J-A05038-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
AVRUM M. BAUM, AS PARENT AND IN THE SUPERIOR COURT OF GUARDIAN OF CHAYA BAUM, PENNSYLVANIA INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED,
Appellant
v.
KEYSTONE MERCY HEALTH PLAN AND AMERIHEALTH MERCY HEALTH PLAN,
Appellees No. 1250 EDA 2015
Appeal from the Order March 27, 2015 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): January Term, 2011, 3876
BEFORE: OLSON, J., OTT, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED APRIL 26, 2016
Appellant Avrum M. Baum appeals from the order entered on March
27, 2015, by the Honorable Mary D. Colins in the Court of Common Pleas of
Philadelphia County denying his motion for class certification for a claim
against Appellees, Keystone Mercy Health Plan and Amerihealth Mercy
Health Plan alleging deceptive conduct under the catchall provision of the
*Former Justice specially assigned to the Superior Court. J-A05038-16
Unfair Trade Practices and Consumer Protection Law (“UTPCPL”). 1 Upon our
review of the record, we affirm.2
This is the second time this Court has been called upon to consider the
trial court’s denial of Appellant’s motion for class certification in this matter.
In a memorandum decision filed on December 9, 2014, a panel of this Court
affirmed in part and vacated in part the trial court’s order of July 25, 2013,
denying Appellant’s motion and remanded the case for further proceedings.
In doing so, this Court found the trial court had not abused its discretion
when it denied Appellant’s motion for class certification under Pa.R.C.P.
1702(3) for failure to show typicality;3 however, for reasons discussed more
____________________________________________
1 73 P.S. § 201-1, et seq. 2 An order denying class certification is an appealable collateral order. McGrogan v. First Commw. Bank, 74 A.3d 1063, 1079 (Pa.Super. 2013); Pa.R.A.P. 313(b) (providing an order is immediately appealable as a collateral order if said order is “separable from and collateral to the main cause of action where the right involved is too important to be denied review and the question presented is such that if review is postponed until final judgment in the case, the claim will be irreparably lost”). 3 Pennsylvania Rule of Civil Procedure 1702 requires the following criteria to be met for a class action to proceed: Rule 1702. Prerequisites to a Class Action One or more members of a class may sue or be sued as representative parties on behalf of all members in a class action only if (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (Footnote Continued Next Page)
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fully infra, we further held the trial court had abused its discretion when it
determined that Appellant’s UTPCPL claim could not be certified to the extent
it alleged deceptive conduct under the UTPCPL’s catchall provision.4 See
Baum v. Keystone Mercy Health Plan, et al., No. 2667 EDA 2013,
unpublished memorandum at 13 (Pa.Super. filed December 9, 2014).
In our December 9, 2014, memorandum decision, we referenced the
trial court’s summary of the relevant factual and procedural history of this
case as follows:5
(4) [Appellant] is a resident of Philadelphia, Pennsylvania, and is the father and guardian of Chaya Baum, a special-needs minor child who has health insurance with [Appellee] Keystone Mercy Health Plan. [Appellant] himself was and is not insured by [Appellees].
_______________________ (Footnote Continued)
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; (4) the representative parties will fairly and adequately assert and protect the interests of the class under the criteria set forth in Rule 1709; and (5) a class action provides a fair and efficient method for adjudication of the controversy under the criteria set forth in Rule 1708. 4 In 1996, “deceptive conduct” was added as a violation to the catchall provision of the UTPCPL and recodified at 73 P.S. § 201-2(4)(xxi); prior to that time, the catchall provision, Section 201-24(xvii) of the UTPCPL, referenced only “fraudulent conduct.” 5 In its March 25, 2015, Opinion, the trial court incorporated these findings of fact which it previously had set forth in its opinion of July 25, 2013, filed pursuant to Pa.R.A.P. 1925(a).
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(5) The Commonwealth of Pennsylvania pays for Chaya Baum’s health insurance with Keystone through the Medicaid program.
...
