J-A15036-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

THE WESTON GROUP, INC.,                    :      IN THE SUPERIOR COURT OF
                                           :            PENNSYLVANIA
                  Appellant                :
                                           :
            v.                             :
                                           :
HIGHMARK HEALTH SERVICES,                  :
FORMERLY HIGHMARK, INC., d/b/a             :
HIGHMARK BLUE SHIELD AND MODEL             :
CONSULTING, INC.                           :           No. 1352 MDA 2016

                 Appeal from the Order entered May 4, 2016
            in the Court of Common Pleas of Cumberland County,
                        Civil Division, No(s): 13-3622

BEFORE: MOULTON, SOLANO and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:               FILED SEPTEMBER 27, 2017

      The Weston Group, Inc. (“Weston”), appeals from the Order denying

its Motion for Summary Judgment.1 We affirm.

      Beginning in August 2007, Highmark Health Services, formerly




1
   It is well-settled that “an order denying summary judgment is ordinarily a
non-appealable interlocutory order.”           McDonald v. Whitewater
Challengers, Inc., 116 A.3d 99, 104 (Pa. Super. 2015). However, Weston
filed a timely Motion to Certify Interlocutory Order for Appeal pursuant to
Pennsylvania Rule of Appellate Procedure 1311(b), requesting that the trial
court amend the May 4, 2016 Order to include language set forth at 42
Pa.C.S.A. § 702(b) (noting that a trial court may certify an interlocutory
appeal if the “order involves a controlling question of law as to which there is
substantial ground for difference of opinion and that an immediate appeal
from the order may materially advance the ultimate termination of the
matter[.]”). On June 8, 2016, the trial court granted the Motion to Certify
and amended the May 4, 2016 Order to include the relevant language from
section 702(b). Subsequently, this Court granted Weston’s Petition for
Permission to Appeal, see Pa.R.A.P. 1311(b), and accordingly, this appeal is
properly before this panel.
J-A15036-17


Highmark, Inc., d/b/a Highmark Blue Shield (collectively “Highmark”), and

Weston, with the aid of its agent, Model Consulting, Inc. (“Model”), entered

into a series of yearly comprehensive healthcare and prescription drug

coverage contracts (“contracts”). Under the terms of the contracts, Weston

agreed to pay Highmark a monthly deposit rate for each employee enrolled

in a health and prescription drug plan.     The contracts also specified a

monthly maximum rate for each employee.2        Additionally, as part of the

contracts, Highmark would calculate the total amount paid on claims made

by Weston employees in combination with the specified retention rates

(collectively “total income”).   If the claims paid exceeded the monthly

deposit rate, Weston was required to pay the difference between the

monthly maximum rate and the monthly deposit rate at the end of each

contract year.3   If the total income exceeded the total amount paid under

the maximum rate, the difference would be carried over to the following

year, and be due upon termination of the contracts by either party.

Conversely, if the deposit income exceeded the total income, Highmark

would refund the excess amount to Weston.


2
  As an example, in the 2007-2008 contract, the monthly deposit rate for an
individual was $300.13, and the monthly maximum rate was $353.09; for a
family, the monthly deposit rate was $859.86, and the monthly maximum
rate was $1,011.60. See Contract, 8/1/07, at 96.
3
  For the contract ending in 2008, Weston paid Highmark an annual
settlement of $140,339.96. For the contract ending in 2009, Weston paid
Highmark an annual settlement of $220,067.78. For the contract ending in
2010, Weston paid Highmark an annual settlement of $240,815.85.


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J-A15036-17


      On July 6, 2011, Weston informed Highmark that it was terminating

the 2010-2011 contract, effective August 1, 2011.     Thereafter, Highmark

informed Weston that the accumulated deficit over the contract years was

$730,466.78.     Despite repeated demands by Highmark, Weston did not

make any payment.

      On June 21, 2013, Highmark instituted a Complaint against Weston,

raising claims of breach of contract, unjust enrichment, and account stated.

Weston filed an Answer with New Matter.       Subsequently, Weston filed a

Joinder Complaint against Model, which was joined as an additional

defendant.     Following discovery, Weston filed a Motion for Summary

Judgment, arguing that the court of common pleas did not have subject

matter jurisdiction over the matter because the Employee Retirement

Income Security Act (“ERISA”) governed the action. Highmark also filed a

Motion for Summary Judgment.         The trial court denied both Motions.

Weston filed a timely Notice of Appeal.

      On appeal, Weston raises the following questions for our review:

      1. Whether [ERISA] preempts all of [Highmark’s] state law
         causes of action[?]

      2. Whether [ERISA] grants exclusive jurisdiction of this matter
         to the federal courts and[,] therefore[,] the Pennsylvania
         state courts lack subject matter jurisdiction over this
         matter[?]

