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2012 PA Super 73
DAVID M. LANDAY AND
PATBERG CARMODY & GING,
IN THE SUPERIOR COURT OF
No. 901 WDA 2011
Appeal from the Order Entered May 5, 2011,
In the Court of Common Pleas of Allegheny County,
Civil Division, at No(s): G.D. 10-005782.
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and COLVILLE*, JJ.
OPINION BY SHOGAN, J.:
Filed: March 23, 2012
David M. Landay and the law firm of Patberg Carmody & Ging
(collectively “Appellants”) appeal from the order entered on May 5, 2011 in
the Allegheny County Court of Common Pleas that granted the preliminary
objections filed by the appellee, Rite Aid, and dismissed Appellants’
complaint. For the reasons that follow, we reverse and remand for further
On March 24, 2010, Appellants filed a class action complaint against
Rite Aid. Complaint, 3/24/10. In the complaint, Appellants claim that Rite
Aid violated Pennsylvania law and breached its contracts with Appellants by
charging a flat fee of $50.00 for reproducing pharmacy records. Id. More
specifically, Appellants allege that, under Pennsylvania law, Rite Aid is only
permitted to charge requestors of pharmacy records “for the estimated
*Retired Senior Judge assigned to the Superior Court.
actual and reasonable expenses it incurs in connection with the reproduction
of requested pharmacy records” and that “charging each requestor a flat fee
of $50.00 has no relationship to [Rite Aid’s] actual costs of searching for,
retrieving, reproducing and transmitting Pennsylvania pharmacy records.”
Id. at ¶¶ 15, 16. Rite Aid filed preliminary objections on the grounds that
there was no breach of contract with Appellants and that there was no
violation of the Pennsylvania Medical Records Act (“MRA”), 42 Pa.C.S.A.
§§ 6151-6160. Preliminary Objections, 5/11/10. Rite Aid asserted that the
MRA does not apply to pharmacy records. Id.
In an order filed May 5, 2011, the trial court granted Rite Aid’s
preliminary objections and dismissed Appellants’ complaint. Interpreting the
terms of the MRA restrictively, the trial court concluded that the MRA did not
apply to pharmacies because a customer of a pharmacy was not a “patient.”
Trial Court Opinion, 5/5/11, at 6.1
Additionally, the trial court found that
Appellants’ complaint did not set forth facts supporting a breach of contract
action. Id. at 8. Appellants timely appealed.
On appeal, Appellants raise two issues:
Whether the Medical Records Act, 42 Pa.C.S.A. §§ 615161, applies to Pennsylvania pharmacies, thereby
restricting the amounts they may charge their patients and
The trial court conceded, however, that if the MRA applied to pharmacies,
the flat fee charges “would appear to have no relationship to charges
permitted under the MRA.” Trial Court Opinion, 5/5/11, at 7 n.4.
patient designees, including
requested pharmacy records?
Whether the relevant provisions of the Medical Records
Act, 42 Pa.C.S.A. §§ 6151-61, are incorporated as
terms into the records copying contracts between
[Appellants] and Rite Aid?
Appellants’ Brief at 4.
The standard of review we apply when reviewing a trial court’s order
granting preliminary objections in the nature of a demurrer is well settled.
[O]ur standard of review of an order of the trial court overruling
or granting preliminary objections is to determine whether the
trial court committed an error of law. When considering the
appropriateness of a ruling on preliminary objections, the
appellate court must apply the same standard as the trial court.
Preliminary objections in the nature of a demurrer test the
legal sufficiency of the complaint. When considering preliminary
objections, all material facts set forth in the challenged pleadings
are admitted as true, as well as all inferences reasonably
Preliminary objections which seek the
dismissal of a cause of action should be sustained only in cases
in which it is clear and free from doubt that the pleader will be
unable to prove facts legally sufficient to establish the right to
relief. If any doubt exists as to whether a demurrer should be
sustained, it should be resolved in favor of overruling the
Wayne M. Chiurazzi Law Inc. v. MRO Corporation, 27 A.3d 1272, 1277
(Pa. Super. 2011) (citations and quotation marks omitted).
Additionally, because we must determine whether an individual who
obtains pharmacy records from a pharmacy is a “patient,” as well as whether
the pharmacy records are “medical charts and records” and whether the
pharmacy is a “health care provider” or “health care facility” under the MRA,
we are deciding questions of law. It is well settled that this Court’s standard
of review for questions of law is de novo, and our scope of review is plenary.
