J-A27020-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

LIBERTY MUTUAL GROUP, INC., 

LIBERTY MUTUAL INSURANCE 

COMPANY, AMERICAN STATES 

INSURANCE COMPANY, COLORADO 

CASUALTY COMPANY, EMPLOYERS 

INSURANCE COMPANY OF WAUSAU, 

EXCELSIOR INSURANCE COMPANY, 

LIBERTY INSURANCE CORPORATION, 

LIBERTY MUTUAL FIRE INSURANCE 

COMPANY, LIBERTY MUTUAL 

INSURANCE 

COMPANY/CONSOLIDATED 

INSURANCE COMPANY, LIBERTY 

NORTHWEST INSURANCE 

CORPORATION, LM INSURANCE 

CORPORATION, PEERLESS 

INDEMNITY INSURANCE COMPANY, 

PEERLESS INSURANCE COMPANY, 

AND SAFECO INSURANCE COMPANY 

OF ILLINOIS 

Appellants

v.

700 PHARMACY, LLC, INSIGHT 

PHARMACEUTICAL SOLUTIONS, LLC, 

D/B/A INSIGHT PHARMACY, UNITED 

PHARMACY SERVICES, LLC, D/B/A 

UNITED PHARMACY, ARMOUR 

PHARMACEUTICAL SOLUTIONS, LLC, 

D/B/A ARMOUR PHARMACY, OMNI 

PHARMACY SERVICES, LLC, D/B/A 

OMNI PHARMACY, EMPIRE PHARMACY 

SERVICES, LLC, D/B/A EMPIRE 

PHARMACY, MEDARBOR, LLC, D/B/A 

MEDARBOR PHARMACY, 1ST CHOICE 

PHARMACY, LLC, MEDICINE WORX, 

LLC, PHILLIP SHIN, MIROSLAV KESIC, 

MANDEEP GILL, RISHIN A. PATEL, 

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IN THE

SUPERIOR COURT OF

PENNSYLVANIA

No. 3357 EDA 2019
J-A27020-20

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N.D., JASON CHONG, MINA NAKHLA, 

STEVEN KATSARAKES, YOUNG HOON 

GIM, NINA LUU, GRACJA OSINSKA, 

CHRISTINE VU, HAJIRA EBADY, 

JULIETTA LEUNG, MITESH K. PATEL, 

M.D., MITESWAR PUREWAL, M.D., 

SHAILEN JALALI, M.D., MARK AVART, 

D.O., LAURA SECZECH, PA-C, 

THERESA DIJOSEPH, PA-C, AVNER R. 

GRIVER, M.D., DENNIS W. IVILL, 

M.D., JONAS JOAGUIN GOPEZ, M.D., 

JOSEPH DAVID PAZ, D.O., RONALD 

LUBER, D.O., THOMAS SKEEHAN, 

M.D., UPLEKH PUREWAL, M.D., SCOTT 

EPSTEIN, M.D., MARK ESKANDER, 

M.D., CORY HAWLEY, D.P.M., 

RONALD B. LINCOW, D.O., GERALD E. 

SWORKIN, D.O., STEVEN VALENTINO, 

D.O.

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Appeal from the Order Entered September 13, 2019

In the Court of Common Pleas of Philadelphia County Civil Division at 

No(s): No. 170901541

BEFORE: STABILE, J., NICHOLS, J., and COLINS, J.*

MEMORANDUM BY NICHOLS, J.: FILED NOVEMBER 29, 2021

Appellants, Liberty Mutual Group, Inc., and its related companies, 

underwriters, and subsidiaries, appeal from the order granting the motion for 

summary judgment filed by Appellees, a group of pharmacies, pharmacists,

physicians, physician assistants, and lay investors, and entering judgment in 

favor of Appellees on all claims. We affirm.

We adopt the trial court’s thorough summary of the facts underlying this 

matter. See Trial Ct. Op., 9/23/19, at 2-9. By way of brief background, we 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
J-A27020-20

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note that Appellants filed a complaint against Appellees alleging fraud, 

insurance fraud, aiding and abetting, and unjust enrichment.

1

 Therein, 

Appellants claimed that Appellees had created an unlawful business structure 

under which doctors prescribed topical compound pain creams to patients who 

had been injured at work or in automobile accidents. The patients then filled 

the prescriptions at pharmacies in which the doctors had a financial interest. 

Appellees alleged that the compound pain creams were formulated by 

pharmacies for the sole purpose of generating a profit and that Appellee 

doctors were receiving unlawful kickbacks.

Specifically, Appellants claimed:

[Appellees] engaged in illegal compounding by producing and 

dispensing vast quantities of the fraudulent compounded creams 

in set formulations, in violation of federal and Pennsylvania state 

regulatory and licensing requirements imposed on drug 

manufacturers and outsourcing facilities, rendering them ineligible 

to receive reimbursement for their services; 

The fraudulent compounded creams were provided pursuant to 

predetermined fraudulent treatment protocols designed solely to 

financially enrich [Appellees], rather than to treat or otherwise 

benefit the patients who purportedly received them;

[Appellees] participated in illegal, collusive relationships in which 

licensed physicians prescribed fraudulent compounded creams in 

exchange for unlawful kickbacks paid by the Pharmacy

[Appellees]; 

____________________________________________

1 Appellants also alleged that Appellees committed insurance fraud under the

Pennsylvania Workers’ Compensation Act, 77 P.S. § 1039.3(b), and that 

Appellees violated the disclosure provision for self-referrals under 35 P.S. §

449.22. However, the trial court dismissed these counts after Appellees filed 

preliminary objections.
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[Appellees] made false and fraudulent statements and/or 

representations to [Appellants] by submitting, or causing to be 

submitted for payment, invoices for fraudulent compounded 

creams. These invoices were provided pursuant to invalid, 

duplicitous, and formulaic prescriptions; and 

[Appellees] made false and fraudulent misrepresentations to 

[Appellants] concerning the maximum permissible charges for the 

fraudulent compounded creams allegedly provided to the patients 

in order to induce [Appellants] to reimburse [Appellees] for 

benefits to which they were not entitled.

Am. Compl., 11/6/17, ¶ 33(i)-(v).

Appellees subsequently moved for summary judgment, arguing that 

Appellants had neither “presented nor produced any evidence to support the 

allegations in the [c]omplaint.” See 700 Pharmacy Defendants’ Mot. for 

Summary Judgment, 5/9/19, at 1.

