Com. by Fisher v. Richard A. Cole, Md

709 A.2d 994, 1998 Pa. Commw. LEXIS 179
CourtCommonwealth Court of Pennsylvania
DecidedMarch 23, 1998
StatusPublished
Cited by10 cases

This text of 709 A.2d 994 (Com. by Fisher v. Richard A. Cole, Md) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Com. by Fisher v. Richard A. Cole, Md, 709 A.2d 994, 1998 Pa. Commw. LEXIS 179 (Pa. Ct. App. 1998).

Opinions

NARICK, Senior Judge.

The issue before this Court is whether an attempt to collect a debt barred by the statute of limitations is a violation of the Unfair Trade Practices and Consumer Protection Law (Law), Act of December 17, 1968, P.L. 1224, as amended, 73 P.S. §§ 201-1-201-9.2.

Richard A. Cole, M.D., appeals from the order of the Court of Common Pleas of Erie County that granted the Commonwealth of Pennsylvania, Acting by Attorney General D. Michael Fisher’s (Commonwealth) request for a preliminary injunction. We affirm.

The Commonwealth filed a complaint in equity against Dr. Cole and petitioned for permanent injunction and civil penalties, and a motion for preliminary injunction.1 The Commonwealth alleged in its complaint that Dr. Cole, while engaged in a large-scale effort to collect monies allegedly owed by former patients2 violated the Law, as well as the Debt Collection Trade Practices,3 by ignoring the applicable four-year statute of limitations.4 The Commonwealth also filed a brief in support of its motion, which included eleven affidavits from former patients or their attorneys, and three local Erie County Court of Common Pleas decisions, finding the four-year statute of limitation applicable to Dr. Cole’s collection efforts.5

Following a two-day hearing, the trial court granted the preliminary injunction and enjoined Dr. Cole from continuing to prosecute collection actions against former patients that were barred by the four-year statute of limitations. The trial court specifically enjoined Dr. Cole from continuing to prosecute actions against eight-named former patients.6 The trial court denied Dr. Cole’s motion for post-trial relief.

On appeal to this Court,7 Dr. Cole argues that the trial court erred in granting the preliminary injunction because there is “no clear right to relief.”8 (Dr. Cole’s brief at 11.) Because the trial court was required to consider a matter of first impression, i.e., whether making copies made for an insur-[996]*996anee companies tolls the statute of limitations for collection of debts under the Law, Dr. Cole asserts no preliminary injunction could be granted.

For the Common Pleas Court to state that there is a difference between services of a doctor and those of a lawyer fails to follow the laws of Pennsylvania.... Many ‘lawyer’ services are in fact clerical and admin-isterial, yet they toll the statute of limitations. Doctors too perform ‘medical’ and clerical services.

(Dr. Cole’s brief at 12.) Dr. Cole asserts that although he may not have “treated” the patients within the four-year statute of limitations and no personal payment was received from these patients, that he did perform “professional services,” by making copies for insurance companies, which should toll the statute of limitations.

The Commonwealth asserts that Dr. Cole’s right to collect alleged monies owed is barred by the statute of limitations which prevents suits after four years from the date that the service was rendered, unless a new promise to pay was made by the patient. The Commonwealth asserts that if the trial court determined that Dr. Cole’s conduct violated Sections 3 and 18 of the regulations, then the Commonwealth’s right to relief in the form of a preliminary injunction is clear, because such conduct is unlawful and subject to an injunction under Section 4 of the Law. Further, the Commonwealth asserts that because it alleges a statutory violation, irreparable harm is presumed for purposes of granting a preliminary injunction. Pennsylvania Public Utility Commission v. Israel, 356 Pa. 400, 52 A.2d 317 (1947) (holding that a determination of irreparable harm for the purpose of granting an injunction is not necessary when the legislature has prohibited certain conduct).9

At the preliminary injunction hearing, the Commonwealth introduced evidence that no new promises were made. This evidence included Dr. Cole’s complaint against former patients where he set forth the date that he had last treated the patients, the last date the patient had made a payment, whether the payment was made by the patient or an insurance company and the date the suits were commenced.

In three eases, the trial court found that Dr. Cole had alleged an incorrect last date of treatment. Dr. Cole had attached his ledger statements to the complaints, indicating that he had only copied records on these dates. In each of these cases, the actual date the patient last received medical treatment was more than four years prior to the date the suit was commenced.

Additionally, with regard to four other former patients, Dr. Cole alleged incorrect patient payment dates. Dr. Cole’s attached ledger statements, indicated that payments were not made by the patients but were instead made by insurance companies. In each of these cases, the actual last patient payment date, was more than four years prior to the commencement of his suit.10

The Commonwealth further argued before the trial court that Dr. Cole’s continued efforts in prosecuting and bringing time-barred cases violated the Law. In support of its position, the Commonwealth cited Kimber v. Federal Financial Corp., 668 F.Supp. 1480 (M.D.Ala.1987), which involved violations of Sections 1692e and 1692f of the Federal Debt Collection Practices Act, 15 U.S.C. §§ 1692-1692o, the federal version of Pennsylvania’s Law.11

[997]*997In Kimber, the defendant debt collector brought actions against approximately 200 consumers in an effort to collect debts clearly barred by the applicable statute of limitation. The court found that the defendant had violated the federal act in attempting to collect debts obviously time-barred. The court stated that:

These statutes [of limitations] ... ‘afford[ ] plaintiffs what the legislature deems a reasonable time to present their claims,’ while at the same time ‘protect[ing] defendants and the courts from having to deal with cases in which the search for truth may be seriously impaired by the loss of evidence, whether by death or disappearance of witnesses, fading memories, disappearance of documents, or otherwise.’

Id. at 1487, citing United States v. Kubrick, 444 U.S. 111, 117, 100 S.Ct. 352, 356, 62 L.Ed.2d 259 (1979).

Here, the trial court, stated that the legal pronouncement in Kimber was sound and adopted the federal court’s reasoning. We agree with the trial court’s finding that Dr. Cole had violated the Law by filing and prosecuting actions barred by the four-year statute of limitation and by continuing to prosecute the actions after being made aware of the applicable statute of limitations.

The trial court also found that the copying of records by Dr. Cole and his receipt of insurance payments did not toll the statute of limitations. We agree with this finding. In Richard A Cole, M.D. v. Linda Lawrence, — Pa. Superior Ct.

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Com. by Fisher v. Richard A. Cole, Md
709 A.2d 994 (Commonwealth Court of Pennsylvania, 1998)

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709 A.2d 994, 1998 Pa. Commw. LEXIS 179, Counsel Stack Legal Research, https://law.counselstack.com/opinion/com-by-fisher-v-richard-a-cole-md-pacommwct-1998.