HOPE v. FAIR ACRES GERIATRIC CENTER

Filing 9

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 3/29/2016. 3/30/2016 ENTERED AND COPIES E-MAILED.(sg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
GEORGIA A. HOPE,

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Plaintiff,
v.
FAIR ACRES GERIATRIC CENTER,
Defendant.

CIVIL ACTION
No. 15-06749

M E M O R A N D U M
EDUARDO C. ROBRENO, J.
I.

March 29, 2016

INTRODUCTION
Plaintiff Georgia A. Hope brings this action against

Defendant Fair Acres Geriatric Center (“Fair Acres”), a nursing
home that provided care to Plaintiff from January 2014 to
November 2014. During her stay at Fair Acres, Plaintiff suffered
a series of wounds and medical complications. Plaintiff alleges
that these injuries were caused by Fair Acres’ negligent
practices and in violation of her federal statutory rights. Fair
Acres has moved to dismiss Plaintiff’s claims. For the reasons
that follow, the Court will grant the motion.
II.

BACKGROUND AND PROCEDURAL HISTORY
In January 2014, Plaintiff Georgia A. Hope was

admitted to Fair Acres, a county-owned nursing home located in
Lima, Pennsylvania. Compl. ¶ 3, ECF No. 1. Plaintiff was 90
1

years old at the time of her admission. Id. ¶ 4. During her stay
at Fair Acres, Plaintiff experienced infection, gangrene,
dehydration, and a lower extremity sacral wound that resulted in
a partial leg amputation. Id. ¶ 11.
On December 22, 2015, Plaintiff filed her Complaint
against Fair Acres, alleging negligence per se; negligence;
corporate negligence; violation of civil rights under § 1983 for
Fair Acres’ failure to provide the level of care and protection
required by the Federal Nursing Home Reform Amendments
(“FNHRA”), 42 U.S.C. § 1396 et seq., and Omnibus Budget
Reconciliation Act of 1987 (“OBRA”) regulations, 42 C.F.R.
§ 483.1 et seq.; violation of the Medicare Secondary Payer Act
(“MSPA”), 42 U.S.C. § 1395y(b), as to medical expenses incurred
and paid for by Medicare; and violation of Pennsylvania’s Unfair
Trade Practices and Consumer Protection Law (“UTPCPL”), 73 Pa.
Cons. Stat. §§ 201-1 to 201-9.1
According to Plaintiff, Fair Acres’ medical director,
nursing administrator, assistant administrators, and nursing
staff failed to update Plaintiff’s plan of care when her
condition declined. Compl. ¶ 9. Plaintiff also alleges that Fair
Acres failed to recognize the decline in her functional

1

The counts in the Complaint are incorrectly numbered
as “Second” through “Seventh,” omitting any “First” count. See
Compl. 9.
2

abilities and the onset of her injuries. Id. It is further
alleged that, inter alia, Fair Acres failed to assist Plaintiff
when she experienced pain, swelling, redness, and infection in
November 2014. Id. Plaintiff also alleges that Fair Acres failed
to take preventive measures, such as creating an adequate risk
assessment, and failed to adequately train its employees. Id.
¶ 12.
On January 20, 2016, Fair Acres filed its motion to
dismiss. ECF No. 4. Plaintiff then filed a response in
opposition, ECF No. 5, and Fair Acres filed a reply memorandum,
ECF No. 7. The Court having held a hearing with the parties,
Fair Acres’ motion to dismiss is now ripe for disposition.
III. LEGAL STANDARD
A party may move to dismiss a complaint for failure to
state a claim upon which relief can be granted. Fed. R. Civ. P.
12(b)(6). When considering such a motion, the Court must “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.” DeBenedictis v.
Merrill Lynch & Co., 492 F.3d 209, 215 (3d Cir. 2007) (internal
quotation marks omitted). To withstand a motion to dismiss, the
complaint’s “[f]actual allegations must be enough to raise a
right to relief above the speculative level.” Bell Atl. Corp. v.

3

Twombly, 550 U.S. 544, 555 (2007). This “requires more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Id. Although a
plaintiff is entitled to all reasonable inferences from the
facts alleged, a plaintiff’s legal conclusions are not entitled
to deference and the Court is “not bound to accept as true a
legal conclusion couched as a factual allegation.” Papasan v.
Allain, 478 U.S. 265, 286 (1986).
The pleadings must contain sufficient factual
allegations so as to state a facially plausible claim for
relief. See, e.g., Gelman v. State Farm Mut. Auto. Ins. Co., 583
F.3d 187, 190 (3d Cir. 2009). “‘A claim has facial plausibility
when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable
for the misconduct alleged.’” Id. (quoting Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009)). In deciding a Rule 12(b)(6) motion,
the Court limits its inquiry to the facts alleged in the
complaint and its attachments, matters of public record, and
undisputedly authentic documents if the complainant’s claims are
based upon these documents. See Jordan v. Fox, Rothschild,
O’Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994); Pension
Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d
1192, 1196 (3d Cir. 1993).