2

 Specifically, Appellees explained:

Rather than produce witnesses and other evidence to support their 

claims, [Appellants] have instead failed to produce any fact 

witnesses, or any other evidence, to support the assumptions 

underlying their complaint and their experts’ reports. 

[T]he universe of testimony and documents exchanged during 

discovery establishes that [Appellee] pharmacies (1) dispense a

wide range of medications, including compound medications, (2) 

are licensed and operate within the boundaries of state and federal 

law, (3) have physicians with minority ownership consistent with 

state and federal law, (4) paid each owner (whether or not a

physician) profits based solely upon their percentage of 

ownership, i.e., there were no kickbacks, (5) did not require 

physician owners to prescribe any medications through the 

____________________________________________

2

In filing their motions for summary judgment, individual defendants

incorporated and fully adopted the arguments raised by other defendants in 

this case. See Pa.R.Civ.P. 1019(g) (stating that “[a]ny part of a pleading may 

be incorporated by reference in another part of the same pleading or in 

another pleading in the same action”). Therefore, for purposes of brevity, we 

cite only one of Appellees’ motions.
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pharmacies, and (6) operated legally even according to William 

Welch, who has overseen [Appellants’] investigation since 2014.

Id. at 2. Further, Appellees claimed that the trial court lacked subject matter 

jurisdiction because Appellants failed to join indispensable parties, including 

at least two doctors who had received dividends from the pharmacies after 

prescribing compound pain creams in 2016. Id. at 31-32.

In response, Appellants argued:

The majority of the key evidence in this case comes not from 

[Appellants,] but from discovery obtained from [Appellees] in the 

form of written documents, including tax documentation, and 

deposition testimony, which has revealed a complex scheme 

perpetrated by [Appellees] whereby multiple pharmacies were 

created to facilitate and promote submission to [Appellees] of 

fraudulent claims for compounded medications using pre-printed,

non-individualized prescriptions and letters of medical necessity. 

This generated huge profits for [Appellee pharmacies] and insiders 

as [Appellee doctors] received huge kickbacks disguised as 

dividends and other payouts based on volume of prescribing or 

filling of fraudulent scripts for topical pain cream, all to the 

detriment of [Appellants] and the public at large by [Appellees’]

billing the insurers thousands of dollars per tube of cream and 

raking in millions of dollars in profit as a result.

Appellees’ Opposition to 700 Pharmacy’s Mot. for Summary Judgment, 

6/20/19, at 48. Further, Appellees asserted that there was “[e]vidence of 

[the] fraudulent scheme” in (1) Appellees’ letters of medical necessity, which 

misrepresented that the prescriptions were specifically tailored to the needs 

of each patient; (2) the characterization of the prescription pain creams as

compound drugs under Section 503A of the Food, Drug and Cosmetic Act 

(FDCA), and (3) the illegal structure of Appellees’ business. Id. at 49-53.
J-A27020-20

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Ultimately, the trial court granted summary judgment in favor of 

Appellees and dismissed Appellant’s amended complaint. See Trial Ct. Order

& Op., 9/13/19, at 1. The trial court noted that Appellants “failed to produce 

evidence to show that [Appellees] made material misrepresentations” to 

support their claim of fraud. Id. at 18. With respect to the letters of medical 

necessity, the trial court found that it did not have jurisdiction to consider 

whether those letters contained misrepresentations about the necessity of 

each patient’s medical treatment outside of the Workers Compensation Act. 

Id. at 11-12. Further, the court concluded that the prescription pain creams 

met the definition of a “compound drug” under Section 503A of the FDCA and 

that Appellees’ business structure was legal. Id. at 12-18. Finally, the trial 

court concluded that there was no evidence to support a claim for unjust 

enrichment and that, because Appellants failed to prove an underlying tort by 

Appellees, their aiding and abetting claim must also fail. Id. at 18-19.

Appellants filed a timely notice of appeal and a court-ordered Pa.R.A.P. 

1925(b) statement. The trial court issued a Rule 1925(a) adopting the legal 

analysis set forth in its order and opinion granting summary judgment.3

On appeal, Appellants raise multiple issues, which we have reordered as 

follows:

____________________________________________

3 On September 23, 2019, the trial court issued a revised opinion which 

included an additional footnote citing to an exhibit. However, for purposes of 

clarity, and because that modification does not affect the court’s ruling or our 

analysis, we will refer to the trial court’s original opinion in this memorandum.
J-A27020-20

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1. Whether the [trial] court had subject matter jurisdiction when 

[Appellants] did not sue all of the owners of the limited liability 

companies operating the pharmacies?

2. Whether the [trial court] had jurisdiction to determine whether 

there were any misrepresentations contained in the letters of 

medical necessity?

3. Whether there was sufficient evidence of misrepresentations 

contained in the letters of medical necessity, regarding the 

compound pain creams prescribed, and concerning the legality 

of the business structure of the pharmacies, to raise genuine 

issues of material fact and preclude the entry of summary 

judgment on the common law and statutory insurance fraud 

claims?

4. Whether there was sufficient evidence presented to support a 

claim for unjust enrichment and to preclude the entry of 

summary judgment on that claim?

5. Whether the claim for aiding and abetting would survive a 

motion for summary judgment without the predicate common 

law and statutory insurance fraud?

Appellant’s Brief at 2-4.

Subject Matter Jurisdiction

Appellants argue that the trial court erred in concluding that it lacked 

subject matter jurisdiction based on Appellants’ failure to join indispensable 

parties. Specifically, Appellants contend:

[T]here is no subject matter jurisdiction issue presented here. 

The pharmacies were limited liability companies that had the 

capacity to sue and be sued as entities. Further, the members or 

managers had no personal liability except to the extent of their 

personal participation in some misconduct. The remaining 

members or managers are not indispensable parties. The courts 

can fashion appropriate relief without the necessity of dragging 

every member of each limited liability company into the case.

Appellants’ Brief at 21.
J-A27020-20

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Appellees respond that Appellants failed to join indispensable parties, 

including “physicians and owners who were part of the allegedly fraudulent 

plot.” Appellees’ Brief at 62. In support, Appellees argue that “Appellants 

alleged a broad conspiracy in the prescription and dispensing of medication, 

and in the creation of the pharmacies. Consequently, Appellants’ failure to 

name these parties was a fatal defect warranting summary judgment.” Id. at 

62-63.

