The opinion of the court was delivered by: McVerry, J.
MEMORANDUM OPINION AND ORDER OF COURT
Presently before the Court for disposition is the MOTION TO DISMISS, with brief in support filed by Defendants Coventry Health Care, Inc., and HealthAmerica Pennsylvania, Inc. (Document Nos. 23 and 24), the BRIEF IN OPPOSITION filed by Plaintiff, Maryann Kovach, Executrix of the Estate of Richard S. Kovach (Document No. 26), the REPLY BRIEF filed by Defendants (Document No. 35), the SUR-REPLY filed by Plaintiff (Document No. 39), and the RESPONSE TO THE SUR-REPLY filed by Defendants (Document No. 40).
On November 16, 2010,the Court heard oral argument on the Motion to Dismiss. All parties were represented by counsel who argued the issues skillfully and effectively. After due and deliberate consideration of the filings, both in support and in opposition, the arguments of counsel, as well as the relevant case law, the Court will grant the Motion in part and the due process claim will be dismissed. Because the Court does not continue to have jurisdiction over the remainder of Plaintiff‟s state law claims, same will be remanded to the Court of Common Pleas of Allegheny County, Pennsylvania forthwith.
Plaintiff, Maryann Kovach, is the surviving spouse and executrix of the Estate of Richard S. Kovach. Defendant Coventry Health Care, Inc. ("Coventry") sells health insurance products which include Medicare Advantage plans in all fifty (50) states. Defendant HealthAmerica Pennsylvania, Inc. ("HealthAmerica") is a wholly owned subsidiary of Coventry.
In approximately 2004, Maryann and Richard Kovach enrolled in a HealthAmerica Advantra Gold Medicare Advantage Plan, Policy No. 85050394901 (the "Policy") offered by Defendants, with the understanding that they were purchasing the best possible coverage from Defendants. The Kovachs paid premiums in excess of the traditional Medicare Part B premium and expected that skilled rehabilitation and respiratory therapy, covered under Medicare, would be provided under the Policy. Amended Complaint, at ¶¶ 9-10.
On April 8, 2009, Richard Kovach underwent a heart catheterization at UPMC Mercy Hospital. Two days later, he had carotid artery surgery and had heart bypass surgery on April 13, 2009. On April 21, 2009, while still recovering at UPMC Mercy, Mr. Kovach went into cardiac arrest. He was diagnosed with Heparin Induced Thrombocytopenia ("HIT") and admitted to the Cardiovascular ICU at UPMC Mercy, where he was placed on a ventilator via tracheotomy and had a feeding tube implanted. As a result of his development of HIT, Mr. Kovach experienced respiratory and kidney failure.
Approximately a month later as Mr. Kovach‟s condition began to improve, his physicians determined that he should be transferred to a long-term acute care facility ("LTAC"), which would enable him to receive aggressive rehabilitative therapy necessary to allow him to successfully breathe on his own again. This type of care was not available to him in the ICU at UPMC Mercy.
Plaintiff alleges that despite the recommendations of Mr. Kovach‟s physicians to transfer him to a LTAC, Defendants refused to approve coverage for his transfer, failed to request or review medical information relevant to the request, and refused to speak with his physicians. Mr. Kovach died at UPMC Mercy on August 7, 2009. The cause of death was respiratory failure caused by a sepsis infection which he developed while in the ICU.*fn1
On March 4, 2010, Plaintiff commenced this action by the filing of a Praecipe for Writ of Summons in the Court of Common Pleas of Allegheny County, Pennsylvania. On April 5, 2010, Plaintiff filed a five-count Complaintin which she asserted one claim for violation of due process under the Constitution of the United States and four claims under Pennsylvania state law (survival claim -- violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. §§ 201-1 et seq., survival claim -- breach of contract; survival claim -- statutory bad faith in violation of the Unfair Insurance Practices Act, 40 P.S. §§ 1171.5; and wrongful death under 41 Pa.C.S. § 8301.) The Complaint does not seek recovery of Medicare benefits.
On April 27, 2010, Defendants removed the case to this Court pursuant to 28 U.S.C. §§ 1441(a) - (c) on the basis that the Court has original federal question jurisdiction "because Plaintiff seeks redress for a federal constitutional due process violation and for claims that arise under and are inextricably intertwined with the Medicare Act."*fn2
On August 16, 2010, Plaintiff filed an Amended Complaint in which she added two additional state law claims: survival claim -- negligence and survival claim and fraud in the inducement. The Amended Complaint also does not seek recovery of Medicare benefits.
On September 21, 2010, Defendants filed the instant Motion to Dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) for failure to state a claim. Defendants argue that the claims in the Amended Complaint are deficient on the following grounds: (i) all the claims are barred because they "arise under" the Medicare Act; (ii) all the claims are preempted by the Medicare Act; (iii) all the claims are time-barred; (iv) all the claims are barred by the doctrine of Sovereign Immunity; (v) Plaintiff‟s due process claim should be dismissed because Plaintiff has not pleaded a constitutionally-protected property interest, or in the alternative, that Defendant is not acting as a state actor; (vi) the wrongful death and negligence claims should be dismissed under the Gist of the Action doctrine; (vii) the fraud in the inducement claim fails to meet the pleading requirements of Federal Rule of Civil Procedure 9(b); and (viii) the decedent‟s passing is too remote from the alleged conduct to give rise to a cause of action for negligence or fraud.
Plaintiff strongly contests the Motion to Dismiss and argues that the Court has jurisdiction over all the claims in the Amended Complaint. In the alternative, Plaintiff contends that if Count I (the due process claim) is dismissed, the ...