(10) Sometime in 2010, one of the [Appellees]’ employees copied data from [Appellees]’ computer system onto an unencrypted Flash Drive that was misplaced and never found.
(11) The Flash Drive contained private health information (PHI) that is protected: by the [Appellees]’ own practices; under federal law governing Privacy of Individually Identifiable Health Information (HIPPA Privacy Rule), 45 C.F.R. 160 et seq.; and under Pennsylvania Law, the Privacy of Consumer Health Information, 31 Pa. Code § 416.
(12) On September 2010, Barbara G. Jones, [Appellees]’ Chief Compliance & Privacy Officer, learned that the Flash Drive had been lost. She conducted an investigation that involved, among other things, identifying what information was on the Flash Drive and enlisting assistance of all [Appellees]’ employees in finding it.
(13) Through Ms. Jones, [Appellees] provided notice of the missing Flash Drive to the Pennsylvania Department of Public Welfare (DPW) on October 5, 2010, and to the [F]ederal Department of Health and Human Services Office for Civil Rights (OCR) on October 25, 2010.
(14) The information on the Flash Drive included, variously, names, addresses/zip codes, date of birth, social security numbers, member identification numbers and clinical information, including medications, lab results and health screening information.
(15) According to the report that [Appellees] sent to DPW, the Flash Drive contained partial social security numbers of 801 individuals and the complete social security numbers of seven individuals. For the remaining more than 283,000 individuals, the data included, variously, member identification numbers, clinical health screening information, names and addresses.
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(16) [Appellees] sent notices to 285,691 individuals concerning the loss, informing those individuals what personal data was on the Flash Drive and inviting them to contact [Appellees] for additional information.
(17) [Appellees] offered credit monitoring to the 808 individuals whose partial or complete social security numbers appeared on the Flash Drive ... because, in [Appellees]’ view, their PHI was most at risk. [Appellant] was not among the 808 individuals offered such monitoring.
(18) The notice that [Appellant] received in October of 2010 informed him that his daughter’s member identification number ... and health screening information were on the lost Flash Drive.
(19) Neither Chaya Baum’s name, social security number nor address was on the Flash Drive.
(20) [Appellant] never contacted [Appellees] for additional information.
… Baum, supra at 2-4 (citing Trial Court Opinion, filed July 25, 2013, at 2, 4-
6).
Also pertinent to the instant appeal is the trial court’s additional finding
of fact made upon remand:
(35) At the time of Chaya’s enrollment in Keystone’s claim, Keystone distributed to her and others a Notice of Privacy Practices. N.T., 04.29.13, at 18- 19. The Notice said:
SUMMARY
Keystone Mercy Health Plan takes our members’ right to privacy seriously. In order to provide you with your benefits, Keystone Mercy Creates and/or receives personal information about your health. This information comes from you, your physicians, hospitals, and other health care services providers. This information can be oral, written or electronic. Keystone Mercy must keep this information
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confidential. We have set up ways to make sure that all personal health information is used correctly. For example[, a]ll Keystone Mercy employees must sign and follow the Company’s Confidentiality Policy. Another example is all company computers are password protected and equipped with security protection devices. *** KINDS OF INFORMATION THAT THIS NOTICE APPLIES TO
This notice covers any information we have that would allow someone to identify you and learn something about your health. *** WHO MUST FOLLOW THIS NOTICE
Keystone Mercy Health Plan
All employees, staff, interns, volunteers and other personnel whose work is under direct control of Keystone Mercy Health Plan.
*** OUR LEGAL DUTIES
The law requires that we maintain the privacy of your health information.
We are required to provide this Notice of Privacy Practices and legal duties regarding health information to you.
We are required to follow the terms of this notice until we officially adopt a new notice.
Trial Court Opinion, filed March 25, 2015, at 8-9 (citing Plaintiff’s Exhibit P-
4; BAUM-00028-00029).