Whether a court has subject matter jurisdiction presents a question of 

law, for which our standard of review is de novo and the scope of our review 

plenary. Mazur v. Trinity Area Sch. Dist., 961 A.2d 96, 101 (Pa. 2008). 

Notably, “lack of subject-matter jurisdiction is a non-waivable issue, which 

may be raised by the parties at any stage of the proceedings and can be raised 

by the appellate courts sua sponte.” Weir v. Weir, 631 A.2d 650, 653 (Pa. 

Super. 1993) (citation omitted and formatting altered).

“[A] party is indispensable ‘when his or her rights are so connected with 

the claims of the litigants that no decree can be made without impairing those 

rights.’” City of Phila. v. Commonwealth, 838 A.2d 566, 581 (Pa. 2003)

(citation omitted). “If no redress is sought against a party, and its rights 

would not be prejudiced by any decision in the case, it is not indispensable 

with respect to the litigation.” Grimme Combustion, Inc. v. Mergantime 

Corp., 595 A.2d 77, 81 (Pa. Super. 1991) (citation omitted).

This Court has held that trial courts must weigh the following 

considerations in determining if a party is indispensable to a particular 
J-A27020-20

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litigation: (1) whether absent parties have a right or an interest related to the 

claim; (2) if so, the nature of that right or interest, (3) whether that right or 

interest is essential to the merits of the issue, and (4) whether justice can be 

afforded without violating the due process rights of absent parties. Martin v. 

Rite Aid of Pa., Inc., 80 A.3d 813, 814 (Pa. Super. 2013). “In determining 

whether a party is indispensable, the basic inquiry remains ‘whether justice 

can be done in the absence of a third party.’” Pa. State Educ. Ass’n v. 

Commonwealth, 50 A.3d 1263, 1277 (Pa. 2012) (citation omitted).

Here, the trial court did not identify the parties that were indispensable 

to the instant matter, nor did the court explain why those individuals were 

necessary to resolve Appellants’ claims against Appellees. However, as noted 

previously, Appellees’ motion for summary judgment claimed that Dr. Bruce 

Levin and Dr. Thomas Whalen were indispensable parties because both were 

doctors that prescribed pain creams and held an ownership interest in Appellee 

1st Choice Pharmacy, LLC, in 2016.

Appellants seek money damages and attorneys’ fees from Appellees for 

their alleged involvement in a fraudulent scheme. With respect to the 

individual doctors named in this case, Appellants have maintained that 

Appellee doctors received “kickbacks” from the pharmacies based on the 

quantity of pain creams that they prescribed. See Appellant’s Brief at 31-32

(arguing that “the members received kickbacks for their self-referrals of 

patients to the pharmacies that they owned”). If Appellants successfully prove 

their claim against Appellee doctors named in this suit, those individuals may 
J-A27020-20

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be personally liable for money damages awarded to Appellants. Such a 

remedy generally would not affect the interests of the doctors who were not 

named in the suit.4

Moreover, the fact that Dr. Bruce Levin and Dr. Thomas Whalen may

have a pecuniary interest in the financial performance of the companies 

named in this suit does not necessarily make them indispensable parties under 

the unique facts and circumstances of this case. Typically, individual members 

of an LLC are not personally liable for judgments against the company. See

15 Pa.C.S. § 8834 (stating that a “debt, obligation or other liability of a limited 

liability company is solely the debt, obligation or other liability of the company” 

and that a “member or manager is not personally liable, directly or indirectly, 

by way of contribution or otherwise, for a debt, obligation or other liability of 

the company solely by reason of being or acting as a member or manager”). 

Therefore, absent an appropriate claim and identifiable issues of material fact 

concerning misconduct by the unnamed defendants, this record does not 

establish that they were indispensable parties. See Martin, 80 A.3d at 814; 

State Educ. Ass’n, 50 A.3d at 1277. For these reasons, we respectfully 

disagree with the trial court’s reasoning that it lacked subject matter 

jurisdiction. However, although we conclude that the trial court was incorrect 

____________________________________________

4 Additionally, no party has cited authority mandating that every investor or 

dividend recipient must be individually joined in a fraud case where the 

allegations are limited to selected individual actors. Indeed, Appellees 

acknowledge that there is no Pennsylvania case law requiring joinder in a fraud 

case. See Appellees’ Brief at 63.
J-A27020-20

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in this determination, for reasons that are set forth below, Appellant is entitled 

to no relief on this basis.

Jurisdiction to Review Letters of Medical Necessity

Appellants also challenge the trial court’s conclusion that it lacked 

jurisdiction to review the letters of medical necessity outside of the procedures 

established by the Pennsylvania Workers’ Compensation Act. Appellants’ Brief 

at 21.

By way of background to this issue, the trial court explained:

[Appellants] allege that the [letters of medical necessity]

contained material misrepresentations because they were form 

letters submitted and signed by the physicians without individually 

considering the specific patient for whom the combination of the 

medications was being prescribed and without explaining the 

specific reason why the particular combination was more 

appropriate for that particular patient. 

As it pertains to these letters, this court is not the proper forum 

to evaluate whether the [letters of medical necessity] set forth a 

proper explanation as to why the compound medication was 

reasonable and necessary for the patient. Disputes regarding the 

reasonableness or necessity of treatment must be resolved 

through the procedures set forth in the Workers’ Compensation 

Act. The administrative process established in the workers’

compensation realm is the appropriate forum to make the 

determination of efficacy. The record contains evidence that some 

claims submitted by [Appellees] were subject to utilization 

reviews. The utilization reviewers, based on the reasonable and 

necessary standard, made the decision to pay or not pay the 

claims. This court will not second guess decisions made in that 

process and will not decide reasonableness and necessity on those 

claims which were not submitted for a utilization review but could 

have been. Since this court is not the forum to review the [letters 

of medical necessity] for efficacy, [Appellants] may not rely upon 

the [letters of medical necessity] as a material misrepresentation 

for fraud and [Appellants’] claim for fraud based on the [letters of 

medical necessity] is dismissed.
J-A27020-20

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Trial Ct. Op. at 11-12 (footnotes omitted).

