GGNSC Clarion LP v. Kane
131 A.3d 1062
Pa. Commw. Ct.2016Background
- In 2012, OAG entered a contingent fee agreement with Cohen Milstein to investigate nursing facilities’ marketing/billing practices under the Consumer Protection Law.
- Facilities filed a petition for declaratory relief seeking limits on OAG’s authority to investigate and litigate staffing-related issues and subpoenas under Counts I–III.
- Health Care Facilities Act gives DOH authority to regulate staffing standards, but not to police marketing/billing practices; CP Law gives OAG enforcement power.
- OAG later filed an enforcement action (Kane v. GGNSC) against GGNSC facilities and others, asserting CP Law violations from marketing and billing.
- PHCA sought intervention; subpoenas issued to GGNSC facilities were withdrawn, affecting Count III’s mootness.
- The court ultimately granted preliminary objections and dismissed the amended petition in full, with standing issues under Janssen controlling Count II.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Authority to investigate staffing under CP Law vs. DOH exclusive powers | Facilities argue DOH exclusive over staffing actions | OAG argues CP Law enforcement can address staffing representations | Count I dismissed as to remaining facilities and PHCA |
| Standing to challenge outside counsel and contingent-fee arrangement | Facilities lack standing to challenge Cohen Milstein participation | Janssen v. Janssen governs standing for outside counsel | Count II dismissed under Janssen standing rule |
| Subpoenas enforcement and ripeness of challenges to subpoenas | Challenges premised on subpoenas are ripe | Subpoenas moot without enforcement action; premature to challenge | Counts I and III dismissed as moot/premature |
| Whether declaratory relief is proper where enforcement action is pending | anticipatory controversy justifies declaratory relief | Anticipatory relief improper when enforcement action exists | Declaratory relief denied; actions addressed in enforcement proceeding |
Key Cases Cited
- Janssen Pharmaceutica, Inc. v. Janssen, 8 A.3d 267 (Pa. 2010) (standing under Section 103; outside counsel representation scrutiny)
- Ven-Fuel, Inc. v. Department of the Treasury, 673 F.2d 1194 (11th Cir. 1982) (declaratory relief premised on anticipated enforcement improper)
- Sears v. Wolf, — Pa. —, 118 A.3d 1091 (Pa. 2014) (statutory standing principles under specialized regime)
- American Nuclear Insurers v. Metropolitan Edison Co., 582 A.2d 390 (Pa. Super. 1990) (administrative action and declaratory relief considerations)
- Ocala Star Banner Corp. v. State, 721 So.2d 838 (Fla. Dist. Ct. App. 1998) (mootness when subpoena withdrawn)