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Kane v. Golden Gate National Senior Care LLC

Commonwealth Court of Pennsylvania

March 22, 2017

Commonwealth of Pennsylvania Acting by Attorney General, Kathleen Kane, Plaintiff
v.
Golden Gate National Senior Care LLC; GGNSC Holdings LLC; GGNSC Administrative Services LLC; GGNSC Clinical Services LLC; GGNSC Equity Holdings LLC; GGNSC Harrisburg LP; GGNSC Harrisburg GP, LLC; GGNSC Camp Hill III LP; GGNSC Camp Hill III GP, LLC; GGNSC Clarion LP; GGNSC Clarion GP, LLC; GGNSC Gettysburg LP; GGNSC Gettysburg GP, LLC; GGNSC Altoona Hillview LP; GGNSC Altoona Hillview GP, LLC; GGNSC Lansdale LP; GGNSC Lansdale GP, LLC; GGNSC Monroeville LP; GGNSC Monroeville GP, LLC; GGNSC Mt. Lebanon LP; GGNSC Mt. Lebanon GP, LLC; GGNSC Phoenixville II LP; GGNSC Phoenixville II GP, LLC; GGNSC Philadelphia LP; GGNSC Philadelphia GP, LLC; GGNSC Wilkes-Barre II LP; GGNSC Wilkes-Barre II GP, LLC; GGNSC Tunkhannock LP; GGNSC Tunkhannock GP, LLC; GGNSC Erie Western Reserve LP; GGNSC Erie Western Reserve GP, LLC; GGNSC Pottsville LP; GGNSC Pottsville GP, LLC, Defendants

          Argued: June 8, 2016

          BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge HONORABLE MICHAEL H. WOJCIK, Judge

          OPINION

          ANNE E. COVEY, Judge

         Before this Court are Golden Gate National Senior Care, LLC, et al.'s (Golden Gate) preliminary objections to the Commonwealth of Pennsylvania's (Commonwealth) Amended Complaint and Petition for Injunctive Relief addressed to this Court's original jurisdiction.[1]

         Golden Gate consists of a group of companies that manage and operate 36 skilled nursing facilities (Facilities) in Pennsylvania. GGNSC Holdings LLC, Golden Gate National Senior Care LLC, GGNSC Clinical Services LLC, and GGNSC Administrative Services LLC are described in the pleadings as parent entities (Parent Entities).[2] On July 1, 2015, the Commonwealth, by the Office of Attorney General (OAG), filed a Complaint and Petition for Injunctive Relief (Original Complaint) addressed to this Court's original jurisdiction against 14 of Golden Gate's Pennsylvania Facilities. On August 6, 2015, Golden Gate filed preliminary objections to the Original Complaint setting forth ten objections.

          On September 8, 2015, the Commonwealth filed an Amended Complaint and Petition for Injunctive Relief (Amended Complaint), naming an additional 11 of Golden Gate's Pennsylvania Facilities as defendants.[3] Therein, the Commonwealth asserted the following three claims against Golden Gate: (1) Unfair Trade Practices and Consumer Protection Law (UTPCPL)[4] violations (seeking injunctive relief, restoration and civil penalties); (2) breach of contract (seeking damages); and (3) unjust enrichment (seeking disgorgement). The Commonwealth alleged that Golden Gate engaged in unfair and deceptive acts and practices towards Pennsylvania consumers and the Commonwealth by: (1) making chain-wide misrepresentations in marketing materials; (2) making Facility-level misrepresentations in its marketing materials, resident assessments/care plans and billing statements, presenting misleading appearances during Commonwealth inspections, and creating false records; (3) making misleading statements about the level of care that would be provided to residents; and (4) failing to provide basic care. On October 8, 2015, Golden Gate filed preliminary objections to the Amended Complaint, setting forth twelve objections (Preliminary Objections).

         This Court's review of preliminary objections is limited to the pleadings. Pa. State Lodge, Fraternal Order of Police v. Dep't of Conservation & Natural Res., 909 A.2d 413 (Pa. Cmwlth. 2006), aff'd, 924 A.2d 1203 (Pa. 2007).

[This Court is] required to accept as true the well-pled averments set forth in the . . . complaint, and all inferences reasonably deducible therefrom. Moreover, the [C]ourt need not accept as true conclusions of law, unwarranted inferences from facts, argumentative allegations, or expressions of opinion. In order to sustain preliminary objections, it must appear with certainty that the law will not permit recovery, and, where any doubt exists as to whether the preliminary objections should be sustained, the doubt must be resolved in favor of overruling the preliminary objections.