Cash America Net of Nevada, LLC v. Com., Dept. of Banking, 607 Pa.
432, 443, 8 A.3d 282, 289 (2010).
The MRA provides that:
(1) A patient or his designee, including his attorney, shall have
the right of access to his medical charts and records and to
obtain photocopies of the same, without the use of a subpoena
duces tecum, for his own use. A health care provider or facility
shall not charge a patient or his designee, including his attorney,
a fee in excess of the amounts set forth in section 6152(a)(2)(i)
(relating to subpoena of records).
42 Pa.C.S.A. § 6155(b)(1).
As the trial court noted:
If §6155(b) applies to pharmacies, the fees charged by the
pharmacies, as alleged in the complaints, exceed the amounts
set forth in §6152(a)(2)(i).
The provisions of §6155(b)(1) setting the maximum fees
that may be charged applies to “patients” requesting their
“medical charts and records” from a “health care provider or
facility.” The MRA does not define the terms “patient,” “medical
charts and records,” or “health care provider or facility.”
In [Appellants’] Brief in Opposition to the preliminary
Objections of [Rite Aid], [Appellants] state that this absence of
definition triggers the application of §1903 of the Statutory
Construction Act which provides that where terms are not
otherwise defined in a statute, “[w]ords and phrases shall be
construed according to rules of grammar and according to their
common and approved usage; . . .” 1 Pa.C.S. §1903(a).
[Appellants] also refer to 1 Pa.C.S.A. §1921 which provides that
a court may not consider other statutes upon the same or similar
subjects unless the words of a statute are not explicit.
[Appellants] state that “[Rite Aid] ignore[s] these precepts of
statutory interpretation and attempt[s] to find an exception from
the MRA for pharmacies through reference to other Pennsylvania
statutes, yet they fail to demonstrate any ambiguity in the terms
at issue.” [Appellants’] Brief at 6.
Trial Court Opinion, 5/5/11, at 3. The trial court continued:
Both [Appellants] and [Rite Aid] discuss other legislation
and regulations. [Appellants] correctly state that legislation and
regulations governing the practice of pharmacy require a
pharmacist, before filling a prescription, to exercise professional
judgment by, inter alia, considering potential adverse reactions,
and whether the prescription may have an incorrect duration or
dosage. [Appellants] refer to laws, such as HIPPA [sic] and the
Pennsylvania Quality Health Care and Accountability and
Protection Act, 40 P.S. §991.2102, that include pharmacists in
the description of health care providers that come within the
scope of the law.
[Rite Aid] cite[s] other state laws governing health care
providers that do not include pharmacies and pharmacists in the
definition of health care providers.
[Rite Aid] also find[s] to be significant the difference
between medical records kept by a hospital and the records of
The medical records of a hospital can be
They document the course of the patient’s
condition and treatment. The pharmacy records, on the other
hand, usually consist of a list of the prescriptions filled by the
pharmacy. They duplicate what was already furnished at the
time of delivery. Unlike a hospital record, they do not provide
any information as to the medication actually taken.
Trial Court Opinion, 5/5/11, at 3-4.
The trial court concluded its analysis on this issue by stating:
I find that the other legislation cited by the parties and the
history of this legislation do not offer any guidance as to whether
the Legislature intended for §6155(b) of the MRA to apply to
Consequently, I base my ruling on the
language of §6155(b).
Section 6155(b) governs only a “patient” who seeks his or
her medical charts and records. Thus, this provision governs
only persons who would, under ordinary usage of the term,
describe themselves as a patient.
For example, a person
receiving services provided by a psychologist would refer to
himself or herself as a patient of the psychologist. However, a
person receiving services provided by a licensed yoga instructor
would not refer to himself of herself as a patient of the yoga
The latter example also applies to describe the relationship
between the person obtaining a prescription from a pharmacy
and the pharmacy. Under ordinary usage, persons describe
themselves as patients of the physician who wrote the
prescription and customers of the pharmacy that filled the
Persons describe themselves as patients of a
hospital but persons do not describe themselves as patients of a
[Appellants] argue that the Legislature intended for
§6155(b) to apply if a pharmacy can be characterized as a
health care facility and if its records may be characterized as
medical charts or records. This would be so if §6155 had used
the term person. However, it used a more restrictive word—
I recognize that I cannot construe legislation based on the
ordinary usage of the word if it produces a result that the
Legislature could not have intended. However, by using the
term patient, the Legislature was focusing on problems
concerning access to the records of hospitals and physicians. I
have no reason to believe the same problems existed with
respect to records of pharmacies.