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IV.

DISCUSSION
Fair Acres moves to dismiss Plaintiff’s negligence per

se, negligence, and corporate negligence claims, arguing that it
is afforded governmental immunity by the Pennsylvania Political
Subdivision Tort Claims Act, 42 Pa. Cons. Stat. §§ 8541, 8545.
Fair Acres also contends that Plaintiff fails to state a claim
under § 1983 and the FNHRA. As to Plaintiff’s Medicare Secondary
Payer Act claim, Fair Acres argues that it is “unfit for
judicial review.” Finally, Fair Acres argues that Plaintiff
fails to state a claim for relief under the UTPCPL. Each
argument will be addressed in turn.
A.

Subject Matter Jurisdiction
As an initial matter, Plaintiff asserts diversity of

citizenship as the basis of federal jurisdiction. Compl. ¶ 1.
Because the parties are both citizens of Pennsylvania, id. ¶¶ 2,
3; Def.’s Mot. 5 n.1, ECF No. 4, there is no diversity
jurisdiction. See 28 U.S.C. § 1332(a). Instead, the court has
federal question jurisdiction under 28 U.S.C. § 1331, because
Plaintiff brings a § 1983 claim based on Fair Acres’ alleged
violations of the FNHRA and OBRA regulations. Compl. ¶¶ 32-38;
Def.’s Mot. 5 n.1.

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B.

Negligence Claims
Fair Acres first argues that the Pennsylvania

Political Subdivision Tort Claims Act (“PSTCA”), 42 Pa. Cons.
Stat. §§ 8541, et seq., bars Plaintiff’s common law negligence
claims. The PSTCA provides Pennsylvania municipal agencies with
general immunity from tort liability. Id. § 8541. Section 8541
states that
[e]xcept as otherwise provided in this
subchapter, no local agency shall be liable
for any damages on account of any injury to
a person or property caused by any act of
the local agency or an employee thereof or
any other person.
Id.
Here, the PSTCA applies to Plaintiff’s common law
negligence claims. First, Fair Acres is a “local agency” because
it is an entity owned and operated by Delaware County. Compl.
¶ 5; Def.’s Mot. ¶ 4. Second, Plaintiff alleges damages based on
injuries caused by acts of Fair Acres’ employees. See, e.g.,
Compl. ¶¶ 8-10, 12-13. Therefore, the PSTCA provides Fair Acres
with general immunity from tort liability.
Also, none of the PSTCA’s exceptions apply. Under
§ 8542 of the statute, an injured party may nevertheless recover
in tort from a local agency if: (1) the damages would be
otherwise recoverable under common law or statute creating a
cause of action if the injury were caused by a person without a