Id. at 415-16 (citations omitted).

         I. Preliminary Objections 1 and 2

         Golden Gate in its Preliminary Objection 1 alleges that the OAG lacks statutory authority to pursue this action because it effectively seeks to regulate skilled nursing facility staffing levels, an area within the Pennsylvania Department of Health's (DOH) exclusive purview. In its Preliminary Objection 2, Golden Gate avers that the Commonwealth is attempting to set new minimum staffing requirements by "completely bypass[ing] the regulatory procedures in place that govern how changes to laws and regulations are to be made, including the requirements of public notice and the opportunity for [Golden Gate] and other interested parties to be heard on any such changes." Preliminary Objection 2 at 13, ¶ 33.

         On March 30, 2016, this Court issued an order, wherein it noted the parties' agreement that Preliminary Objections 1 and 2 were resolved by this Court's opinion in GGNSC Clarion LP v. Kane, 131 A.3d 1062 (Pa. Cmwlth. 2016) (GGNSC Clarion), which dismissed a declaratory judgment action raising the same issues presented in Preliminary Objections 1 and 2. For the reasons explained therein, Preliminary Objections 1 and 2 are overruled.

         II. UTPCPL - Preliminary Objections 4, 5, 6, 7, 8 and 10

         Golden Gate's Preliminary Objections 4, 5, 6, 7, 8 and 10 all pertain to the alleged UTPCPL violations.[5]

          Initially, we note that Section 3 of the UTPCPL states that "[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce as defined [in Section 2(4)(i)-(xxi) of the UTPCPL[6] . . . are hereby declared unlawful." 73 P.S. § 201-3. Section 2(4) of the UTPCPL provides, in relevant part:

'Unfair methods of competition' and 'unfair or deceptive acts or practices' mean any one or more of the following:
. . . .
(v) Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits or quantities that they do not have or that a person has a sponsorship, approval, status, affiliation or connection that he does not have;
. . . .
(ix) Advertising goods or services with intent not to sell them as advertised;
(x) Advertising goods or services with intent not to supply reasonably expectable public demand, unless the advertisement discloses a limitation of quantity;
. . . .
(xxi) Engaging in any other fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding.

73 P.S. § 201-2(4). This Court has explained:

An act or a practice is deceptive or unfair if it has the 'capacity or tendency to deceive.' Neither the intention to deceive nor actual deception must be proved; rather, it need only be shown that the acts and practices are capable of being interpreted in a misleading way. The test for the [C]ourt is to determine the overall impression arising from the totality of what is said, as well as what is reasonably implied, in the advertisement or solicitation. In consumer protection cases brought in the public interest by the Attorney General, where establishing a violation hinges upon the content of the solicitations themselves, summary judgment may be granted without the need for extrinsic evidence and even in the presence of extrinsic evidence offered by the defense. Moreover, we are cognizant of our [S]upreme [C]ourt's directive that the UTPCPL is to be construed liberally to effectuate its objective of protecting consumers of this Commonwealth from fraud and unfair or deceptive business practices.

Commonwealth v. Peoples Benefit Servs. Inc., 923 A.2d 1230, 1236 (Pa. Cmwlth. 2007) (citations omitted; emphasis added) (Peoples Benefit II); see also Pa. Dep't of Banking v. NCAS of Del., LLC, 995 A.2d 422 (Pa. Cmwlth. 2010). Nonetheless, the UTPCPL does not apply to providers of medical services. See Walter v. Magee Womens Hosp. of UPMC Health Sys., 876 A.2d 400 (Pa. Super. 2005);[7] see also Foflygen v. R. Zemel, M.D. (PC), 615 A.2d 1345 (Pa. Super. 1992). "Nursing homes are not one-dimensional business enterprises, but instead they are hybrid organizations, offering both medical and non-medical services." Zaborowski v. Hosp. Care Ctr. of Hermitage, Inc., 60 Pa. D. & C.4th 474, 493 (C.P. Mercer 2002). Thus, courts have held that nursing homes are liable under the UTPCPL only for the non-medical services they provide. Id.; see also GGNSC Clarion; Goda v. White Cliff Leasing P'ship, 62 Pa. D. & C.4th 476 (C.P. Mercer 2003);[8] Simmons v. Simpson House, Inc. (E.D. Pa. No. 15-06636, filed December 12, 2016).

         A. Preliminary Objection 4 - Puffery

         In Preliminary Objection 4, Golden Gate contends that the purported representations attributed to it in the Amended Complaint do not violate Sections 2(4)(v) and 2(4)(ix) of the UTPCPL because they do not constitute false advertising since they are puffery rather than material representations.

