(Nadia Borowski Scott)

Oral Arguments

The viability of a class action suit on behalf of attorneys alleging that they were being overcharged for pharmacy records by Rite Aid is one of several key cases set to be argued during the state Supreme Court oral argument session scheduled to begin today in Pittsburgh.

On the first day of the two-day argument session, the court is expected to hear arguments in Landay v. Rite Aid. The court agreed to hear arguments on whether the Medical Records Act applies to pharmacy records, and whether the act allows a pharmacy to charge a flat fee for copies of the records.

In Landay, a three-judge Superior Court panel held that pharmacists are considered health care providers under the act. The decision overturned an Allegheny County Court of Common Pleas judge who likened pharmacists more to yoga instructors than medical providers who have concrete doctor-patient relationships.

According to court records, David M. Landay and law firm Patberg, Carmody & Ging argued that a $50 flat fee Rite Aid was charging each time a person’s pharmacy records were requested was excessive under the copying costs outlined by the act.

The pharmacy argued that the act did not apply to pharmacies because a customer of a pharmacy was not a “patient.”

Allegheny County Court of Common Pleas Judge R. Stanton Wettick Jr. agreed and tossed the case. Wettick said the act sets the maximum fees that can be charged to “patients” or their designees in requesting “medical charts and records” from a “health care provider or facility.” He said the act’s use of the word “patient” governs only people who would, under the ordinary usage of the term, describe themselves as patients.

The Superior Court didn’t see things that way.

“First of all, we fail to see any ambiguity in the term ‘patient,’” Judge Jacqueline O. Shogan wrote for the unanimous Superior Court panel. “It is commonly understood that a person for whom a medication has been prescribed by a licensed health care provider is a patient. Nothing in the [act] requires that such a person be a patient of the pharmacy, as the trial court implies by its restrictive definition. However, we would not consider it erroneous to deem such an individual a patient of the dispensing pharmacist … as well as the prescribing health care provider.”

In addition to Landay, the justices are also scheduled to hear arguments on whether third parties will need to get a certificate of merit before suing defendants for professional negligence, whether contractors can sue for damages under a theory of quantum meruit and whether threatening to kill a man and feed him to pigs constitutes assaultive behavior for parole purposes.

Certificate of Merit

In Bruno v. Erie Insurance, the court will hear arguments on whether third parties need to get a certificate of merit to sue defendants for professional negligence, even if they weren’t a client or patient. The justices will also consider whether plaintiffs can sue their insurance companies for negligence if the claim is “not based on the underlying insurance contract.”

According to court documents, David and Angela Bruno sued Erie Insurance Co., Rudick Forensic Engineering Inc. and others after allegedly suffering injuries from toxic mold they found in the house they had bought in September 2007.

In their suit, the Brunos allegedly notified Erie of the mold in the basement in October 2007, and said they wanted to file a claim under their homeowner’s policy, according to court papers. The Brunos alleged, according to court records, that an adjuster for Erie and an engineer with Rudick told them “the mold was harmless” and that “health problems associated with mold were a media frenzy and overblown.”

After the couple tried but failed to eradicate the mold, Angela Bruno was diagnosed with cancer, allegedly as a result of the mold, and the house had to be demolished, according to the suit.

The Brunos alleged negligence against Erie for misleading the couple about the extent of the damages and failure to warn. The couple also filed a professional negligence claim against Rudick.

On appeal, the Brunos argued that they didn’t need a certificate of merit for the professional negligence claim, because they were not clients or patients of the company.

The state Superior Court, however, said the argument was against this purpose of the certificate of merit requirement, holding that the requirement is “the centerpiece” of the Supreme Court’s attempt to reform malpractice suits.

Quantum Meruit

Attorneys are also expected to argue whether Pennsylvania’s Home Improvement Consumer Protection Act bars recovery where no valid home improvement contract exists in Shafer Electric & Construction v. Mantia.

The case involves Raymond and Donna Mantia, who signed a contract with Shafer Electric & Construction for construction of an addition to their garage for nearly $38,000 and allegedly failed to pay.

Shafer filed a mechanic’s lien in April 2011 and followed with a formal complaint, claiming breach of contract or, alternatively, quantum meruit.

However, in May 2013, the Superior Court held that the act incorrectly limits a contractor’s ability to recover damages for work completed under the theory of quantum meruit. A panel of the court concluded that while Section 517.7(g) of the HICPA sets forth a contractor’s right to recover under a theory of quantum meruit—a device to prevent unjust enrichment despite the absence of a valid contract—it then “somewhat puzzlingly” requires compliance with Section 517.7(a), which includes a list of requirements in the law for a valid and enforceable home improvement contract.

“Upon review, we conclude that a plain reading of the HICPA as written serves only to impermissibly limit its true purpose in a manner that makes quantum meruit recovery under Subsection (g) impossible, and subverts what we believe to be the General Assembly’s obvious intention in providing for a quasi-contract theory of recovery in situations where no valid written contract exists,” Judge Sallie Updyke Mundy wrote for the court.

The quasi-contract theories of quantum meruit and unjust enrichment imply by definition that there is no valid and enforceable contract, Mundy said.

Therefore, the statute creates an absurd result in which it provides contractors with an equitable means of recovery under a quasi-contract theory but does so only when a written contract exists, the result of which is “such that quantum meruit recovery is not needed nor allowed by law,” Mundy said.


The court is expected to hear argument Wednesday in Commonwealth v. Simmons, which involves a man on probation following a third-degree murder conviction who told his girlfriend and several health care providers that he wanted to kill a romantic rival.

Arguments are expected to focus on whether a defendant’s threats to kill a man and feed him to pigs constituted assaultive behavior if the threats were not communicated to the intended target and no actions were taken to implement the threats.

In November 2012, a divided Superior Court panel ruled the actions were assaultive behavior, upholding the determination of a parole violation.

But the defendant argued there is no proof of assaultive behavior, since there was no evidence of actions, implementation or any communication of the threats to the intended person.

The Superior Court disagreed and said that whether or not the target of the threat directly heard the threat was irrelevant. The intent was the more important issue, the court said.

Video Evidence

The court is also scheduled to hear Commonwealth v. Dunnavant, which presents the admissibility of a silent video recording taken in a defendant’s home.

The defendant in the case has argued that the recording was an unconstitutional invasion of his expectation of privacy.

In May 2013, the state Superior Court affirmed the trial court’s decision to exclude the video.

Max Mitchell can be contacted at 215-557-2354 or mmitchell@alm.com. Follow him on Twitter @MMitchellTLI. •