6

defense under 42 Pa. Cons. Stat. § 8541; (2) the injury was
caused by the negligent act of the local agency or an employee
acting within the scope of his official duties; and (3) the
negligent act of the local agency falls within one or more of
the eight enumerated categories of immunity exceptions. 42 Pa.
Cons. Stat. § 8542(a); see also Lindstrom v. City of Corry, 763
A.2d 394, 397 (Pa. 2000); Lockwood v. City of Pittsburgh, 751
A.2d 1136, 1139 (Pa. 2000) (citing Kiley v. City of
Philadelphia, 645 A.2d 184, 185–86 (Pa. 1994)).
The eight exceptions are for (1) vehicle liability;
(2) care, custody, or control of personal property; (3) real
property; (4) trees, traffic controls, and street lighting; (5)
utility service facilities; (6) streets; (7) sidewalks; and (8)
care, custody, or control of animals. 42 Pa. Cons. Stat.
§ 8542(b). “Because of the clear intent [of the Act] to insulate
government from exposure to tort liability, the exceptions to
governmental immunity are to be strictly construed.” Lockwood,
751 A.2d at 1139 (citing Kiley, 645 A.2d at 185-86).
Here, Plaintiff argues in her opposition to Fair
Acres’ motion that the “willful misconduct” exception, found at
42 Pa. Const. Stat. § 8550, applies to her negligence claims.
Pl.’s Opp’n 5, ECF No. 5-1. And accepting as true all
allegations in the Complaint and all reasonable inferences that
can be drawn therefrom, the Court could possibly conclude that a
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Fair Acres employee acted with willful misconduct. But
Plaintiff’s suit is against the local agency, Fair Acres, not
the agency’s employees in their individual capacities. So the
question is whether § 8550 operates to strip Fair Acres of its
immunity as a result of any individual employee’s alleged
willful misconduct.
Section 8550 provides that
[i]n any action against a local agency or
employee thereof for damages on account of
an injury caused by the act of the employee
in which it is judicially determined that
the act of the employee caused the injury
and that such act constituted a crime,
actual fraud, actual malice or willful
misconduct, the provisions of sections 8545
(relating to official liability generally),
8546 (relating to defense of official
immunity), 8548 (relating to indemnity) and
8549 (relating to limitation on damages)
shall not apply.
Pennsylvania and federal courts have consistently held
that this exception applies only to the immunity of agency
employees, and not to the agencies themselves. As Judge Goldberg
recently explained:
By its terms, application of this
section withdraws protections that flow from
four separate and specific provisions (42
Pa. Con. Stat. § 8545, 8546, 8548, 8549).
The statute does not mention immunity set
forth in 42 Pa. Con. Stat. § 8541, which is
the provision that immunizes [local
agencies]. Pennsylvania courts have thus
concludes that section 8550 “only abolishes
immunity for willful misconduct which
pertains to local agency employees . . . and
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thus does not affect the immunity of local
agencies.” King v. Breach, 540 A.2d 976, 979
(Pa. Cmwlth Ct. 1988). Federal cases,
including DiSalvio v. Lower Merion School
District, 158 F. Supp. 2d 553 (E.D. Pa 2001)
[], are in accord. See, e.g., Joseph M. v.
Northeastern Educ. Intermediate Unit 19, 516
F. Supp. 2d 424, 444 (M.D. Pa. 2007)
(dismissing school district based on
immunity, while concluding that individual
defendants could be held liable based on
willful misconduct exception); DiSalvio, 158
F. Supp. 2d at 563-64 (dismissing claims
against district while permitting claims
against individuals to go forward on willful
misconduct theory).
Viney v. Jenkintown Sch. Dist., 51 F. Supp. 3d 553, 557 (E.D.
Pa. 2014); see also Fox Fuel v. Del. Cnty. Sch. Joint Purchasing
Bd., 856 F. Supp. 945, 955 n.9 (E.D. Pa. 1994) (reviewing a
dozen Pennsylvania and federal cases holding “that § 8550
distinguishes sharply between local agencies and the employees
of those agencies, with the local agency retaining its immunity
even in the presence of willful misconduct by its employees”).
Thus, although an individual Fair Acres employee might
not be entitled to the protections of sovereign immunity due to
§ 8550, were the individual a defendant in this suit, Fair Acres
as a local agency retains its sovereign immunity despite claims
that arguably rise to willful misconduct on the part of any
individual employee. Fair Acres can be sued only for negligent
conduct falling into one of the eight exceptions listed in
§ 8542. None of those exceptions apply to Plaintiff’s claims.

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Plaintiff nevertheless argues that the PSTCA does not
bar her negligence claims because she is “asserting a nursing
home abuse and neglect case based upon the Federal Nursing Home
Reform Amendments.” Pl.’s Opp’n 5. But she fails to indicate how
the alleged FNHRA violations would permit her common law
negligence claims to go forward under the PSTCA. See, e.g.,
Massey v. Fair Acres Geriatric Ctr., 881 F. Supp. 2d 663, 665-66
(E.D. Pa. 2012) (explaining that the PSTCA “bars any claim based
on common law negligence” against the county-owned nursing home
facility, without regard to the plaintiff’s separate § 1983
claim based on FNHRA violations); see also Mayer v. Berks Heim
Nursing Home, No. 13-4497, 2014 WL 1096043, at *4 (E.D. Pa. Mar.
20, 2014) (“Plaintiffs’ § 1983 claim is separate and distinct
from their counts of medical malpractice.”). Therefore,
Plaintiff’s common law negligence claims will be dismissed.
C.

Section 1983 Claim
Fair Acres next moves to dismiss Plaintiff’s § 1983

claim. “Section 1983 is ‘a vehicle for imposing liability
against anyone who, under color of state law, deprives a person
of rights, privileges, or immunities secured by the Constitution
and laws.’” Massey, 881 F. Supp. 2d at 666 (quoting Grammer v.
John J. Kane Reg’l Ctrs.-Glen Hazel, 570 F.3d 520, 525 (3d Cir.
2009)). In Grammer, the Third Circuit held that the FNHRA