         Courts have held that Sections 2(4)(v) and 2(4)(ix) of the UTPCPL are limited to false advertising claims. See Seldon v. Home Loan Servs., Inc., 647 F.Supp.2d 451 (E.D. Pa. 2009).[9] The United States Third Circuit Court of Appeals has explained: "Material representations must be contrasted with statements of subjective analysis or extrapolations, such as opinions, motives and intentions, or general statements of optimism, which constitute no more than puffery . . . ." EP Medsystems, Inc. v. Echocath, Inc., 235 F.3d 865, 872 (3d Cir. 2000) (emphasis added; quotation marks omitted). Puffery is not actionable as false advertising. See Castrol, Inc. v. Pennzoil Co., 987 F.2d 939 (3d Cir. 1993).

Puffery is an exaggeration or overstatement expressed in broad, vague, and commendatory language.
Such sales talk, or puffing, as it is commonly called, is considered to be offered and understood as an expression of the seller's opinion only, which is to be discounted as such by the buyer[, and on which no reasonable person would rely]. The 'puffing' rule amounts to a seller's privilege to lie his head off, so long as he says nothing specific.
W. Page Keeton, et al., Prosser and Keeton on the Law of Torts § 109, at 756-57 (5th ed. 1984).[10] Puffery is distinguishable from misdescriptions or false representations of specific characteristics of a product. As such, it is not actionable.

Castrol, Inc., 987 F.2d at 945 (emphasis added). Claims that are not "specific and measurable by comparative research" are indicative of puffery. Id. at 946. Further:

The conclusion that advertising text can be clear enough that it simply cannot be challenged as misleading is also consistent with numerous cases holding that puffery can be so obviously exaggerated that even credulous consumers cannot be misled. See, e.g., Am. Italian Pasta[ Co. v. New World Pasta Co.], 371 F.3d [387, ] 389-90, 392-93 [(8th Cir. 2004)] (holding that puffery, including 'exaggerated statements of bluster or boast upon which no reasonable consumer would rely' are non-actionable statements under [Section] 43(a)(1)(B)) [of the Lanham Act[11]; United States Healthcare[, Inc. v. Blue Cross of Greater Phila.], 898 F.2d [914, ] 922 [(3d. Cir. 1990)] ('Mere puffing, advertising that is not deceptive for no one would rely on its exaggerated claims, is not actionable under [Section] 43(a) [of the Lanham Act].' (internal quotation marks and citations omitted)); Marriott Corp. v. Ramada Inc., 826 F.Supp. 726, 728 (S.D.N.Y. 1993) (dismissing false advertising claim because ad was an obvious parody and one that no 'reasonable person would be misled - even absent the disclaimer - into believing'); cf. Reilly v. Pinkus, 338 U.S. 269 . . . (1949) (stating that puffery in advertisements goes too far if 'credulous persons' rely on it as a material representation of fact).

Pernod Ricard USA, LLC v. Bacardi U.S.A., Inc., 653 F.3d 241, 254 n.17 (3d Cir. 2011).

         1. Chain-wide Marketing Statements

         In its Amended Complaint, the Commonwealth alleges that Golden Gate's alleged "marketing materials [(Marketing Statements)][12] were deceptive and misleading, because they represented that Golden Gate's [Facilities] would provide care that was not, in fact, provided a significant percentage of the time at many of [the Facilities] due to understaffing." Amended Complaint at 23, ¶ 85.[13] The Commonwealth also avers that the Marketing Statements included significant omissions. However, the law dictates that if the Marketing Statements were "offered and understood as an expression of the seller's opinion only, which is to be discounted as such by the buyer[, and on which no reasonable person would rely], " they are puffery, and may not form the basis for a UTPCPL action. Castrol, 987 F.2d at 945 (quoting W. Page Keeton, et al., supra at 756-57). "[T]he determination of whether an alleged misrepresentation 'is a statement of fact' or is instead 'mere puffery' is a legal question . . . ." Newcal Indus. v. Ikon Office Solution, 513 F.3d 1038, 1053 (9th Cir. 2008) (quoting Cook, Perkiss, & Liehe v. N. Cal. Collection Serv., Inc., 911 F.2d 242, 245 (9th Cir. 1990)). Thus, we review those Golden Gate Marketing Statements the Commonwealth alleges violate the UTPCPL in that context.

