J-A21034-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

FREEDOM MEDICAL SUPPLY, INC.,              :       IN THE SUPERIOR COURT OF
                                           :             PENNSYLVANIA
                  Appellant                :
                                           :
            v.                             :
                                           :
ALLSTATE FIRE AND CASUALTY                 :                                        :
INSURANCE COMPANY                          :            No. 3420 EDA 2015

           Appeal from the Judgment entered December 11, 2015
            in the Court of Common Pleas of Philadelphia County,
                Civil Division, No(s:) 2268 October Term 2013

BEFORE: BENDER, P.J.E., DUBOW and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                      FILED NOVEMBER 15, 2016

      Freedom Medical Supply, Inc. (“Freedom Medical”), appeals from the

Judgment1 entered in favor of Allstate Fire and Casualty Insurance Company

(“Allstate”). We affirm.

      The trial court set forth the relevant underlying facts as follows:

            On June 2, 2011, Pablo Santos [(“Santos”)] was injured in
      a car accident. At the time, [] Santos was the named insured on
      an automobile insurance policy issued by [Allstate].        On
      September 21, 2011, [] Santos saw Dr. Maurice Singer (“Dr.
      Singer”) for his injuries. The next day, [Freedom Medical]
      received a prescription from Dr. Singer on Freedom Medical’s
      pre-made prescription form dated September 22, 2011. The

1
  Initially, Freedom Medical filed a Notice of Appeal following the denial of its
Post-Trial Motions. On December 7, 2015, this Court entered a per curiam
Order directing Freedom Medical “to praecipe the trial court Prothonotary to
enter judgment on the decision of the trial court.” Order, 12/7/15. This
Court further stated that “[u]pon compliance with Pa.R.A.P. 301, the
[N]otice of [A]ppeal previously filed in this case will be treated as filed after
the entry of judgment.” Id. A judgment in favor of Allstate was entered on
December 11, 2015, and Freedom Medical’s appeal properly lies from that
Judgment.
J-A21034-16


     prescription prescribed various durable medical equipment
     (“DME”) for [] Santos[,] including a lumbosacral support, a
     portable home whirlpool, electric moist heat pad, cervical pillow,
     and a portable muscle stimulator.        On November 2, 2011,
     Freedom Medical logged a work order, signed by [] Santos,
     indicating delivery of all the prescribed DME to his address on
     12003 Bustleton Avenue in Philadelphia.

           On November 12, 2011, Freedom Medical submitted a bill
     to Allstate for reimbursement for the DME. On November 29,
     2011, Allstate sent a letter to Freedom Medical denying its claim
     for reimbursement and indicat[ing] that the claim was under
     investigation. [On] April 29, 2013, Allstate sent a letter to
     Freedom Medical again denying payment[,] explaining that []
     Santos was unable to confirm receipt of DME from the
     prescribing doctor.

            April Mathis-Bush (“Mathis-Bush”), a claims service
     adjustor in the special investigation unit for Allstate, was
     assigned     to  investigate  Freedom      Medical’s   claim    for
     reimbursement.      On April 26, 2012, Mathis-Bush took a
     statement from an individual who claimed to be [] Santos. The
     individual presented a driver’s license with the name Pablo
     Santos. The individual stated that he received the DME from
     Freedom Medical. [] Mathis-Bush did not find the individual to
     be credible and denied the claim for reimbursement. After suit
     had been filed, [] Mathis-Bush attended an arbitration hearing
     where [] Santos was present. [] Mathis-Bush confirmed that the
     individual who gave the statement in April[] 2012 was not []
     Santos. At trial, [] Mathis-Bush also testified that the individual
     who gave the statement was not the same [] Santos who
     appeared at trial.

            At trial, [] Santos testified that after he went to Dr.
     Singer[,] he received some medical equipment, but he did not
     know on what date he received it. [] Santos described the
     equipment he received as “the thing for the chest, the bracelet
     that is hot, and something for the feet.” About a week after he
     received the equipment, he gave it to his son because he [did
     not] need the equipment. [] Santos was subpoenaed to bring the
     medical equipment he received to trial. Instead of bringing the
     equipment, [] Santos brought pictures of equipment taken by his
     son. [] Santos testified that he did not remember ever giving a



                                 -2-
J-A21034-16


      statement about the equipment and indicated that the first time
      he ever met [] Mathis-Bush was at the arbitration hearing.

                                    ***

             [Freedom Medical] brought this action[,] which arose from
      [Allstate’s] denial of reimbursement for certain medical
      equipment. On May 12, 2014, after an arbitration hearing, there
      was a finding for [Freedom Medical] against [Allstate] in the
      amount of $13,309.51. On June 2, 2014, [Allstate] appealed the
      arbitrators’ award. On November 14, 2014, [Freedom Medical]
      filed three Motions in Limine[,] and on January 9, 2015,
      [Allstate] filed its responses. The case was tried in front of th[e
      trial c]ourt[,] sitting without a jury[,] on January 12, 2015[,]
      and January 13, 2015. On July 14, 2015, th[e trial c]ourt found
      for [Allstate] and against [Freedom Medical]. On October 22,
      2015, after [P]ost-[T]rial [M]otions were denied, [Freedom
      Medical] filed a Notice of Appeal to the Superior Court of
      Pennsylvania. On November 6, 2015, [Freedom Medical] filed a
      timely Statement of Matters Complained of on Appeal pursuant
      [to] Pa.R.A.P. 1925(b). [Thereafter, following this Court’s per
      curiam Order, Judgment was entered in favor of Allstate on
      December 11, 2015.]

Trial Court Opinion, 12/29/15, at 1-3 (citations omitted).

      On appeal, Freedom Medical raises the following questions for our

review:

      1. Did the [t]rial [c]ourt improperly conclude that [Santos] did
         not receive [DME] from [Freedom Medical], where Freedom
         Medical presented “reasonable proof” pursuant to § 1716 of
         the Pennsylvania Financial Responsibility Motor Vehicle Act
         [“MVFRL”] of its receipt at trial?

      2. Did the [t]rial [c]ourt improperly conclude that Santos was
         required to bring the DME to trial to demonstrate that it had
         been delivered to him by Freedom Medical?

      3. Did the [t]rial [c]ourt improperly conclude that the refusal of
         [Allstate] to pay for the DME was not limited to the one
         reason it asserted prior to the suit for denying Freedom



                                  -3-
J-A21034-16


           Medical’s claim, namely that the patient could not confirm
           receipt of the DME?

      4. Did the [t]rial [c]ourt improperly conclude that Allstate’s
         refusal to pay Freedom Medical’s medical bills was
         reasonable?

Brief for Appellant at 4.

             Our appellate role in cases arising from non-jury trial
      verdicts is to determine whether the findings of the trial court
      are supported by competent evidence and whether the trial court
      committed error in any application of the law. The findings of
      fact of the trial judge must be given the same weight and effect
      on appeal as the verdict of a jury. We consider the evidence in a
      light most favorable to the verdict winner. We will reverse the
      trial court only if its findings of fact are not supported by
      competent evidence in the record or if its findings are premised
      on an error of law. However, where the issue ... concerns a
      question of law, our scope of review is plenary.

            The trial court’s conclusions of law on appeal originating
      from a non-jury trial are not binding on an appellate court
      because it is the appellate court’s duty to determine if the trial
      court correctly applied the law to the facts of the case.

Stephan v. Waldron Elec. Heating & Cooling LLC, 100 A.3d 660, 664–65

(Pa. Super. 2014) (citation and brackets omitted).

      In its first claim, Freedom Medical contends that the evidence

demonstrated that Santos received the DME, and that Allstate’s payments

were overdue. Brief for Appellant at 18, 19-20, 22-23; see also id. at 18

(wherein    Freedom   Medical   cites   to   section   1716   of the   MVFRL   to

demonstrate that it presented “reasonable proof” of the delivery of the

DME). Freedom Medical argues that Allstate had the following information

demonstrating that Santos had received the DME:               (1) a prescription



                                  -4-
J-A21034-16


received on November 21, 2011, for the DME; (2) Santos’s medical records;

(3) a Health Care Financing Administration form that detailed Santo’s

address, phone number, date of birth, date of the accident, the treating

doctor, the medical provider, the diagnosis, the DME, and the amount

charged for the DME; (4) a recorded statement by Santos confirming receipt

of the DME; and (5) a signed work order. Id. at 19; see also id. at 22-23

(averring that the testimony of Jeffery Bonn, a former collections manager

at Freedom Medical, and Santos was sufficient to demonstrate that the DME

was delivered). Freedom Medical asserts that, despite Allstate’s admission

that Santos had receive some of the DME equipment, the trial court

erroneously found that Santos had not received the DME.         Id. at 22.