Brief for Appellant at 4.




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     “[W]e review the trial court’s denial of summary judgment for an

abuse of discretion or error of law.”   Bezjak v. Diamond, 135 A.3d 623,

627 (Pa. Super. 2016) (citation omitted). “As with all questions of law, our

review is plenary.” Nobles v. Staples, Inc., 150 A.3d 110, 120 (Pa. Super.

2016) (citation omitted).

     “Federal preemption is a jurisdictional matter for a state court because

it challenges subject matter jurisdiction and the competence of the state

court to reach the merits of the claims raised.” NASDAQ OMX PHLX, Inc.

v. Pennmont Secs., 52 A.3d 296, 315 (Pa. Super. 2012) (citation and

brackets omitted).

            [I]n any preemption case, in determining whether a state
     law is preempted by federal law under the Supremacy Clause of
     the United States Constitution, we adhere, as we must, to the
     principles the United States Supreme Court has articulated. See
     Dooner v. DiDonato, 601 Pa. 209, 218, 971 A.2d 1187, 1193
     (2009) (citing U.S. CONST. art. VI, cl. 2). The high Court has
     repeatedly stated that federal preemption of state law turns on
     the intention of Congress and begins with the presumption that
     Congress does not intend to supplant state law. See, e.g., New
     York State Conference of Blue Cross & Blue Shield Plans v.
     Travelers Ins. Co., 514 U.S. 645, 654, 115 S. Ct. 1671, 131 L.
     Ed. 2d 695 (1995). In addition, … the Supremacy Clause may
     entail preemption of state law either by express provision, by
     implication, or by a conflict between federal and state law, and
     has instructed that, in an express preemption case, the analysis
     begins “with the text of the provision in question and move[s]
     on, as need be, to the structure and purpose of the Act in which
     it occurs.” Id. at 655, 115 S. Ct. 1671.

Barnett v. SKF USA, Inc., 38 A.3d 770, 776-77 (Pa. 2012); see also

Aetna Health Inc. v. Davila, 542 U.S. 200, 207 (2004) (noting that while

a case may be removed to federal court where the claims in a plaintiff’s


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J-A15036-17


complaint arise under federal law, “the existence of a federal defense

normally does not create statutory ‘arising under’ jurisdiction.”).

      As Weston’s claims are related, we will address them together.

Weston contends that ERISA preempts Highmark’s causes of action.         Brief

for Appellant at 10. Weston argues that ERISA includes broad preemption

provisions, which ensure federal regulation of employee benefit plans,

including all forms of state action dealing with matters covered by ERISA.

Id. at 10-11, 15.    Weston asserts that the contracts are subject to the

provisions of ERISA, as Highmark is seeking payments related to the

administration and payment of claims for health services provided to

Weston’s employees.     Id. at 11, 13, 14, 17; see also id. at 12, 14, 15

(wherein Weston argues that Highmark manipulated its underwriting

recommendations when it lowered the monthly deposit rates to be paid by

Weston employees to undercut a competitor, which had the result of

increasing the deficit). Weston claims that ERISA is designed to protect the

interests of employees in employee benefit plans, and that Highmark’s

actions directly affected Weston’s employees.      Id. at 15.   Weston argues

that under ERISA, federal district courts have exclusive jurisdiction over the

matter. Id. at 16-17.

      ERISA “is a comprehensive statute designed to promote the interests

of employees and their beneficiaries in employee benefit plans.”      Shaw v.

Delta Air Lines, Inc., 463 U.S. 85, 90 (1983); see also Davila, 542 U.S.



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J-A15036-17


at 208 (noting that “Congress enacted ERISA to protect ... the interests of

participants in employee benefit plans and their beneficiaries by setting out

substantive regulatory requirements for employee benefit plans and to

provide for appropriate remedies, sanctions, and ready access to the Federal

courts.”) (citation, brackets, and quotation marks omitted). “The purpose of

ERISA is to provide a uniform regulatory regime over employee benefit

plans.   To this end, ERISA includes expansive pre[]emption provisions, …

which are intended to ensure that employee benefit plan regulation would be

exclusively a federal concern.”    Davila, 542 U.S. at 208 (citation and

quotation marks omitted); see also Travelers, 514 U.S. at 654 (noting that

the Supreme Court does not “assum[e] lightly that Congress has derogated

state regulation, but instead ... addresse[s] claims of pre[]emption with the

starting presumption that Congress does not intend to supplant state

law[.]”). ERISA compels preemption under two different methods. See 29

U.S.C.A. §§ 1132, 1144.