         Marketing Statement No. 1: "We have licensed nurses and nursing assistants available to provide nursing care and help with activities of daily living (ADLs). Whatever your needs are, we have the clinical staff to meet those needs." Amended Complaint at 22, ¶ 83(a). This statement contains "subjective analysis or extrapolations, such as opinions, motives and intentions, or general statements of optimism, " EP Medsystems, 235 F.3d at 872, and is "expressed in broad, vague, and commendatory language." Castrol, 987 F.2d at 945. It does not contain a "false representation[] of specific characteristics" of the services offered. Id. (emphasis added). The Commonwealth does not contend that Golden Gate does not have licensed nurses and nursing assistants for the purpose of providing nursing care and helping with ADLs. Rather, it maintains that Golden Gate does not have sufficient staff to render care. However, Marketing Statement No. 1 makes no representation that nurses will be immediately available to provide such assistance, or that it will be provided within a specific time frame. Thus, we conclude that Marketing Statement No. 1 is puffery.

         Marketing Statement No. 2: "Snacks and beverages of various types and consistencies are available at any time from your nurse or nursing assistant." Amended Complaint at 22, ¶ 83(b). This statement contains no more than "broad, vague, and commendatory language." Castrol, 987 F.2d at 945. The Commonwealth does not assert in its Amended Complaint that snacks and beverages were not always available from staff, but rather, that there was insufficient staffing to timely respond to residents' requests. Because Marketing Statement No. 2's references to the availability of "snacks and beverages of various types" at "any time" are vague and broad, it is puffery. Marketing Statement No. 2 (emphasis added).

         Marketing Statement No. 3: "A container of fresh ice water is put right next to your bed every day, and your nursing assistant will be glad to refill or refresh it for you." Amended Complaint at 22, ¶ 83(c). This Marketing Statement contains "subjective analysis or extrapolations, such as opinions, motives and intentions, or general statements of optimism, " EP Medsystems, 235 F.3d at 872 (emphasis added), and is "an exaggeration or overstatement expressed in broad, vague, and commendatory language." Castrol, 987 F.2d at 945. Accordingly, Marketing Statement No. 3 is puffery.

         Marketing Statement No. 4: "Clean linens are provided for you on a regular basis, so you do not need to bring your own." Amended Complaint at 22, ¶ 83(d). The term "regular basis" is "vague" and undefined. Id.; Castrol, 987 F.2d at 945. The statement does not contain a "false representation[] of specific characteristics" of the services offered. Castrol, 987 F.2d at 945 (emphasis added). For these reasons, Marketing Statement No. 4 is puffery.

Marketing Statement No. 5:
Providing exceptional dining is important to us. Not only do we want to meet your nutritional needs, but we want to exceed your expectations by offering a high level of service, delicious food and an overall pleasurable dining experience. Dining in the LivingCenter is all about choice. With a variety of flavors, an attractive environment and plenty of pleasant conversation, we hope the experience will nourish both your body and your soul, so please join us. We have a seat reserved for you in our dining room!

Amended Complaint at 22, ¶ 83(e) (emphasis added). The Marketing Statement primarily expresses Golden Gate's priorities and intentions for residents, rather than makes specific objective representations about the quality of the dining experience. This Marketing Statement does not contain a "false representation[] of specific characteristics" of the services offered. Castrol, 987 F.2d at 945 (emphasis added). Instead, it encompasses "subjective analysis or extrapolations, such as opinions, motives and intentions, or general statements of optimism, " EP Medsystems, 235 F.3d at 872 (emphasis added), and is "an exaggeration or overstatement expressed in broad, vague, and commendatory language." Castrol, 987 F.2d at 945. Further, the Commonwealth's alleged misrepresentations relate to residents' inability to make use of the dining facilities due to staffing shortages, rather than the quality of the dining experience. We do not interpret the statement "[w]e have a seat reserved for you in our dining room[, ]" as a promise that residents will always be brought to the dining facilities. Amended Complaint at 22, ¶ 83(e). Accordingly, Marketing Statement No. 5 is puffery.

         Marketing Statement No. 6: "[W]e believe that respecting your individuality and dignity is of utmost importance." Amended Complaint at 23, ¶ 84(a) (emphasis added). Based on the preface alone, "we believe, " it is clear that this statement contains "subjective analysis or extrapolations, such as opinions, motives and intentions, or general statements of optimism, " EP Medsystems, 235 F.3d at 872 (emphasis added), and is "an exaggeration or overstatement expressed in broad, vague, and commendatory language." Castrol, 987 F.2d at 945. The Marketing Statement communicated that it was "offered and understood as an expression of the seller's opinion only, which is to be discounted as such by the buyer[, and on which no reasonable person would rely]." Id. at 945 (quoting W. Page Keeton, et al., supra at 756-57). Therefore, Marketing Statement No. 6 is puffery.