Freedom Medical further asserts that the trial court should not have relied

upon Mathis-Bush’s speculative testimony that an imposter, not Santos,

gave the statements regarding delivery of the DME. Id. at 21-23. Freedom

Medical also claims that Allstate failed to question the receipt of the DME

until a demand for payment had been made, approximately 1½ years

following the delivery of the DME. Id. at 20. Freedom Medical argues that

this delay hampered its ability to provide more testimony regarding the

delivery of the DME. Id. at 21.

     The trial court addressed Freedom Medical’s first claim and determined

that it is without merit.   See Trial Court Opinion, 12/29/15, at 16-19.

Specifically, the trial court weighed the evidence and made credibility



                                  -5-
J-A21034-16


determinations against Santos regarding the delivery of the DME. See id. at

17-19; see also Stephan, 100 A.3d at 664.           We will not re-weigh the

evidence.   Accordingly, we adopt the trial court’s sound reasoning, and

affirm on this basis. See Trial Court Opinion, 12/29/15, at 16-19.

      In its next claim, Freedom Medical contends that the trial court erred

in finding that Santos was required to produce the DME at trial to support

the claim that the DME had been delivered.         Brief for Appellant at 23.

Freedom Medical claims that it served a subpoena on Santos to testify at

trial and bring the DME; however, Santos stated that he no longer had the

DME and only had photographs of the DME taken by his son. Id. at 23-24.

Freedom Medical argues that the trial court should not have drawn an

inference against Santos for failing to produce the DME, and instead should

have relied upon photographs of the DME taken by Santos’s son. Id. at 23,

24-25. Freedom Medical also asserts that the trial court erred in finding that

Freedom Medical waived this issue by failing to object to the absence of the

DME because it introduced the testimony. Id. at 24.

      The trial court addressed this claim as follows:

      Freedom Medical incorrectly asserts that because [] Santos did
      not comply with the subpoena issued by Freedom Medical, [the
      trial c]ourt was precluded from considering this fact. Freedom
      Medical does not contend that the subpoena was not lawfully
      issued nor that [] Santos was under an obligation to bring the
      DME to trial. [] Santos testified regarding the subpoena and
      why he did not bring the DME to court. [The trial c]ourt
      considered the evidence presented. [The trial c]ourt properly
      permitted evidence that [] Santos failed to comply with the
      subpoena and produce the DME at trial.


                                  -6-
J-A21034-16



Trial Court Opinion, 12/29/15, at 11; see also N.T., 1/13/15, at 20-22

(wherein Santos testified that he did not comply with the subpoena requiring

him to bring the DME to trial).

      Upon our review, we conclude that the trial court was free to consider

the fact that Santos failed to produce the DME, in contravention of the

subpoena, because the trial court was required to determine whether the

DME was delivered to Santos, and whether Freedom Medical properly billed

Allstate. See Pa.R.C.P. 234.1(a) (noting that “[a] subpoena is an order of

the court commanding a person to attend and testify at a particular time and

place. It may also require the person to produce documents or things which

are under the possession, custody or control of that person.”).      Thus, we

agree with the trial court’s sound reasoning, and conclude that the trial court

was free to consider the fact that Santos failed to produce the DME.      See

Trial Court Opinion, 12/29/15, at 11.

      In its third claim, Freedom Medical contends that the trial court erred

in failing to acknowledge that this case involved an insurance policy, “which

required consideration of a higher standard of care by an insurer towards its

insured or medical provider than in other situations.” Brief for Appellant at

25. Freedom Medical argues that Allstate violated the MVFRL by failing to

pay the first party medical benefits on behalf of Santos within 30 days of the

receipt of reasonable proof of the benefits. Id. at 25, 28.




                                  -7-
J-A21034-16


      The trial court addressed Freedom Medical’s claim and determined that

it is without merit. See Trial Court Opinion, 12/29/15, at 19. We affirm on

the sound reasoning of the trial court for the purposes of this appeal. See

id.

      Freedom Medical also argues that even if it had failed to provide

reasonable proof under the MVFRL, Allstate violated the Unfair Claims

Settlement Practices Regulations (“UCSPR”) and the Unfair Insurance

Practices Act (“UIPA”). Brief for Appellant at 25-26, 28. Freedom Medical

specifically asserts that Allstate failed to complete the investigation within a

reasonable amount of time; failed to advise Freedom Medical when the

investigation would be completed; failed to acknowledge the work order sent

by Freedom Medical; failed to notify Freedom Medical of the results of the

investigation; and misrepresented the reasons for denying the claim. Id. at

25-27.   Freedom Medical claims that the trial court does not dispute that

Allstate violated the USCPR and UIPA. Id. at 27-28.2

      Initially,   the   regulations   cited   by   Freedom   Medical   that   were

purportedly violated only apply to claimants.           See, e.g., 31 Pa. Code

2
  Freedom Medical acknowledges that the UIPA and UCSPR do not create
private causes of action. See Reply Brief for Appellant at 6; see also Smith
v. Nationwide Mut. Fire Ins. Co., 935 F. Supp. 616, 620 (W.D. Pa. 1996)
(applying Pennsylvania law and concluding that “there is no private cause of
action under the UIPA or the [UCSPR].”); Albert v. Erie Ins. Exch., 65
A.3d 923, 931 (Pa. Super. 2013) (stating that “[t]he authority to enforce the
[UIPA] is vested in the Pennsylvania Department of Insurance. In light of
the fact that the Act does not create a private cause of action, the
regulations promulgated thereunder do not create a private cause of
action.”) (citation omitted).


                                       -8-
J-A21034-16


§ 146.7(a)(1) (stating that “[w]ithin 15 working days after receipt by the

insurer of properly executed proofs of loss, the first-party claimant shall be

advised of the acceptance or denial of the claim by the insurer. … The denial

shall be given to the claimant in writing and the claim file of the insurer shall

contain a copy of the denial.”) (emphasis added); 31 Pa. Code § 146.7(c)(1)

(stating that “[i]f the insurer needs more time to determine whether a first-

party claim should be accepted or denied, it shall so notify the first-party

claimant within 15 working days after receipt of the proofs of loss giving the

reasons more time is needed. …”) (emphasis added); 31 Pa. Code § 146.6

(stating that “[e]very insurer shall complete investigation of a claim within

30 days after notification of claim, unless the investigation cannot

reasonably be completed within the time. … [T]he insurer shall provide the

claimant with a reasonable written explanation for the delay and state when

a decision on the claim may be expected.”) (emphasis added). Santos, the

purchaser of the insurance policy with Allstate, not Freedom Medical, is the

claimant.   See 31 Pa. Code § 146.2 (defining claimant as “either a first-

party claimant, a third-party claimant, or both, and including the claimant’s

attorney and a member of the claimant's immediate family designated by

the claimant.”); id. (defining first-party claimant as “[a]n individual,

corporation, association, partnership or other legal entity asserting a right to

payment under an insurance policy or insurance contract arising out of the

occurrence of the contingency or loss covered by such policy or contract.”);



                                   -9-
J-A21034-16


see also 31 Pa. Code § 69.3 (defining “provider” as “[a] person or

institution    which   provides   treatment,   accommodations,    products   or

services.”).    Further, Allstate regularly communicated with the claimant,

Santos, and his attorney during the investigation. See Trial Court Opinion,

12/29/15, at 21. Based upon the foregoing, Freedom Medical is not entitled

to relief on their UIPA and UCSPR claims.

      Finally, Freedom Medical contends that Allstate could not assert new

reasons for the denial at trial, i.e., that the person who gave the recorded

statement in 2012 was not the same person (Santos) who testified at

arbitration in 2014 and trial in 2015. Brief for Appellant at 28-29.

      Here, Allstate initially denied payment to Freedom Medical because

Santos was unable to confirm the receipt of the DME.          See Trial Court

Opinion, 12/29/15, at 2, 19.        Following the filing of Freedom Medical’s

action, Allstate learned that Santos had not provided the statement to

Mathis-Bush in April 2012. See N.T., 1/13/15, 42-43; see also Trial Court

Opinion, 12/29/15, at 3.      The fact that Allstate learned new information

following the institution of the action does not preclude it from raising the

new information as a defense.       See Trial Court Opinion, 12/29/15, at 12

(stating that “[a]lthough Allstate only provided a single reason for denial of

the claim in 2013[,] that does not mean that it is precluded from raising

additional reasons at trial); 16 (stating that “[a]lthough Allstate denied the

claim for a specific reason, this does not preclude Allstate from defending



                                   - 10 -
J-A21034-16


itself in court and challenging the reliability of the evidence presented by

Freedom Medical.”).    We conclude that Freedom Medical’s claim in this

regard is without merit.