On appeal, Appellants reiterate their claim that the trial court incorrectly 

“deferred to the administrative process laid out in the workers’ compensation 

law” and by declining to “‘decide reasonableness and necessity on those claims 

which were not submitted for a utilization review [(UR)].’” Appellant’s Brief 

at 22. Appellants contend that, even if the trial court “were correct in its 

deference to the fee review and/or utilization review provisions of the workers’

compensation act, the argument does not oust the common pleas court of 

jurisdiction to decide allegations of fraud.” Id. at 24. Further, Appellants note

that “the automobile accident cases and the New Jersey workers’

compensation cases would never be subject to the review procedures” set 

forth in the Pennsylvania Workers’ Compensation statutes. Id. at 18. 

Therefore, Appellants request that we “engage in de novo review of the 

misrepresentation claims based on the letters of medical necessity or . . . 

vacate and remand for further proceedings.” Id. at 25.

Section 306(f.1)(6) of the Workers Compensation Act provides, in 

relevant part, as follows:

[D]isputes as to reasonableness or necessity of treatment by a 

health care provider shall be resolved in accordance with the 

following provisions: 

(i) The reasonableness or necessity of all treatment 

provided by a health care provider under this [A]ct may be 

subject to prospective, concurrent or retrospective [UR] at 

the request of an [employee], employer or insurer. The 

[D]epartment shall authorize utilization review 

organizations [(UROs)] to perform [UR] under this [A]ct. 

[UR] of all treatment rendered by a health care provider 
J-A27020-20

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shall be performed by a provider licensed in the same 

profession and having the same or similar specialty as that 

of the provider of the treatment under review. Organizations 

not authorized by the [D]epartment may not engage in such 

[UR]. 

(ii) The [URO] shall issue a written report of its findings and 

conclusions within thirty (30) days of a request. 

(iii) The employer or the insurer shall pay the cost of the 

[UR]. 

(iv) If the provider, employer, [employee] or insurer 

disagrees with the finding of the [URO], a petition for review 

by the [D]epartment must be filed within thirty (30) days 

after receipt of the report. The [D]epartment shall assign 

the petition to a [WCJ] for a hearing or for an informal 

conference under [S]ection 402.1 [of the Act, 77 P.S. § 

711.15]. The [UR] report shall be part of the record before 

the [WCJ]. The [WCJ] shall consider the [UR] report as 

evidence but shall not be bound by the report. 

77 P.S. § 531(6).

Further, the Commonwealth Court has explained:

The . . . [UR] process is the exclusive way to challenge 

medical bills. Neither a WCJ nor the Board has jurisdiction 

to determine the reasonableness of medical treatment 

unless and until a report is issued and the URO issues a 

determination. Parties may not, even by stipulation, agree 

to bypass [UR] and proceed directly to a hearing before a 

WCJ. If the health care provider, employer, employee or 

insurer disagrees with the determination of the URO, he 

may, within 30 days of the URO's determination, seek 

review by a WCJ. This hearing before the WCJ is a de novo

proceeding; the WCJ is required to consider the reviewer’s 

report as evidence, but he is not bound by it. 

Cty. of Allegheny v. Workers’ Comp. Appeal Bd. (Geisler), 

875 A.2d 1222, 1226-27 (Pa. Cmwlth. 2005) (emphasis added; 

citations and footnote omitted). 

In a “WCJ review of a UR determination[,] . . . ‘either party 

is free to offer evidence beyond that considered in the UR 
J-A27020-20

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process in meeting their [sic] burden of proof.’” 

Importantly, “[t]he [WCJ] has jurisdiction over all [UR] 

petitions and any alleged technical deficiency or irregularity 

in the [UR] process; the de novo hearing before the [WCJ] 

provides for a fair review in which both parties [are] free to 

offer other evidence.” Carter v. Workers’ Comp. Appeal 

Bd. (Hertz Corp.), 790 A.2d 1105, 1109 (Pa. Cmwlth. 

2002).

Notwithstanding, 

[UR] is not an alternative to a review by a WCJ, but a 

mandatory first step in determining whether a provider’s 

treatment is reasonable and necessary. This Court has 

consistently held that a WCJ lacks subject matter 

jurisdiction to determine the reasonableness and necessity 

of medical treatment if the matter has not first gone to [UR]. 

Burgess v. Workers’ Compensation Appeal Board (Patterson-UTI 

Drilling Company LLC), 231 A.3d 42, 47 (Pa. Cmwlth. 2020) (some citations

omitted and formatting altered).

Here, to the extent Appellants challenge the reasonableness or necessity 

of the treatment provided to patients who suffered work-related injuries, the 

trial court correctly concluded that it did not have jurisdiction to revisit that

issue. See id. at 47. However, as noted previously, many of the claims 

submitted to Appellants were for patients who were injured in automobile 

accidents or in work-related injuries that occurred in New Jersey, which do not 

fall under the Pennsylvania Workers’ Compensation statute. Therefore, we 

agree with Appellants that the trial court erred in resolving this issue solely 

based on the Pennsylvania Workers’ Compensation statute. In any event, for 

reasons discussed in greater detail below, our determination on this discrete 

claim does not entitle Appellants to appellate relief.
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Fraud Claim

Appellants next argue that the trial court erred in granting summary 

judgment with respect to fraud because there was “ample evidence” that 

Appellees made material misrepresentations in the claims submitted to 

Appellants. Appellants’ Brief at 26. Specifically, Appellants refer to (1) the 

letters of medical necessity; (2) the characterization of the pain creams as a 

compound drug; and (3) the legality of Appellees’ ownership and operation of 

the pharmacies. We will address each allegation separately.

In reviewing an order granting summary judgment, we are guided by 

the following principles:

Our standard of review is de novo and our scope of review is 

plenary. Eclipse Liquidity, Inc. v. Geden Holding, Ltd., 200 

A.3d 507, 509-10 (Pa. Super. 2018). Summary judgment is 

appropriate where there is no genuine issue of material fact as to 

a necessary element of a cause of action that can be established 

by discovery or expert report. Pa.R.C.P. 1035.2(1). “In reviewing 

an order granting a motion for summary judgment, an appellate 

court must examine the entire record in the light most favorable 

to the non-moving party and resolve all doubts against the moving 

party.” Donegal Mut. Ins. Co. v. Fackler, 835 A.2d 712, 715 

(Pa. Super. 2003).

