B Defendant did not attempt, at any time, to return any of said premiums to her C Defendant, while accepting payment of premiums, refused, and still refuses, to pay the contracted-for insurance benefit due Plaintiff. V41EREFORE, Plaintiff respectfully prays that this Court, in the alternative to Count I of this Complaint, require Defendant to do the following: 1 Return to Plaintiff the amount of expenses sustained when the Seniors Policy under which she is covered bas breached, with reasonable interest payments, or 2 Perform Defendant's duties under said contract, by paying for the physical therapy conducted by Oaks Nursing 3 Pay Plaintiff no less than $100,000 in punitive damages, based on the willful behavior and reckless disregard for Plaintiff exhibited by Defendant. 4 Any other remedies that this Court may see fit to award Plaintiff. Respectfully submitted, Date: C1>7 fvl Jo e T. Sucec, Esq. (PA74482) VERIFICATION As the Defendant in the above-stated matter, I hereby verify that the facts stated in the foregoing Answer are true and correct. I understand that false statements herein are made subject to the penalties of 18 PA. CS 4904, regarding unsworn falsification to authorities. Date: 7 � c' f. � 'y i i �BIue�PF►o Employer Group Health Flan ffereby e Caphal AdvanhC90 ga Insurenos Enrollment Ru Company' ry A G�n'ta1 BlueCrosa Company U1 eSt Form MS 44 P77-77 A U' Com':( i}'w •:".Iv.:. ..F: •"ti 1'L."0,•',•;y•:� t '; •. .:s_� �� . imine :�G :.:. •:{:`,:u:^3n5..'::'... :n: .�.: ,-%s.<•rfi`R.: L_.c;::a. 'r r,}.t'..r....y.:_ ..:<a r�:A*. •,::.1:' .t;:.!'- ypt:,.:.:} ;:c_�.:.. GTOt1I Nariie- t , -r. ''lMy1 4 k ofd �! 'z !` J[ VA{ ty Y .a. �' ;,., Gf Xup Y7'• ,`� �Oµ�� f.� �f� . APP lI100,Sib=nihlr�r TR. (lyPe)s V4 . �aAlt ion« k 5 h t •i 4 x,d" e r s: yrl r,a f#. ,J. ,: �Ppre�dntative ID, al?phc�on was received by PGIfP: :.......:. . clue EName: ........ ... ..... P mployer or '0': le s� vi #fie 011e v lid, tia Union .'. Group#: LAST Name: FIRST Name: b05 d115(40 Middle Initial: ©Mr. ❑Mrs. firth Date: 1)ORCTM F ❑Ms. (_11 24 19 3� Sex: Home Ph (MM/llD/YYYY) ane Number: Ll Mae P�?emale (-11-1) Permanent Residence Street Address: (P.O.Box is not allowed) X35 'V -F_5L.p !)RlyF- Grto City: County: State: ZIP Code: PA Malting Address(only if different from your Permanent Residence Address) Street Address: State: ZIP Code: f'r'• l ::,':,....... :. '• �.. ��l �ei��4 'II.AYl[a11�.,Y'+�r�Al+<<I�,4� t> v t tec ;Y Please take out your Medicare card to complete this section. •Please fill in these blanks so they match your red,white,and blue MEDICARE HE .' l INSURANCE Medicare card -OR- SAMPLE ONLY •Attach a copy of Your Medicare card or your letter from Social Name u Security or the Railroad Retirement Board Medicare Claim Number Sex You must have Medicare Part A and Part B to join a Medicare —?- t(0 Advantage plan. Is Entitled To Effective Date HOSPITAL(Part A) b 1- o I-1 947 MEDICAL(Part B) C403D1) White: Enrollment • Canary: EGHP . Pink: Enrollee .�. Smir luerPPo Offered by ® CapRal Aduantaye Imurance Compa"r ACep4 BlueCroeaCompany ;b r I+ .J •i - 't I S�. n 1.Are you the retiree? ❑Yes t)&No If yes'retirement date(mon date/year): If no,name of retiree: 2.Are you covering a spouse or dependents)under this employer or union plan? O.Yes ,Z No If yes,please provide name of spouse: Name(s)of dependent(s): i 13.Do you or your spouse work? ❑Yes XNo 4-Do you have End-Stage Renal Disease(ESRD)? ❑Yes )Rf No If you have had a successful kidney transplant and/or you don't need regular dialysis any more,please attach a note or records from your doctor showing you have had a successful kidney transplant or you don't need dialysis, otherwise we may need to contact you to obtain additional information. 5.Some individuals may have other drug coverage,including other private insurance,Workers' Compensation,VA benefits,or state pharmaceutical assistance programs. Will you have other RMscriptiodrug coverage in addition to SeniorBlue PPO? 1]Yes ❑No If"yes",please list your other coverage and your identification(ID)number(s)for this coverage: Name of other coverage: ID number for this coverage: 6.Are you a resident in a long-term care facility,such as a nursing home? ❑Yes ❑ No If"yes",please provide the following information: Name of institution: Address of institution(number and street): Phone number of institution: ( ) Please check below if you would prefer that we send you information in another format: ❑ Audio Tape Please contact SeniorBlue PPO at 1-800-542-6373 if you need information in another format than what is listed above. Our office hours are 8:00 AM to 8:00 PM Monday through Friday. TTY users should call 1-800-779-6961. 