Trial Court Opinion, 5/5/11, at 5-6.
After careful review, we are constrained to disagree with the trial
First of all, we fail to see any ambiguity in the term
“patient.” It is commonly understood that a person for whom a medication
has been prescribed by a licensed health care provider is a patient. Nothing
in the MRA requires that such a person be a patient of the pharmacy, as the
trial court implies by its restrictive definition.
However, we would not
consider it erroneous to deem such an individual a patient of the dispensing
pharmacist, who either owns or works for the pharmacy, as well as the
prescribing health care provider.
This view is supported by the Pharmacy Act, 63 P.S. §§ 390-1 – 39013, in which the Legislature defines the terms pharmacy and the practice of
pharmacy as follows:
(10) “Pharmacist” means an individual duly licensed by the State
Board of Pharmacy to engage in the practice of pharmacy.
(11) “Practice of pharmacy” means the provision of health
care services by a pharmacist, which includes the
interpretation, evaluation and implementation of medical orders
for the provision of pharmacy services or prescription drug
orders; the delivery, dispensing or distribution of prescription
drugs; participation in drug and device selection; drug
management, including such services provided under the
Medicare Prescription Drug, Improvements, and Modernization
Act of 2003 (Public Law 108-173, 117 Stat. 2066); drug or drugrelated research; compounding; proper and safe storage of
drugs and devices; management of drug therapy pursuant to
section 9.3 or, if in an institutional setting, consistent with the
institution’s assignment of clinical duties pursuant to a written
agreement or protocol as set forth in section 9.1; maintaining
proper records; patient counseling; and such acts, services,
operations or transactions necessary or incident to the
provision of these health care services. The “practice of
pharmacy” shall not include the operations of a manufacturer or
distributor as defined in “The Controlled Substance, Drug, Device
and Cosmetic Act.”
63 P.S. §§ 390-2 (10) and (11) (emphasis added) (footnotes omitted). We
specifically note that, as part of their health care duties, pharmacists are
immunizations. 63 P.S. § 390-9.2. Thus, the practice of pharmacy is not
limited to filling prescriptions. As summarized above, it includes, inter alia,
the provision of many other health care services to patients.
Moreover, the Pennsylvania Code sets forth the specific duties of
pharmacists to their patients. These include the creation and maintenance
of independently produced records, as detailed below:
Prospective drug review and patient counseling.
(a) PDR Required. A pharmacist shall perform a PDR before
filling, delivering or sending a new prescription or drug order,
except when a physician dispenses a drug to a patient being
treated in the emergency room. The PDR requires that the
pharmacist review a profile of the patient maintained in the
pharmacy in accordance with subsection (f) prior to dispensing
the medication to the patient or caregiver.
(b) Purpose. The purpose of the PDR is to help assure that a
drug dispensed under a prescription is not likely to have an
adverse medical result.
The PDR accomplishes this by
attempting to identify potential drug therapy problems that
interactions, incorrect dosage, incorrect duration of drug
treatment, drug-allergy interactions, and clinical abuse or
(1) The PDR is required for prescriptions and drug
The following are examples of situations in
which a PDR is required:
(i) A patient visits
prescription filled in a
a physician in the
patient has the
(ii) A pharmacist fills a prescription for a
patient who lives in a personal care
(iii) A pharmacist in a hospital pharmacy
fills an outpatient prescription for a
A patient is treated on a
nonemergency basis in an outpatient
clinic of a hospital and is given a
The patient has the
prescription filled either in the hospital
pharmacy or in a retail pharmacy.
(v) A pharmacist fills a prescription for a
patient in a nursing home.
(vi) A pharmacist in a hospital dispenses
a drug which will be administered to a
patient in the hospital.
(3) The following are examples of situations in which a
PDR is not required:
(i) A physician dispenses a drug to a
patient being treated in the emergency
radiopharmaceutical to a physician who
will administer it to a patient.
(iii) A medical practitioner dispenses a
(iv) A pharmacist dispenses a drug to a
practitioner will administer to a patient.
(d) Offer to counsel.
