J-A07013-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    BERKS COUNSELING CENTER                    :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    COMMUNITY CARE BEHAVIORAL                  :
    HEALTH ORGANIZATION                        :
                                               :   No. 898 MDA 2017
                       Appellant               :

                 Appeal from the Order Entered March 10, 2017
                 In the Court of Common Pleas of Berks County
                        Civil Division at No(s): 15 14644


BEFORE:      PANELLA, J., OLSON, J., and STEVENS, P.J.E.

MEMORANDUM BY PANELLA, J.                      FILED: NOVEMBER 7, 2018

        Community Care Behavioral Health Organization (“Community Care”) is

a non-profit behavioral health managed care organization that administers

health care benefits to its members in Berks and Chester counties. It contracts

with behavioral healthcare professionals to provide care for its members with

behavioral disabilities and pays for the care from Medicaid funds. Berks

Counseling Center (“BCC”) is one such behavioral healthcare provider.

        As part of its administration of Medicaid funds, Community Care

monitors its providers for fraud, waste, or abuse of taxpayer funds. In 2015,

Community Care determined BCC, and its satellite office, Chester Counseling


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   Former Justice specially assigned to the Superior Court.
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Center (“CCC”), had failed a fraud, waste, or abuse audit sufficient to require

repayment of $105,486.13 in Medicaid funds. The parties refer to this action

as a “retraction.”

       BCC subsequently filed this declaratory judgment action, seeking a

ruling that, under its contract with Community Care, retraction was not a

proper remedy for the deficiencies identified in the audit. BCC asserted that

“provider education,” a process where Community Care assists the contractor

in complying with contractual and regulatory requirements, was the proper

remedy for most of the infractions. It sought to cancel the retraction of

approximately $80,000.

       After a bench trial, the court determined that BCC was entitled to the

cancellation of $81,704.47 in retractions. The court denied post-trial motions,

and Community Care filed this timely appeal.1 Community Care claims the

court erred eight different ways in entering judgment. We affirm.

       Preliminarily, we have to comment on Community Care’s brief. It raises

eight challenges to the trial court’s order. Raising so many issues reminds us

of Justice Robert H. Jackson’s warning about such an approach:




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1 Community Care purports to appeal from the order entered May 9, 2017,
denying post-trial motions. This was not the final, appealable order for
appellate purposes. The appeal should have been properly taken from the
order of declaratory judgment, which is the final order. See Peters v.
National Interstate Ins. Co., 108 A.3d 38, 41 n.2 (Pa. Super. 2014). We
have corrected the caption accordingly.

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      Legal contentions, like the currency, depreciate through
      overissue. The mind of an appellate judge is habitually receptive
      to the suggestion that a lower court committed an error. But
      receptiveness declines as the number of assigned errors
      increases. Multiplicity hints at a lack of confidence in any one. Of
      course, I have not forgotten the reluctance with which a lawyer
      abandons even the weakest point lest it prove alluring to the same
      kind of judge. But experience on the bench convinces me that
      multiplying assignments of error will dilute and weaken a good
      case and will not save a bad one.

Ruggero J. Aldisert, J. “Winning on Appeal: Better Briefs and Oral Argument,”

at 130 (2d ed. 2003) (quoting Robert H. Jackson, “Advocacy Before the United

States Supreme Court,” 37 Cornell L.Q. 1, 5 (1951)).

      This “much quoted” advice, unfortunately, “often ‘rings hollow’….”

Commonwealth v. Robinson, 864 A.2d 460, 480 n.28 (Pa. 2004) (citing

Ruggero J. Aldisert, J. “The Appellate Bar: Professional Competence and

Professional Responsibility–A View From the Jaundiced Eye of the Appellate

Judge,” 11 Cap. U.L. Rev. 445, 458 (1982)). But its importance cannot be

overstated. See, e.g., Jones v. Barnes, 463 U.S. 745, 751-752 (1983)

(“Experienced advocates since time beyond memory emphasized the

importance of winnowing out weaker arguments on appeal and focusing on

one central issue if possible, or at most on a few key issues.”); Howard v.

Gramley, 225 F.3d 784, 791 (7th Cir. 2000) (“[O]ne of the most important

parts of appellate advocacy is the selection of the proper claims to urge on

appeal. Throwing in every conceivable point is distracting to appellate judges,

consumes space that should be devoted to developing the arguments with

some promise, inevitably clutters the brief with issues that have no chance …

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and is overall bad appellate advocacy.”); Aldisert, supra at 129 (“When I read

an appellant’s brief that contains more than six points, a presumption arises

that there is no merit to any of them.”)

      Indeed, this presumption is borne out by Community Care’s brief.

Outside of its first and sixth issues (labeled “A.” and “F.,” respectively),

Community Care does not provide any citation to authority for its arguments.

See Pa.R.A.P. 2119(a) (requiring citation to pertinent legal authority in

support of a party’s legal argument). “The failure to develop an adequate

argument in an appellate brief may result in waiver of the claim under

Pa.R.A.P. 2119.” Commonwealth v. Beshore, 916 A.2d 1128, 1140 (Pa.