         Marketing Statement No. 7: "A restorative plan of care is developed to reflect the resident's goals and is designed to improve wellness and function. The goal is to maintain optimal physical, mental and psychosocial functioning." Amended Complaint at 23, ¶ 84(b). First, the Commonwealth makes no allegation that "restorative plan[s] of care" were not developed, or not reflective of resident's goals, but rather it alleges that the plans were incomplete or not properly followed or updated. Amended Complaint at 23, ¶ 84. Next, although the first sentence in the Marketing Statement is a specific representation that "a restorative plan of care is developed[, ]" the descriptive words that follow - that the plan will "reflect the resident's goals and is designed to improve wellness and function[, ]" constitute "subjective analysis or extrapolations, such as opinions, motives and intentions, or general statements of optimism." EP Medsystems, 235 F.3d at 872 (emphasis added). Further, because there is no allegation the promise was not delivered it is not actionable. The second sentence in the Marketing Statement describing Golden Gate's goal contains "subjective analysis or extrapolations, such as opinions, motives and intentions, or general statements of optimism, " EP Medsystems, 235 F.3d at 872 (emphasis added). Accordingly, Marketing Statement No. 7 is puffery.

         Marketing Statement No. 8: "We work with an interdisciplinary team to assess issues and nursing care that can enhance the resident's psychological adaptation to a decrease in function, increase levels of performance in daily living activities, and prevent complications associated with inactivity." Amended Complaint at 23, ¶ 84(c) (emphasis added). This statement contains "subjective analysis or extrapolations, such as opinions, motives and intentions, or general statements of optimism, " EP Medsystems, 235 F.3d at 872 (emphasis added). Further, because the Commonwealth has not alleged that Golden Gate does not "work with an interdisciplinary team to assess issues and nursing care, " Amended Complaint at 23, ¶ 84(c), the statement does not contain a "false representation[] of specific characteristics" of the services offered. Castrol, 987 F.2d at 945. Thus, Marketing Statement No. 8 is puffery.

         Marketing Statement No. 9: "Our goal is to help you restore strength and confidence so you feel like yourself again and can get back to enjoying life the way you should. That's The Golden Difference." Amended Complaint at 23, ¶ 84(d) (emphasis added). The statement primarily discusses Golden Gate's priorities and intentions for residents. It contains "subjective analysis or extrapolations, such as opinions, motives and intentions, or general statements of optimism, " EP Medsystems, 235 F.3d at 872 (emphasis added), and is "an exaggeration or overstatement expressed in broad, vague, and commendatory language." Castrol, 987 F.2d at 945. For these reasons, we conclude Marketing Statement No. 9 is puffery.

         Because Golden Gate's chain-wide Marketing Statements quoted in paragraphs 83 and 84 of the Amended Complaint are puffery and, thus, may not form the basis of a UTPCPL claim, Preliminary Objection 4 is sustained as it pertains to those Marketing Statements.

         2. Facility-level Representations

         In the Amended Complaint, the Commonwealth also alleges that Golden Gate's individual Facilities "made deceptive, misleading, and unfair misrepresentations to the Commonwealth and to consumers regarding the care they provided in [M]arketing [Statements], resident assessments[, ] care plans[] and bills, creating a likelihood of confusion and misunderstanding." Amended Complaint at 24, ¶ 88.

         a. Marketing Statements

         For the reasons discussed above, the Marketing Statements are puffery and do not support the Commonwealth's UTPCPL claim.[14]

         b. Resident Assessments, [15] Care Plans and Bills

         The Commonwealth, in its Amended Complaint, alleges violations of Sections 2(4)(v), 2(4)(ix), 2(4)(x), and 2(4)(xxi) of the UTPCPL, resulting from the Facilities' failure to adhere to numerous patient-specific representations made in resident assessments and care plans. Rather than quote the specific wording therein, the Commonwealth describes numerous instances where care purportedly promised in resident care plans was not provided. See, e.g., Amended Complaint at 34, ¶ 120; 35-37, ¶ 121; 41, ¶ 125; 48-52, ¶ 135; 68, ¶ 153; 73-76, ¶ 159; 88-91, ¶ 182; 93, ¶ 185; 99-102, ¶ 192; 116-118, ¶ 208; 125, ¶ 214. The Commonwealth also alleges that it was billed for services that were not provided.