0.403 fW01,) White: Enrollment . Canary: EGHP . Pink: Enrollee Sen iorBluerppo offered by 0 Capiftl Advantage Irmurance Company' A CepRal 64wC.row Company t. : :'V: A-- lBy completing this-enrollment-application,I agree to the following: SeniorBlue PPO is a Medicare Advantage plan and has a contract with the Federal government I will need to keep my Medicare Parts A and B. I can only be in one Medicare Advantage plan at a time and I understand that my enrollment in this plan will automatically end my enrollment in another Medicare health plan. It is my responsibility to inform you of any prescription drug coverage that I have or may get in the future. Enrollment in this plan is generally for the entire year. Once I enroll,I may leave this plan or make changes only at certain times of the year if an enrollment period is available (Example: Annual Enrollment Period from October 15—December 7),or under certain special circumstances. SeniorBlue PPO serves a specific service area. If I move out of the area that SeniorBlue PPO serves,I need to notify the plan so I can disenroll and find a now plan in my new area. Once I am a member of SeniorBlue PPO,I have the right to appeal plan decisions about payment or services if I disagree. I will read the Evidence of Coverage document from SeniorBlue PPO when I get it to know which rules I must follow to get coverage with this Medicare Advantage plan. I understand that people with Medicare aren't usually covered under Medicare while out of the country except for limited coverage near the U.S.border. I understand that beginning on the date SeniorBlue PPO coverage begins, I must get all of my health care from SeniorBlue PPO,except for emergency or urgently needed services or out-of-area dialysis services. Services authorized by SeniorBlue PPO and other services contained in my SeniorBlue PPO Evidence of Coverage document(also known as a member contract or subscriber agreement)will be covered. Without authorizationNEITHER MEDICARE NOR SENIORBLUE PPO WILL PAY FOR THE SERVICES. I understand that if I am getting assistance from a sales agent,broker,or other individual employed by or contracted with SeniorBlue PPO,he/she may be paid based on my enrollment in SeniorBlue PPO. Release of Information: By joining this Medicare health plan,I acknowledge that the Medicare health plan will release my information to Medicare and other plans as is necessary for treatment,payment,and health care operations. I also acknowledge that SeniorBlue PPO will release my information,including my prescription drug event data,to Medicare, who may release it for research and other purposes which follow all applicable Federal statutes and regulations. The information on this enrollment form is correct to the best of my knowledge. I understand that if I intentionally provide false information on this form,I will be disenrolled from the plan. N I understand that my signature(or the signature of the person authorized to act on my behalf under the laws of the State where I live)on this application means that I have read and understand the contents of this application. If signed by an authorized individual(as described above),this signature certifies that: 1)this person is authorized under State law to complete this enrollment and 2)documentation of this authority is available upon request from Medicare. Your Signature: C/ Today's Date: r a S 2-o i If you are the authorized representative,you must sign above and provide the following information: Name: lAddress: Phone Number: Relationship to Enrollee: C4M(Mli) White: Enrollment Canary: EGHP 9 Pink: Enrollee i IL SeniorBlue PPO Serziorffluerpm Prescription Drug Mid Option •-y Offered by (January 1,2013 through December 31,2013) ® Capital Advantage Insurance Company® A Capital BluaCross Company Calendar Year Deductible $0 Formula Open Initial Coverage Up to 31-day supply(available through Preferred Generic 'WIT, retail and specialty pharmacy) Non-Preferred Generic $15.00 Traditional drugs limited to retail