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HomeMy WebLinkAbout99-6209 civilDIMITRIOS, GEORGIOS and · COURT OF COMMON PLEAS ASPASIA SLIOUPKIDIS, · CUMBERLAND COUNTY, PA Plaintiffs ' : NO. 99-6209 CIVIL V. ~ : CIVIL ACTION-LAW CVS, INC., : Defendant : JURY TRIAL DEMANDED IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFFS' COMPLAINT BEFORE HESS AND OLER, JJ: . ORDER AND NOW, this 6 ~ day of April, 2000, the preliminary objection of the defendant to Count I of the plaintiffs' cause of action is SUSTAINED and the plaintiffs are herewith granted twenty (20) days within which to plead over. The remaining preliminary objections of the defendant are DENIED. BY THE COURT, Leslie M. Fields, Esquire Gerald J. Williams, Esquire Mark R. Cuker, Esquire Anthony Stefanon, Esquire Attorney for Plaintiffs Jack M. Stover, Esquire Jayson R. Wolfgang, Esquire Cari L. Leventhal, Esquire Attorneys for Defendant DIMITRIOS, GEORGIOS and · COURT OF COMMON PLEAS ASPASIA SLIOUPKIDIS, · CUMBERLAND COUNTY, PA Plaintiffs ' : NO. 99-6209 CIVIL V. : : CIVIL ACTION-LAW CVS, INC., : Defendant · JURY TRIAL DEMANDED IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFFS' COMPLAINT BEFORE HESS AND OLER, JJ.. OPINION AND ORDER - Before the court in this case are preliminary objections seeking to strike allegations in the complaint for insufficient specificity. The preliminary objections contend that plaintiffs' complaint has failed to plead with particularity the factual averments as required by Rule 1019(a) and (b) of the Pennsylvania Rules of Civil Procedure. Plaintiffs herein claim to represent a class of persons who took prescriptions to a CVS pharmacy to be filled following an automobile accident. The relevant facts alleged in the complaint are as follows. The plaintiffs, Aspasia, Georgios and Dimitrios Slioupkidis, who were Erie insureds, were injured in an automobile accident on November 1, 1997, and were hospitalized as a result. Following plaintiffs' discharge from the hospital, they continued under the care of Hershey Medical Center physicians, who prescribed various medications to them. They took their prescriptions to their neighborhood CVS drug store 99-6209 CIVIL to be filled. Unlike the hospital and physician charges, the charges for the prescriptions were not adjusted according to Act 6,1 and Erie was not billed directly. Since the charges were not billed directly, plaintiffs paid cash for their prescriptions, and then submitted the receipts to Erie themselves. Erie then sent them a reimbursement check in an amount significantly less than what they had paid to CVS. Specifically, they received 80% of the amount charged. Upon inquiry, they learned that the prescription charges should have been adjusted to conform to Act 6 and should have been billed directly to Erie, their first party benefit carrier. They brought the foregoing to the attention of CVS, and asked that the charges be adjusted to conform to the law. CVS then informed them that CVS "does not participate in Act 6." In 1990, the General Assembly amended section 1797 of the Motor Vehicle Financial Responsibility Law, 75 Pa. CSA 1701 et seq., in an effort to reduce the cost of auto insurance. Pittsburgh Neurosurgery Associataes, Inc. v. Danner, 1999 Pa. Super. 152, 733 A.2d 1279, (1999). The statute, so-called Act 6, which became effective on April 15, 1990, limits the amount that can be charged for treatment and products, including prescription drugs, to people injured in automobile accidents and, in pertinent part, specifies that' "[a] person or institution providing...products...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...in excess of... 80% of the provider's usual and customary charge." It also mandates that "providers...may not bill the insured directly but must bill the insurer," and further requires that "the provider shall not bill or otherwise attempt to collect from the insured the difference between the provider's whole charge and the amount paid by the insurer." ~ 75 Pa.C.S.A. 1797 as amended 1990, February 7, P.L. 11, No. 6, Sec. 18, effective April 15, 1999. 99-62O9 CIVIL 75 Pa.C.S.A. 1797(a). The plaintiffs contend that this provision of the Motor Vehicle Financial Responsibility Law was violated. They also contend that these same activities constituted a violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law. In determining whether the complaint avers facts with sufficient specificitY, this Court must look to the complaint as a whole and ascertain whether it adequately explains the nature of the claim to the defendants so that they may prepare a defense. Martin v. Lancaster Battery Co., Inc.., 530 Pa. 11,606 A.2d 444 (1992). However, a plaintiffis not required to plead evidence in his or her complaint, and therefore, need not allege all of _ the factual details underlying the claim of fraud. 3 Standard Pennsylvania Practice 2d 16:34, at 514 (1981). Viewing the complaint as a whole, we believe that the plaintiffs have alleged in sufficient detail the conduct of the defendant which the plaintiffs contend was illegal under the MVFRL. We are also satisfied that the averments concerning nondisclosure are framed adequately and that the defendant is able to respond. However, we find merit in the defendant's argument that the plaintiffs' complaint with regard to the violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law is insufficient. In paragraph 28 of the complaint, plaintiffs have alleged that "CVS's conduct towards plaintiffs and members of their class comprised unfair or deceptive acts or practices as defined in § 2 of the UTPCPL, 73 P.S. {} 201-2(4)." Section 201-2(4) of the UTPCPL sets forth twenty-one separate subsections which identify the various types of activity constituting conduct which may comprise "unfair methods of competition" and "unfair or deceptive acts or practices." 73 P.S. section 201-2(4) (i-xxi). The last of these 99-6209 CIVIL subsections is a catch-all provision which makes it actionable where the defendant engages "in any other fraudulent or deceptive conduct which creates a likelihood of confusion or misunderstanding." In paragraph 29 of the plaintiffs' complaint, they set forth eight ways in which CVS's conduct was unfair and deceptive. This list is void of any specific factual allegations and consists, rather, of allegations stated in a conclusory manner. Though we have tried, we are unable to determine from the list which, if any, constitute violations of the UTPCPL. Thus, we agree with the defendant that, without knowing which of the provisions of the UTPCPL it is alleged to have violated, CVS is unable to prepare an adequate defense to the plaintiffs' claim. Rather than dismiss this aspect of the complaint, we will permit the plaintiffs to attempt to cure this deficiency by amendment.2 Accordingly, we will enter the following order. ORDER AND NOW, this /s, 42 day of April, 2000, the preliminary objection of the defendant to Count I of the plaintiffs' cause of action is SUSTAINED and the plaintiffs are herewith granted twenty (20) days within which to plead over. The remaining preliminary objections of the defendant are DENIED. BY THE COURT, K/~A. Hess, J. ,, 2 Where it is evident that a pleading can be cured by amendment, a court may not enter lCmal judgment but must give the pleader an opportunity to file an amended complaint. Where it appears that a defective complaint cannot be cured, a dismissal of the action is proper. Framlau Corp. v. Delaware County, 223 Pa. Super. 272, 299 A.2d 335 (1973). While it may be that the defect cannot be cured by an amendment in this case, we will err on the side of caution. 99-62O9 CIVIL Leslie M. Fields, Esquire Gerald J. Williams, Esquire Mark R. Cuker, Esquire Anthony Stefanon, Esquire Attorney for Plaintiffs Jack M. Stover, Esquire Jayson R. Wolfgang, Esquire Cari L. Leventhal, Esquire Attorneys for Defendant