On January 28, 2011, Appellant filed a complaint alleging a violation of
the catchall provision of the UTPCPL and asserting claims of negligence and
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fully infra, we further held the trial court had abused its discretion when it
determined that Appellant’s UTPCPL claim could not be certified to the extent
it alleged deceptive conduct under the UTPCPL’s catchall provision.4 See
Baum v. Keystone Mercy Health Plan, et al., No. 2667 EDA 2013,
unpublished memorandum at 13 (Pa.Super. filed December 9, 2014).
In our December 9, 2014, memorandum decision, we referenced the
trial court’s summary of the relevant factual and procedural history of this
(4) [Appellant] is a resident of Philadelphia, Pennsylvania, and is the father and guardian of Chaya Baum, a special-needs minor child who has health insurance with [Appellee] Keystone Mercy Health Plan. [Appellant] himself was and is not insured by [Appellees].
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; (4) the representative parties will fairly and adequately assert and protect the interests of the class under the criteria set forth in Rule 1709; and (5) a class action provides a fair and efficient method for adjudication of the controversy under the criteria set forth in Rule 1708. 4 In 1996, “deceptive conduct” was added as a violation to the catchall provision of the UTPCPL and recodified at 73 P.S. § 201-2(4)(xxi); prior to that time, the catchall provision, Section 201-24(xvii) of the UTPCPL, referenced only “fraudulent conduct.” 5 In its March 25, 2015, Opinion, the trial court incorporated these findings of fact which it previously had set forth in its opinion of July 25, 2013, filed pursuant to Pa.R.A.P. 1925(a).
(5) The Commonwealth of Pennsylvania pays for Chaya Baum’s health insurance with Keystone through the Medicaid program.
(10) Sometime in 2010, one of the [Appellees]’ employees copied data from [Appellees]’ computer system onto an unencrypted Flash Drive that was misplaced and never found.
(11) The Flash Drive contained private health information (PHI) that is protected: by the [Appellees]’ own practices; under federal law governing Privacy of Individually Identifiable Health Information (HIPPA Privacy Rule), 45 C.F.R. 160 et seq.; and under Pennsylvania Law, the Privacy of Consumer Health Information, 31 Pa. Code § 416.
(12) On September 2010, Barbara G. Jones, [Appellees]’ Chief Compliance & Privacy Officer, learned that the Flash Drive had been lost. She conducted an investigation that involved, among other things, identifying what information was on the Flash Drive and enlisting assistance of all [Appellees]’ employees in finding it.
(13) Through Ms. Jones, [Appellees] provided notice of the missing Flash Drive to the Pennsylvania Department of Public Welfare (DPW) on October 5, 2010, and to the [F]ederal Department of Health and Human Services Office for Civil Rights (OCR) on October 25, 2010.
(14) The information on the Flash Drive included, variously, names, addresses/zip codes, date of birth, social security numbers, member identification numbers and clinical information, including medications, lab results and health screening information.
(15) According to the report that [Appellees] sent to DPW, the Flash Drive contained partial social security numbers of 801 individuals and the complete social security numbers of seven individuals. For the remaining more than 283,000 individuals, the data included, variously, member identification numbers, clinical health screening information, names and addresses.
(16) [Appellees] sent notices to 285,691 individuals concerning the loss, informing those individuals what personal data was on the Flash Drive and inviting them to contact [Appellees] for additional information.
(17) [Appellees] offered credit monitoring to the 808 individuals whose partial or complete social security numbers appeared on the Flash Drive ... because, in [Appellees]’ view, their PHI was most at risk. [Appellant] was not among the 808 individuals offered such monitoring.
(18) The notice that [Appellant] received in October of 2010 informed him that his daughter’s member identification number ... and health screening information were on the lost Flash Drive.
(19) Neither Chaya Baum’s name, social security number nor address was on the Flash Drive.
(20) [Appellant] never contacted [Appellees] for additional information.