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established certain federally protected rights for nursing home
residents that are enforceable under § 1983. 570 F.3d at 532.
Here, Fair Acres acted under the color of state law
because it is owned and operated by Delaware County. Compl. ¶ 5;
Def.’s Mot. ¶ 4. And Plaintiff’s § 1983 claim is based on
violations of the FNHRA. Compl. ¶¶ 32-38. So the Court must
consider whether Plaintiff has sufficiently pleaded the
remaining requirements for municipal liability.
“A municipality cannot be held liable solely because
it employs a tortfeasor--or, in other words, a municipality
cannot be held liable under § 1983 on a respondeat superior
theory.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691
(1978). Municipalities can be liable under § 1983 when “action
pursuant to official municipal policy of some nature cause[s] a
constitutional tort.” Id. Liability arises where “the action
that is alleged to be unconstitutional implements or executes a
policy statement, ordinance, regulation, or decision officially
adopted and promulgated by that body’s officers.” Id. at 690.
Municipalities can also face liability under § 1983
“for constitutional deprivations visited pursuant to
governmental ‘custom’ even though such a custom has not received
formal approval through the body’s official decisionmaking
channels.” Id. at 690–91. A “custom” arises from practices by

11

state officials that amount to entrenched behavior in the
municipal employees. Id. at 691.
Under this Monell framework, a plaintiff must
establish that (1) the municipality had a policy or custom that
deprived the plaintiff of his constitutional rights; (2) the
municipality acted deliberately and was the moving force behind
the deprivation; and (3) the plaintiff’s injuries were caused by
the identified policy or custom. Id. at 692-94.
But as a threshold matter, regardless of whether the
plaintiff proceeds on the basis of a policy or custom, “a
plaintiff must show that an official who has the power to make
policy is responsible for either the affirmative proclamation of
a policy or acquiescence in a well-settled custom.” Bielevicz v.
Dubinon, 915 F.2d 845, 850 (3d Cir. 1990) (citing Andrews v.
City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990)). An
official is a policymaker if, as a matter of state law, the
official is responsible for making policy in the particular area
of municipal business in question. Hill v. Borough of Kutztown,
455 F.3d 225, 245-46 (3d Cir. 2006). The official’s authority to
make the policy must be “final and unreviewable,” id. at 245,
because “[u]nder § 1983, only the conduct of those officials
whose decisions constrain the discretion of subordinates
constitutes the act of the municipality.” Bielevicz, 915 F.2d at
850.
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Here, Plaintiff makes no attempt to identify an
official with the requisite power who made or failed to make a
policy that caused her injuries. Plaintiff also fails to allege
that a policymaker acquiesced in a well-settled custom, let
alone that the policymaker’s authority was “final and
unreviewable.” Therefore, Plaintiff fails to state a claim under
§ 1983 from the outset.
But even if Plaintiff had satisfactorily established
the existence of a policymaker’s role, Plaintiff fails to allege
sufficient facts indicating the existence of a municipal policy
or custom. Plaintiff’s § 1983 claim relies on Fair Acres’
alleged violations of the FNHRA and OBRA regulations. Compl.
¶ 35. Plaintiff’s allegations are mostly restatements of
particular FNHRA provisions and sections of the OBRA
regulations. See, e.g., id. ¶¶ 37(a)-(g), 38 (a)-(k). But the
remaining factual allegations from which the Court could infer a
violation of these rules and regulations are as follows:
(1)

“The Defendant failed to inform the
Plaintiff’s
physician
of
her
significant change in development of
infection, gangrene, dehydration and a
lower extremity sacral wound and above
knee amputation.” Id. ¶ 38(a).

(2)

“The Defendant failed to notify the
administrator and state official that
Plaintiff
developed
infection,
gangrene,
dehydration
and
a
lower
extremity sacral wound and above right
knee amputation.” Id. ¶ 38(b).
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(3)

“[T]he facility failed to conduct an
assessment after a significant change
in resident’s condition, which included
her
risk
for
developing
internal
bleeding.” Id. ¶ 38(e).

(4)

“The
Defendants[]
[sic]
failed
to
ensure its nurses’ aides were able to
demonstrate competency and techniques
necessary to care for the late2 Georgia
A.
Hope’s
needs,
which
ultimately
contributed to Mrs. Hope’s suffering
from
multiple
agonizing
clinically
avoidable acute hypotension, anemia,
and dehydration that resulted in Mrs.
Hope
suffering
unnecessary
pain,
physical and mental deterioration.” Id.
¶ 38(k).

