UNITED STATES DISTRICT COURT

 FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ARIEL OLIVENCIA, :

Plaintiff :

: No.: 02-CV 4184

v. :

: 

DELTA DENTAL OF :

PENNSYLVANIA, :

Defendant :

 ANSWER AND NEW MATTER 

AND NOW comes the Defendant, Pennsylvania Dental Service Corporation,

t/d/b/a Delta Dental of Pennsylvania ( “Delta Dental of Pennsylvania”) by its counsel,

Nauman, Smith, Shissler & Hall, LLP, and files the within Answer and New Matter

and avers as follows:

1. Plaintiff alleges that in January, 2001, he contracted with a dental

surgeon to extract three wisdom teeth. Admitted.

2. Plaintiff alleges that prior to the surgery, Plaintiff contacted Defendant

to ensure that the procedure was covered under his father’s dental insurance. It is

admitted that Plaintiff contacted Defendant prior to the performance of the procedure.

However, Defendant is without knowledge or belief as to Plaintiff’s motive for doing

so. By way of further answer, it is denied that verification of benefits or eligibility

over the phone can constitute a guarantee of payment. 

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3. Plaintiff alleges that prior to the day of the procedure, Plaintiff’s dental

office called Defendant twice, and coverage was confirmed. Admitted in part, denied

in part. It is admitted that Plaintiff’s dental office called Delta. Delta is without

knowledge or belief as to the substance of the conversation. By way of further

answer, it is denied that verification of benefits or eligibility over the phone can

constitute a guarantee of payment. 

4. Plaintiff alleges that two weeks after the surgery, Plaintiff received a bill

for the total cost of the procedure in the amount of $1,365.00. Delta is without

knowledge, information, or belief as to whether the Plaintiff received a bill, or the

amount of said bill. By way of further answer, Delta does not send bills to

subscribers, and did not send a bill to Mr. Olivencia. It is admitted that Delta sent a

“Notice of Payment” to Mr. Olivencia indicating that Delta’s plan payment was $0.00

because he was not eligible for coverage under the governing Contract. 

5. Plaintiff alleges that he contacted Delta’s office, he was told that he was

not eligible for coverage. Admitted. 

6. Plaintiff alleges that his efforts to resolve this matter with Delta were to

no avail. It is denied that Plaintiff availed himself of Delta’s appeal and grievance

procedure, or that Delta has in any way prevented him from doing so, or will prevent

him from doing so at the present time. 

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7. Plaintiff alleges that after he contacted the insurance commissioner,

plaintiff received a bill from defendant for a balance due of $750.00. It is denied that

Delta sends bills to subscribers, or that Delta sent a bill to Mr. Olivencia. To the

contrary, Delta sent Plaintiff a “Notice of Payment” indicating that Delta’s plan

payment would be $406.00. It is denied that Delta’s payment of $ 406.00 was the

result of the Plaintiff contacting the Insurance Department. To the contrary, Mr.

Olivencia’s eligibility was updated on August 30, 2001, and the claim was

reprocessed. 

8. Plaintiff alleged that when Plaintiff failed to remit payment, the balance

due was sent to collections, affecting Plaintiff’s Credit. It is specifically denied that

Delta refers matters to collections, or that Delta contacted a collection agency with

regard to Mr. Olivencia’s claim. By way of further answer, Delta is without

knowledge, information or belief as to whether Mr. Olivencia’s dentist referred Mr.

Olivencia’s unpaid balance to collections, or as to the status of Plaintiff’s credit. 

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WHEREFORE, the Defendant, Delta Dental of Pennsylvania demands

judgment in its favor and against Plaintiff, Ariel Olivencia. 

First Affirmative Defense 

1. Plaintiff’s cause of action against Delta Dental of Pennsylvania for

denial of benefits arises under the Employee Retirement Income Security Act of 1974

(“ERISA”), 29 U.S.C. § 1001 et seq. 

2. Plaintiff alleges a state common law cause of action against Defendant.

3. ERISA preempts all state law causes of action alleged in Plaintiff’s

complaint. 29 U.S.C. §1144. 

Second Affirmative Defense 

4. This court lacks jurisdiction because the Plaintiff has failed to exhaust

the available administrative procedures available to him under his dental plan.

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WHEREFORE, Delta Dental of Pennsylvania, Defendant demands judgment

in its favor and against Plaintiff as to any and all claims set forth in his Complaint.

NAUMAN, SMITH, SHISSLER & HALL, LLP

By: 

Jodi A. Beierschmitt, Esquire

Supreme Court I.D. No. 84727

200 North Third Street

P. O. Box 840

Harrisburg, PA 17108-0840

Telephone: (717) 236-3010

Counsel for Pennsylvania Dental Service

Corporation, t/d/b/a Delta Dental of 

Pennsylvania

Date: September 10, 2002

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CERTIFICATE OF SERVICE

AND NOW, on the date stated below, I hereby certify that on the date listed

below, I served the foregoing Answer by depositing a copy of the same in the United

States Mail, first class, postage prepaid, at Harrisburg, Pennsylvania, addressed to

the following:

Ariel Olivencia

1316 Deveraux Ave. 

Philadelphia PA 1911-5816

____________________________________

Penny A Rogers, Legal Assistant to

Jodi A. Beierschmitt

Dated: September 10, 2002

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