… Baum, supra at 2-4 (citing Trial Court Opinion, filed July 25, 2013, at 2, 4-
Also pertinent to the instant appeal is the trial court’s additional finding
(35) At the time of Chaya’s enrollment in Keystone’s claim, Keystone distributed to her and others a Notice of Privacy Practices. N.T., 04.29.13, at 18- 19. The Notice said:
Keystone Mercy Health Plan takes our members’ right to privacy seriously. In order to provide you with your benefits, Keystone Mercy Creates and/or receives personal information about your health. This information comes from you, your physicians, hospitals, and other health care services providers. This information can be oral, written or electronic. Keystone Mercy must keep this information
confidential. We have set up ways to make sure that all personal health information is used correctly. For example[, a]ll Keystone Mercy employees must sign and follow the Company’s Confidentiality Policy. Another example is all company computers are password protected and equipped with security protection devices. *** KINDS OF INFORMATION THAT THIS NOTICE APPLIES TO
This notice covers any information we have that would allow someone to identify you and learn something about your health. *** WHO MUST FOLLOW THIS NOTICE
All employees, staff, interns, volunteers and other personnel whose work is under direct control of Keystone Mercy Health Plan.
The law requires that we maintain the privacy of your health information.
We are required to provide this Notice of Privacy Practices and legal duties regarding health information to you.
We are required to follow the terms of this notice until we officially adopt a new notice.
Trial Court Opinion, filed March 25, 2015, at 8-9 (citing Plaintiff’s Exhibit P-
On January 28, 2011, Appellant filed a complaint alleging a violation of
the catchall provision of the UTPCPL and asserting claims of negligence and
The UTPCPL explicitly permits a private cause of action. See 73 P.S. §
201-9.2(a). Herein Appellant sought to certify a class upon a claim of
deceptive practices under the catchall provision of the UTPCPL which
prohibits one from “[e]ngaging in any other fraudulent or deceptive conduct
which creates a likelihood of confusion or of misunderstanding.” 73 Pa.C.S.
§ 201-2(4)(xxi).7 In accordance with this Court’s directive, on remand the
trial court applied the Rule 1702 requirements for class certification to
Appellant’s claim and in doing so initially determined the numerosity
requirement of Rule 1702(1) had been met, a finding Appellees did not
contest. Trial Court Opinion, filed March 25, 2015, at 11. Also, in analyzing
whether there were common issues of law or fact under Rule 1702(2) as it
pertains to Appellant’s claim Appellees had engaged in “deceptive or unfair
conduct,” the trial court considered Appellant’s assertions in his Complaint
that while Appellees informed him his child’s information would be protected
from disclosure, in fact, it had not been encrypted and was stored on a flash
drive that was lost. Finding that Appellant’s allegations related to Appellees’
common course of conduct relative to all class members and mindful that ____________________________________________
7 Specifically, Appellant alleged in his First Amended Complaint that Appellees “[e]ngag[ed] in fraudulent or deceptive conduct which created a likelihood of confusion or of misunderstanding under § 201-2(4)(xxi) because [Appellees] created confusion or misunderstanding about the supposed safeguards [Appellees] purportedly had in place to ensure that the [personal health information] of [Appellant] and the Class was adequately protected.” See First Amended Complaint, filed September 20, 2012, at ¶ 33(b).
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individualized determinations as to damages, without more, will not defeat
the commonality requirement, the trial found Appellant had satisfied this
element. Id., at 12-14. Understandably, the trial court did not consider
whether Appellant and other members of the class would need to show
justifiable reliance in order to recover under the catchall provision.
Next, the trial court considered whether Appellant’s assertions that
Appellees’ course of conduct in failing to comply with their promises and
their legal obligation to protect the data satisfied the “typicality” requirement
under Rule 1702(3) and created “confusion and misunderstanding,” an
element of a cause of action under UPTCPL. Stressing Appellees had
pledged to protect any information it possessed that would allow someone to
identify and learn about an insured’s health and the record herein revealed
that any information contained on the flash drive would not identify his
Appellant’s daughter, the trial court determined Appellant could not claim to
represent those class members who did lose such data and, therefore, may
have been subjected to a deception. Id. at 14-15. The trial court also
questioned Appellant’s standing to bring a private action under the UTPCPL
as it pertained to a determination of “typicality” under Rule 1702(3) because
he did not purchase his daughter’s policy or suffer an “ascertainable loss.”