Super. 2007) (en banc) (citation, brackets, and quotation marks omitted).

“[T]his Court has held that arguments which are not sufficiently developed are

waived.” Brody v. Brody, 758 A.2d 1274, 1281 (Pa. Super. 2000) (citation

omitted).

      For example, in issue “B.,” Community Care argues the court erred in

finding that BCC and CCC were separate entities for the purpose of applying

the FWA 015 policy. Community Care does not cite to any authority on the

issue of interpreting and construing contracts. Nor does it cite any law on

business entities. In fact, despite several arguments requesting we overturn

the trial court’s legal conclusions on the scope of the contract between the

parties, Community Care never cites to any authority to support its belief the

trial court incorrectly construed the contract.


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      Due to Community Care’s failure to comply with the requirements of

Pa.R.A.P. 2119(a), we are unable to provide meaningful review of these

issues. Thus, we find issues “B.” through “E.” as well as issues “G.” and “H.”

waived. See, e.g., Beshore, 916 A.2d at 1140; In re Jacobs, 936 A.2d 1156,

1167 (Pa. Super. 2007).

      The facts are largely undisputed. Community Care contracted with BCC

to provide services starting in 2001. The parties updated their agreement in

2007. The 2007 agreement is the foundational document that governs the

current dispute.

      That agreement allowed Community Care to amend the agreement by

providing written notice to BCC. Any amendment was subject to approval by

appropriate governmental agencies, if governing law required it. Also, the

agreement would be “deemed amended to comply with any change in

applicable state or federal law or regulation.” 2007 Agreement, at ¶ 11. E.

      The parties subsequently amended the 2007 agreement to include CCC.

The amendment was executed in a writing signed by both parties. CCC is a

registered fictitious name of BCC, and is not a separate legal entity.

      The primary dispute between the parties is a document known as

Community Care’s FWA 015 policy. Specifically, the parties disagree on the

version of the FWA policy that governed Community Care’s audits of BCC and

CCC in 2015.




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      BCC conceded at trial that an unsigned document labeled “FWA 015

Policy” and dated May 31, 2011, was a valid amendment to the 2007

agreement. The FWA 015 policy provides the process used by Community Care

to implement its Medicaid mandated program for eliminating fraud, waste, or

abuse of Medicaid funds. Pursuant to FWA 015, Community Care would

perform periodic audits of BCC’s records to ensure compliance with

recordkeeping and other requirements.

      FWA 015 sets forth a non-exclusive list of audit deficiencies and

identifies   the   associated   consequences.     There    are   three   possible

consequences identified in the policy. For the most serious deficiencies,

“[r]epayment or retraction is expected[.]” For less serious deficiencies,

“provider education for the first audit,” while a deficiency after a “second audit

will result in provider repayment or retraction for the same deficiency[.]”

(emphasis supplied). For minor deficiencies, Community Action would alert

BCC of the deficiency, but no retraction would be taken. At the bottom of

every page in the policy is the disclaimer:

      All policies, standards, rules, directive, or regulations contained in
      these materials and however denominated, developed, published
      or promulgated by Community Care are proprietary and
      confidential information of Community Care and are subject to
      change, revision, modification or withdrawals by Community Care
      at any time without notice and subject only to any required
      governmental approvals as to such changes or modifications.

BCC never objected to this disclaimer. See N.T., Bench Trial, 1/19/17, at 70.




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      At the end of 2014, Community Care modified the FWA 015 policy. The

primary relevant change occurred in the description of the second,

intermediate consequence from an audit deficiency. Now, a deficiency found

after a “second audit will result in provider repayment or retractions for all

deficiencies identified[.]” (emphasis supplied).

      In 2014, Community Care conducted two audits of BCC. Community

Care found level two deficiencies in each audit, and imposed provider

education on BCC.

      The audits at issue here occurred in 2015. The first audit concerned

BCC, while the second audit concerned CCC. Community Care found multiple

level two deficiencies in both audits. It concluded the 2015 audits were second

audits of BCC, and therefore imposed retractions.

      BCC filed a complaint for declaratory judgment, seeking a definitive

statement as to Community Care’s right to retraction under the contract. After

holding a one-day trial, the court found that the original, 2011 FWA 015 policy

applied. It thus concluded Community Care was not entitled to retraction on

a significant number of the audit deficiencies, and declared that BCC was

entitled to an award of $81,704.47.

      The court denied Community Care’s post-trial motion. Community Care

subsequently filed this timely appeal.

      Our review of a declaratory judgment is narrow. See Peters, 108 A.3d

at 42. If the court’s factual findings have support in the record, we may not


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substitute our judgment for the court’s. See id. However, we review the

court’s application of the law de novo. See id., at 43. We may only reverse if

the court “clearly abused its discretion or committed an error of law.” Id., at

42. “The purpose of a declaratory judgment action is to afford relief from

uncertainty and insecurity with respect to legal rights, status and other

relations.” Osram Sylvania Products, Inc. v. Comsup Commodities, Inc.,

845 A.2d 846, 849 (Pa. Super. 2004) (internal quotation marks and citations

omitted).