pharmacy Preferred Formula Brand $35.00 , Preferred FormularyBrand $70.00 S I e1; h Cost 330/6 32 to 90-day supply(available through Preferred Generic $15.00 mal service and mair>tenance dispensing Non-Preferred Generic 5.00 pharmacy) 0-r-eferredFormulary Brand $105.00 Specialty high cost drugs limited to maintenance Non-Preferred Formulary Brand $210.00 dis ensi harmac S I IHi h Cost Not Covered Covet-age Gap("Donut Hole") Coverage Gap Begins W2070 of incurred prescription drug claim a nse Up to 31-day supply(available through Preferred Generic $5.00 retail and specialty pharmacy) Non-Preferred Generic $15.00 Traditional drugs limited to retail pharmacy Preferred Formulary Brand 47.50%Brand Drugs Non-Preferred Non-Formulary Brand 47.50%Brand Drugs. S clat /Hi h Cost Not Covered 32 to g0-day supply(available through Preferred Generic $15.00 mail service and maintenance dispensing Non-Preferred $45.00 pharmacy) Preferred Formulary Brand 47.50%Brand Drugs Specialty high cost drugs limited to maintenance Non-Preferred Formulary Brand 47.50%Brand Drugs dispensing pharmacyNot Covered 5 C Mi h Cost •hic • Catastrophic coverage begins once the member irx urs$4,750 In true out-0f pocket(T expense. Member pays the greater of 5%or$2.65 for generic and multiple source drugs and the greater of 5%or$6.60 for all other drugs. The SenlorBlue PPO Prescription Drug Mid Option program is pending approval by the Centers for Medicare and f0dicaid Services(CMS) Approval is anticipated by mid-September 2012. This is not a contract.Programs are subject to change and require approval from the Centers for Medicare and Medicald Services(CMS). Exclusions and limitations of the SeniorBlue PPO Medicare Advantage programs foilow those of Medicare(i.e.,Medicare Part A and Medicare Part B). This + Information provides an overview of program benefits and is NOT Intended to be a complete list or description of available services. The'Summary of Benefits"for outlined programs provides additional program details.SeniorBlue PPO programs are available in Adams,Barks,Centre,Columbia, Cumberland,Dauphin,Franklin,Fulton,Juniata,Lancaster,Lebanon,Lehigh,Mifflin,Montour,Northampton,Northumberland.Perry,Schuylkill,Snyder, Union and York counties. To quality for coverage,the member must generally reside within the identified services area. Program highlight information is prepared to provide information to group clients and is not designed for member distribution. SeniorBlue PPO prescription drug programs are hued by Capital Advantage Insurance Company® Health care benests offered by Capital Advantage insurance Company Communications Issued by Capital BlueCross in its capacity as administrator of programs and provider relations. Independent licensees of the Blue Cross and Blue Shield Association. CBC-429P(1/1/2013} SenlorBkre PPOftt Mld Option I Hempt Brothers Freedom Blue PPO 1 Reference Code 14F 9682 Your 2014 Benefits at a Glance In-Network Out-of-Network Pian Deductible $100 Plan Coinsurance 10% 30% (Member Cost Sharing) -1 7 Combined $1,500 In and Out of Network Out-of-Pocket Maximum Doctor Office Visit $15 PCP,$30 Specialist cost 30%coinsurance sharing Preventive Covered in Full Covered in Full Testing/Screenings Diagnostic Testing including 10%cost sharing 30%coinsurance Lab,X-Rays and Advanced Imaging Outpatient Surgery 10%cost sharing 30%coinsurance Ambulance $75 cost sharing 30%coinsurance Emergency Room $65 cost sharing $65 cost sharing Inpatient Hospital Stay 10%per stay 30%coinsurance Skilled Nursing Facility 10%per day 30%coinsurance (days 1-100 per benefit period) Outpatient Drugs 10%cost sharing '30%coinsurance (Medicare Part B) Durable Medical Equipment 20%coinsurance 50%coinsurance Routine Vision Standard eyeglass lenses and You have a$100 benefit (covered every two calendar frames or contact lenses are maximum for out-of-network years) covered in full.A$100 benefit specialty frames or specialty maximum applies to contact lenses. non-standard frames and a$100 benefit maximum for specialty contact lenses. Hearing Aids (covered every three calendar $500 coverage years) Routine Dental&Dentures 7096 coverage Routine Dental 50%coinsurance 60%coverage Dentures 14 Benefits continued on next page. s Hempt Brothers Your 2014 Benefits at a Glance • Medicare Part D Drugs(Up to 31 Day Supply) Initial Coverage •$5 Generic