          In Seldon, the United States District Court for the Eastern District of Pennsylvania addressed a similar situation. There, the plaintiffs brought an action against a lender and a loan servicing company, alleging, inter alia, a claim for fraudulent and deceptive conduct pursuant to the UTPCPL. Specifically, after falling behind in their mortgage payments, the plaintiffs contacted the defendants and the parties reached an agreement on an alternative payment plan intended to bring the plaintiffs current on their mortgage. However, the plaintiffs alleged in their complaint that the defendants made material misrepresentations concerning the repayment plan. The defendants filed a motion to dismiss. The court addressed the relevant UTPCPL claims as follows:

[The p]laintiffs . . . allege violations of [Sections 2(4)(v) and (ix) [of the UTPCPL]. Section []2(4)(v) [of the UTPCPL] forbids '[r]epresenting that goods or services have . . . characteristics, . . . benefits or quantities that they do not have.' Section []2(4)(ix) [of the UTPCPL] prohibits '[a]dvertising goods or services with intent not to sell them as advertised.' Pennsylvania state and federal courts have ruled that both of these subsections apply only to claims of false advertising. Karlsson v. [Fed. Deposit Ins. Corp.], 942 F.Supp. 1022, 1023 (E.D. Pa. 1996), aff'd, 107 F.3d 862 (3d Cir. 1997); Weinberg v. Sun Co., 740 A.2d 1152, 1167 (Pa. Super. 1999), rev'd on other grounds, . . . 777 A.2d 442 ([Pa.] 2001).[16] To set forth a claim for false advertising under these provisions of the UTPCPL, a plaintiff must allege: (1) 'a defendant's representation is false'; (2) 'it actually deceives or has a tendency to deceive'; and (3) 'the representation is likely to make a difference in the purchasing decision.' Fay v. Erie Ins. Gr[p.], 723 A.2d 712, 714 (Pa. Super. 1999) (listing elements for violation of [Section] 2(4)(v)[ of the UTPCPL]); see Weinberg, 740 A.2d at 1167 (stating same elements apply to [Section] 2(4)(ix)) [of the UTPCPL].

Seldon, 647 F.Supp.2d at 466 (emphasis added).

          We note that a claim of false advertising, by its very nature, requires that a representation be advertised. Since the UTPCPL does not define "advertising, " we consider judicial interpretation of the term under the Lanham Act.[17]

         The United States District Court for the Eastern District of Pennsylvania explained:

'The threshold matter in addressing an alleged false statement actionable . . . is whether the statement constitutes 'commercial advertising or promotion.'' Premier Comp Solutions, LLC v. Penn Nat'l Ins. Co., No. Civ.A.07-1764, 2012 WL 1038818, at *7 (W.D. Pa. Mar. 28, 2012) (quoting 15 U.S.C. § 1125(a)(1)(B)). In the absence of an express definition of 'commercial advertising or promotion' in the Lanham Act, courts have developed a four element test to define these terms in accordance with the Act's language and congressional intent. Bracco Diagnostics, Inc. v. Amersham Health, Inc., 627 F.Supp.2d 384, 455-56 (D. N.J. 2009); Caldon, Inc. v. Advanced Measurement & Analysis Grp., Inc., 515 F.Supp.2d 565, 578 (W.D. Pa. 2007). 'Commercial advertising or promotion for purposes of the Lanham Act consists of (1) commercial speech; (2) by a defendant in commercial competition with [others in the market]; (3) designed to influence customers to buy the defendant's products; (4) that is sufficiently disseminated to the relevant purchasing public to constitute advertising or promotion within the industry.' Synygy, Inc. v. Scott-Levin, Inc., 51 F.Supp.2d 570, 576 (E.D. Pa. 1999). Only after determining that the relevant statement constitutes commercial advertising or promotion does a court consider the remaining elements of a Lanham Act claim based on a false or misleading representation of a product under 15 U.S.C. § 1125(a)(1)(B). Premier Comp Solutions, 2012 WL 1038818, at *7. While courts disagree about whether the Lanham Act reaches certain oral statements, it is well-settled that the challenged statements, at the very least, must be 'widely disseminated' and 'part of an organized campaign to penetrate the relevant market.' Fashion Boutique v. Fendi USA, Inc., 314 F.3d 48, 56-57 (2d Cir. 2002). 'Although advertising is generally understood to consist of widespread communication through print or broadcast media, 'promotion' may take other forms of publicity used in the relevant industry, such as displays at trade shows and sales presentations to buyers.' Id. at 57.
Notably, it is well[-]established that 'isolated statements to potential customers generally do not constitute sufficient dissemination to be defined as advertising within the meaning of the Lanham Act' and 'private statements to competitors-without more-falls short of commercial advertising as defined in the Act.' Pitney Bowes, Inc. v. ITS Mailing Sys. Inc., No. Civ.A.09-5024, 2010 WL 1005146, at *5 (E.D. Pa. Mar. 17, 2010) (emphasis omitted) (citing Schmidt, Long & Assoc., Inc. v. Aetna U.S. Healthcare, Inc., No. Civ.A.00-3683, 2001 WL 856946, at *11 (E.D. Pa. July 26, 2001) ('Generally, isolated private statements are not sufficiently disseminated to constitute advertising.')). Thus, '[p]roof of widespread dissemination within the relevant industry is a normal concomitant of meeting this requirement, ' and 'isolated disparaging statements do not have redress under the Lanham Act.' ConsulNet Computing, Inc. v. Moore, No. Civ.A.04-3485, 2007 WL 2702446, at *11 (E.D. Pa. Sept. 12, 2007) (quotations omitted).

Synthes, Inc. v. Emerge Med., Inc., 25 F.Supp.3d 617, 716-17 (E.D. Pa. 2014) (emphasis added).

Consistent with the above, the Seldon Court concluded:
Here, plaintiffs have presented no facts regarding defendants' production of any false advertising. Instead, plaintiffs allege that defendants misrepresented the benefits, fees, and amounts owed concerning the loan and misrepresented the scheduled monthly payments under the repayment plan. Because individual employees or agents of defendants made these representations, they do not qualify as advertising and cannot constitute a violation of the UTPCPL's false advertising prohibition. See Thompson v. The Glenmede Trust Co., No. 04428, 2003 WL 1848011, at *1 (Pa. Ct. Com. Pl. Philadelphia County Feb. 18, 2003) ('Individual representations made by [defendants] upon which [p]laintiffs allegedly relied do not constitute 'advertising' as intended by the UTPCPL.'). For plaintiffs' claim under [Section] 2(4)(ix)[ of the UTPCPL], plaintiffs have also failed to allege that defendants intentionally engaged in false advertising. See Karlsson, 942 F.Supp. at 1023 (noting that [Section] 2(4)(ix) [of the UTPCPL] requires element of intent). Because plaintiffs do not allege the elements of a false advertising claim under [Section 2(4)](v) or (ix) [of the UPTCPL], plaintiffs have failed to set forth a claim on which this court can grant relief.

Seldon, 647 F.Supp.2d at 466 (emphasis added).

         Similarly, in the instant matter, as described in the Amended Complaint, resident care plan development involves assessment and representations made by the Facilities' staff. Specifically, the resident and his or her

'care team' will sit down together (called a 'care coordination' meeting), usually within 72 hours of admission, and review what the assessments say, including what you can do for yourself and what you may need assistance with. Your care team will consist of key members of our staff, like the nurses, social worker, dietitian, etc. In effect, the care plan you develop together becomes your personal 'road map for success.'

Amended Complaint at 28-29, ¶ 96. Further, with respect to Sections 2(4)(v) and 2(4)(ix) of the UTPCPL, "[b]ecause individual employees or agents of defendants allegedly made these representations, they do not qualify as advertising and cannot constitute a violation of the UTPCPL's false advertising prohibition." Seldon, 647 F.Supp.2d at 466. Moreover, representations made in resident care plan development are not likely to make a difference in the purchasing decision, since such representations are made after an individual is admitted and becomes a resident. Further, these "'isolated statements to . . . [customers and] potential customers . . . do not constitute sufficient dissemination to be defined as advertising . . . .'" Synthes, Inc., 25 F.Supp.3d at 717 (emphasis added) quoting Pitney Bowes, Inc. at 5. For the same reasons, resident assessments and alleged employee misrepresentations in billing do not qualify as advertising under those UTPCPL sections. Accordingly, Golden Gate's Preliminary Objection 4 is sustained.

         B. Preliminary Objections 5, 6, 7 and 8 - Insufficient Pleadings

         Golden Gate further argues that, even if the alleged representations do not constitute puffery, the Commonwealth failed to sufficiently plead facts to support the alleged UTPCPL violations. It then sets forth separate arguments which comprise Preliminary Objections 5, 6, 7 and 8.

         1. Preliminary Objection 5

         Golden Gate contends that the facts set forth in the Amended Complaint do not support a claim that it violated Section 2(4)(x) of the UTPCPL by advertising goods or services while intending not to reasonably supply public demand. Although the aforementioned discussion in Seldon does not address Section 2(4)(x) of the UTPCPL, the language used therein - "[a]dvertising goods or services with intent not to . . . " - is almost identical to that in Section 2(4)(ix) of the UTPCPL. 73 P.S. § 201-2(4)(x) (emphasis added). Therefore, we similarly interpret Section 2(4)(x) of the UTPCPL to "apply only to claims of false advertising." Seldon, 647 F.Supp.2d at 466. For the reasons previously discussed herein, the Marketing Statements are puffery, and the representations made in resident care plans and bills do not constitute advertising. Because the alleged conduct is not false advertising, the Commonwealth failed to plead facts sufficient to support the alleged violation claim. Accordingly, Preliminary Objection 5 is sustained.