(1) An offer to counsel shall be made to each
patient or caregiver when the pharmacist fills,
delivers or sends a new retail or outpatient
(2) The pharmacist or designee of the pharmacist
shall orally make the offer in person if a patient or
caregiver comes to the pharmacy. If the pharmacist
in the exercise of professional judgment in the
interest of a patient believes that an oral offer would
be less effective than a written offer, the pharmacist
may substitute a written offer. The following are
examples of situations in which a pharmacist might
substitute a written offer:
(i) The patient or caregiver is hearing
(ii) The patient or caregiver is not an
(3) If neither the patient nor caregiver comes to the
pharmacy, the offer to counsel shall be made in one
of the following ways:
The pharmacist or designee may
telephone the patient or caregiver.
(ii) The pharmacy delivery person may
orally make the offer to the patient or
(iii) The pharmacist may send a written
offer to counsel together with the filled
prescription which is delivered or sent to
(4) A written offer to counsel must include the
telephone number of the pharmacy.
(5) A pharmacy shall provide toll-free telephone
service if its primary patient population is beyond the
local or toll-free exchange.
(6) A mail order pharmacy shall make the offer to
counsel either by telephone or by sending a written
offer together with the filled prescription.
written offer must include a toll-free telephone
number of the pharmacy which a patient or caregiver
may use to obtain counselling.
(7) The obligation to make an offer to counsel will
be fulfilled by making one offer in accordance with
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(1) Only a pharmacist may counsel.
(2) If a patient or caregiver who comes to the
pharmacy indicates that he wants counselling, the
pharmacist shall counsel the patient or caregiver in
person, or, at the discretion of the patient or
caregiver, by telephone.
(3) If the filled prescription is sent or delivered to
the patient or caregiver, counselling shall be by
(4) The following are examples of matters which a
pharmacist in the exercise of professional judgment
might deem significant and discuss with the patient
(i) The name and description of the
(ii) The route of administration, dosage
form and duration of drug therapy.
(iii) Special directions and precautions
for preparation, administration and use
by the patient.
Common severe side effects or
encountered, including their avoidance,
and the action required if they occur.
(v) Techniques for self-monitoring drug
(vi) Proper storage.
(vii) Prescription refill information.
(viii) Action to be taken in the event of a
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(5) If a pharmacist discovers a specific problem with
a medication during the course of a PDR, the
pharmacist shall intervene to attempt to resolve the
(f) Patient profile.
(1) The pharmacist or designee of the pharmacist
shall make a reasonable effort to obtain, record and
maintain the following information about each
(i) The name, address, telephone
number, date of birth (or age) and
(ii) Individual history, if significant,
including known allergies and drug
reactions, and a list of medications and
relevant devices, as provided by the
patient or caregiver.
(iii) Pharmacist comments relative to the
individual’s drug therapy.
The patient profile
electronically or manually.
(3) The pharmacist or designee of the pharmacist
shall begin a patient profile when the pharmacist fills
a prescription for a new patient or for a current
patient for whom a profile had not previously been
(4) The patient profile shall be maintained for at
least 2 years after the last entry.
(5) The Board will consider a single request for
information for a patient profile made to a patient or
caregiver a reasonable effort to obtain the
information outlined in this subsection.
(g) Refusal to accept counselling or to provide information.
A pharmacist is not required to provide
counselling or obtain information for the patient
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profile if the patient or caregiver refuses the offer to
counsel or refuses to divulge information for the
patient profile. If a patient or caregiver fails to
respond to an offer to counsel or a request for
information, the failure to respond will be deemed a
(2) The pharmacist or designee shall document the
refusal of a patient or caregiver to accept counselling
or provide information. The documentation must
include the name or initials of the pharmacist or
designee noting the refusal. The following kinds of
documentation are acceptable:
(i) A notation made by the pharmacist
or designee on the prescription or patient
profile or the electronic records of the
(ii) A writing signed by the patient or
(1) Information gained by a pharmacist, pharmacy
or employee of a pharmacy about a patient under
this section shall be regarded as confidential. The
information shall be maintained in accordance with
section 8(10) of the act (63 P. S. § 390-8(10)).
(2) The pharmacist or pharmacy may reveal the
information if one of the following circumstances
(ii) The Board or its authorized agents
proceeding under the act.
(iii) State or Federal law or regulations
require or authorize the disclosure.
(iv) A court orders the disclosure.
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49 Pa.Code § 27.19 (emphasis added).
The language utilized in the Code, as well as the Pharmacy Act,
reflects that the pharmacist is a health care provider and that the recipient
of the prescription medication is a patient.