Please see Summary of Benefits (Up to $2850 in total drug costs) •$35 Pref.Brand for detailed Information -$70 Non-Pref.Brand •33%Specialty *See below Coverage Gap •$5 Generic Please see Summary of Benefits Brand Drugs 47.5%Coinsurance for detailed Information after 50%discount *See below Catastrophic Coverage Once In the Catastrophic . Coverage Stage,you stay in this stage for the rest of the year You qualify for the Catastrophic Coverage Stage when your out-of-pocket costs have reached the$4550 limit for the calendar year.Once you are in the Catastrophic Coverage Stage, you will stay in this payment please see Summary of Benefits stage until the end of the for detailed Information calendar year. During this stage,the plan will See below pay most of the cost for your drugs. --Either-coinsurance of 5%of the cost of the.drug --Or-$255 copayment for a generic drug or a drug that is treated like a generic.Or a $6.35 copayment for all other drugs. Our plan pays the rest of the cost. Questions?Call 1-866-456-7739(TTY Users,call 711)7 days a week between 8 a.m.-8 p.m.EST Reference Code 14FO9682 Please have this number ready when you call. Please see Summary of Benefits for detailed information. 'Plan drugs may be covered In special circumstances,for instance,illness while traveling outside the plan's service area where there is no network pharmacy. 15 1 Dorothy Weigel In the Court of Common Pleas of Cumberland County, Pennsylvania No.—/y J d� Civil Term CIVL ACTION - LAW C-) vs -' -��Zz �- Capital Blue Cross ' = � 3, CO -� b C7 Cad C PRAECIPE I hereby state that I, Joseph T. Sucec, Esq., am representing Plaintiff Dorothy Weigel pro bono in this matter, with all costs covered by counsel. I hereby request she be given In Forma Pauperis status in this matter, and that costs be waived in lieu of recovery. DDyicLD rnt ori 20 Attorney Info: Joseph T. Sucec,Esq. � L��Q'� Attorney for Plaintiff 325 Peach Glen-Idaville Road Gardners,PA 17324 �2`Z�l L 717-315-2359 GGGG joesucec@comcast.net Dorothy Weigel vs Capital Blue Cross In the Court of Common Pleas of Cumberland County, Pennsylvania No. 20145080 Civil Term PRAECIPE Kindly reinstate the Complaint in the above matter. David D. Buell, Prothonotary Attorney Info: Joseph T Sucec, Esq 74482 Attorney for Plaintiff 325 Peach Glen-Idaville Road 20 Gardners, PA 17324 717-315-2359 joesucec@comcast.net Ronny R Anderson Sheriff Jody S Smith Chief Deputy Richard W Stewart Solicitor SHERIFF'S OFFICE OF CUMBERLAND COUNTY THE PRO f t �tv oS CH'Ji OFFICE QF TH ERiF HO • 2014 OCT - I PM 2: 3 CUMBERLAND COUNTY Y PENNSYLVANIA Dorothy Weigel vs. Capital Blue Cross Case Number 2014-5080 SHERIFF'S RETURN OF SERVICE 09/19/2014 Sheriff Ronny R Anderson, being duly sworn according to law, states he made diligent search and inquiry for the within named Defendant to wit: Capital Blue Cross, but was unable to locate the Defendant in the Sheriffs bailiwick. The Sheriff therefore deputizes the Sheriff of Dauphin, Pennsylvania to serve the within Complaint & Notice according to law. 09/24/2014 09:45 AM - The requested Complaint & Notice served by the Sheriff of Dauphin County upon Beth Essler, who accepted for Capital Blue Cross, at 2500 Elmerton Avenue, Harrisburg, PA 17177. Jack Lotwick, Sheriff, Return of Service attached to and made part of the within record. SO ANSWERS, September 26, 2014 RONNrt' R ANDERSON, SHERIFF (c) Count Suite Sheriff, To soft, Inc. Shelley Ruhl Real Estale Deputy Matthew L. Owens Solicitor Commonwealth of Pennsylvania County of Dauphin Dauphin County 101 Market Street Harrisburg, Pennsylvania 17101-2079 ph: (717) 780-6590 fax: (717) 255-2889 Jack Lotwick Sheriff Jack Duignan Chief Deputy Michael W. Rinehart Assistant Chief Deputy DOROTHY WEIGEL VS CAPITAL BLUE CROSS Sheriffs Return No, 2014-T-2579 OTHER COUNTY NO. 2014-5080 And now: SEPTEMBER 24, 2014 at 9:45:00 AM served the within REINSTATED COMPLAINT & NOTICE upon CAPITAL BLUE CROSS by personally handing to BETH ESSLER * 1 true attested copy of the original REINSTATED COMPLAINT & NOTICE and making known to him/her the contents thereof at 2500 ELMERTON AVENUE HARRISBURG PA 17110 * EXECUTIVE ASSISTANT TO HUMAN RESOURCES Sworn and subscribed to before me this 25TH day of September, 2014 COMMONWEALTH OF PENNSYLVANIA NOTARIAL SEAL Karen M. Hoffman, Notary Public City of Harrisburg, Dauphin