Marion v. Bryn Mawr Trust Company, 253 A.3d 682, 688 (Pa. Super. 

2021).

To establish a claim for common law fraud, the plaintiff must 

demonstrate:

(1) A representation; (2) which is material to the transaction at 

hand; (3) made falsely, with knowledge of its falsity or 

recklessness as to whether it is true or false; (4) with the intent 

of misleading another into relying on it; (5) justifiable reliance on 
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the misrepresentation; and, (6) the resulting injury was 

proximately caused by the reliance. 

Weston v. Northampton Pers. Care, Inc., 62 A.3d 947, 960 (Pa. Super. 

2013) (citation omitted).

This Court has explained:

[A] fraudulent misrepresentation can take many forms: fraud 

consists in anything calculated to deceive, whether by single act 

or combination, or by suppression of truth, or a suggestion of what 

is false, whether it be direct falsehood or by innuendo, by speech 

or silence, word or mouth, of look or gesture. It is any artifice by 

which a person is deceived to his disadvantage. Where a plaintiff 

asserts fraudulent misrepresentation without showing that the 

defendant intended to mislead the plaintiff into reliance on the 

misrepresentation, the defendant is entitled to judgment as a 

matter of law.

Kostryckyj v. Pentron Lab. Techs., LLC, 52 A.3d 333, 339 (Pa. Super. 

2012). “Unsupported assertions and conclusory accusations cannot create 

genuine issues of material fact as to the existence of fraud.” Hart v. Arnold, 

884 A.2d 316, 339 n. 7 (Pa. Super. 2005) (citation omitted).

The insurance fraud statute provides, in part, that an individual commits 

an offense if he:

(2) Knowingly and with the intent to defraud any insurer or selfinsured, presents or causes to be presented to any insurer or selfinsured any statement forming a part of, or in support of, a claim 

that contains any false, incomplete or misleading information 

concerning any fact or thing material to the claim.

* * *

(3) Knowingly and with the intent to defraud any insurer or selfinsured, assists, abets, solicits or conspires with another to 

prepare or make any statement that is intended to be presented 
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to any insurer or self-insured in connection with, or in support of, 

a claim that contains any false, incomplete or misleading 

information concerning any fact or thing material to the claim, 

including information which documents or supports an amount 

claimed in excess of the actual loss sustained by the claimant.

18 Pa.C.S. § 4117(a)(2), (3).

Letters of Medical Necessity

In their amended complaint, Appellants argued:

In furtherance of their fraudulent scheme, [Appellee] pharmacies 

supplied [Appellee] doctors with preprinted prescription forms 

from which to select the fraudulent compounded creams. Such 

forms thwart the independent medical decision making process on 

behalf of a prescribing medical provider. [Appellee] pharmacies 

also provided “letters of medical necessity” to submit to insurance 

companies like [Appellants] with reasons why the fraudulent 

compounded creams were supplied. [Appellee] pharmacies also 

provided references and purported supportive medical literature 

concerning compounded medications. [Appellees] knew or should 

have known the cited medical literature in the letters of medical 

necessity were not literature from widely accepted medical or peer 

review journals, but rather were untested, non-peer reviewed, 

self-serving opinions unrelated to [Appellees’] fraudulent 

compounded creams.

Am. Compl. at ¶ 28 (some formatting altered).

On appeal, Appellants reiterate that “[t]here was ample evidence of 

misrepresentations” in the letters of medical necessity. Appellants’ Brief at 

18. Specifically, Appellants assert that (1) “[t]he letters contained general 

information and cited to uncontrolled, non-peer reviewed studies” but that 

some “doctors testified that they did not read all of the studies that were cited 

in the form letters,” (2) several of the letters stated that topical pain creams 

were required because those patients were suffering from gastrointestinal 
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upset from oral medication, although gastrointestinal issues were not reflected 

in every patient’s medical records, and (3) the topical pain creams did not 

reduce opioid levels. Id.

Appellees respond that although the pharmacies provided sample letters 

of medical necessity to doctors in order to “assist in explaining the 

pharmaceutical science behind the compound cream prescription when 

requested by an insurer,” the doctors were also free to draft their own letters. 

Appellees’ Brief at 22. Further, Appellees argue that there was “no evidence 

that [Appellees] misrepresented or made any inaccurate claims about the 

efficacy of the medications prescribed and dispensed.” Id. at 40. Appellees 

assert that “[e]ach prescription was compounded for a specific patient and 

tailored to the needs of that patient based upon the prescribing physician’s 

independent medical judgment.” Id. at 31. Therefore, Appellees argue that 

the trial court properly rejected Appellant’s claims.

As noted previously, the trial court did not address whether the letters 

of medical necessity contained material misrepresentations. However, based 

on our review of the record, we conclude that Appellants have failed to identify 

any evidence, let alone material issues of fact, to support this claim. 

Specifically, Appellants have failed to establish how the inclusion of 

uncontrolled, non-peer reviewed studies, is a fact, or even presents a material 

issue of fact, amounting to a material misrepresentation by the medical 

providers who submitted the letters of medical necessity as a template for 

their insurance claims. Further, even accepting Appellants’ assertions that
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“gastrointestinal issues were not reflected in every patient’s medical records” 

or that the creams did not appear to reduce opioid levels, those facts do not 

establish that the providers misrepresented their patients’ need for topical 

pain creams. Therefore, Appellants are not entitled to relief. 

Description of Pain Creams as Compound Drugs

Appellants also argue that Appellees misrepresented that the pain 

creams were “compound drugs,” as defined by Section 503A of the FDCA. 

Appellants’ Brief at 28-29. In support, Appellants contend that “[a]lthough

the theory behind the compounded medications is that they are formulated 

individually for specific patients having unique needs, the evidence showed 

that the creams were prefabricated and predetermined by the pharmacists 

without input from the medical providers.” Id. at 32. Relying on an opinion 

by Appellants’ expert, Jackelyn Rodriguez, Appellants argue that “the 

pharmacies did not operate as compounding pharmacies in compliance with 

section 503A, but, instead, functioned as outsource facilities under section 

503B, thus triggering federal registration and oversight.”

5

 Id. at 30. 