The Code use of the term
“patient profile,” the requirement that the pharmacist maintain and review
the profile, the duty to provide counseling, and the importance of
maintaining confidentiality of all information compiled support the conclusion
that the pharmacy records are medical records of a patient. A pharmacist is
not merely an intermediary between a vendor and consumer.
noted above, a pharmacist is required to utilize his or her professional
education, training, and judgment to provide health care to patients.
It is for these reasons we conclude that, under the MRA, a pharmacist
is a health care provider, an individual to whom prescription medication is
dispensed is a patient, and the patient pharmacy records maintained by the
pharmacist are medical records. Accordingly, we hold that the MRA applies
However, our analysis is not concluded as the trial court
purported to offer a second rationale for granting the preliminary objections.
In Appellants’ second issue, it is averred that the trial court erred in
granting Rite Aid’s preliminary objections based on its conclusion that, even
if the MRA applies to pharmacies, Appellants’ complaint does not set forth a
breach of contract cause of action.
More specifically, the trial court ruled
that the MRA was not part of Appellants’ pharmacy records acquisition
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contracts with Rite Aid. Trial Court Opinion, 5/5/11, at 6-8. Pursuant to our
standard of review, we are constrained to also disagree with the trial court’s
conclusion on this issue.
As noted above, we have concluded that the MRA applies to the
reproduction of pharmacy records.
Thus, because the MRA applies, it
became part of the contracts between Appellants and Rite Aid.
As this Court stated in Liss & Marion, P.C. v. Recordex Acquisition
Corp., 937 A.2d 503 (Pa. Super. 2007), affirmed, Liss & Marion, P.C. v.
Recordex Acquisition Corp., 603 Pa. 198, 983 A.2d 652 (2009):
It is well settled that “[t]he laws that are in force at the time the
parties enter into a contract are merged with the other
obligations that are specifically set forth in the agreement.”
Department of Environmental Resources, 546 Pa. 315, 340,
684 A.2d 1047, 1059 (1996). See also: DePaul v. Kauffman,
441 Pa. 386, 398, 272 A.2d 500, 506 (1971). Here, there is no
dispute that the Medical Records Act was in force at the time
Recordex invoiced the class members for the copying of medical
records relevant to this dispute.
Therefore, the trial court
properly concluded that the billing limitations set forth in the Act
were implicitly included in any agreement entered into by the
To conclude otherwise would render the billing
limitations prescribed by the legislature meaningless.
Liss & Marion, P.C., 937 A.2d at 512.
Thus, the same is true here.
Because the MRA was in force at the time Appellants contracted with Rite
Aid, the terms of the MRA became part of the contracts.
Rite Aid argues that, even if the MRA applies, the parties were free to
negotiate their own terms pursuant to 42 Pa.C.S.A. § 6152(a)(2). Rite Aid’s
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Brief at 7. While we agree with Rite Aid that the parties were free to
negotiate their own terms, there is no indication of negotiation here.
We further note our disagreement with Rite Aid’s argument that
Appellants approved and voluntarily made payment on these invoices, thus
vitiating their right to recover under the voluntary payment doctrine. Rite
Aid’s Brief at 5. This Court has defined the voluntary payment doctrine as
follows: “Where, under a mistake of law, one voluntarily and without fraud
or duress pays money to another with full knowledge of the facts, the
money paid cannot be recovered . . .”
Chiurazzi, 27 A.3d at 1281 n.4
(citation omitted) (emphasis added).
In the case at bar, we cannot conclude that there was full knowledge
of the facts. In Chiurazzi, the voluntary payment doctrine was discussed
when this Court addressed the fees charged for reproduction of records on
Chiurazzi, 27 A.3d at 1281.
However, in that case, the fees
charged for records that were over 100 pages and the fact that such a
record would be reproduced on CD-ROM as opposed to paper were explicit.
Here, unlike Chiurazzi, there were no terms on the invoice and no
itemization. The invoice merely used boilerplate language and the generic
terms: “RESEARCH & PREPARATION OF FILES, CLERICAL EXPENSES,
PHOTOCOPYING EXPENSES AND POSTAGE & HANDLING” and listed a $50.00
Invoices, 12/3/08 and 12/4/08 (full capitalization in original).
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Therefore, unlike Chiurazzi, where the terms were explicit and specific, the
voluntary payment doctrine does not apply in the instant case.
For the reasons set forth above, we reverse the order granting Rite
Aid’s preliminary objections and dismissing Appellants’ complaint, and we
remand for further proceedings.
Order reversed. Case remanded. Jurisdiction relinquished.
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