      In its fourth claim, Freedom Medical contends that Allstate’s conduct in

denying the claim was unreasonable. Brief for Appellant at 29-30. Freedom

Medical argues that Allstate’s failure to respond to evidence of the delivery

of the DME forced Freedom Medical to file the instant action.      Id. at 29.

Freedom Medical asserts that under section 1716 of the MVFRL, Allstate

should have paid Freedom Medical the amount of its unpaid bills plus 12%

interest, and counsel fees and costs.     Id.   Freedom Medical claims that

Allstate purposefully makes it difficult for medical providers, such as

Freedom Medical, to pursue meritorious claims by “making misleading

statements, filing repeated appeals, and presenting frivolous defenses that

were never communicated to Freedom Medical prior to suit.” Id. at 30; see

also id. at 29-30.

      Here, Freedom Medical again attacks the trial court’s credibility

findings and denial of the claim. As noted above, the trial court was free to

make credibility determinations against Freedom Medical regarding the

delivery of the DME. See Trial Court Opinion, 12/29/15, at 17-19; see also

Stephan, 100 A.3d at 664. We will not re-weigh the trial court’s credibility

determinations, and conclude that Allstate did not act unreasonably in

denying the claim.         See Trial Court Opinion, 12/29/15, at 17-19.



                                 - 11 -
J-A21034-16


Furthermore, we adopt the trial court’s sound reasoning and determination

that Freedom Medical’s counsel fees and costs claims are without merit.

See id. at 23-24.

     Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/15/2016




                               - 12 -
                                                                              Circulated 10/19/2016 10:36 AM




                         IN THE COURT OF COMMON PLEAS
                    FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                               CIVIL TRIAL DIVISION

FREEDOM MEDICAL SUPPLY. INC.                          : OCTOBER TERM 2013                   -
                                                                                            -·
                                                                                            .· .-
                                                                                            :•.     .... .,'
                                                      : NO. 02268                           • I




                PLArNTIFF                             : 3420 EDA 2015

         v.

ALLSTATE FIRE AND CASUAL TY
INSURANCE COMPANY

                DEFENDANT

Powell, J.                                                                    December 29, 2015
                                            OPINION
   I.         PROCEDURAL HISTORY

    Plaintiff brought this action which arose from Defendant's denial of reimbursement for

certain medical equipment. On May 12, 2014. after an arbitration hearing, there was a finding for

Plaintiff against the Defendant in the amount of$13,309.51.    On June 2, 2014, Defendant

appealed the arbitrators' award. On November 14, 2014. Plaintiff filed three Motions in Limine

and on January 9, 2015, the Defendant filed its responses. The case was tried in front of this

Court sitting without a jury on January 12, 2015 and January 13, 2015. On Ju)y 14, 2015, this

Court found for the Defendant and against the Plaintiff. On October 22, 20 t 5, after post-trial

motions were denied, the Plaintiff filed a Notice of Appeal to the Superior Court of

Pennsylvania. On November 6, 2015, the Plaintiff filed a timely Statement of Matters

Complained of on Appeal pursuant Pa.RA.P. 1925(b).

   II.        FACTUAL BACKGROUND

   On June 2, 201 J, Pablo Santos ("Mr. Santos") was injured in a car accident. At the time,

Pablo Santos was the named insured on an automobile insurance policy issued by Allstate



                                                                              11111111 IIIIIIIIIIH 11111111111
•


    Insurance Company(" Allstate"). On September 21, 2011, Mr. Santos saw Dr. Maurice Singer

    ("Dr. Singer") for his injuries. The next day, Freedom Medical Supply ("Freedom Medical")

    received a prescription from Dr. Singer on Freedom Medical's pre-made prescription form dated

    September 22, 2011. The prescription prescribed various durab)e medical equipment ("OM E")

    for Mr. Santos including a Iumbosacral support, a portable home whirlpool, electric moist heat

    pad, cervical pillow, and a portable muscle stimulator. On November 2, 2011, Freedom Medical

    logged a work order, signed by Mr. Santos, indicating delivery of all the prescribed DME to his

    address on 12003 Bustleton Avenue in Philadelphia. N.T. 1/12/2015 at 14, 16, 20, 23, 92; N.T.

    1/13/2015 at 87.

       On November 12, 2011, Freedom Medical submitted a bill to Allstate for reimbursement for

    the DME. On November 29, 2011, Allstate sent a Jetter to Freedom Medical denying its claim

    for reimbursement and indicated that the claim was under investigation. April 29, 2013, Allstate

    sent a letter to Freedom Medical again denying payment explaining that Mr. Santos was unable

    to confirm receipt of DME from the prescribing doctor. N.T. 1/12/2015 at 24, 36-37, 43.

       April Mathis-Bush ("Mathis-Bush"), a claims service adjustor in the special investigation

    unit for Allstate, was assigned to investigate Freedom Medical's claim for reimbursement. On

    April 26, 2012, Mathis-Bush took a statement from an individual who claimed to be Mr. Santos.

    The individual presented a driver's license with the name Pablo Santos. The individual stated

    that he received the DME from Freedom Medical. Ms. Mathis-Bush did not find the individual to

    be credible and denied the claim for reimbursement. After suit had been filed, Ms. Mathis-Bush

    attended an arbitration hearing where Mr. Santos was present. Ms. Mathis-Bush confirmed that

    the individual who gave the statement in April, 2012 was not Mr. Santos. At trial, Ms. Mathis-




                                                                                                       2
Bush also testified that the individual who gave the statement was not the same Mr. Santos who

appeared at trial. N.T. 1/12/2015 at 107. 113-114,     120-121, 124; N.T. 1/13/2015 at 42-43, 57.

           At triaJ, Mr. Santos testified that after he went to Dr. Singer he received some medical

equipment, but he did not know on what date he received it. Mr. Santos described the equipment

he received as "the thing for the chest, the bracelet that is hot. and something for the feet." About

a week after he received the equipment, he gave it to his son because he didn't need the

equipment. Mr. Santos was subpoenaed to bring the medical equipment he received to trial.

Instead of bringing the equipment, Mr. Santos brought pictures of equipment taken by his son.

Mr. Santos testified that he did not remember ever giving a statement about the equipment and

indicated that the first time he ever met Ms. Mathis-Bush was at the arbitration hearing. N.T.

1/13/2015     at 11, 13, 15-23, 27, 29-30.

    Ill.      DISCUSSION

              Appellant raises the following issues:

               1. The Trial Court erred in denying Freedom Medical's Motion in
                   Limine to preclude any challenge to the amount of Freedom
                   Medical's Charges for electrical muscle stimulator ("EMS") and
                   whirlpool (EMS and whirlpool are hereinafter referred to
                   collectively as "DME") and any evidence relating to the cost of
                   Freedom Medical from DME.
              2.   The Trial Court erred in denying Freedom Medical's Motion in
                   Limine to preclude any evidence or testimony relating to
                   reasonableness and necessity of the DME provided by Freedom
                   Medical to Pablo Santos ("Santos").
              3.   Allstate's responses to both [M]otions in (L]imine were untimely
                   by over a month and should not have been considered by the Trial
                   Court.
              4.   The Trial Court erred in allowing evidence relating to the cost of
                   the DME to Freedom Medical, as well as permitting any challenge
                   for the reasonableness and necessity of the DME since no peer
                   review was performed by Allstate. See January 12 2015 N. T. pp.
                                                                       1

                   56-57.
              S.   The Trial Court erred in not permitting discovery of redacted
                   claims notes prepared by Allstate, where no privilege log was