Plaintiff also links these factual allegations to the
rules and regulations that they purport to violate. See id.
¶¶ 38(a)-(b), (e), (k). Accordingly, taking all well-pleaded
allegations as true, Plaintiff sufficiently pleads that Fair
Acres violated the FNHRA and OBRA regulations. However, the
occurrence of a violation, standing alone, is not enough for
Monell liability; the question is whether that violation is part
of a municipal policy or custom.
“There are three situations where acts of a government
employee may be deemed to be the result of a policy or custom of
the governmental entity for whom the employee works, thereby
2

Although the Complaint indicates that Ms. Hope
currently resides at 931 Burnside Road, Sharon Hill, PA 19079,
Compl. ¶ 2, the Complaint later refers to Ms. Hope as the
“Plaintiff decedent,” id. ¶¶ 37, 41, 46. Plaintiff’s counsel
indicated that Ms. Hope is indeed alive.
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rendering the entity liable under § 1983.” Natale v. Camden Cty.
Corr. Facility, 318 F.3d 575, 584 (3d Cir. 2003).
First, and most straightforwardly, a policy or custom
may be inferred from the acts or omissions of an officeremployee where “the appropriate officer or entity promulgates a
generally applicable statement of policy and the subsequent act
complained of is simply an implementation of that policy.” Id.
at 584 (quoting Bd. of Cty. Comm’rs of Bryan Cty. v. Brown, 520
U.S. 397, 417 (1997)).
Here, Plaintiff does not allege the existence of a
policymaking officer, facts from which the Court can infer a
statement of policy promulgated by that officer, or facts from
which the Court can infer that Plaintiff’s injuries resulted
from a mere implementation of that policy. Because these
essential components are missing, Plaintiff fails to state a
claim under this first theory of Monell liability.
Second, a policy or custom may be inferred where “no
rule has been announced as policy but federal law has been
violated by an act of the policymaker itself.” Id. at 584
(quoting Bryan Cty., 520 U.S. at 417-18). “In this situation,
the choice of policy and its implementation are one, and the
first or only action will suffice to ground municipal liability
simply because it is the very policymaker who is acting.” Brown,
520 U.S. at 418.
15

Here, Plaintiff has pleaded facts indicating that Fair
Acres violated federal law by failing to adhere to the
applicable statutory and regulatory rules. However, as
previously discussed, Plaintiff fails to connect these acts or
omissions to “the policymaker itself.” “‘[M]unicipal liability
under § 1983 attaches where—and only where—a deliberate choice
to follow a course of action is made from among various
alternatives’ by city policymakers.” Canton v. Harris, 489 U.S.
378, 389 (1989) (alteration in original) (quoting Pembaur v.
Cincinnati, 475 U.S. 469, 483-84 (1986) (plurality opinion)).
Because Plaintiff fails to identify the policymaker, Plaintiff
has failed to sufficiently allege the existence of a policy or
custom to plead a Monell claim under this second theory.
Third, a policy or custom may be inferred where “the
policymaker has failed to act affirmatively at all,” but “the
need to take some action to control the agents of the government
is so obvious, and the inadequacy of existing practice so likely
to result in the violation of constitutional rights, that the
policymaker can reasonably be said to have been deliberately
indifferent to the need.” Natale, 318 F.3d at 584 (quoting Bryan
Cty., 520 U.S. at 417-18).
Here, Plaintiff contends, in part, that her § 1983
claim is based on a “failure-to-train” theory of liability,
which would fall within this third approach. Pl.’s Opp’n 12-13.
16

According to Plaintiff, Fair Acres failed to train its
employees, which amounted to a violation of the FNHRA. See,
e.g., Compl. ¶ 37(k). Based on representations by Plaintiff’s
counsel during the hearing on Fair Acres’ motion, it appears
that Plaintiff intends to argue that the FNHRA violation, in
turn, constituted a policy or custom. Plaintiff’s claim on this
basis, however, does not survive Fair Acres’ motion to dismiss.
“In limited circumstances, a local government’s
decision not to train certain employees about their legal duty
to avoid violating citizens’ rights may rise to the level of an
official government policy for purposes of § 1983.” Connick v.
Thompson, 563 U.S. 51, 60 (2011). A failure to train or
supervise “must amount to ‘deliberate indifference to the rights
of persons with whom the untrained employees come into
contact.’” Id. at 61 (quoting Harris, 489 U.S. at 388); see also
Carter v. City of Philadelphia, 181 F.3d 339, 357 (3d Cir.
1999). “Only where a failure to train reflects a ‘deliberate’ or
‘conscious’ choice by a municipality--a ‘policy’ as defined by
our prior cases--can a city be liable for such a failure under
§ 1983.” Harris, 489 U.S. at 389.
Under a failure-to-train or failure-to-supervise
theory, the plaintiff must ordinarily show a “pattern of similar
constitutional violations by untrained employees.” Thomas v.
Cumberland Cty., 749 F.3d 217, 223 (3d Cir. 2014) (quoting
17