County My Commission Expires January 8, 2018 So Answers, Sheriff o By D puty Sheri Deputy: W CONWAY Sheriffs Costs: $47.25 PAID BY IUNTY DOROTHY WEIGEL, Plantiff, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. DOCKET NO. 14-5080, CIVIL TERM CAPITAL BLUE CROSS CIVIL ACTION -LAW Defendant. JURY TRIAL DEMANDED c --� rn ,Ccs Tao --li13 -{cp-< NOTICE TO PLEAD To: Dorothy Weigel, c/o Joseph T. Sucec, Esquire 325 Peach Glen-Idaville Road Gardners, PA 17324 YOU ARE HEREBY NOTIFIED to file a written response to the enclosed Preliminary Objections within twenty (20) days from service hereof or a judgment may be entered against you. Respectfully submitted, SAUL EWING LLP oel C. Hopkins, Esquire Attorney I.D. Number 85096 Jeremy F. Heinnickel Attorney I.D. Number 203041 2 North Second Street, 7th Floor Harrisburg, PA 17101 (717) 257-7500 DATED: October 14, 2014 213130.7 10/13/2014 DOROTHY WEIGEL, Plantiff, v. CAPITAL BLUE CROSS Defendant. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, • PENNSYLVANIA • • DOCKET NO. 14-5080, CIVIL TERM CIVIL ACTION -LAW JURY TRIAL DEMANDED PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT Pursuant to Pa. R. Civ. P. 1017 and 1028, Defendant Capital BlueCross ("CBC"), by and through its undersigned counsel, Saul Ewing LLP, preliminarily objects to Plaintiff's Complaint, and in support thereof states as follows: INTRODUCTION Plaintiff asserts claims against CBC for Medicare benefits related to rehabilitation services. This Court lacks subject matter jurisdiction over those claims because: 1) Plaintiff failed to exhaust the required administrative appeals process applicable to Medicare claims, and 2) that process only allows for federal judicial review. Plaintiff's Complaint is also legally insufficient because it fails to plead material facts in support its breach of contract and unjust enrichment claims, and improperly seeks to recover punitive damages. BACKGROUND A. The Medicare Advantage Plan 1. The Complaint alleges the Plaintiff is enrolled in CBC's Senior Blue PPO insurance contract, which is a "Medicare Advantage" health insurance plan. 213130.7 10/13/2014 2. The Medicare Act, 42 U.S.C. § 1395 et seq. (the "Act"), establishes Medicare as a federally -subsidized health insurance program principally for individuals 65 years of age and older. 3. A Medicare Advantage plan is a health plan offered by a private commercial insurance company that contracts with the Centers for Medicare and Medicaid Services ("CMS"), an agency of the United States government, to provide enrollees with Medicare Part A (hospital insurance) and Medicare Part B (medical insurance) benefits. Medicare Part D (drug coverage) is also available. 4. Companies offering Medicare Advantage plans must follow the rules and regulations established by CMS. 5. Plaintiff is a Medicare beneficiary based on her enrollment in CBC's Senior Blue PPO plan. B. Medicare Advantage Appeal's Process 6. The Act prescribes the method by which Medicare beneficiaries may obtain judicial review of a coverage dispute, which is by way of federal judicial review only after a "final decision" has been issued in connection with a disputed claim. See 42 U.S.C. § 405(g). 7. To obtain a "final decision," when a fast -tracked appeal is requested, a beneficiary must exhaust several appeal levels: Level 1: Medicare Advantage plan's reconsideration of its original denial Level 2: Independent review entity's ("IRE") reconsideration of its initial determination Level 3: Hearing before an administrative law judge Level 4: Review by the Medicare Appeals Counsel 213130.7 10/13/2014 See 42 U.S.C. §§ 1395ff(a), (b)(1); 42 C.F.R. §§ 422.562 (general procedures), 422.578 (reconsideration by MA plan), 422.626 (fast-track review by IRE), 422.602 (ALJ review), 422.608 (MAC review) & 422.612 (federal judicial review). 8. Sections 405 (g) and (h) of the Medicare Act provide that any claim "arising under" the Act must be reviewed in the aforementioned exclusive administrative review process. See Heckler v. Ringer, 466 U.S. 602, 608 (1984) (emphasis added). C. Plaintiff's Claims 9. The Complaint alleges the Plaintiff sustained injuries on June 15, 2013 after she fell at her assisted living apartment in Bethany Village Retirement Center ("Bethany Village"). 