                                                                                                      3
   produced by Allstate, and the claims of Freedom Medical involved
   allegations of wanton conduct on the part of Allstate.
6. The Trial Court erred by not finding that the man who testified at
   the trial in January, 201 S, who identified himself as Santos, was
   the same man who gave a recorded statement to April Mathis]-
     ]Bush ("Bush") of Allstate on April 26, 2012. Specifically, the
     photograph on the driver's license presented to Bush on April 26,
     2012 depicts the same person who testified at the time of
     arbitration and trial. This driver's license expired on March 22,
     2013. This driver's license presented by Santos at trial marked at
     P-23 has the same address that he had been using (12003 Bustleton
     Avenue, Philadelphia, PA, where the DME was delivered). The
     photograph on the more recent license depicts the same person as
     the man who testified at trial, i.e. Santos.
7. Based upon a review of the cvidentiary record as a whole. The
     Trial Court erred by failing to find that Jeffrey BoM of Freedom
     Medical was a credible witness, that Bush was not a credible
     witness, and that Santos was credible insofar that DME was
     delivered to his house in November, 2011.
8. The Trial Court erred by not rejecting Allstate's stated position that
     Santos could not verify receipt of the DME was unreasonable and
     completely unsupported by any evidence as Santos testified at his
     April 26, 2012 recorded statement that he received the DME. Other
     than Bush's mere hunch that Santos did not receive the DME, there
     was overwhelming credible evidence presented at trial that the
     DME was delivered to Santos. Santos also signed a work order
     confirming receipt which was provided to Allstate prior to suit.
     Photographs of the DME were sent to Allstate. No additional
     investigation was performed by Allstate. Finally, Santos testified at
     the arbitration and at trial that he received the DME and later gave
     it to his son, Paul Santos.
9. The Trial Court erred in concluding that Santos was required to
     bring the DME to trial to demonstrate it had been delivered to him
     by Freedom Medical. Although the trial subpoena issued to Santos
     by counsel for Freedom Medical asked him to bring the DME,
     Santos no longer had the DME in his possession and was not
     required to retrieve it from his son to bring it to trial. Sec January
     13, 2015 N.T. p. 82-83. No inference should have been drawn from
     Santos' not bringing the DME, especially when photographs of the
     DME taken by Santos' son where introduced into evidence.
I 0. The Trial Court erred in allowing Bush to testify regarding office
     notes from Maurice Singer, D.0. as it was beyond the scope of
     Bush's direct and cross examination. See January 13, 2015 N.T.,
     pp. 88-97.
11. The Trial Court erred in failing to find that Al1state's failure to pay
     for the DME is limited to the one reason it asserted prior to suit for

                                                                              4
       denying Freedom Medical's claim, namely that the patient could
       not confirm receipt of the DME. See, Lyman v. State Fann Mut.
       Auto. Ins. Co., 2014 U.S. Dist. LEXIS 173345 (E.D. Pa. 2014)
       (Stengel, J.). (Shift in insurer's reasons for denying claim can
       constitute bad faith).
12.    The Trial Court erred in failing to find that Allstate's failure to pay
       Freedom Medical's medical bills was unreasonable. The Trial
       Court should have found that Allstate was liable for damages under
       § 17 J 6 and 1798 of the Pennsylvania Financial Responsibility
       Motor Vehicle Act, including interest at 12% of the bills of
       $373.56 from December 15, 2011 to the present. This amount is
       $3.73 per month, for a total of $138.21 in interest as of the end of
       trial.
13.    The Trial Court erred by failing to find that Allstate violated the
       Unfair Insurance Practices Act ("UIPA"), 40 Pa. C.S.A. § 1171.1
       and Unfair Claims Settlement Practices Regulations (''UCSPA"),
       31 Pa. C. § 146-6, 146. 7 by not completing its investigation within
       a reasonable time and by not properly advising Freedom Medical
       of the results of the investigation.
I 4.   The peer review process is the exclusive system for an insurer to
       challenge the reasonableness and necessity of medical treatment
       provided to an insured. Danton v. State Farm and Mut. Auto
       Insurance Company, 769 f'. Supp. 174, 177 (E.D. Pa. I 991 ); ~
       v. State Farm Insurance Company, 1996 U.S. Dist. LEXIS 5738
       (E.D. Pa. 1996); (peer review is the exclusive system for an insurer
       to challenge the reasonableness and necessity of medical treatment
       to an insured. Williams v. State Farm Mut. Auto. Ins. Co., 763 F.
       Supp. 121, 124 (E.D. Pa. 1991).
15.    Products, which are determined to be necessary by a licensed
       health care provider, are necessary medical treatment and
       rehabilitative services unless they shall have been found or
       determined to be unnecessary by a state-approved peer review
       organization. 75 Pa. C.S.A. § 1702. Thus, duly presented medical
       care is presumptively reasonable and necessary unless peer review
       results is a contrary determination. Levine v. Travelers Pro~rty
       Cas. Ins. Co., 69 A.3d 671, 677 (Pa. Super. 2013).
16.    The Trial Court erred in finding that the DME was not reasonable
       and necessary because Allstate failed to have a peer review
       performed.
17.    Pursuant to the Unfair Claims Settlement Practices Regulations
       ("UCSPR"), "[e]very insurer shall complete investigation of the
       claim within 30 days after notification of the claim, unless the
       investigation cannot reasonably be completed within the time. If
       the investigation cannot be completed within 30 days, and every 45
       days thereafter, the insurer shall provide the claimant with a



                                                                                 5
.


        reasonable written explanation for the delay and state when a
        decision on the cJaim may be expected]."] 31 Pa. C. § 146.6.
    18. Pursuant to the UCSPR, "[w[lthin 15 working days after receipt by
        the insurer of the properly executed proofs of loss, the first party
        claimant shall be advised of the acceptance of denial of the claim
        by the insurer. An insurer may not deny a claim on the grounds of
        a specific policy provision, condition or exclusion unless reference
        to the provision, condition or exclusion is included in the denial.
        The denial shall be given to the claimant in writing and the claim
        file of the insurer shall contain a copy of the denial". 31 Pa. C. §
        146. 7(a)(1 ).
    19. "If the insurer needs more time to determine whether a first-party
        claim should be accepted or denied, it shall so notify the first party
        claimant within 15 working days after receipt of the proof of loss
        giving the reason why more time is needed. lf the investigation
        remains incomplete, the insurer shall, within 30 days of the initial
        notification, and every 45 days thereafter, send to the claimant a
        letter setting forth the reasons why additional time is needed for
        investigation and state when a decision on the claim may be
        expected]."] UCSPR, 31 Pa. C. §164.7.
    20. The Unfair Insurance Practices Act (''UIPA"), 40 Pa. C.S.A.
        § 1171.1. specifically prohibits:
             (i) Misrepresenting pertinent facts or policy or contract
             provisions relating to coverage at issue;
             (ii) Failing to acknowledge and act promptly upon written or
             oral communications with respect to claims arising under
             insurance policies, ...
             (iii) Refusing to pay claims without conducting a reasonable
             investigation based upon all available information;
             [(iv)] Not attempting in good faith to effectuate prompt, fair
             and equitable settlements of claims in which the company's
             liability under the policy has become reasonable clear;
             [(v)] Compelling persons to institute litigation to recover
             amounts due under an insurance policy ... ;
             [(vi)] Failing to promptly provide a reasonable explanation of
             the basis in the insurance policy in relation to the facts of
             applicable law for denial of a claim ... ".
        40 P.S.§1171.S(aXIO) (cited by Grigos v. Certain Underwriters at
        Lloyds, London, 20 IO Phila. Ct. Com. Pl. LEXIS 3 83 (Phila. CCP
        2010) (Bernstein, J.).
    21. The Trial Court erred in failing to find that the conduct of Allstate
        was wanton because its statement to Freedom Medical on Apri) 29,
        2013 that Santos had not received the DME was misleading and an
        outright falsehood. Further, Allstate refused to respond to Freedom
        Medical's request for a copy of the statement of Santos. Allstate's
        goal has been to make it as costly as possible for medical providers

                                                                                 6
               such as Freedom Medical to pursue meritorious claims by making
               misleading statements, filing repeated appeals, and presenting
               frivolous defenses that were never communicated to Freedom
               Medical prior to suit.
           22. The Trial Court erred in failing to find that the failure of Allstate to
               pay Freedom Medical's invoice is conduct which is wanton,
               subjecting Allstate to treble damages pursuant 75 Pa. S.C.A.
               Section 1797(b)(4), as Allstate had no basis not to pay for the
               DME, conducted an incomplete investigation, failed to apprise
               Freedom Medical and Santos of the status of its investigation as
               required by the UIPA, and made false and misleading statements
               that the DME had not been received by Santos. Olsofsky. v.
               Progressive Ins. Co., 52 Pa. D&C 4th 449, 480 fn. 3 (Lack. Cty.,
               2001), 2001 Pa. Dist. & Cnty Dec. LEXIS 418. See also, 75 Pa.
               C.S. § t 797(bXl), for the purpose of PRO.
           23. The Trial Court erred in failing to award reasonable counsel fees to
               Freedom Medical pursuant to 75 Pa. C.S.A. § J 7 l 6, J 797 and 1798.
               Courts have made significant awards for legal fees on similar
               cases. Herd Chiropractic Clinic, P.C. v. State Fann Mutual Auto.
               Ins. Co., 29 A.3d 19 {Pa. Super. 2011) rev'd on other grounds 64
               A.3d 1058 (Pa. 2013) (allowing legal fees of $27,04 7. 50), Levine.
               supra (awarding $27,930.00 in legal fees).
           24. The Trial Court erred in failing to find that the hourly rate of Dean
               E. Weisgold, Esquire, in the amount of $350.00 per hour is
               consistent with other practitioners with his level of experience (26
               years) in this jurisdiction.
           25. The Trial Court erred in failing to find that the legal fees and costs
               submitted by Freedom Medical ($27,079. JO), were fair and
               reasonable and necessarily incurred in connection with this
               litigation, which began at the Philadelphia Municipal Court level in
               2013, continued through arbitration and then concluded at a two
               day trial in 2015. See Exhibit P-9, and updated invoice.