Therefore, Appellants argue that “[w]hile [Appellees] claimed to engage in 

____________________________________________

5

In her report, Rodriguez stated that there was “no variation in the formulas 

being prescribed by the doctors,” and that “the list of drug ingredients listed 

were the same and the compounding pharmacies followed the same

formulas.” See Ex. 38 at 11. Rodriguez concluded that “[t]his clearly shows 

that these compounding pharmacies are not true compounding under the 

requirements of [503A] and have been compounding formulas, not per 

individual patient requirements, but instead, they are clearly operating as 

manufacturing outsource facilities under [Section 503B] of the FD&C Act.” Id.

at 12.
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allowable anticipatory compounding, [Appellants’] experts contradicted that, 

creating issues of fact requiring a trial,” and the trial court should have denied 

summary judgment. Id. at 19.

Appellees respond that “Appellants presented no evidence and no legal 

argument to support this theory.” Appellees’ Brief at 39. Appellees assert 

that anticipatory compounding is permissible in limited quantities under 

Section 503A when done based on “a history of the licensed pharmacist 

receiving valid prescription orders for the compound AND the order having 

been generated solely within an established relationship.”

6

 Id. at 55

(emphasis in original).

Appellees assert that the prescription requirement of Section 503A 

“ensures that non-FDA approved compounded drugs are dispensed based 

upon an individual’s specific needs. However, this does not mandate that the 

compound be prepared only after receipt of the prescription.” Appellees’ Brief 

at 54. Instead, Appellees note that anticipatory compounding is permissible 

in limited quantities, which has been defined as “(1) no more than a 30-day 

supply to fill valid prescriptions not yet received, and (2) the 30-day inventory 

supply must be based on the actual number of valid prescriptions that the 

____________________________________________

6 Appellees note that “each doctor and pharmacist explained that every 

medication was prepared for an individual patient or in a small batch based 

upon prior refill orders[,]” that the “‘largest’ of these batches was for no more 

than three patients” and that “no Appellee [p]harmacy had the capability to 

make more than 750 grams of compound pain relief cream at any given time.” 

Appellees’ Brief at 39 (citing deposition testimony from several doctors and 

pharmacists at R.1485a, R.1547a, R.1548a-1549a, R.1550a, R.1555a-1556a, 

R.1698a-1699a, R.1402a, R.1294a-1295a).
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compounder received for actual patients in a 30-day period over the past 

year.” Id. at 55. Appellees contend that Appellants presented no evidence 

that Appellees failed to comply with these limitations and that, therefore, their 

claim must fail. Id.

The trial court addressed Appellants’ claim as follows:

[T]he compound pain creams prescribed by [Appellee] physicians 

fit the definition of a compound drug under Section 503A. The 

pain creams were ordered by licensed physicians for their specific 

individual patients. The prescriptions for the pain creams were 

“valid prescriptions” as required by Section 503A since the 

prescriptions identify the name of the patient for whom the drug 

was prescribed. The use of pre-printed prescriptions or rubber 

stamps is not precluded by Section 503A and does not affect the 

prescription’s status as a “valid prescription” since the 

prescriptions identify the name of the individual patient for whom 

the drug is prescribed. Moreover, no evidence has been produced 

that the compound drug formulas prescribed by physicians are 

commercially available. Prescribing a similar formula for a 

compound pain cream to more than one patient does not remove 

the pain cream formula from the compound drug designation. The 

pain cream formula need only be prescribed for an individual 

patient, not solely for one patient. The pain cream formulas 

prescribed for one patient may also be beneficial for other patients 

who for instance may have an allergy to a dye or may be unable 

to swallow pills.

Additionally, Section 503A permits pharmacies to produce 

compound drugs in small batches. 21 U.S.C. § 353(a)(2) of the 

[FDCA] permits compounding by a licensed pharmacist or licensed 

physician in “limited quantities before the receipt of a valid 

prescription order for such individual patient.” This is known as 

anticipatory compounding. In this situation, compounding may 

occur before the receipt of a valid prescription based on the history 

of the pharmacy receiving prescriptions for a particular drug 

product for an identified individual patient. The compounding 

occurs in the context of the relationship between the physician 

and the patient. The pharmacist will then compound a batch of 

drugs in anticipation of receiving a valid prescription for the drug. 

There is no evidence that any anticipatory compounding occurred 
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outside these parameters. Since this court finds that the pain 

creams prescribed here satisfy the definition of compound drug, 

[Appellants’] arguments to the contrary may not form the basis 

for a fraud claim.

Trial Ct. Op. at 13-15 (some formatting altered, footnotes omitted).

Based on our review of the record, we find no error in the trial court’s 

conclusion that Appellants failed to present evidence to establish that 

Appellees failed to comply with Section 503A. Section 503A limits the quantity 

of drug product that pharmacies may compound before receiving a 

prescription. However, there is nothing in the record to establish that any of 

the pharmacies exceeded those limitations. Further, as noted by the trial 

court, “[t]he pain cream formula need only be prescribed for an individual 

patient, not solely for one patient.” See id. at 15. Therefore, to the extent

Appellants’ expert opined that the pharmacies were operating as “outsource 

facilities” because they filled more than one prescription for the same

compound pain cream, that does not present an issue of material fact that 

would defeat summary judgment. See Hart, 884 A.2d at 339 n.7 (stating 

that “[u]nsupported assertions and conclusory accusations cannot create 

genuine issues of material fact as to the existence of fraud”). Therefore, 

Appellants are not entitled to relief on this claim.

Appellees’ Business Ownership Structure

Appellants also claim that Appellees made “misrepresentations 

regarding the ownership and operation of the pharmacies.” Appellants’ Brief 

at 19. Specifically, Appellants argue:
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The medical practitioners supposedly owned minority interests in 

the pharmacies. But, the ownership was masked in some 

instances, and several of the doctors owned shares in multiple 

pharmacies. Moreover, the doctors were the engines that drove 

the financial success of the pharmacies. The physicians referred 

the patients to the pharmacies they owned so the prescriptions 

would be filled. The constant stream of self-referrals for the highpriced products ensured that the revenue would continue to flow 

through the pharmacies and back to the owners in the form of 

profit distributions. The outlandish size of these distributions, 

together with inconsistencies in the amounts distributed to 

seemingly similar ownership interests, and the fluctuating 

percentages of ownership create questions of fact regarding the 

legitimacy and proportionality of the distributions. The jury should 

have been allowed to decide whether the payments were 

kickbacks.

Id. at 19-20.

