COMPLAINT (WITH NOTICE TO PLEAD).
Jason W. Manne, Asst. Counsel, Pittsburgh, for plaintiff.
R. Charles Thomas, Bozic and Thomas, Meadville, pro se.
Crumlish, Jr., President Judge, and Craig, Barry, Colins, Palladino, McGinley and Smith, JJ. Craig, Judge, dissenting. McGinley and Barry, JJ. join this dissent.
[ 129 Pa. Commw. Page 529]
In this original jurisdiction case the Department of Public Welfare (DPW) seeks to recover, by way of damages, medical assistance payments made by it on behalf of a client of the defendant R. Charles Thomas (Thomas). Presently before us for consideration are cross motions for summary judgment filed by DPW and Thomas.
Pa.R.C.P. No. 1035(b) provides that summary judgment may be granted only "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The facts, not in dispute, and necessary to the determination of these motions are as follows.
Defendant Thomas, an attorney, filed a damage action for Joseph Tatters, Sr. (Tatters) on January 29, 1985 to recover damages for personal injuries suffered by Tatters in an automobile accident. As a result of these injuries, Tatters
[ 129 Pa. Commw. Page 530]
received medical assistance benefits from DPW in the amount of $7,875.01.
Thomas received three letters from DPW regarding the Tatters damage claim: January 25, 1985, April 5, 1985 and August 5, 1985. Each letter provided the name, address, and telephone number of an agent from the Division of Medical Assistance Recovery (DMAR). The first two letters included statements of the amounts paid by DPW on behalf of Tatters and advised Thomas that DPW had a lien on any settlement. The final letter, the first to cite to the actual statutory provisions regarding the duties of attorneys, contained the following language:
The Division of Medical Assistance Recovery is the secretary's designee in matters covered by 62 P.S. Section 1409(b)(1) et seq., and, as such, is mandated to receive all notices relative to this case. In that connection, be advised that you must provide the Department with written notice within thirty (30) days of filing an action against a third-party or an insurer. 62 P.S. Section 1409(b)(5).
In the latter part of June, 1985, in anticipation of settling Tatters' law suit, Thomas twice telephoned the local DPW office and left messages for the local DPW agent with whom he had worked in the past, one Cindy Sheptock. The messages stated that the net proceeds of the settlement would be distributed to Tatters who would then pay DPW directly, and if there was any problem with this procedure, Thomas was to be notified. The uncontested affidavit of Ms. Sheptock in the ...