Pre-Trial Matters

       Freedom Medical's first three assignments of error challenge this Court's rulings on

Motions in Limine. A trial court's decision to grant or deny a Motion in Lirnine is subject to an

cvidentiary abuse of discretion standard of review. Catlin v, Hamburg, 56 A.3d 914, 922 (Pa.

Super. 20l2}{quotlng Commonwealth v. Reese, 31 A.3d 708, 715-716 (Pa. Super. 2011)). "An

abuse of discretion may not be found merely because an appellate court might have reached a

different conclusion, but 'requires a manifest unreasonableness, or partiality, prejudice, bias, or

                                                                                                      7
ill-will, or such lack of support so as to be clearly erroneous." Parr v. Ford Motor Co., l 09 A.3d

682, 690-91 (Pa. Super. 2014) (quoting Grady v. Frito-lay, lnc., 839 A.2d 1038, l 046 (Pa.

2003); Keystone Dedicated logistics, LLC v. JGB Enterprises, Inc.. 77 A.3d I, 11 (Pa. Super.

2013). To constitute reversible error, an evidentiary ruling must not only be erroneous, but also

harmful or prejudicial to the complaining party. Parr, J09 A.3d at 690-91 (citation omitted).

       First, Freedom Medical claims that "[tlhe Trial Court erred in denying Freedom

Medical's Motion in Limine to preclude any challenge to the amount of Freedom Medical's

charges for electrical muscle stimulator ("EMS") and whirlpool (EMS and whirlpool are

hereinafter referred to collectively as "DME") and any evidence relating to the cost of Freedom

Medical from DME." In its Motion, freedom Medical argued that Allstate should be precluded

from challenging the amount Freedom Medical charged for DMEs at trial because Allstate had

not previously challenged the amount of the charges and that the amount Freedom Medical

charges for DMEs are set statutorily.

       Under the Pennsylvania Motor Vehicle Financial Responsibility Law ("MVFRV'),

automobile insurance companies must provide insurance coverage "for reasonable and

necessary medical treatment and rehabilitative services." 75 Pa. Stat. and Cons. Stat. Ann. §

1712( I). To be able to be reimbursed under the MVFRL, Freedom Medical is required to

demonstrate the reasonableness of its services. See Freedom Med. Supply,Inc. v Stale Farm

Fire & Cas. Co., 2014 WL 626430, at *7 (E.D. Pa. 2014) (citing Allied Medical Assocs. v. State

Farm Mut. Auto. Ins. Co., 2009 WL 1578603, at •s (E.D. Pa. 2009) (finding an insurer only

needs to pay providers for medical devices that are ..reasonable and necessary").

       Under the MVFRL, "{i)f a prevailing charge, fee schedule, recommended fee, inflation

index charge or DRG payment has not been calculated under the Medicare program for a



                                                                                                    8
particular treatment, accommodation, product or service, the amount of the payment may not

exceed 80% of the provider's usual and customary charge. 75 Pa.C.S. § l 797(a). Neither the

EMS nor the Whirlpool are included in the Medicare Fee Schedule and therefore are unJisted

products subject to the 80% limit.

       Contrary to Freedom Medical's assertion, the MVFRL does not proscribe a single way

for providers to calculate their usual and customary charge. Usual and customary charge is

defined as "[t]he charge most often made by providers of similar training, experience and

licensurc for a specific treatment, accommodation, product or service in the geographic area

where the treatment, accommodation, product or service is provided." 31 Pa. Code§ 69.3. "In

calculating the usual and customary charge, an insurer may utilize the requested payment amount

on the provider's bill for services or the data collected by the carrier or intermediaries to the

extent that the data is made available. 31 Pa. Code§ 69.43(c) (emphasis added). Here, the statute

uses the permissive term "may" which indicates that it not only contemplates, but allows, other

manners of calculating charges. Commonwealth v. Baraniak, 504 A.2d 931 (Pa. Super. 1986)

("While the word 'shall' might, in a proper setting, be interpreted as permissive, the word "may"

can never be given the imperative meaning.") (citation omitted). Accordingly, the requested

payment amount on the provider's bill is not the exclusive means of calculating the usual and

customary charge; but merely an example of one way to calculate the usual and customary

charge. Freedom Medical, to be able to recover, needed to present evidence of its usual and

customary charge. This Court did not err in permitting the parties to present evidence of the

usual and customary charges for DMEs, including the amount of Freedom Medical's bill and the

cost of equipment to Freedom Medical.




                                                                                                    9
       Second, Freedom Medical claims .. (t)he Trial Court erred in denying Freedom Medical's

Motion in Limine to preclude any evidence or testimony relating to reasonableness and necessity

of the DME provided by Freedom Medical to Pablo Santos ("Santos")." In its Motion, Freedom

Medical argued that no evidence should be permitted regarding the reasonableness and necessity

of the DME because there was no peer review. The MVFRL provides a mechanism by which an

insurer may challenge the reasonableness and necessity of an insured's medical treatment. An

insurer may submit an insured's medical bill to a peer review organization ("PRO") to confirm

that such treatment is medically necessary. 75 Pa.C.S. § I 797(b)(l ). However, an insurer is not

required to engage in the PRO process. which is anticipated by the statute. If an insurer does not

utilize the PRO process, an insured or a provider "may challenge before a court an insurer's

refusal to pay for past or future medical treatment or rehabilitative services or merchandise."

Perkins v. Stale Farm Ins. Co., 589 F. Supp. 2d 559, 562-63 (M.0. Pa. 2008) (quoting 15 Pa.C.S.

§ l 797(b)(4)). There is no requirement that an insurer use the PRO process or challenge whether

products are reasonable and necessary. It is the Plaintiffs burden to prove that medical supplies

and charges are recoverable. This Court properly denied Freedom Medical's Motion in Limine.

       Third, Freedom Medical asserts that "Allstate's responses to both Motions in Limine

were untimely by over a month and should not have been considered by the Trial Court."

Relative to a Motion's timeliness, we recognize that a trial court has the discretion to control its

calendar. and this Court may interfereonly when justice demands it. Cheng v. Se. Pennsylvania

Transp. Auth; 981 A.2d 371 (Pa. Cmwlth. 2009). On June 5, 2014, it was ordered that "all pre-

trial and dispositive motions must be filed no later than October 6, 2014." Without requesting a

continuance, Freedom Medical filed both of his Motions in Li mine on November 14, 20 I 4.

Allstate responded on January 9, 2015. Freedom Medical's Motion in Limine were untimely and



                                                                                                    10
in violation of the June 5.2015 Order. This Court finds that Freedom Medical has waived any

challenge to the timeliness of Allstate's response. In addition, Freedom Medical was not

prejudiced by the timing of Allstate's response. This claim is meritless.

       Next, Freedom Medical alleges that "the Trial Court erred in concluding that Santos was

required to bring the DME to trial to demonstrate it had been delivered to him by Freedom

Medical. Although the trial subpoena issued to Santos by counsel for Freedom Medical asked

him to bring the DME, Santos no longer had the DME in his possession and was not required to

retrieve it from his son to bring it to trial. See January 13, 2015 N.T. p. 82-83. No inference

should have been drawn from Santos' not bringing the DME, especially when photographs of the

DME taken by Santos' son where introduced into evidence."