In response, Appellees argue:

The basis for [Appellants’] claims was that the Appellee physicians 

owned small (in most cases 1 to 2 percent) non-voting interests 

in the Appellee pharmacies to whom the patients were referred, 

and the ownership structure amounted to an illegal kickback 

scheme. There is nothing improper, however, about Appellees’

business model. Physician ownership of the non-controlling

minority interests in the pharmacies is expressly permitted under 

the Pennsylvania Pharmacy Act [§ 449.22]. Pennsylvania law also 

expressly recognizes the propriety of referrals by the physicians 

to these pharmacies, provided proper disclosure is made.

Appellees’ Brief at 32-33.

The trial court addressed this claim as follows:

The last category of misrepresentation relates to the illegality of 

[Appellees’] ownership structure. Particularly, [Appellants] take 

issue with [Appellee] physicians’ minority ownership in [Appellee]

pharmacies. [Appellants] argue that the ownership structure 

provides a means for defendant physicians to be paid alleged 

kickbacks for the prescriptions written. The Pharmacy Act governs 

the practice of pharmacies by its rules and regulations and its 
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establishment of the State Board of Pharmacy, which is charged 

with regulating the practice of pharmacies, licensing pharmacists, 

investigating all violations of the Pharmacy Act, and prosecuting 

violations where appropriate. The Pharmacy Act clearly indicates 

the legislature’s intention to specifically define ‘grossly 

unprofessional conduct’ by means of the thirteen enumerated 

grounds provided in the statute in order to provide in advance 

clear notice of what is prohibited conduct and thus avoid 

vagueness defects. Physician ownership is not prohibited by the 

Pharmacy Act as long as the medical practitioners holding a 

proprietary or beneficial interest in the pharmacy does not 

exercise supervision or control over the pharmacist in his 

professional responsibilities and duties. [Appellees] admit that 

they are investors/owners in the pharmacies. The evidence shows 

that the interest owned by the physicians is not more than 49%, 

a percentage which has been approved by the Pharmacy Board. 

Hence, physician ownership in [Appellee] pharmacies is lawful. 

The evidence further shows that the interest held by [Appellee] 

physicians is non-voting, non-controlling and non-supervisory.

[Appellants] further argue that the pharmacies business structure 

is illegal because defendant physicians engaged in self-referrals 

and received “kickbacks” for the number of prescriptions written 

for pain creams. According to [Appellants], the “kickbacks” were 

in the form of dividends; the more prescriptions written for pain 

creams, the larger the dividend. In an effort to support this claim, 

[Appellants] attached as exhibits tax returns for the pharmacies 

as well as included charts within their response to the motions for 

summary judgment for each pharmacy anonymously identifying 

the investor by number, the percentage ownership and the 

dividend received. However, there is no evidence correlating the 

amount of the dividend received by the investor to the number of 

prescriptions written and that physician [Appellees] were paid 

more dividends based on the number of prescriptions for pain 

cream they wrote. Owners were paid dividends based on the 

pharmacies’ profits, which included compounded drugs as well as 

pills and other medications the pharmacies were authorized to 

dispense and the percentage of ownership in the pharmacy. The 

fact that the investors were paid large dividends does not correlate 

to illegal kickbacks. The large dividends were in part due to the 

fee schedule used by [Appellants] to reimburse the claims. The 

evidence shows that the pain creams were billed at the average

wholesale price (AWP), a price which is standard within the 

industry and paid based on [Appellants’] use of the standard fee 
J-A27020-20

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schedules. As such, while the dollar amount of the dividends paid 

to the investors is great, the court does not find the dividend 

payment to be a “kickback.”

[Appellants] also rely on the alleged illegality of self-referrals to 

support their fraud claim. [H]owever, there is no evidence that 

any self-referrals were contrary to the law. 

Title 35 P.S. § 449.22 (a) provides as follows: “any practitioner of 

the healing arts shall, prior to referral of a patient to any facility 

or entity engaged in providing health-related service, tests, 

pharmaceuticals, appliances or devices, disclose to the patient any 

financial interest of the practitioner or ownership by the 

practitioner in the facility or entity. In making any referral, the 

practitioner of the healing arts may render any recommendations 

he considers appropriate, but shall advise the patient of his 

freedom of choice in the selection of a facility or entity.”

This statutory provision does not make self-referrals automatically 

illegal. On the contrary, a physician may refer a patient to a 

pharmacy if the physician disclosed his/her financial interest in the 

pharmacy. The record evidence shows that in fact such 

disclosures were made. There is no evidence of illegal selfreferrals. Based on the foregoing, the court finds that [Appellants]

have failed to produce evidence to show that [Appellees] made 

material misrepresentations.

Trial Ct. Op. at 15-18 (footnotes omitted).

Based on our review of the record, we discern no error of law in the trial 

court’s ruling. The trial court thoroughly addressed Appellants’ claim 

regarding the legality of Appellees’ business structure and concluded that 

there was no evidence of a misrepresentation by Appellees. See id. Although 

Appellants disagree with the trial court’s legal analysis, they failed to identify 

reversible error. See Davis, 156 A.3d at 1266; see also Pa.R.C.P. 1035.2(2). 

Therefore, we affirm on the basis of the trial court’s analysis of this issue. See

Trial Ct. Op. at 15-18.
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Unjust Enrichment

Appellants next argue that the trial court erred in granting summary 

judgment on their unjust enrichment claim. Appellants’ Brief at 36-37. In 

support, Appellants assert that Appellees realized benefits that “were unjust[,] 

given that they were paid out on claims which were submitted and paid for 

medications that were not legitimate compound medications for specific 

individuals based upon their unique and documented medical needs.” Id. at 

37. Appellants argue that “the prefabricated medicines were supposedly 

justified on the basis of false letters of medical necessity which—like the 

medicines themselves— were developed by the pharmacies without regard to 

the particulars of any patient’s case.” Id. at 38. Further, Appellants claim 

that “the presentation of these prescriptions for reimbursement were 

fraudulent under the common law and the insurance fraud statute” and that 

“[i]t would be unconscionable to allow [Appellees] to retain the entirety of this 

huge windfall when all of the other circumstances warrant disgorgement of 

the ill-gotten gains.” Id. at 38.