10. The Complaint further alleges that after receiving emergency treatment, Plaintiff was transferred to Bethany Village's rehabilitation section. 11. According to the Complaint, CBC denied the Plaintiff coverage for her continuing rehabilitative physical therapy services. 12. Until the denial, CBC paid for services related to Plaintiff's injury. 13. Plaintiff requested reconsideration of CBC's coverage determination from CBC. 14. A fast -tracked appeal was requested for the Plaintiff's claim. 15. An independent review entity authorized by the Medicare Program, Quality Insights of Pennsylvania, reviewed CBC's decision to terminate benefits and determined that the decision was medically appropriate. 16. Plaintiff did not pursue further administrative review of CBC's termination decision as required by the Medicare regulations. 17. On August 28, 2014, Plaintiff filed this Complaint, which was served on CBC on September 24, 2014. 213130.7 10/13/2014 18. The Complaint attempts to set forth state law claims for breach of contract and unjust enrichment. PRELIMINARY OBJECTION I - LACK OF SUBJECT MATTER JURISDICTION PURSUANT TO PA. R. Civ. P. 1028(a)(1) 19. The above paragraphs are incorporated herein by reference. 20. A preliminary objection is appropriate when the court lacks jurisdiction over the subject matter of the action. Pa. R. Civ. P. 1028(a)(1). 21. The Medicare Act provides the exclusive remedies for claim reimbursement disputes under a Medicare Advantage plan, and precludes this Court from exercising subject matter jurisdiction over such claims. See 42 U.S.C. § 405(g), (h); O'Neal v. Aetna, Inc., 2011 WL 9933459 at *2 -*3 (Pa. Com. P1. March 17, 2011). 22. Jurisdiction over claims arising under the Medicare Act lies exclusively in federal court, and only upon completion of the statutory administrative review process. 23. Plaintiff failed to exhaust the required administrative appeals process for the claims asserted in the Complaint, and therefore improperly brought this action before this Court. WHEREFORE, CBC, respectfully requests that this Honorable Court sustain its Preliminary Objection I and dismiss Plaintiff's Complaint for lack of subject matter jurisdiction. PRELIMINARY OBJECTION II — FAILURE TO EXHAUST A STATUTORY REMEDY PURSUANT TO PA. R. Civ. P. 1028(a)(7) 24. The above paragraphs are incorporated herein by reference. 25. A preliminary objection may be filed when a party fails to exhaust a statutory remedy. Pa. R. Civ. P. § 1028(a)(7). 26. Plaintiff failed to avail herself of the administrative and federal court review process set forth in the Medicare Act, as set forth more fully herein. 213130.7 10/13/2014 27. As a result of her failure to exhaust available administrative remedies, Plaintiff has no right to pursue judicial review of her claims. WHEREFORE, CBC, respectfully requests that this Honorable Court sustain its Preliminary Objection II, and dismiss Plaintiff's Complaint in its entirety for failure to exhaust statutory remedies. PRELIMINARY OBJECTION III — FAILURE TO CONFORM TO LAW OR RULE OF COURT PURSUANT TO PA. R. Civ. P. 1028(a)(2) 28. The above paragraphs are incorporated herein by reference. 29. The Rules of Civil Procedure allow a party to preliminarily object when a complaint fails to conform to a rule of court. Pa. R. Civ. P. § 1028(a)(2). 30. Rule 1019(a) mandates that the "material facts upon which a cause of action or defense is based shall be stated in a concise and summary form" in the Complaint. Pa. R. Civ. P. § 1019(a). 31. To satisfy the Rule's requirements, a complaint must: "1) contain averments of all of the facts the plaintiff will eventually have to prove in order to recover; and 2) contain sufficient specificity to enable defendant to prepare his defense." Baker v. Rangos, 324 A.2d 498, 505 (Pa. Super. 1974). 32. A complaint must therefore formulate the issues by fully summarizing the material facts. Id. 33. The Complaint in this case fails to assert the material facts upon which its breach of contract claim is based. 34. Specifically, the Complaint does not identify any contractual terms that were allegedly breached or any facts to demonstrate that such a breach occurred. 213130.7 10/13/2014 35. The Complaint also fails to identify facts supporting the necessary elements for an unjust enrichment claim. 