          2. Preliminary Objection 6

         Golden Gate also argues that the Amended Complaint fails to comply with the Pennsylvania Rules of Civil Procedure which require specificity in pleadings. Specifically, Golden Gate contends that the Commonwealth failed to plead facts necessary to support its claim that Golden Gate violated Section 2(4)(xxi) of the UTPCPL. Further, Golden Gate asserts that "[the Commonwealth's] Amended Complaint fails to set forth specific factual allegations regarding [Golden Gate's] deviation from any particular resident's care plan or [resident assessment], or a single instance when [Golden Gate] billed a resident or the Commonwealth for services that were not actually provided." Preliminary Objections at 20, ¶ 63. Golden Gate claims that "the only factual support [the Commonwealth] provides for [its] conclusory allegations takes the form of vague, general and non-specific statements attributed to unnamed, former employees and other 'Confidential Witness[es].'" Preliminary Objection 6 at 20, ¶ 62 (quoting Amended Complaint at 34-147, ¶¶ 119-239).

We acknowledge:
[Pennsylvania Rule of Civil Procedure] No. [(Rule)] 1019(a) provides that '[t]he material facts on which a cause of action or defense is based shall be stated in a concise and summary form.' This rule requires a plaintiff to plead all the facts that must be proved in order to achieve recovery on the alleged cause of action. Moreover, the pleading must be sufficiently specific so that the defending party will know how to prepare his defense.

Commonwealth v. Peoples Benefit Servs. Inc., 895 A.2d 683, 689 n.10 (Pa. Cmwlth. 2006) (Peoples Benefit I). "It may be granted that 'the lower court has broad discretion in determining the amount of detail that must be averred since the standard of pleading set forth in Rule 1019(a) is incapable of precise measurement. Goodrich-Amram § 1019(2)-10&11.' United Refrigerator Co. v. Applebaum, 410 Pa. 210, 213, 189 A.2d 253, 255 (1963)." Pike Cty. Hotels Corp. v. Kiefer, 396 A.2d 677, 681 (Pa. Super. 1978).

         In the instant case, the Amended Complaint sets forth numerous examples of instances where Golden Gate allegedly failed to comply with resident care plans. See, e.g., Amended Complaint at 34, ¶ 120; 35-37, ¶ 121; 41, ¶ 125; 48-52, ¶ 135; 68, ¶ 153; 73-76, ¶ 159; 88-91, ¶ 182; 93, ¶ 185; 99-102, ¶ 192; 116-118, ¶ 208; 125, ¶ 214. However, there are no allegations specifically identifying any particular resident care plan or MDS from which the Facility deviated, or any allegation identifying any specific bill for services that were not provided. The Commonwealth asserts that "[t]here is no requirement in Pennsylvania law that the Commonwealth set forth specific deviations from any particular resident's care plan or MDS, or that the Commonwealth identify in its complaint individual bills for services to individual residents that were not actually provided." Commonwealth's Answer to Preliminary Objections at 28. It further contends that this Court may "reasonably infer that the pervasive and significant omissions of care alleged . . . reflect deviations from care contemplated in residents' MDS assessments and care plans[.]" Id. at 28-29. The Commonwealth asks this Court to make assumptions based on general allegations describing documents it has not provided. This, the Court is not prepared to do.

         Section 2(4)(xxi) of the UTPCPL prohibits "[e]ngaging in any . . . fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding." 73 P.S. § 201-2(4)(xxi). Golden Gate contends that while the Commonwealth in the Amended Complaint asserts that deceptive resident assessments and billing statements were submitted to it and/or the insurers, the Commonwealth failed to allege how documents not issued to consumers could deceive consumers. Golden Gate further maintains that the Amended Complaint does not reflect facts explaining how a consumer could be misled by a billing statement to believe that he received services or assistance that he had not in fact received, or how an un-itemized per diem charge could convey to a consumer that a particular service had been provided in the first place.

Notably, Rule 1019(i) states:
When any claim or defense is based upon a writing, the pleader shall attach a copy of the writing, or the material part thereof, but if the writing or copy is not accessible to the pleader, it is sufficient so to state, together with ...

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