Appellees respond that the unjust enrichment claim was premised on 

Appellants’ “belief that Appellees ‘were paid out on claims which were 

submitted and paid for medications that were not legitimate compound 

medications for specific individuals based upon their unique and documented 

medical needs.’” Appellees’ Brief at 60-61. However, Appellees reiterate that 

Appellants paid claims “for specific medications for specific individuals based 

upon their unique and documented medical needs.” Id. at 61. Therefore, 
J-A27020-20

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Appellees conclude that “because Appellees were paid the amounts to which 

they were entitled, there was no basis for an unjust enrichment claim.” Id.

at 58 (some formatting altered). 

To succeed on an unjust enrichment claim, the plaintiff must prove: “(1) 

benefits [were] conferred on [the] defendant by [the] plaintiff; (2) 

appreciation of such benefits by [the] defendant; and (3) acceptance and 

retention of such benefits under such circumstances that it would be 

inequitable for defendant to retain the benefit without payment of value.”

Wilson v. Parker, 227 A.3d 343, 353 (Pa. Super. 2020) (citation omitted). 

“In determining if the doctrine applies, our focus is not on the intention of the 

parties, but rather on whether the defendant has been unjustly enriched.” Id.

(citation omitted) (emphasis omitted).

Here, the trial court addressed Appellants’ unjust enrichment claim as 

follows:

[Appellants’] claim for unjust enrichment fails as a matter of law. 

First, while [Appellee] pharmacists, lay investors, physicians and

physician assistants did realize a benefit in the form of dividends 

distributed by the defendant pharmacies to them, the dividends 

may not be the basis for the unjust enrichment since any 

dividends paid arise from the [Appellants’] ownership interest in 

the pharmacies. To the extent [Appellee] pharmacists, lay 

investors, physicians and physician assistants benefitted, the 

benefit was a result of their ownership in the pharmacies and not 

from [Appellants]. As for the remaining group of [Appellees], the 

pharmacies, while the claim reimbursements were made directly 

to them, there is no evidence that the reimbursements were 

unjust. The evidence shows that the pharmacies were paid 

pursuant to the workers compensation and [Motor Vehicle 

Responsibility Law] fee schedules. There is no evidence that the 

pharmacies were paid more than the average wholesale price. 
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Since there is no evidence of overpayment, the claim for unjust 

enrichment fails.

Trial Ct. Op. at 18-19.

Based on our review of the record, we agree with the trial court that 

Appellants failed to present evidence, let alone identify any issues of material 

fact, to support their unjust enrichment claim. Further, Appellants failed to 

establish legal error in the trial court’s legal conclusions. Instead, Appellants 

reiterate their assertion that Appellees were unjustly enriched through their 

participation in a fraudulent scheme. However, because Appellants have failed 

to produce evidence to prove fraud, their unjust enrichment claim must also 

fail. Therefore, Appellants are not entitled to relief.

Aiding and Abetting

Finally, Appellants argue that the trial court erred in dismissing the claim 

for aiding and abetting. Appellants’ Brief at 50. In support, Appellants claim:

The facts of this case demonstrate without question that 

[Appellees] worked together in a common design to form a 

network of pharmacies and cross-investors for the sole purpose of 

enriching themselves and each other to the tune of thousands, 

even millions of dollars at [Appellants’] expense. [Appellants’]

have clearly identified the wrong--the fraudulent prescribe for 

profit scam based on compounded drugs that were not in actuality 

compounded at all, use of which was justified by letters of medical 

necessity which were not individual to patient prescriptions, just 

as the drugs were not individually formulated for the specific 

patients, as the Food, Drug and Cosmetic Act sets forth in section 

503A. The pharmacy ownership was illegal under the Pharmacy 

Act and Anti-Kickback Laws, yet [Appellees] went merrily along 

prescribing millions of dollars’ worth of these creams. It was no 

coincidence that claims dropped off precipitously when it became 

clear to the players that the insurers were on to the scheme and 

ready to take on [Appellees]. 
J-A27020-20

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Accordingly, if this Court were to reverse on the common law or 

statutory fraud counts, then it must also reinstate the aiding and 

abetting claim as well.

Appellants’ Brief at 52.

Appellees respond that an aiding and abetting claim requires “tortious 

conduct, which did not occur here.” Appellees’ Brief at 62. Further, Appellees 

contend that “Appellants offer their own legal conclusions that are neither 

supported by the record nor consistent with [the trial court’s] detailed analysis 

of the facts of record. Consequently, the trial court properly dismissed the 

claim of aiding and abetting.” Id.

“Section 876 of the Restatement (Second) of Torts addresses the tort of 

civil aiding and abetting, which is also known as concerted tortious conduct.” 

Sovereign Bank v. Valentino, 914 A.2d 415, 421 (Pa. Super. 2006).

Section 876 of the Restatement (Second) of Torts provides:

For harm resulting to a third person from the tortious conduct of 

another, one is subject to liability if he 

(a) does a tortious act in concert with the other or pursuant to a 

common design with him, or 

(b) knows that the other’s conduct constitutes a breach of duty 

and gives substantial assistance or encouragement to the other 

so to conduct himself, or 

(c) gives substantial assistance to the other in accomplishing a 

tortious result and his own conduct, separately considered, 

constitutes a breach of duty to the third person.

Restatement (Second) of Torts § 876.

Here, the trial court concluded that “[s]ince the claims for fraud and 

insurance fraud fail, the underlying unlawful act required to state a claim for 
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aiding and abetting is nonexistent and therefore the claim is dismissed.” Trial 

Ct. Op. at 19. 

Based on our review, we agree with the trial court’s conclusion. Because 

Appellants failed to establish a cause of action for an underlying tort, the 

aiding and abetting claim must also fail. See Restatement (Second) of Torts 

§ 876 (requiring plaintiffs to prove “tortious” act or conduct); see also

Valentino, 914 A.2d at 421. Therefore, Appellants are not entitled to relief

on this issue.

In sum, although we conclude that the trial court erred in its resolution 

of the jurisdictional issues, i.e. Appellants’ failure to join indispensable parties 

and the applicability of the Workers’ Compensation Act, those errors do not 

affect our disposition.

Therefore, for the reasons set forth above, we conclude the trial court

correctly granted summary judgment in favor of Appellees based on 

Appellants’ failure to present evidence to support their claims of fraud, unjust 

enrichment, and aiding and abetting. Accordingly, we affirm.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/29/17