         Turning to Community Care’s preserved arguments, it first contends the

trial court erred in ignoring regulatory requirements when it found Community

Care had improperly imposed retraction on CCC. The trial court found that

Community Care had retracted funds based upon CCC’s failure to have the

supervising physician’s signature on initial assessments for patients. See Trial

Court Opinion, filed 3/10/17, at ¶ 73.

         However, at trial, Community Care asserted that the retraction was not

merely for a missing signature, but because CCC failed to have a supervising

physician at all during the audit period. BCC conceded that it did not have a

supervising physician during the audit period. See N.T., Bench Trial, 1/19/17,

at 40.

         Community    Care   argues   that   pursuant   to   55   Pa.   Code   §

1223.52(a)(6)(i) payment is conditioned on the supervisory physician’s review

of and signing off on a patient’s “level of care assessment, psychosocial


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evaluation, treatment plan, and diagnosis[.]” BCC conceded at trial that

Medicaid regulations required a supervising physician sign off on treatment

plans. See N.T., Bench Trial, 1/19/17, at 42. “[W]e know that and we abide

by that [§ 1223.52(a)(6)(i)’s requirement to have a doctor sign treatment

plans] to the best of our ability. We did stop seeing clients once we were told

by [Community Care] that it was absolutely necessary.” Id., at 42.

      Thus, the record establishes that CCC violated § 1223.52(a)(6)(i). And

that section provides that payment will not be made if it is violated. However,

nothing in the record establishes Community Care’s power to enforce the

mandates of § 1223.52(a)(6)(i), except for the agreement between the

parties.

      The trial court concluded that this was the first audit of CCC under the

contract with Community Care. Thus, it held that provider education was the

only remedy available to Community Care under the agreement with BCC.

Community Care’s argument that this interpretation of the contract was in

error is waived due its failure to develop the argument properly with citations

to authority.

      CCC concededly violated the applicable regulations. But Community

Care has not established its authority to impose retraction for the violation.

As a result, Community Care’s issue “A.” does not merit any relief.

      In Community Care’s second and final preserved issue on appeal, it

contends the trial court erred in concluding that BCC had substantially


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performed its obligations under the contract. Substantial performance

embodies the recognition that justice is not served by imposing forfeiture due

to technical or trivial failures. See Atlantic LB, Inc. v. Vrbicek, 905 A.2d

552, 558 (Pa. Super. 2006). It is “intended for the protection and relief of

those who have faithfully and honestly endeavored to perform their contracts

in all material and substantial particulars....” Id. (citation omitted). However,

substantial performance does not apply where the breaching party has acted

intentionally. See In re Carson Estate, 37 A.2d 488, 491-492 (Pa. 1944).

          Community Care identifies two specific breaches on the part of BCC that

it believes should not qualify for substantial performance. First, it argues that

BCC’s failure to have a supervising physician cannot constitute substantial

performance. As shown above, however, the trial court concluded Community

Care did not have the right to impose retraction for this breach under the

contract. Thus, even if BCC did not substantially perform its duty to have a

supervising physician sign off on treatment plans, Community Care is due no

relief.

          The second breach identified obliquely by Community Care is BCC’s

failure to determine “whether the documentation [it submitted] was compliant

before it submitted it[.]” Appellant’s Brief, at 55. Community Care does not

explicitly identify what documentation it is referencing in this argument.

However, a review of the brief as a whole implies Community Care is taking




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issue with the trial court’s decision to disregard the contractual requirement

that BCC’s initial response to an audit be full and complete.2

       BCC concedes the contract provided that no documents would be

accepted after the day of the audit. The dispute here was based on BCC’s

documentation of treatment plans submitted during the audit. When BCC

submitted the documents electronically, the physician’s signature was not

visible. Community Care notified BCC of this failure, and BCC responded the

same day by printing out physical copies of the records and sent them to

Community Care.

       The court found that the signatures were not visible on the electronic

submission due to a “software glitch.” Trial Court Opinion, 3/10/17, at ¶ 47.

Also the court found that it was not due to user error. See id., at ¶ 48. Thus,

the court found the physical print outs were “not supplemental documentation

to be considered for the audit, rather it was clarification documentation or

what had always been present in the records.” Id., at ¶ 51. Furthermore, the

court found Community Care had not established “that signatures were




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2  This argument mirrors the argument set forth in issue “C.,” where
Community Care argued the proper construction of the contract excluded
review of any response to the audit other than the initial one. As noted above,
issue “C.” is waived due to Community Care’s failure to cite any authority to
support its argument. In contrast, Community Care has preserved its
challenge to the court’s finding that BCC substantially performed by including
citations to authorities supporting its argument.

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actually missing from the BCC records and in fact admitted that some of the

signature[s] were present in the BCC records.” Id., at ¶ 55.

     These findings are all well supported by the record. Under these

circumstances, we cannot conclude the trial court erred in finding that BCC

had substantially performed with regard to these specific treatment plans.

     As none of Community Care’s issues merit relief, we affirm the

declaratory judgment order.

     Order affirmed.

     President Judge Emeritus Stevens joins the memorandum.

     Judge Olson concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/07/2018




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