Prospect CCMC v. Berkshire Hathaway ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
PROSPECT CCMC, L.L.C. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
BERKSHIRE HATHAWAY HOMESTATE : No. 839 EDA 2022
INSURANCE, CO. :
Appeal from the Order Entered March 2, 2022
In the Court of Common Pleas of Delaware County Civil Division at
No(s): CV-2018-003234
BEFORE: BOWES, J., KING, J., and PELLEGRINI, J.*
CONCURRING MEMORANDUM BY BOWES, J.: FILED MARCH 02, 2023
I agree with my esteemed colleagues that Prospect CCMC, L.L.C.
(“Crozer”) has failed to establish that its complaint stated a viable claim
against Berkshire Hathaway Homestate Insurance, Co. (“Berkshire”).
However, I would not affirm the grant of summary judgment to Berkshire
based upon the failure of Crozer, a Pennsylvania corporation who treated
Berkshire’s insured in Pennsylvania, to exhaust New Jersey administrative
remedies as purportedly mandated by a New Jersey statute. Instead, I would
hold that the trial court properly concluded that Crozer failed to create an
issue of material fact as to its contractual right to recover.
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* Retired Senior Judge assigned to the Superior Court.
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The Majority concludes that, “[v]iewing the facts in the light most
favorable to Crozer, summary judgment was properly granted to Berkshire
because the record contains no evidence that would establish Pennsylvania’s
jurisdiction over [the] underlying worker’s compensation claim.” Majority
Memorandum at 11. Berkshire did not move for summary judgment on that
basis. Rather, it contended that Crozer failed to produce evidence to support
its breach of contract claim. While this Court, as a general rule, may affirm a
trial court ruling on any basis apparent from the record, we “cannot affirm a
trial court’s grant of summary judgment upon an argument that was never
raised in support of the summary judgment motion.” Shamis v. Moon, 81
A.3d 962, 970 (Pa.Super. 2013).
Certainly, we may sua sponte address the issue of subject-matter
jurisdiction. See, e.g., Liberty Mut. Grp., Inc. v. 700 Pharmacy, LLC, 270
A.3d 537, 544 (Pa.Super. 2022). However, when jurisdiction is determined
to be lacking, the only valid disposition is dismissal of the action. See MCI
WorldCom, Inc. v. Pennsylvania Pub. Util. Comm’n, 844 A.2d 1239, 1249
(Pa. 2004) (“Jurisdiction is power to declare the law, and when it ceases to
exist, the only function remaining to the court is that of announcing the fact
and dismissing the cause.”). Consequently, if the Majority were correct in its
jurisdictional ruling, the proper result would be the dismissal of the action, not
affirmance of the grant of judgment in favor of Berkshire. In the absence of
jurisdiction, the judgment would be a nullity. See, e.g., Turner v. Estate of
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Baird, 270 A.3d 556, 560 (Pa.Super. 2022) (“[I]t is well settled that a
judgment or decree rendered by a court which lacks jurisdiction of the subject
matter or of the person is null and void.” (cleaned up)).
Yet, I am unconvinced that the Majority is correct. Its ruling is based
upon a New Jersey statute which states: “Exclusive jurisdiction for any
disputed medical charge arising from any claim for compensation for a work-
related injury or illness shall be vested in the [New Jersey Division of Worker’s
Compensation].” Majority Memorandum at 9 (internal quotation marks
omitted) (quoting N.J. Stat. § 34:15-15). While this lengthy statute
unquestionably governs medical bill disputes between an employer and its
injured employee, nothing on its face precludes a foreign medical provider
from suing the employer to recover the costs of treatment to the employee in
the jurisdiction in which the services were provided. The Majority has not
cited, nor have I uncovered, any case in which this New Jersey statute was
invoked in the way the Majority has employed it.
To hold that the state of New Jersey may lawfully deprive an aggrieved
Pennsylvania company of its right to seek redress in Pennsylvania for a loss it
sustained in Pennsylvania, the Majority would first have to undertake
examinations of the principles such as conflict of laws and constitutional rights
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that I question would ultimately support its decision.1 Rather than trouble
myself with unnecessary legal analyses, I would resolve this appeal through
examining the ruling that was actually made and appealed to this Court.