     The first form of preemption under ERISA allows for complete

preemption under section 502(a).    See 29 U.S.C.A. § 1132(a);4 see also

Franchise Tax Bd. of State of Cal. v. Constr. Laborers Vacation Tr. for

S. Cal., 463 U.S. 1, 24 (1983) (stating that “any state action coming within


4
  We note that “[w]hen ERISA was enacted in 1974, the Act was codified in
Title 29 of the U.S. Code. However, the section numbers in the original Act
were codified under different numbers in the Code.         Many opinions
subsequent to 1974 use the original numbering found in the Act.” Coggins
v. Keystone Foods, LLC, 111 F. Supp. 3d 630, 634 n.2 (E.D. Pa. 2015).


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J-A15036-17


the scope of § 502(a) of ERISA would be removable to federal district court,

even if an otherwise adequate state cause of action were pleaded without

reference to federal law.”). Section 502(a) enumerates numerous situations

in which an action may be brought under ERISA.                 See 29 U.S.C.A.

§ 1132(a).    The most typical situation, set forth at section 502(a)(1)(B),

permits claims by a participant or beneficiary to enforce present or future

benefits due under the terms of the plan to be completely preempted and

removed from state courts. See id. § 1132(a)(1)(B); Davila, 542 U.S. at

210 (noting that a state law claim is completely preempted “if an individual,

at some point in time, could have brought his claim under ERISA

§ 502(a)(1)(B), and where there is no other independent legal duty that is

implicated by a defendant’s actions[.]”) (citation omitted).

      The second form of ERISA preemption, commonly referred to as

conflict or express preemption, provides, in relevant part, as follows: “[T]he

provisions of this title and title IV shall supersede any and all State laws

insofar as they may now or hereafter relate to any employee benefit plan

described in section 1003(a) of this title and not exempt under section

1003(b) of this title.” 29 U.S.C.A. § 1144(a).5 While section 514(a) should


5
  An “employee benefit plan” is defined by ERISA as including an “employee
welfare benefit plan” and an “employee pension benefit plan.” 29 U.S.C.A.
§ 1002(3).    An “employee welfare benefit plan” is any “plan, fund or
program” which is “established or maintained” by an “employer” or an
“employee organization” for the purpose of providing, inter alia, medical,
hospital care, disability, or vacation benefits. Id. § 1002(1).



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J-A15036-17


be read broadly, see Barnett, 38 A.3d at 777, the Supreme Court

admonished that “relate to” is to be interpreted practically, by considering

an action’s connection or reference to the subject plan. See Travelers, 514

U.S. at 656.6 Two categories of state law have been found to be preempted

by ERISA: (1) “[w]here a State’s law acts immediately and exclusively upon

ERISA plans ... or where the existence of ERISA plans is essential to the

law’s operation ..., that ‘reference’ will result in pre[]emption;” and (2)

“ERISA pre[]empts a state law that has an impermissible ‘connection with’

ERISA plans, meaning a state law that ‘governs ... a central matter of plan

administration’ or ‘interferes with nationally uniform plan administration.’”

Gobeille v. Liberty Mut. Ins. Co., 136 S. Ct. 936, 943 (2016) (citations

omitted).

     Initially, Weston concedes that section 502(a) does not apply, see

Brief for Appellant at 16, and grounds its preemption claims upon section




6
  “[I]n the vast majority of cases concerning ERISA preemption addressed
by the Court [prior to Travelers], the [Supreme] Court concluded without
hesitation that, under [s]ection 514(a), the state laws under review were
preempted because they related to an ERISA plan.” Barnett, 38 A.3d at
777. In Travelers, the Supreme Court recognized that “[i]f ‘relate to’ were
taken to extend to the furthest stretch of its indeterminacy, then for all
practical purposes pre[]emption would never run its course, for ‘[r]eally,
universally, relations stop nowhere.’” Travelers, 514 U.S. at 655 (citation
omitted). Thus, “in order to give effect to both the starting presumption
that Congress does not intend to supplant state law and the words of
limitation Congress included in [s]ection 514(a), the Travelers Court
announced [the above-mentioned] standard for analyzing ERISA
preemption.” Barnett, 38 A.3d at 778.


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J-A15036-17


514(a).    We agree.      Consequently, we will address Weston’s claims under

the “relate to” standard as set forth in section 514(a) and Travelers.

      In its Complaint, Highmark set forth three causes of action: breach of

contract, unjust enrichment, and account stated, all premised upon Weston’s

failure   to   properly   reimburse   the   debts   owed   under   the   contracts.