Connick, 563 U.S. at 62). Here, Plaintiff’s allegations refer
only to her own injuries and personal experience at Fair Acres.
Accordingly, Plaintiff has not pleaded facts from which the
Court could infer a “pattern of similar constitutional
violations.” See Lawson v. City of Coatesville, 42 F. Supp. 3d
664, 680 (E.D. Pa. 2014). Therefore, Plaintiff’s claim would
have to proceed on a theory of “single-incident” liability.
Sometimes “the need for training ‘can be said to be so
obvious that failure to do so could properly be characterized as
deliberate indifference to constitutional rights’ even without a
pattern of constitutional violations.” Thomas, 749 F.3d at 223
(quoting Harris, 489 U.S. at 390 n.10). While “it is possible to
establish deliberate indifference based on a single
incident[,] . . . this showing is available in a very narrow
range of circumstances.” Peters v. Cmty. Educ. Ctrs., Inc., No.
11-850, 2014 WL 981557, at *9 (E.D. Pa. Mar. 13, 2014).
“To find deliberate indifference from a singleincident violation,” the risk of injury must be a “highly
predictable consequence” of the municipality’s failure to train
and supervise its officers. Thomas, 749 F.3d at 225 (quoting
Connick, 563 U.S. at 63-64). The plaintiff must show that “(1)
municipal policymakers know that employees will confront a
particular situation; (2) the situation involves a difficult
choice or a history of employees mishandling; and (3) the wrong
18

choice by an employee will frequently cause deprivation of
constitutional rights.” Carter, 181 F.3d at 357 (footnote
omitted) (citing Walker v. New York City, 974 F.2d 293, 297–98
(2d Cir. 1992)). And “a municipality can only be liable under
§ 1983 where the failure to train demonstrates a ‘deliberate’ or
‘conscious’ choice by the municipality.” Doe v. Luzerne County,
660 F.3d 169, 179 (3d Cir. 2011) (quoting Woloszyn v. County of
Lawrence, 396 F.3d 314, 324 (3d Cir. 2005)).
Here, Plaintiff alleges that Fair Acres failed “to
hire a sufficient number of trained and competent staff.” Compl.
¶¶ 12(b), 18(b). Plaintiff also alleges that Fair Acres failed
“to properly train employees to deal with nursing home residents
who are unable to care for themselves.” Id. ¶¶ 12(g), 18(g).
Likewise, Plaintiff states that “Defendants continually and
repeatedly engaged in negligent conduct, which
included . . . repeated failure to hire and train appropriate
personnel to monitor, supervise, and/or treat Georgia A. Hope.”
Id. ¶ 29(c). But these allegations are mere conclusions, which
are not entitled to the presumption of truth.
Of course, just as the Supreme Court in Harris
concluded that “city policymakers know to a moral certainty that
their police officers will be required to arrest fleeing
felons,” Harris, 489 U.S. at 390 n.10, the court here might
presume that municipal policymakers know with certainty that
19

their nursing home employees will be required to aid ailing
residents. But Plaintiff has not made any allegations to that
end, nor any assertions addressing the remaining elements of a
failure-to-train claim. See, e.g., Thomas, 749 F.3d at 223. And,
in any event, Plaintiff still fails to identify the municipal
policymaker; it is the policymaker’s “deliberate” or “conscious”
choice, as well as the policymaker’s knowledge, that must be
shown. Harris, 489 U.S. at 389. Therefore, Plaintiff fails to
state a claim under § 1983 based on Fair Acres’ alleged
violations of the FNHRA, and Plaintiff’s § 1983 claim will be
dismissed.
D.

Medicare Secondary Payer Act Claim
Fair Acres next moves to dismiss Plaintiff’s MSPA

claim. Plaintiff asserts that Fair Acres is a “primary plan”
that failed to pay Plaintiff’s Medicare bills. But Plaintiff
fails to plead sufficient facts to state a claim under the MSPA.
A private cause of action is available under the MPSA
when a primary payer fails to make required payments. 42 U.S.C.
§ 1395y(b)(3)(A). A Medicare payment “may not be made . . . with
respect to any item or service to the extent that payment has
been made or can reasonably be expected to be made” by a primary
plan. Id. § 1395y(b)(2)(A). Examples of primary plans include
group health plans, worker’s compensation laws or plans,

20

automobile or liability insurance policies (including selfinsured plans), or no-fault insurance policies. See id.
§ 1395y(b)(2)(A)(ii). Regulations promulgated under the MSPA
define “self-insured plan” as an “arrangement, oral or
written . . . to provide health benefits or medical care or
assume legal liability for injury or illness” under which an
entity “carries its own risk instead of taking out insurance
with a carrier.” 42 C.F.R. §§ 411.21, 411.50(b).
Here, Plaintiff’s only allegation in the Complaint
regarding Fair Acres’ “primary plan” status is a conclusion of
law: “Defendants and/or its insurer are primary plans under the
Act.” Compl. ¶ 44. This legal conclusion is not entitled to the
presumption of truth, so Plaintiff fails to state a claim under
the MSPA.
Plaintiff’s MSPA claim also fails because she has not
demonstrated Fair Acres’ responsibility to pay for any services
rendered. The MSPA provides, in relevant part, that
a primary plan, and an entity that receives
payment from a primary plan, shall reimburse
the appropriate Trust Fund for any payment
made by the Secretary under this subchapter
with respect to an item or service if it is
demonstrated that such primary plan has or
had a responsibility to make payment with
respect to such item or service.
42 U.S.C. § 1395y(b)(2)(B)(ii) (emphasis added).