Initially, this Court notes that this claim is waived as counsel failed to object to this evidence at

trial. N.T. 1/13/20) 5 at 21. Issues not raised by timely objection at trial are waived for purposes

of appeal. See Pa.R.A.P. 302; Herd Chiropractic Clinic, P. C. v. State Farm Mu; Auto. Ins. Co.,

29 A.3d 19, 22 (Pa. Super. 2011) rev'd. 64 A.3d 1058 (Pa. 2013) (citing Dilliplaine v. Lehigh

Valley Trust Co.. 322 A.2d 114, 116-17 (Pa. 1974).

       In the event that this issue is not waived, it is meritless. Freedom Medical incorrectly

asserts that because Mr. Santos did not comply with the subpoena issued by Freedom Medical,

this Court was precluded from considering this fact. Freedom Medical does not contend that the

subpoena was not lawfully issued nor that Mr. Santos was under an obligation to bring the DME

to trial. Mr. Santos testified regarding the subpoena and why he did not bring the DME to court.

This Court considered the evidence presented. This Court properly permitted evidence that Mr.

Santos failed to comply with the subpoena and produce the DME at trial.




                                                                                                        11
        Next, Freedom Medical claims "[tjhe Trial Court erred in failing to find that Allstate's

failure to pay for the DM£ is limited to the one reason it asserted prior to suit for denying

Freedom Medical's claim, namely that the patient could not confirm receipt of the DME. See,

Lyman v. State Farm Mut. Auto. Ins. Co., 2014 U.S. Dist. LEXIS 173345 (E.D. Pa. 2014)

(Stengel, J.). (Shift in insurer's reasons for denying claim can constitute bad faith)."

        Preliminary objections shall state specifically the grounds relied upon. All preliminary

objections shall be raised at one time. They may be inconsistent. 231 Pa. Code § 3 l 42(b ). Causes

of action and defenses may be pleaded in the alternative. Pa.R.C.P. No. 1020 (b), "A party

pleading in the alternative cannot be required to elect upon which theory or which claim or

defense he rests his case. To require him to make an election would defeat the purpose of

permitting him to plead in the alternative." Laughlin v. McConnel, 191 A.2d 921, 924 (Pa. Super.

1963) (citation omitted).

        Here. Allstate indicated the in its Explanation of Benefits that it denied Freedom

Medical's claim because Mr. Santos could not confirm receipt of the DME. After Freedom

Medical filed suit, Allstate raised the reasonableness and necessity of the DME as a New Matter.

Defendants are permitted to present inconsistent defenses. Although Allstate only provided a

single reason for denial of the claim in 2013 that docs not mean that it is precluded from raising

additional reasons at trial. This claim is meritless.

Trial Matters

       Freedom Medical next argues that "[t]he Trial Court erred in not permitting discovery of

redacted claims notes prepared by Allstate, where no privilege Jog was produced by Allstate, and

the claims of Freedom Medical involved allegations of wanton conduct on the part of Allstate."




                                                                                                   12
       A party may obtain discovery regarding any matter, not privileged, which is relevant to

the subject matter involved in the pending action. 231 Pa. Code§ 4003.1. Pennsylvania has

historically held that the burden of proof is upon the party asserting that disclosure of the

information would not violate the attorney-client privilege. Commonwealth v. Maguigan, 511

A.2d l 327, 13 34 (Pa. 1986). "In a civil matter counsel shall not be competent or permitted to

testify to confidential communications made to him by his client, nor shall the client be

compelled to disclose the same, unless in either case this privilege is waived upon the trial by the

client." 42 Pa.C.S. § 5928. The attorney-client privilege exists to "foster a confidence between

attorney and client that will lead to a trusting and open dialogue." Gocial v. Jndep. Blue Cross.

827 A.2d 1216, J 222 (Pa. Super. 2003) ( citation omitted). The attorney-client privilege applies

only to confidential communications made by the client to the attorney in connection with

providing legal services. Id

        At trial, after a request by the parties, this Court examined the redacted portions of Ms.

Mathis-Bush's log in camera. This Court determined that the redactions were covered by

attorney-client privilege and were not discoverable by Freedom Medical. N.T. 1/12/2015 at I 26-

132. Freedom Medical has not provided this Court with any information that would establish that

the redacted portions of the log were not privileged.

        Freedom Medical makes multiple assignments of error challenging evidentiary rulings by

this Court. Questions concerning the admissibility of evidence are within "the sound discretion

of the trial court, and its discretion will not be reversed absent a clear abuse of discretion."

Commonwealth v. Selenski, 18 A.3d 1229, 1232 (Pa. Super. 2011). "An abuse of discretion is not

merely an error of judgment, but is rather the overriding or misapplication of the law, or the

exercise of judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-will or


                                                                                                      13
partiality, as shown by the evidence of record." Commonwealth v. Thompson, 106 A.3d 742, 754

(Pa. Super. 2014) (quoting Commonwealth v. Harris, 884 A.2d 920, 924 (Pa. Super. 2005)

appeal denied, 928 A.2d 1289 (Pa. 2007)).

       Freedom Medical claims "[t]he Trial Court erred in allowing Bush to testify regarding

office notes from Maurice Singer, 0.0. as it was beyond the scope of Bush's direct and cross

examination. See January 13, 2015 N.T., pp. 88-97."

       Freedom Medical challenges the following testimony:

              MR. McNULTY: And during those -- those office notes, was Mr.
              Santos purportedly receiving electrical stimulation as a part of the
              treatment?
              MS. MATHIS-BUSH: Yes.
              MR. WEISGOLD: Objection. Beyond the scope of cross.
              THE COURT: No, I will allow it.

              MR. McNULTY: Before yesterday, had this document ever been
              submitted to Allstate?
              MS. MATHIS-BUSH: No.
              MR. WEISGOLD: Objection, Your Honor. It's beyond the scope
              of cross.
              THE COURT: No, I aJlow it.
              MS. MA THIS-BUSH: No.
              M~. McNULTY: Now after yesterday, or --yeah, after yesterday's
              court session, did you look into whether a claim had ever been
              made for a May 15, 2011, accident?
              MR. WEISGOLD: Objection. Beyond the scope of cross. Way
              beyond.
              MR. McNUL TY: I agree, but J would just ask for a little bit of
              leeway.
              THE COURT: I will allow it.
              MR. McNUL TY: I forgot to ask it on direct.

N.T. 1/13/2015 at 89-90.

       The scope of redirect examination is largely within the discretion of the trial court.

Commonwealth v. Dreibelbis, 426 A.2d 1111, 1117 (Pa 1981) (citation omitted). Moreover,




                                                                                                14
.,



     when a party raises an issue on cross-examination, it will be no abuse of discretion for the court

     to permit re-direct on that issue in order to dispel any unfair inferences. Id.

             On cross-examination, counsel for Freedom Medical questioned Ms. Mathis-Bush

     whether she had a practice of requesting notes from doctors who proscribe DME. N.T. 1/13/2015

     at 61. He questioned her regarding the prescription written by Dr. Singer for Mr. Santos. Id at

     69-70. He further questioned Ms. Mathis-Bush about the date of Mr. Santos' visit to Dr. Singer

     and the date of the prescription. Id. at 73-74, 87-88. Here, counsel for Allstate's questions

     regarding the office notes, which corresponded to Mr. Santos' visit and prescription. were clearly

     in response to the questions asked by counsel for Freedom Medical during cross-examination.

             The question regarding the 2011 claim was responsive to the challenges made by counsel

     for Freedom Medical about the completeness of Ms. Mathis-Bush's investigation. To the extent

     they went beyond the scope of cross-examination, counsel was permitted a brief and limited

     amount of questions that he omitted during direct-examination. A trial judge has wide discretion

     to vary the normal order of proof and may permit a party to bring out on re-direct examination

     relevant evidence which inadvertently the party failed to bring out on direct examination.

     Commonwealth v. Brown, 342 A.2d 84, 91 (Pa. 1975) (citation omitted). This Court was within

     its discretion.

              Freedom Medical asserts that "[tjhe Trial Court erred in allowing evidence relating to the

     cost of the DME to Freedom Medical, as well as permitting any challenge for the reasonableness

     and necessity of the DME since no peer review was performed by Allstate. See January 12, 2015

     N.T. pp. 56-57."

              As discussed supra, the MVFRL does not proscribe an exclusive manner for providers to

     calculate their usual and customary charge. "In caJculating the usual and customary charge, an


                                                                                                          15
•   •

        insurer may utilize the requested payment amount on the provider's bill for services or the data

        collected by the carrier or intermediaries to the extent that the data is made available. 31 Pa.