Trial Court Opinion, filed March 25, 2015, at 16-17 (citing 73 Pa.C.S. § 201-
9.2(a)).
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The trial court further found that although no evidence suggested
counsel cannot adequately represent the interests of the class or that there
are inadequate resources to bring the cause of action, the adequacy of
representation requirement had not been satisfied herein to the extent that
individual issues predominate over a common one; therefore, the court held
Appellant will not fairly and adequately assert and protect a class interest
under Rules 1702(4) and 1709. Trial Court Opinion, filed March 25, 2015, at
17-18.
Finally, the trial court analyzed whether class certification would be a
fair and efficient method of resolving the underlying dispute under Rules
1702(5) and 1708. Referencing its prior findings pertaining to typicality and
standing, the trial court stated that such individual concerns predominate
over any common issues of liability. For the foregoing reasons, the trial
court denied Appellant’s motion for class certification on his claim of
deceptive practices under the UTPCPL’s catchall provision.
Shortly after the prior panel of this Court remanded the instant matter
for further proceedings consistent with its memorandum opinion, in reliance
upon prior decisions of our Supreme Court, this Court clarified in a published
opinion that “justifiable reliance is an element of all private claims under the
UTPCPL.” Kern v. Lehigh Valley Hosp., 108 A.3d 1281, 1287 (Pa.Super.
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2015) (emphasis added).8 In Kern, this Court rejected what we deemed to
be the core of the appellant’s claim therein that the element of justifiable
reliance is applicable only to a claim of fraudulent conduct and in doing so
reasoned as follows:
In Grimes [v. Enter. Leasing Co. of Pennsylvania, LLC, 66 A.3d 330 (Pa. Super. 2013), rev’d on other grounds, ___ Pa. ____, 105 A.3d 1188 (2014)][9], we were confronted with the issue of whether the trial court erred in finding a plaintiff could not prevail on her UTPCPL claim because she did not allege a misrepresentation with respect to the deceptive conduct alleged in her complaint. Citing Bennett v. A.T. Masterpiece Homes At Broadsprings, LLC, 40 A.3d 145 (Pa.Super. 2012), we held the plaintiff need not allege a misrepresentation because any deceptive conduct alleged under the catchall provision of the UTPCPL would be sufficient to state a private cause of action. This Court's passing reference in a footnote that plaintiff need not allege justifiable reliance was stated in the context of explaining that plaintiff need not prove the elements of common law fraud in an action that alleges deceptive conduct. Within days of our decision in Grimes, we decided DeArmitt[v. New York Life Ins. Co., 73 A.3d 578 (Pa.Super. 2013)], citing our Supreme Court's decision in Toy[v. Metro. Life Ins. Co., 593 Pa. 20, 928 A.2d 186 (2007)], where we reaffirmed a UTPCPL plaintiff still must prove justifiable reliance and causation in a private action, because our legislature never intended to do away with traditional common law elements of reliance and causation in an UTPCPL action. Our decisions in Grimes and DeArmitt, therefore, are not inconsistent with the decisions of our Supreme Court in Weinberg and its progeny. . . . At the core of Appellant's argument is his belief the element of ____________________________________________
8 Significantly, Appellant fails to address this decision in either his Appellant’s Brief or in his Appellant’s Reply Brief. 9 Given its conclusion, our Supreme Court in Grimes declined to address the issue of “whether a private plaintiff who alleged deceptive conduct under the UTPCPL’s ‘catchall’ provision need not plead or prove justifiable reliance.” Id. at 1192, n.3.