21

Fair Acres incorrectly contends that “demonstrated
responsibility” can only be established by judgment in a state
tort action. See Def.’s Mot. ¶¶ 58-62. Under the statute’s plain
language, “responsibility” can be “demonstrated” by “a judgment,
a payment conditioned upon the recipient’s compromise, waiver,
or release (whether or not there is a determination or admission
of liability) of payment for items or services included in a
claim against the primary plan or the primary plan’s insured, or
by other means.” 42 U.S.C. § 1395y(b)(2)(B)(ii); see also 42
C.F.R. § 411.22(b) (interpreting § 1395y(b)(2)(B)(ii) and
describing the ways in which “[a] primary payer’s responsibility
for payment may be demonstrated”). The thrust of the
“demonstrated responsibility” requirement is that the payer’s
responsibility to pay must be demonstrated as a matter of law.
Fair Acres further argues that “a claim under the MSPA
simply does not lie against a defendant whose liability to pay
medical costs has yet to be determined.” Def.’s Reply 4, ECF No.
7. Fair Acres contends that an MSPA claim must be brought after
the defendant is declared responsible for payment. Id. at 5.
Plaintiff, on the other hand, suggests that it is this present
action that would contemporaneously demonstrate Fair Acres’
payment responsibility. Pl.’s Opp’n 16 (stating that “by her
complaint, Plaintiff . . . seeks to recover monies paid by
Medicare on her behalf from Defendant as a primary payer”).
22

The Third Circuit has not addressed the interplay
between the time when a defendant’s responsibility must be
demonstrated and the time when a plaintiff can bring an MSPRA
claim. But the Eleventh and Sixth Circuits have held that
responsibility must be demonstrated as a condition precedent to
bringing an MSPRA claim. Glover v. Liggett Grp., Inc., 459 F.3d
1304, 1309 (11th Cir. 2006) (per curiam); Bio-Med. Applications
of Tenn., Inc. v. Cent. States Se. & Sw. Areas Health & Welfare
Fund, 656 F.3d 277, 293 (6th Cir. 2011) (stating that “the
‘demonstrated responsibility’ provision places a condition that
must be fulfilled only before primary plans (specifically,
tortfeasors) must reimburse Medicare”).
In Glover, the Eleventh Circuit held that “an alleged
tortfeasor’s responsibility for payment of a Medicare
beneficiary’s medical costs must be demonstrated before an
[MSPA] private cause of action for failure to reimburse Medicare
can correctly be brought.” 459 F.3d at 1309 (emphasis in
original). The court explained that “[u]ntil Defendants’
responsibility to pay for a Medicare beneficiary’s expenses has
been demonstrated (for example, by a judgment), Defendants’
obligation to reimburse Medicare does not exist under the
relevant provisions.” Id. The court reasoned that if the alleged
tortfeasor’s responsibility to pay was not demonstrated before a
private MSPA action, “it cannot be said that Defendants have
23

‘failed’ to provide appropriate reimbursement.” Id. Furthermore,
if the responsibility to pay were not first and separately
demonstrated, “defendants would have no opportunity to reimburse
Medicare after responsibility was established but before the
[double damages] penalty attached” under the statute’s private
cause of action.” Id.
Here, Plaintiff has failed to show that Fair Acres’
responsibility to pay has been demonstrated by any of the means
recognized in 42 U.S.C. § 1395y(b)(2)(B)(ii). There has been no
determination that Fair Acres was primarily responsible for
Plaintiff’s Medicare payments, so it cannot be said that Fair
Acres has failed to provide appropriate reimbursement. Plaintiff
has not satisfied the condition precedent to bringing her MSPA
claim.
Thus, because Plaintiff has failed to establish that
Fair Acres is a “primary payer” and Fair Acres’ responsibility
to pay has yet to be demonstrated in any fashion, Plaintiff’s
MSPA claim must be dismissed.
E.

