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Tender Touch Rehab Services, LLC v. Brighten At Bryn Mawr

March 23, 2012


The opinion of the court was delivered by: Tucker, J.


March ___, 2012

Presently before the Court is a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) by Defendants Saber Healthcare Group, Saber Healthcare Holdings, LLC, and Aviv Healthcare Properties, LP (Doc. 8), and Plaintiff's Response in Opposition thereto (Doc. 10). Upon careful consideration of the parties' submissions, and for the reasons set forth below, Defendants' Motion will be denied.


Plaintiff Tender Touch brought this action against Defendants asserting claims for breach of contract, account stated, promissory estoppel, unjust enrichment, successor liability, and civil conspiracy. Defendants Saber Healthcare Group and Saber Healthcare Holdings, LLC (together, "Saber Healthcare" or "Saber"), and Aviv Healthcare Properties, LP ("Aviv," and together with Saber, the "Moving Defendants") filed the present motion seeking to dismiss the Complaint against them due to Plaintiff's failure to adequately support its claims for successor liability and civil conspiracy.

The facts, construed in the light most favorable to Plaintiff, are as follows. Tender Touch is a provider of speech, occupational, and physical therapy services ("therapy services"). (Complaint ¶ 2.) In or about August 2010, Tender Touch entered into agreements with Defendants Brighten at Bryn Mawr ("Brighten-Bryn Mawr") and Brighten at Ambler ("Brighten-Ambler") pursuant to which Tender Touch agreed to provide therapy services to nursing home residents at the Brighten Facilities. (Id. at ¶ 18.) In exchange, the Brighten Facilities' owners agreed to compensate Tender Touch for such services. (Id.)

In or around September 2010 through March 2011, Tender Touch provided therapy services to Brighten-Bryn Mawr and Brighten-Ambler patients pursuant to the parties' respective contracts. (Id. at ¶ 22.) Pursuant to these agreements, each Brighten Facility would serve as the Medicare-certified provider of all therapy services Plaintiff provided to Brightens' residents. (Complaint ¶ 21.) Each facility was responsible for billing patients and payors and seeking reimbursement from government and third-party payors for such services. (Id.) Under these agreements, Tender Touch was entitled to receive from Brighten-Bryn Mawr and Brighten-Ambler payments of amounts that it invoiced for services to those nursing facilities. (Id.) Specifically, Tender Touch submitted monthly statements of services to each nursing facility and the facility was obligated to remit payment to Tender Touch in accordance with specified schedules, which had been agreed to by the parties per categories of services. (Id.)

Plaintiff alleges that without excuse or justification, and in breach of the parties' agreements, Brighten-Bryn Mawr and Brighten-Ambler stopped paying Plaintiff for the therapy services performed. (Id. at ¶ 23.) Tender Touch demanded payment on these bills, but to date, both Brighten-Bryn Mawr and Brighten-Ambler have failed and refused to pay the amounts due. (Id. at 24.) The outstanding bills owed to Plaintiff for these services totals approximately $669,000. (Id. at ¶¶ 25-26.)

In or about March 2011, Plaintiff learned that Defendant Saber and its affiliates were planning to take over ownership and/or control of the Brighten Facilities (the "2011 Transaction"). (Id. at ¶ 27, Doc. 10 at 3.) Plaintiff also learned that Defendant Aviv, the Brighten Facilities' landlord and creditor, was involved with Saber in planning and consummating the 2011 Transaction and had significant business dealings with Saber concerning healthcare industry transactions and properties. (Doc. 10 at 5.) Immediately after learning of the proposed transaction, Plaintiff put Defendants Brighten-Bryn Mawr, Brighten-Ambler, Brighten Health, Saber, and Aviv on notice of Plaintiff's concerns related to the transaction and, specifically, Plaintiff's substantial claims for unpaid services. (Id. at ¶¶ 28-29.) By way of its March 25, 2011 letter and related communications, Plaintiff informed Defendants of the specific outstanding amounts owed to Tender Touch and demanded payment of the amounts due. (Id.) In response, Michael G. Menkowitz, Esq., counsel for Defendants Saber and Aviv in this action, confirmed that Aviv was a fellow creditor of the Brighten Entities in addition to being the Brighten Entities landlord. (Doc. 10 at 5.)

Plaintiff unsuccessfully sought additional information from Defendants about the 2011 Transaction. (Id.) Thereafter, Plaintiff submitted a public records request to the Pennsylvania Department of Health, through which it obtained Saber's Nursing Home Licensure Application ("Licensure Application"). (Complaint ¶ 30-31.) In these public records documents, Plaintiff learned that Saber had purchased the Brighten Facilities and was seeking a change of name and change of ownership for the Brighten-Bryn Mawr and Brighten-Ambler Facilities. (Id.) Saber continues to manage the nursing home facilities under the Brighten-Bryn Mawr and Brighten-Ambler names, and employs much of the same management and personnel employed prior to the 2011 Transaction. (Doc. 10-1, Exhibit "A".)

Plaintiff alleges that Defendant Aviv exercised control over certain decision-making and business operations of Brighten-Bryn Mawr and Brighten-Ambler. (Id.) Aviv was the landlord for Brighten-Bryn Mawr and Brighten-Ambler prior to completion of the 2011 Transaction and, along with Saber, was aware of Plaintiff's substantial claim against the Brighten Facilities for unpaid bills. (Complaint ¶ 32, Doc. 10 at 7.) Defendant Aviv admits to having a relationship with Defendant Saber that is more akin to a partnership than a typical landlord-tenant relationship. (Doc. 10-1, Exhibit "A".) Plaintiff alleges that Aviv acted in concert with the other Defendants to consummate the 2011 Transaction and to consolidate, transfer, or otherwise transform the Brighten-Bryn Mawr and Brighten-Ambler entities, in part, to avoid financial obligations owed to Tender Touch as a creditor of such nursing facilities. (Complaint ¶ 33.)


On a motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), the court is required to accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the non-moving party. See Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 (3d Cir. 1994). A complaint should be dismissed only if the alleged facts, taken as true, fail to state a claim. See In re Warfarin Sodium Antitrust Litig., 214 F.3d 395, 397-98 (3d Cir. 2000). The question is whether the claimant can prove any set of facts consistent with his or her allegations that will entitle him or her to relief, not whether that person will ultimately prevail. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Davis v. Scherer 468 U.S. 183 (1984); Semerenko v. Cendant Corp., 223 F.3d 165, 173 (3d Cir. 2000).

While a court will accept well-pled allegations as true for the purposes of a motion to dismiss, it will not accept bald assertions, unsupported conclusions, unwarranted inferences, or sweeping legal conclusions cast in the form of factual allegations. Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). The United States Supreme Court has recognized that "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of a cause of action's elements will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Such allegations are "not entitled to the assumption of truth" and must be disregarded for purposes of resolving a 12(b)(6) motion to dismiss. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009). In Twombly the Court made clear that it would not require a "heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its ...

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