36. To state a claim for unjust enrichment, a plaintiff must allege facts demonstrating: 1) benefits were conferred on defendant by plaintiff; 2) appreciation of such benefits by defendant; and 3) acceptance and retention of such benefits under such circumstances that it would be inequitable for defendant to retain the benefit without payment of value. See Chapski v. Moravian at Independence Square Condominium, 2007 WL 4967482 (Pa. D. & C. 1999). 37. The Complaint fails to plead any facts indicating that CBC accepted or retained benefits under circumstances that would make it inequitable for CBC to retain the benefit without payment of value. WHEREFORE, CBC respectfully requests this Honorable Court sustain its Preliminary Objection III and dismiss Plaintiff's Complaint for failure to conform to a rule of court. PRELIMINARY OBJECTION IV — LEGAL INSUFFICIENCY OF A PLEADING PURSUANT TO PA. R. Civ. P. 1028(a)(4) 38. The above paragraphs are incorporated herein by reference. 39. A party may file a preliminary objection where a pleading fails to allege facts supporting a legally cognizable claim. Pa. R. Civ. P. 1028(a)(4). 40. The Complaint attempts to set forth claims of breach of contract and unjust enrichment. 41. As a matter of law, the Complaint fails to alleged facts supporting a breach of contract claim. 42. The three elements of a breach of contract claim are "1) the existence of a contract, including its essential terms, 2) a breach of a duty imposed by the contract and 3) 213130.7 10/13/2014 resultant damages." CoreStates Bank, Nat'l Assn. v. Cutillo, 723 A.2d 1053, 1058 (Pa. Super. 1999). 43. The Complaint fails to allege facts demonstrating a breach of any duty imposed by the insurance contract, and instead pleads only an amorphous reference to a contract. 44. In addition, the Complaint fails to assert facts supporting the elements of a legally cognizable claim for unjust enrichment, the elements of which are set forth in paragraph 34, supra. 45. In addition to the fact that the Complaint alleges the existence of a written contract, which bars an equitable claim of unjust enrichment, the Complaint does not allege any facts indicating the acceptance and retention of benefits under circumstances that would be inequitable for CBC to retain the benefit without payment of value. WHEREFORE, CBC, respectfully requests that this Court sustain its Preliminary Objection IV, and dismiss Plaintiffs Complaint for failure to plead legally sufficient claims of breach of contract or unjust enrichment. PRELIMINARY OBJECTION V — LEGAL INSUFFICIENCY OF A PLEADING PURSUANT TO PA. R. Civ. P. 1028(a)(4) Damages 46. The above paragraphs are incorporated herein by reference. 47. A party may file a preliminary objection where a pleading fails to allege facts supporting a legally cognizable claim. Pa. R. Civ. P. 1028(a)(4). 48. The Complaint seeks to recover punitive damages in connection with its claim for unjust enrichment. 49. Plaintiffs' request for punitive damages is legally insufficient. 213130.7 10/13/2014 50. Punitive damages are not recoverable in an action based solely upon an alleged breach of contract. Johnson v. Hyundai Motor America, 698 A.2d 631, 639 (Pa. Super. 1997). 51. Even where punitive damages are not prohibited, they may only be awarded where the actor's conduct was malicious, wanton, willful, oppressive or exhibited a reckless indifference to the rights of others. Id. 52. The Complaint fails to allege that CBC's conduct was malicious, wanton, willful, oppressive or exhibited a reckless indifference to the rights of others. WHEREFORE, CBC respectfully requests that this Court sustain its Preliminary Objection V and dismiss the Complaint's request for punitive damages. Respectfully submitted, SAUL EWING LLP Joel' C. Hopkins, Esquire Attorney I.D. Number 85096 Jeremy F. Heinnickel Attorney I.D. Number 203041 2 North Second Street, 7th Floor Harrisburg, PA 17101 (717) 257-7500 DATED: October 14, 2014 213130.7 10/13/2014 CERTIFICATE OF SERVICE I, Joel C. Hopkins, Esquire, hereby certify that on this 14th day of October, 2014, I caused a true and correct copy of the foregoing Defendant Capital Blue Cross' Preliminary Objections to Plaintiff's Complaint to be served this day by first-class Mail, postage prepaid, upon the following: Joseph T. Sucec, Esquire 325 Peach Glen-Idaville Road Gardners, PA 17324 Attorney for Plaintiff Joel C. Hopkins, Esquire 213130.7 10/13/2014 Y cq/fri PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in triplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. DOROTHY WEIGEL, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, Plantiff, PENNSYLVANIA 1S6WV +1.1301116Z v. •DOCKET NO. 14-5080, CIVIL TERM CAPITAL BLUE CROSS CIVIL ACTION -LAW Defendant. • JURY TRIAL DEMANDED 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT 2. Identify counsel who will argue case: (a) for plaintiff: (b) for defendant: Joseph T. Sucec, Esquire 325 Peach Glen-Idaville Road Gardners, PA 17324 Joel C. Hopkins, Esquire Saul Ewing LLP Penn National Insurance Plaza 2 North Second Street, 7th Floor Harrisburg, PA 17101 rn r rn C C CD rn 7.0 *9-73,01/ c#636/3 06312222, 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: November 14, 2014 Dated: October 14, 2014 /Joel C. Hopkins, Esquire Attorney I.D. Number 85096 Jeremy F. Heinnickel, Esquire Attorney I.D. Number 203041 2 North Second Street, 7th Floor Harrisburg, PA 17101 (717) 257-7500 DOROTHY WEIGEL, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, Plantiff, PENNSYLVANIA v. DOCKET NO. 14-5080, CIVIL TERM CAPITAL BLUE CROSS CIVIL ACTION -LAW Defendant. • JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I hereby certify that the foregoing Praecipe for Listing Case for Argument was served upon the following by placing the same in the U.S. mail, first class, postage prepaid this day to the following: Dated: October 14, 2014 Joseph T. Sucec, Esquire 325 Peach Glen-Idaville Road Gardners, PA 17324 Attorney for Plaintiff Joel C. Hopkins, Esquire Attorney I.D. Number 85096 Jeremy F. Heinnickel, Esquire Attorney I.D. No. 203041 Saul Ewing LLP 2 North Second Street, 7th Floor Harrisburg, PA 17101 (717) 257-7500 Attorney for Defendant, Capital Blue Cross IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DOROTHY WEIGEL plaintiff v CAPITAL BLUE CROSS defendant 2014 -CV -5080 CIVIL ACTION — LAW JURY TRIAL DEMANDED UNOPPOSED PETITION FOR LEAVE TO WITHDRAW Pursuant to the Pennsylvania Rules of Civil Procedure, and in consultation and in concurrence with Jeremy Heinnickel, Esq., counsel for Defendant, Plaintiff Dorothy Weigel respectfully Petitions this Court that she be given leave to withdraw her Complaint without prejudice. Respectfully submitted, Joseph T. Sucec, Esq (PA74482) Attorney for Plaintiff 325 Peach Glen-Idaville Road Gardners, PA 17324 c-) 717-315-2359-r -0 • ter= joesucec@comcast.net ...▪ ., -Ya, : , 70 C3.c- <c —v c) 2c 1~-1 a,. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DOROTHY WEIGEL plaintiff v CAPITAL BLUE CROSS defendant • 2014 -CV -5080 CIVIL ACTION — LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy, by first class mail, of UNOPPOSED PETITION FOR LEAVE TO WITHDRAW on the following: Jeremy F. Heinnickel Saul Ewing LLP Penn National Insurance Tower 2 North Second Street, 7th Floor Harrisburg, PA 17101 Date: °hirik IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DOROTHY WEIGEL plaintiff v CAPITAL BLUE CROSS defendant ORDER 2014 -CV -5080 CIVIL ACTION — LAW JURY TRIAL DEMANDED AND NOW, this -Li' day, oc 6r , 2014, it is ORDERED and DECREED that Plaintiffs Unopposed Petition for Leave Withdraw Complaint is 6;44n/et( CT' es 1rl'a..l las Nil J. t-4 eiixw i /4/v.viroi BY THE COURT P IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DOROTHY WEIGEL plaintiff v CAPITAL BLUE CROSS defendant 2014 -CV -5080 CIVIL ACTION — LAW JURY TRIAL DEMANDED UNOPPOSED PETITION FOR LEAVE TO WITHDRAW Pursuant to the Pennsylvania Rules of Civil Procedure, and in consultation and in concurrence with Jeremy Heinnickel, Esq., counsel for Defendant, Plaintiff Dorothy Weigel respectfully Petitions this Court that she be given leave to withdraw her Complaint without prejudice. Respectfully submitted, Jos ph T. Sucec, Esq (PA74482) Attorney for. Plaintiff 325 Peach Glen-Idaville Road Gardners, PA 17324 717-315-2359 j oesucec@comcast.net r, 70 53 rn -r rrl r- 71-1 2 -117- IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DOROTHY WEIGEL plaintiff v CAPITAL BLUE CROSS defendant 2014 -CV -5080 CIVIL ACTION — LAW JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy, by first class mail, of UNOPPOSED PETITION FOR LEAVE TO WITHDRAW on the following: Jeremy F. Heinnickel Saul Ewing LLP Penn National Insurance Tower 2 North Second Street, 7th Floor Harrisburg, PA 17101 1 d Date: