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HomeMy WebLinkAbout99-6210 civilTAMMY WALKER, : Plaintiff · · vs. : 99-6210 CIVIL : RITE AID CORPORATION, : Defendant : CIVIL ACTION- LAW IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA IN RE' PRELIMINARY OBJECTIONS OF DEFENDANT BEFORE HESS AND OLER, JJ. ORDER AND NOW, this day of May, 2000, the preliminary objection of the defendant to the plaintiff's claim with respect to a violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law is GRANTED. The remaining preliminary objections of the defendant are DENIED. 'Leslie M. Fields, Esquire For the Plaintiff Steven Shadowen, Esquire For the Defendant BY THE COURT, Hess, J. :tim TAMMY WALKER, · Plaintiff · vs. · 99-6210 CIVIL RITE AID CORPORATION, · Defendant · CIVIL ACTION - LAW IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT BEFORE HESS AND OLER, JJ. OPINION AND ORDER Before the court are the preliminary objections of the defendant. The factual allegations contained in the complaint are as follows. The plaintiff, Tammy Walker, was injured in an automobile accident on June 16, 1995. Plaintiff maintained automobile insurance which provided first party medical payments applicable to prescription drugs. As a result of the injuries caused by that accident, the plaintiff was prescribed medications. The plaintiff had the prescriptions filled at a Rite Aid drug store. The complaint alleges that defendant Rite Aid did not adjust the prescription charges in accordance with Section 1797 of the Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa.C.S.A Section 1797 ["MVFRL"]. Section 1797 of the MVFRL states that' A person or institution providing...products or services to an injured person for an injury covered by liability or uninsured and underinsured benefits or first party medical benefits...shall not require, request or accept payment for the products or services in excess of [specific limits]... Providers subject to this section may not bill the insured directly, but must bill the insurer for a determination of the amount payable. The 99-6210 CIVIL provider shall not bill or otherwise attempt to collect from the insured the difference between the provider's full charge and the amount paid by the insurer. 75 Pa.C.S.A. Section 1797(a) The complaint alleges that the prices charged by Rite Aid for the medications prescribed to the plaintiff as a result of her auto accident were in excess of the statutory limit defined in the MVFRL. In addition, the complaint states an additional violation of the MVFRL in that Rite Aid billed the plaintiff' s health care provider, which necessitated the plaintiff paying an "oUt of pocket" co-pay amount, when the statute demands that Rite Aid bill the motor vehicle insurer directly. The defendant filed preliminary objections in the nature of demurrers to all six counts of the plaintiff' s complaint, as well as a general preliminary objection that the plaintiff' s complaint lacks sufficient specificity. The test for preliminary objections is whether it is clear and free from doubt from all the facts pled that the pleader will be unable to prove facts legally sufficient to establish his right to relief. Firing v. Kephart, 466 Pa. 560, 563,353 A.2d 833,835 (Pa. 1976). In determining whether to sustain preliminary objections, this court must accept as tree all well pleaded material facts as well as any reasonable inferences that may be drawn from those facts. Bower v. Bower, 531 Pa. 54, 57, 611 A.2d 181,182 (Pa. 1992). Count I of the complaint states a cause of action for a violation of the Pennsylvania Unfair trade Practices and Consumer protection Law, 73 P.S. Section 201-1, et seq. ["UTPCPL"]. Section 2(4) of the UTPCPL defines "unfair methods of competition" and "unfair or deceptive acts or practices." Different acts or practices are enumerated. Section 3 of the 99-6210 CIVIL UTPCPL provides that the practices defined in section 2(4) are unlawful. Section 9.2 of the UTPCPL creates a private cause of action for any purchaser of consumer goods and services who suffers an ascertainable loss as a result of any practice declared unlawful by Section 3. The complaint alleges that the defendant's acts or practices were unfair and deceptive. However, none of the practices alleged by plaintiff in count one fit into the specific provisions of the UTPCPL. 73 P.S. § 201-2(4)(i)-(xx). The UTPCPL, however, also has a catchall provision which proscribes "engaging in any other fraudulent or deceptive conduct which creates a likelihood of confusion of misunderstanding." 73 P.S. {} 201-2(4)(xxi). In order to establish a violation of the UTPCPL a party must establish misfeasance on the part of the alleged violator. Gordon v. Pennsylvania Blue Shield, 548 A.2d 600, 604, 378 Pa. Super. 256, 265 (PA. Super. 1988) ("Nonfeasance alone is not sufficient to raise a claim pursuant to the Unfair Trade Practices and Consumer Protection Law.") Misfeasance is defined as "the improper performance of an act;" and nonfeasance is defined as "the omission of an act which a person ought to do." Brindle¥ v. Woodland Village Restaurant, 652 A.2d 865,868, 438 Pa. Super. 385,391 (Pa. Super. 1995). In essence, the complaint in this case alleges that Rite Aid .failed to extend a statutory reduction in the price charged for prescriptions to individuals involved in auto accidents. There is no averment, however, that Rite Aid knew that their customers had been involved in an accident nor that it said or did anything calculated to deceive. This is a failure to act on the part of Rite Aid and does not rise to the level of misfeasance. The remaining counts in the complaint sound in unjust enrichment, conversion, "fraudulent nondisclosure," and intentional concealment. The defendant raises some serious questions concerning the validity of one or more of these remaining counts. Nonetheless, at this 99-6210 CIVIL stage of the litigation, we cannot say with the necessary certitude that the facts pled will not, in 'the end, support relief. For this reason, the remaining preliminary objections will be denied. ORDER AND NOW, this day of May, 2000, the preliminary objection of the defendant to the plaintiff' s claim with respect to a violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law is GRANTED. The remaining preliminary objections of the defendant are DENIED. BY THE COURT, .Leslie M. Fields, Esquire For the Plaintiff ess, J. Steven Shadowen, Esquire For the Defendant :rlm