Complaint, 6/21/13, at 3-13.       The contracts, the purpose of which was to

deliver health and prescription drug plans to Weston’s employees, required

Weston to pay Highmark any difference between the maximum rate and the

deposit rate on a yearly basis, and the maximum rate and total income at

the termination of the contracts.

      Thus, while the payments due were for plans covered by ERISA,

Highmark’s causes of action do not “relate to” the subject plans. See Cal.

Div. Of Labor Standards Enf’t v. Dillingham Const. N.A., Inc., 519 U.S.

316, 330 (1997) (stating that Congress did not intend ERISA to preempt

areas of “traditional state regulation” that are “quite remote from the areas

with which ERISA is expressly concerned-reporting, disclosure, fiduciary

responsibility, and the like.”) (citation omitted); see also Pappas v. Asbel,

768 A.2d 1089, 1092 (Pa. 2001) (stating that ERISA “preemption does not

occur … if the state law has only a tenuous, remote, or peripheral connection

with covered plans.” (citation omitted)).       In point of fact, adjudication of

Highmark’s claims does not require an interpretation of the ERISA plan, as

the claims do not implicate the employee benefit structure or the



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J-A15036-17


administration of benefits; bind employers or administrators to specific

procedures; preclude uniform administration of benefit plans; or allow

employees to utilize alternative mechanisms to obtain benefits.         See

Gobeille, 136 S. Ct. at 943; Travelers, 514 U.S. at 656.          Moreover,

Highmark paid the benefits due to Weston’s employees under the ERISA

plans, and Weston does not dispute the accuracy of the payments or the

benefits received.    Finally, preemption of Highmark’s action does not

advance any concerns of Congress in enacting ERISA. See Davila, 542 U.S.

at 208.   Accordingly, Highmark’s action is not preempted by ERISA under

section 514(a).      See, e.g., Catholic Healthcare W.-Bay Area v.

Seafarers Health & Benefits Plan, 321 F. App’x 563, 564–65 (9th Cir.

2008) (concluding that ERISA did not preempt an action under section

514(a) that was based on a contractual relationship between a hospital and

a health benefits plan as the formation of the contract was completely

independent of the terms of the ERISA plan); Providence Health Plan v.

McDowell, 385 F.3d 1168, 1172–73 (9th Cir. 2004) (holding that a health

plan’s action seeking to recover benefits paid to insureds was not preempted

by ERISA under section 514(a), as the health plan was merely attempting to

enforce the reimbursement provision of the insurance contract); Scripps

Health v. Schaller Anderson, LLC, 2012 WL 2390760, at **3–4 (S.D. Cal.

2012) (concluding that state law causes of action were not preempted by

ERISA under section 514(a), because the action was based upon the failure



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to properly pay claims under the agreements, and were only tangentially

related to the administration of the benefit plan); Immediate Pharm.

Serv., Inc. v. Superior Metal Prod., 732 N.E.2d 417, 420–22 (Ohio App.

1999) (concluding that breach of contract claim between a pharmacy and a

health plan was not preempted by ERISA under section 514(a), as the right

to damages arises only from the contract, not from the ERISA plan).7

       Additionally, Weston claims that under the plain terms of the

contracts, Highmark must pursue any legal action under the administrative

provisions of ERISA. Brief for Appellant at 11. However, Weston only cites

to language in the contracts that directs members (Weston’s employees) to

seek legal action under ERISA. Id. (citing General Provisions of Contract at

71).   This action does not involve members, but instead involves Weston,

defined as the “the Group” in the contracts, and Highmark, defined as “the

Plan” in the contracts. See, e.g., Contract, 8/1/09, at 1; Contract, 8/1/08,

at 1; Contract, 8/1/07, at 1.    Weston does not cite to any place in the

contracts that dictates legal actions involving “the Group” or “the Plan” must

be pursued under the administrative provisions of ERISA.      Thus, Weston’s



7
  Weston’s reliance upon the holdings in First Nat. Life Ins. Co. v.
Sunshine-Jr. Food Stores, Inc., 960 F.2d 1546 (11th Cir. 1992), and
Washington Nat. Ins. Co. v. Hendricks, 855 F. Supp. 1542, 1545 (W.D.
Wis. 1994), to support its proposition is unavailing. Indeed, our Supreme
Court specifically admonished against relying upon “cases that predate the
shift in ERISA preemption jurisprudence the Supreme Court announced in
1995, in Travelers.” Barnett, 38 A.3d at 782; see also Travelers, 514
U.S. at 655.


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J-A15036-17


claim is without merit.

      Based upon the foregoing, the trial court properly denied Weston’s

Motion for Summary Judgment.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/27/2017




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