        Code§ 69.43(c) (emphasis added). Usual and customary charge is defined as "[t]he charge most

        often made by providers of similar training, experience and ticensure for a specific treatment!

        accommodation, product or service in the geographic area where the treatment, accommodation,

        product or service is provided." 31 Pa. Code§ 69.3.

               Freedom Medical, to prevail on its claim, was required to establish its usual and

        customary charge. The defense was allowed to present evidence challenging Freedom Medical's

        usual and customary charge. The cost of a device to Freedom Medical is relevant to calculating

        its usual and customary charge. Accordingly, this evidence was admissible. Further, Freedom

        Medical again asserts that Allstate should have been precluded from challenging the evidence of

        the reasonableness and necessity of the DME. Although Allstate denied the claim for a specific

        reason, this does not preclude Allstate from defending itself in court and challenging the

        reliability of the evidence presented by Freedom Medical.

                Freedom Medical makes multiple claims of error challenging this Court's factual

        findings. Freedom Medical claims that:

                    a. Based upon a review of the evidentiary record as a whole. The
                       Trial Court erred by failing to find that Jeffrey Bonn of Freedom
                       Medical was a credible witness, that Bush was not a credible
                       witness, and that Santos was credible insofar that DME was
                       delivered to his house in November, 2011.
                    b. The Trial Court erred by not finding that the man who testified at
                       the trial in January, 2015, who identified himself as Santos, was
                       the same man who gave a recorded statement to April Mathis Bush
                       ("Bush,,) of Allstate on April 26, 2012. Specifically, the
                       photograph on the driver's license presented to Bush on April 26,
                       2012 depicts the same person who testified at the time of
                       arbitration and trial. This driver's license expired on March 22,
                       2013. This driver's license presented by Santos at trial marked at
                       P-23 has the same address that he had been using (12003 Bustleton

                                                                                                           16
.   .
                      Avenue, Philadelphia, PA, where the DME was delivered). The
                      photograph on the more recent license depicts the same person as
                      the man who testified at trial, i.e. Santos.
                   c. The Trial Court erred by not rejecting Allstate's stated position that
                      Santos could not verify receipt of the DME was unreasonable and
                      completely unsupported by any evidence as Santos testified at his
                      April 26, 2012 recorded statement that he received the DME. Other
                      than Bush's mere hunch that Santos did not receive the DME, there
                      was overwhelming credible evidence presented at trial that the
                      DME was delivered to Santos. Santos also signed a work order
                      continuing receipt which was provided to AlJstate prior to suit.
                      Photographs of the DME were sent to Allstate. No additional
                      investigation was performed by Allstate. Finally, Santos testified at
                      the arbitration and at trial that he received the DME and Jater gave
                      it to his son, Paul Santos.

               It is well settled that:

                           [The fact-finder] is entitled to believe all, part, or none of the
                       evidence presented. Rafter v. Raymark Industries, Inc., 429 Pa.
                       Super. 360, 632 A.2d 897 (1993). A [fact-finder] can believe any
                       part of a witness' testimony that they choose, and may disregard
                       any portion of the testimony that they disbelieve. Mitzelfelt v
                       Kamrin, 526 Pa. 54, 584 A.2d 888 (1990). Credibility
                       determinations are for the [fact-finder]. Sundlun v. Shoemaker, 421
                       Pa. Super. 353, 617 A.2d 1330 (1992).
        Randt v. Abex Corp., 234, 671 A.2d 228, 233 (Pa. Super. 1996) ." It is the function of the [fact-

        finder] to evaluate evidence adduced at trial to reach a determination as to the facts) and where

        the verdict is based on substantial, if conflicting evidence, it is conclusive on appeal ."

        Commonwealth v. Reynolds, 835 A.2d 720, 726 (Pa. Super. 2003).

               This Court credited the majority of the testimony of both Mr. Bonn and Ms. Mathis-

        Bush. Both witnesses detailed the actions they took in their professional capacity. However,

        neither Mr. Bonn nor Ms. Mathis-Bush could testify to the events of November 2, 2011 and

        whether or not Mr. Santos received the DME.

               This Court did not credit the testimony of Mr. Santos that be received the DME. It was

        clear from the testimony that Mr. Santos was not in possession of the DME at the time of trial.


                                                                                                            17
N.T. 1/13/2015 at 15. Although Mr. Santos asserted that he received some medical equipment,

he could not accurately describe the items that he received. At trial, Mr. Santos described the

items he received as ''the thing for the chest, the bracelet that is hot, and something for the feet.

Id. at J 3. At the arbitration hearing, Mr. Santos described the items he received as an electrical

thing to give shocks to the heart and over here for the neck and an electrical brace and a thing to

put your feet in the water. Id. at 18. According to Ms. Mathis-Bush, this description does not

describe the equipment Mr. Santos was billed for. N.T. 1/13/2015 at 58. Mr. Santos did not know

the date he received the equipment. Id. at 13. Mr. Santos was unable to produce the DME when

ordered to by the court, even though they were allegedly in the possession of his son. Id at 21-

22.

       Mr. Santos' credibility was damaged by the fact that another person posed as Mr. Santos

and gave a statement to Ms. Mathis-Bush. Mr. Santos indicated that he did not give a statement

to someone after the accident. Td. at 27. Mr. Santos admitted that the first time he met Ms.

Mathis-Bush was at the arbitration hearing. Id. at 29·30.

       Besides Mr. Santos' inaccurate descriptions and Mr. Bonn's incredible assertions that Mr.

Santos received all of the equipment billed for, there was very little corroborating evidence.

Although there was a work order with a signature purportedly from Mr. Santos, this Court does

not find it persuasive. Mr. Santos admitted lo signing papers he did not understand. Id. at 27.

Additionally, there was evidence that another individual had posed as Mr. Santos. There was

nothing in Dr. Singer's notes that indicated that any DME had been discussed with Mr. Santos.

Id. at 57. Finally, although Freedom Medical presented pictures ofDME, there was no credible

evidence supporting that the equipment in the photos was ever provided to Mr. Santos.




                                                                                                        18
Accordingly, the weight of the evidence supported the conclusion that Mr. Santos did not receive

the DME. These claims are meritless.

        Freedom Medical next alleges that "[t]he trial court erred in finding that the DME was

not reasonable and necessary because Allstate failed to have a peer review performed." Freedom

Medical is mistaken. This Court did not conclude that the DME was not reasonable and

necessary. This Court found that Mr. Santos did not receive the DME. Accordingly, no finding

as to the reasonableness or necessity of the equipment was required.

        Freedom Medical claims that "[tjhe Trial Court erred in failing to find that Allstate's

failure to pay Freedom Medical's medical bills was unreasonable. The Trial Court should have

found that Allstate was liable for damages under § 17 I 6 and 1798 of the Pennsylvania Financial

Responsibility Motor Vehicle Act, including interest at 12% of the bills of $373.56 from

December 15, 2011 to the present. This amount is $3.73 per month, for a total of $138.21 in

interest as of the end of trial."

        Benefits are overdue if not paid within 30 days after the insurer receives reasonable proof

of the amount of the benefits. 75 Pa.C.S. § 1716. Freedom Medical did not establish that it

provided DME to Mr. Santos; and thus, did not provide reasonable proof of the amount of

benefits. Therefore, Allstate was under no obligation to pay Freedom Medical.

        Freedom Medical makes multiple allegations of error complaining of Allstate's handling

of its investigation and denial of the claim. Freedom Medical alleges that:

            a. The Trial Court erred by failing to find that Allstate violated the
               Unfair Insurance Practices Act ("UJPA"), 40 Pa. C.S.A. §1171.J
               and Unfair Claims Settlement Practices Regulations ("UCSPA"),
               3 t Pa. C. §146·6, 146.7 by not completing its investigation within
               a reasonable time and by not properly advising Freedom Medical
               of the results of the investigation.
            b. The Trial Court erred in failing to find that the conduct of Allstate
               was wanton because its statement to Freedom Medical on April 29,

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                2013 that Santos had not received the DME was misleading and an
                outright falsehood. Further, Allstate refused to respond to Freedom
                Medical's request for a copy of the statement of Santos. Allstate's
                goal has been to make it as costly as possible for medical providers
                such as Freedom Medical to pursue meritorious claims by making
                misleading statements, filing repeated appeals, and presenting
                frivolous defenses that were never communicated to Freedom
                Medical Prior to suit.
             c. The Trial Court erred in failing to find that the failure of Allstate to
                pay Freedom Medical's invoice is conduct which is wanton,
                subjecting Allstate to treble damages pursuant 75 Pa. S.C.A.
                Section l 797(b )(4), as AJlstate had no basis not to pay for the
                DME, conducted an incomplete investigation, failed to apprise
                Freedom Medical and Santos of the status of its investigation as
                required by the UIP A, and made false and misleading statements
                that the DME had not been received by Santos. Olsofsky, v.
                Progressive Ins. Co., F, 480 fn. 3 (Lack. Cty., 2001), 2001 Pa. Dist.
                & Cnty Dec. LEXIS 418. See also, 75 Pa. C.S. § 1797(b )( 1 ), for the
                purpose of PRO.

        Initially, this Court notes that the Unfair lnsurance Practices Act states "[alny oftbe

following acts if committed or performed with such frequency as to indicate a business practice

shall constitute unfair claim settlement or compromise practices." 40 Pa.C.S.A. § 1171.S(a)(IO)

(emphasis added).. Freedom Medical has not alleged that the complained of actions by Allstate

have been committed with such frequency as to constitute a business practice. This claim is

meritless.

        "Every insurer shall complete investigation of a claim within 30 days after notification of

claim, unless the investigation cannot reasonably be completed within the time. If the

investigation cannot be completed within 30 days, and every 45 days thereafter, the insurer shall

provide the claimant with a reasonable written explanation for the delay and state when a

decision on the claim may be expected." 31 Pa. Code§ 146.6. "[Ijf the investigation remains

incomplete, the insurer shall, 30 days from the date of the initial notification and every 45 days




                                                                                                     20
'   .
        thereafter, send to the claimant a letter setting forth the reasons additional time is needed for

        investigation and state when a decision on the claim may be expected." 31 Pa. Code§ 146.7.

                On November 12, 2011, Freedom Medical submitted an invoice to Allstate. N.T.

        l/12/2015 at 24. On November 29, 2011, Freedom Medical received a Jetter from AJlstate

        denying reimbursement because the claim was under investigation. Id at 36-37. On April 29,

        2013, Allstate sent a letter to Freedom Medical indicating payment was denied. Allstate

        explained that Mr. Santos was unable to confirm receipt of the DME from the prescribing doctor.

        Id. at 43. Although Allstate notified Freedom Medical that it was investigating the claim within

        thirty days of initial notification of the claim, it failed to provide updates to Freedom Medical

        thereafter.

                "Delay is a relevant factor in determining whether bad faith has occurred, but a long

        period of time between demand and settlement does not, on its own, necessarily constitute bad

        faith .... [J)f delay is attributable to the need to investigate further or even to simple negligence,

        no bad faith has occurred." Rowe v. Nationwide Ins. Co., 6 F. Supp. 3d 621, 634 (W.D. Pa. 2014)

        (quoting Kosierowski v. Allstate Ins. Co., 51 F.Supp.2d 583, 588-89 (E.D. Pa. 1999) ajf'd, 234

        F.3d 1265 {3d Cir. 2000) (holding that the insurer's failure to send letters every forty-five days

        explaining why the claim had not yet been evaluated did not create a material issue of fact

        regarding bad faith)).

                Here, Allstate was in regular communication with Mr. Santos and his attorney during the

        investigation. Freedom Medical was aware that Allstate was completing its investigation.

        Freedom Medical has not demonstrated that it was prejudiced by Allstate's failure to send

        regular updates. Although, Allstate was negligent in failing to inform Freedom Medical of the




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            progress of the investigation in the precise manner mandated by the regulations, such negligence

            does not constitute bad faith in this case.

                   Freedom Medical asserts that this Court erred in failing to find that Allstate's conduct

            was wanton and failing to award damages for such conduct. "A provider of medical treatment or

            rehabilitative services or merchandise or an insured may challenge before a court an insurer's

            refusal to pay for past or future medical treatment or rehabilitative services or merchandise, the

            reasonableness or necessity of which the insurer has not challenged before a PRO. Conduct

            considered to be wanton shall be subject to a payment of treble damages to the injured party." 75

            Pa.C.S. § 1797( 4). As this Court has discussed supra, Allstate was justified in denying

            reimbursement because Mr. Santos could not establish receipt of the DME. Allstate was under no

            obligation to undergo the peer review process or pay Freedom Medical's bill. Allstate acted in a

            reasonable manner investigating the claim. Allstate clearly did not act in a wanton manner in

            denying a meritless claim. Morrison v. Mountain Laurel Assurance Co., 748 A.2d 689, 691 {Pa.

            Super. 2000) (noting where a plaintiff cannot demonstrate that denial of coverage was

            unreasonable. bad faith cannot be established).

            Post-Trial Matters

                    Finally, Freedom Medical submits multiple claims of error alleging this Court erred in

            denying attorney's fees:

                        a. The Trial Court erred in failing to award reasonable counsel fees to
                           Freedom Medical pursuant to 75 Pa. C.S.A. § 1716, 1797 and I 798.
                           Courts have made significant awards for legal fees on similar
                           cases. Herd Chiropractic Clinic, P.C. v. State Farm Mutual Auto.
                           Ins. Co., 29 A.3d 19 (Pa. Super. 2011) rev'd on other grounds 64
                           A.3d 1058 (Pa. 2013) (allowing legal fees of $27,04 7 .50), Levine.
                           supra (awarding $27,930.00 in legal fees).
                        b. The Trial Court erred in failing to find that the hourly rate of Dean
                           E. Weisgold, Esquire, in the amount of $350.00 per hour is


                                                                                                                 22
.   - .
                        consistent with other practitioners with his level of experience (26
                        years) in this jurisdiction."
                     c. The Trial Court erred in failing to find that the legal fees and costs
                        submitted by Freedom Medical ($27,079. l 0), were fair and
                        reasonable and necessarily incurred in connection with this
                        litigation, which began at the Philadelphia Municipal Court level in
                        2013. continued through arbitration and then concluded at a two
                        day trial in 2015. See Exhibit P-9, and updated invoice.

                 Counsel for Freedom Medical argues that the foJlowing sections entitle him to attorney

          fees. "ln the event the insurer is found to have acted in an unreasonable manner in refusing to

          pay the benefits when due, the insurer shall pay, in addition to the benefits owed and the interest

          thereon, a reasonable attorney fee based upon actual time expended." 75 Pa.C.S. § 1716

          (emphasis added) .. "If, pursuant to paragraph (4), a court determines that medical treatment or

          rehabilitative services or merchandise were medically necessary, the insurer must pay to the

          provider the outstanding amount plus interest at 12%, as well as the costs of the challenge and all

          attorney fees." 75 Pa.C.S. § 1797(6). "In the event an insurer is found to have acted with no

          reasonable foundation in refusing to pay the benefits enumerated in subsection (a) when due, the

          insurer shall pay, in addition to the benefits owed and the interest thereon, a reasonable attorney

          fee based upon actual time expended." 75 Pa.C.S. § 1798(b).

                 However, counsel for Freedom Medical ignores that "[i]f it is determined by a PRO or

          court that a provider has provided unnecessary medical treatment or rehabilitative services or

          merchandise or that future provision of such treatment, services or merchandise will be

          unnecessary, or both, the provider may not collect payment for the medically unnecessary

          treatment, services or merchandise." 75 Pa.C.S. § 1797(7) (emphasis added). The default rule in

          Pennsylvania is that litigants bear responsibility for their own attorneys' fees in the absence of

          express statutory authorization for fee awards, contractual fee-shifting, or some other recognized




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               exception. Herd Chiropractic Clinic. P.C. v. State Farm Mui. Auto. Ins. Co., 64 AJd 1058,

                   1062-63 (Pa. 2013) (citation omitted).

                          Freedom Medical did not establish that it provided DME to Mr. Santos. Freedom Medical

                   did not provide any merchandise to Mr. Santos, regardless of whether it was medically necessary

                   or not. Thus, Allstate acted in a reasonable manner in denying its claim for reimbursement.

                   Accordingly, counsel for Freedom Medical was not entitled to any attorney fees.

                          Finally, this Court notes that paragraphs 14, 15, 17, 18, 19, and 20 of Freedom Medical's

                   Concise Statement of Matters Complained of on Appeal do not allege any aJlegations of error.

                   This Court will not address them.

              I.          CONCl ..USION

                          For the foregoing reasons, the decision of this Court, granting judgment in favor of the

                   Defendant, Allstate, and against Plaintiff, Freedom Medical, should be aff     d.




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