Crozer filed a complaint alleging that, during the relevant time, it and
Berkshire “were parties to the AWCA Preferred Provider Organization (“AWCA
PPO”) agreement with Aetna/Coventry,” and that this agreement entitled
Crozer to pay it ninety percent of the charges for the care of Berkshire’s
employee. Complaint, 4/30/18, at ¶¶ 4-5. Nearly four years later, when it
responded to Berkshire’s motion for summary for judgment, Crozer had yet
to produce any agreement to which it and Berkshire were both parties, let
alone one that mandated Berkshire to pay the demanded sum.
The best that Crozer could muster was: (1) an amendment of an AWCA
agreement signed only by Crozer and AWCA concerning compensation for
services rendered to Pennsylvania Worker’s Compensation claimants; (2) a
license for computer software for medical bill review from Medata to licensees
Oak River Insurance Company, Cypress Insurance Company, Brookwood
Insurance Company, Redwood Fire & Casualty, and Cornhusker Casualty
Insurance, that incorporated by reference differing PPO rates for nine different
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1 See Crozer’s Brief in Support of Answer to Preliminary Objections, 6/28/18,
at 4 (quoting Gov’t Employees Ins. Co. v. Allstate Ins. Co., 818 A.2d 474,
485 (N.J. Super. Ct. App. Div. 2003)) (“There are . . . constitutional problems
that would be created if New Jersey asserted jurisdiction over out-of-state
companies not transacting any business in this State and without any ties to
this State.”).
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networks, one of which was Aetna/Coventry; and (3) deposition testimony
indicating that Oak River is an “affiliate” of Berkshire. See Response to Motion
for Summary Judgment, 2/11/22, at Exhibits A & B; Motion for Summary
Judgment, 1/12/22, at Exhibit J (Deposition of Jade Uhl, 12/14/21, at 79-80
(“Q. And by the way, Oak River is essentially Berkshire Hathaway? A. Yes,
that is my employer. Their affiliate.”)).
Faced with this evidentiary record, I would hold that Crozer’s failure to
produce any contract with Berkshire, which was the only entity it actually
sued, entitled Berkshire to judgment as a matter of law on the breach of
contract claim, which was the only one raised in its complaint. Furthermore,
I agree with the trial court that the agreement of an affiliate of Berkshire to
use computer software that utilized the Aetna/Coventry pricing along with
eight others, which did not indicate that Crozer was an intended third-party
beneficiary, likewise failed to establish in Crozer a right to force Berkshire to
utilize Medata’s computer application to reach the pricing result Crozer
desired. Although Crozer produced evidence that Berkshire initially applied
the ninety-percent compensation rate upon the mistaken belief that the work-
related accident occurred in Pennsylvania, and that it applied that rate in other
instances related to other providers, Crozer established no contractual right
to relief in this instance.
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Accordingly, I would affirm the judgment in favor of Berkshire for the
reasons explained by the trial court.2 See Trial Court Opinion, 4/27/22, at 6-
8 (explaining that Crozer failed to establish it had a right to ninety-percent
compensation pursuant to a contract with Berkshire or as a third-party
beneficiary to Berkshire’s contract with another entity).
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2 To the extent Crozer complains that the trial court “reversed the burdens of
proof” by faulting Crozer’s failure to produce evidence of an applicable,
enforceable contract, Crozer fails to appreciate that it may not rest on its
pleadings in opposing summary judgment, but must come forth with evidence
which, if believed by the fact-finder, would support a verdict in its favor. See,
e.g., DiDomizio v. Jefferson Pulmonary Associates, 280 A.3d 1039, 1045
(Pa.Super. 2022) (“To survive a defense motion for summary judgment, a
plaintiff must adduce sufficient evidence on an issue essential to his case and
on which he bears the burden of proof such that a jury could return a verdict
in his favor.”).
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