UTPCPL Claim
Fair Acres also argues that Plaintiff fails to state a

claim for relief under the UTPCPL. Plaintiff alleges that Fair
Acres violated the UTPCPL by utilizing “deceptive
representations and designations to encourage prospective

24

patients to utilize the services of the Defendant Simpson House
and Roxborough Hospital.” Compl. ¶ 49.
First, “Defendant Simpson House and Roxborough
Hospital” are not parties to this action, and they are mentioned
nowhere else in the Complaint. As Fair Acres points out, “the
connection to Simpson House and Roxborough Hospital to the
instant matter is unknown.” Def.’s Mot. ¶¶ 66-67.
Second, Plaintiff does not state a claim for relief
under the UTPCPL. Pennsylvania’s UTPCPL is a broad statute that
prohibits a variety of misleading or fraudulent corporate acts.
73 Pa. Cons. Stat. §§ 201-1 to 201-3. In order to bring a claim
under the UTPCPL, the plaintiff must allege losses that stem
primarily from a “personal, family, or household” purpose.
Balderston v. Medtronic Sofamor Danek, Inc., 285 F.3d 238, 240
(3d Cir. 2002); W. Coast Franchising Co. v. WCV Corp., 30 F.
Supp. 2d 498, 500 (E.D. Pa. 1998).
Because the loss must occur “as a result” of unlawful
conduct under the UTPCPL, “a private plaintiff pursuing a claim
under the statute must prove justifiable reliance” on the
unlawful conduct, not merely that the wrongful conduct caused
plaintiff’s injuries. Hunt v. U.S. Tobacco Co., 538 F.3d 217,
221 (3d Cir. 2008). The plaintiff must also show that she
“suffered harm as a result of that reliance.” Yocca v.
Pittsburgh Steelers Sports, Inc., 854 A.2d 425, 438 (Pa. 2004).
25

Here, Plaintiff does not identify the specific UTPCPL
provision that forms the basis of her claim. The Complaint
contains only a general citation to the statute. See Compl.
¶ 48. Because different provisions of the UTPCPL require that
different elements be pleaded, the Court is unable to fully
assess the viability of Plaintiff’s UTPCPL claim.
But, in any event, Plaintiff does not plead factual
content from which the Court could reasonably infer that Fair
Acres violated the UTPCPL. Although Plaintiff refers to
“deceptive representations and designations” in the Complaint,
id. ¶ 49, she does not indicate the type of services deceptively
encouraged, nor does she allege that she justifiably relied on
these misrepresentations in any way. Therefore, Plaintiff fails
to state a claim under the UTPCPL,3 and the claim must be
dismissed.
V.

LEAVE TO AMEND
Leave to amend shall be “freely give[n] . . . when

justice so requires.” Fed. R. Civ. P. 15. The Court may decline

3

Defendant also argues that Plaintiff’s UTPCPL claim
should be dismissed because the statute prohibits a cause of
action for the sale of medical services. Def.’s Mot. ¶ 80.
Plaintiff attempts to distinguish “physician services,” which
are not covered by the statute, and “unlawful practices relating
to trade, commerce and the type of the type associated
with . . . medical enterprises.” Pl.’s Opp’n 17. However, the
Court need not address this argument where Plaintiff has failed
to otherwise state a claim for relief under the statute.
26

to grant leave where “plaintiff’s delay in seeking amendment is
undue, made in bad faith, prejudicial to the opposing party, or
(the amendment) fails to cure the jurisdictional defect.”
Berkshire Fashions, Inc. v. M.V. Hakusan II, 954 F.2d 874, 886
(3d Cir. 1992). Leave to amend may also be denied if amendment
would be futile. Alvin v. Suzuki, 227 F.3d 107, 121 (3d Cir.
2000). “An amendment is futile if the amended complaint would
not survive a motion to dismiss for failure to state a claim
upon which relief could be granted.” Id.
Here, amendment to Plaintiff’s negligence claims would
be futile, because Fair Acres is immune from common law
negligence claims as a county-owned facility. But there is no
indication of futility as to Plaintiff’s § 1983, MSPA, and
UTPCPL claims. These claims could go forward if Plaintiff
adequately pleads a claim for relief. Plaintiff has not
previously amended her complaint, and there is no indication of
bad faith. Therefore, the Court will grant Plaintiff leave to
amend her complaint to cure its deficiencies as to those claims.
VI.

CONCLUSION
For these reasons, the Court will grant Fair Acres’

motion to dismiss. Plaintiff’s negligence claims against the
county-owned Fair Acres nursing home are barred by the PPSTCA
and will be dismissed with prejudice. Plaintiff also fails to

27

state a claim under § 1983 for FNHRA violations, and fails to
state a claim under the MSPA and UTPCPL. These claims will be
dismissed without prejudice, and the Court will grant Plaintiff
leave to amend. An appropriate order follows.

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