As noted above, the nature of plaintiffs' misrepresentation claim is that U.S. Health Care misrepresented that the primary care physician with whom Verzicco enrolled under the terms of the contract with U.S. Health Care would perform all necessary medical care and treatment. This claim obviously has a connection with or reference to a benefit plan as it is based on representations over the extent of and nature of the care provided under the benefit plan. Plaintiffs' claim for misrepresentation is, therefore, pre-empted by ERISA. See Berger v. Edgewater Steel Co., 911 F.2d 922, 923 (3d Cir. 1990). (ERISA pre-empted state law claim for misrepresentation); Bernatowicz v. Colgate-Palmolive Co., 785 F.Supp. 488, 493 (D.N.J. 1992).
Plaintiffs' breach of contract claim is likewise pre-empted by ERISA. In that claim, plaintiffs allege that U.S. Health Care breached the provisions of the contract when it failed to provide Verzicco with a qualified primary care physician. Again, this claim obviously has a connection with a benefit plan, as it is based on an alleged contractual obligation under the benefit plan to provide for a qualified primary care physician. See Pane v. R.C.A. Corp., 868 F.2d 631, 635 (3d Cir. 1989); Kohn, supra.
The fact that ERISA may not offer a remedy for plaintiffs' pre-empted claims does not alter our conclusion. Although our Court of Appeals has not addressed the issue, the Courts of Appeals for the Fifth and Seventh Circuits have both held that a claim is still pre-empted under ERISA even if the plaintiff is left without a remedy. See Corcoran, supra; Lister v. Stark, 890 F.2d 941, 946 (7th Cir. 1989), cert. denied, 111 S. Ct. 579 (1990). See also Weir v. Northwestern National Life Insurance Company, 1992 U.S. Dist. LEXIS 9653 (E.D. Pa. July 2, 1992).
In sum, plaintiffs' claims against U.S. Health Care for misrepresentation, breach of contract and negligence (paragraphs three and four only) will be dismissed as pre-empted by ERISA. The remainder of the action, including the remainder of plaintiffs' negligence claim against defendant U.S. Health Care will be remanded to the Court of Common Pleas of Philadelphia County.
ORDER - October 1, 1992, Entered
The motion of the defendant U.S. Health Care Systems of Pennsylvania, Inc. for reconsideration is GRANTED in part and DENIED in part.
The motion of the defendant U.S. Health Care Systems of Pennsylvania, Inc. for certification is DENIED.
The Order of this Court dated July 13, 1992 is VACATED.
In its stead, it is ORDERED that:
The motion of the defendant United States Health Care Systems of Pennsylvania, Inc. to dismiss the complaint is GRANTED in part and DENIED in part.
The motion of the plaintiffs to remand is GRANTED in part and DENIED in part.
Plaintiffs' claims for misrepresentation, breach of contract and negligence (paragraphs three and four only) against U.S. Health Care are DISMISSED as pre-empted by ERISA.
The remainder of the action, including the remainder of plaintiffs' negligence claim against defendant U.S. Health Care is REMANDED to the Court of Common Pleas of Philadelphia County.
Defendant U.S. Health Care is not responsible for plaintiffs' attorney's fees and costs as originally stated in our July 13 Order.
The Clerk is DIRECTED to mark this case closed.
IT IS SO ORDERED.
CHARLES R. WEINER