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justifiable reliance only is a product of fraudulent conduct. Appellant fails to recognize that the element of justifiable reliance under the UTPCPL is the product of both (a) the Legislature's intent not to do away with traditional elements of reliance and causation under the UTPCPL, and (b) the express provision under 201–9.2 that requires a private action plaintiff to prove an “ascertainable loss ... as a result of the use or employment by any person of a method, act or practice declared unlawful” under Section 201–3 the UTPCPL. 73 P.S. § 201– 9.2(a) (emphasis added). See also Weinberg, Schwartz, supra. Accordingly, the element of justifiable reliance always was a part of private actions under the statutory language of the UTPCPL. Amendments in 1996 that added deceptive conduct to the catchall provision simply included other conduct that did not require proof of all elements of common-law fraud. See Bennett, supra. Consistent with the foregoing cases, we conclude that the trial court here was correct in its determination that justifiable reliance is an element of private actions under Section 201–9.2 of the UTPCPL. As such, Appellant had to demonstrate that he and all prospective class members justifiably relied on Appellee's alleged violations of the UTPCPL and, as a result of those alleged violations, suffered an ascertainable loss.
Kern, supra at 1289-90 (footnotes omitted) (italics in original) (bold
emphasis added).
In our prior memorandum decision in the matter sub judice, we
concluded the trial court had not abused its discretion when it denied
Appellant’s motion for class certification of his claim under the UTPCPL’s
catchall provision regarding fraudulent conduct. Baum, supra at 13. In
light of Kern and upon a review of the trial court’s additional findings of fact
and conclusions of law on remand, we further find the trial court did not
abuse its discretion in denying Appellant’s motion to certify the class to the
extent it alleged deceptive conduct under the UTPCPL’s catchall provision.
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In Kern, this Court held a plaintiff bringing a private cause of action
under the UTPCPL must show reliance. As such, Appellant had to
demonstrate that he and all prospective class members justifiably had relied
upon the Appellees’ alleged violations of the UTPCPL and suffered an
ascertainable loss as result of those alleged violations. The trial court herein
previously found Appellant’s UTPCPL claim sounding in fraud did not satisfy
the commonality requirement of Pa.R.A.P. 1702(2) because a plaintiff
asserting a private action under the UTPCPL must show reliance, and, as
such, class treatment of a claim sounding in fraud is inappropriate. Trial
Court Opinion, filed July 25, 2013, at 18. However, operating under a pre-
Kern analysis of this Court that justifiable reliance is not an element of
claims pertaining to deceptive conduct brought under the UTPCPC, the trial
court avoided such a holding on remand and consistent with our December
7, 2014, memorandum decision considered the other Rule 1702 factors as
they relate to Appellant’s UTPCPL deceptive conduct claim in its March 25,
2015, Opinion and Order. In this regard, as is noted supra, when applying
Rule 1702(2) to the within the matter, the trial court determined it invited a
finding of commonality. Trial Court Opinion, filed March 25, 2015, at 13-14.
To the extent that this finding conflicts with this court’s holding in Kern, the
trial court abused its discretion.
However, the trial court has broad discretion to determine whether
class certification is warranted, and it otherwise carefully considered the
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numerosity, typicality, adequacy of representation, and fair and efficient
method of adjudication requirements for class certification under Rule 1702
and found the class action requirements were not met. Trial Court Opinion,
filed March 25, 2015 at 11-20. In addition, it also aptly detailed its reasons
for finding a class action is not a fair and efficient method of adjudication
under Rule 1708(a)(6). Id. at 19-20.
Discerning no abuse of discretion in its determination, we would affirm
the trial court's order denying class certification on the basis that the third,
fourth and fifth requirements of Rule 1702 have not been met. 10 As such,
we will not disturb the trial court’s ruling on Appellant’s motion for class
certification under Rule 1702.11
Order affirmed.
Judge Olson and Judge Ott Concur in the Result.
10 By its plain terms, Rule 1702 requires a plaintiff to satisfy all five criteria for a class certification to be proper. 11 This Court may affirm an order of the trial court on any basis. Wilkinsburg v. Sanitation Dep’t of Wilkinsburg, 345 A.2d 641 (Pa. 1975).
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Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 4/26/2016
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