HomeMy WebLinkAbout11-5787HCR MANORCARE, INC., IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
V. NO. 2011- 5'78x1 C iy i l T&
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JAMES E. JOHNSON SR. r-rlw
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APPLICATION TO CONFIRM ARBITRATION AWARD r =
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NOW, comes HCR ManorCare, Inc., Plaintiff, by and through its attorneys, BARIC `--`
SCHERER LLC, and files the within Application to Confirm Arbitration Award and, in support
thereof, sets forth the following:
The parties to this matter were bound by a certain Arbitration and Limitation of
Liability Agreement, a true and correct copy of which is attached hereto as Exhibit "A" and is
incorporated by reference.
2. A dispute arose amongst the parties and HCR ManorCare sought arbitration of the
dispute under the terms of the Arbitration and Limitation of Liability Agreement.
3. Arbitration was held before Nathan C. Wolf, Esquire, Jacqueline M. Verney,
Esquire and Katie J. Maxwell, Esquire after their appointment as arbitrators.
4. Bradley L. Griffie, Esquire as arbitration administrator, served the Defendants
with notice of the arbitration hearing. Proof of said service is attached hereto as Exhibit "B" and
is incorporated by reference.
5. The arbitrators have rendered an Arbitrators' Decision and Award in this matter a
true and correct copy of which is attached hereto as Exhibit "C" and is incorporated by reference.
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6. Pursuant to 42 Pa.C.S.A. §7313, a party to an arbitration may make application to
the Court of Common Pleas for confirmation of the award by the Court.
7. Pursuant to 42 Pa.C.S.A. §7316, upon confirmation of the award, a judgment or
decree shall be entered in conformity with the order.
8. Copies of the Arbitrators' Award was mailed to all of the parties on June 7, 2011.
9. No request for modification or correction of the award has been filed by the
Defendant to the date of this application.
WHEREFORE, Applicant requests that the award of the arbitration administrator be
confirmed and judgment be entered in conformance therewith.
Respectfully submitted,
BARIC SCHERER LLC
/'- d?v -
David A. Baric, Esquire
I.D.# 44853
19 West South Street
Carlisle, PA 17013
(717) 249-6873
Attorney for HCR ManorCare, Inc.
17OLUN Ag AGREEMENT: It you do not accept this Agreement, the Patient will still be allowed to live in,
and receive servites in, this Center.
ARBITRATION AGREEMENT (".AGREEMENT")
BY ACCEPTING THIS AGREEMENT, THE PARTIES ARE WAIVING THEIR RIGHT TO A TRIAL
BEFORE A JUDGE ANA/OR A .TURY OF ANY DISPUTE BETWEEN THEM. PLEASE READ THIS
AGREEMENT CAREFULIA' AND IN ITS F,NTIRETY BEFORE ACCEP`T'ING ITS TERMS.
This Am-ccment made on a j (date) b and between the Parties, Patient
?C?,nnl II ?, ,?_ and/or Patient's J eJal Representative (collectively referred to
as "Patient"), and the Center C is an Agreement intended to require that Disl)utes be
resolved by arbitration. The Patient's Legal Rcpresen:tative agrees that he is signing this Agreement as a Party both in
bis representative and individual capacity
A. WHAT IS ARBITRATION?: Arbitration is a cost effective and time saving method of resolving, disputes
without involving the courts. In using arbitration, die disputes are heard and decided by a. private individual called an
arbitrator. The dispute will not be heard or decided by a judge or jury.
B. AGREEMENT TO A BITBATE "DISPU'T'ES": Any and all claims or controversies arising out of or in any
way relating to this Agreement. the Admission Agreement. or any of the Patient's stays at this Center, or any Center
operated by azry subsidiary of HCR-Manor Care, Inc., whether or nor related to mcdica.l inalpractico, including but not
limited to disputes regarding the snaking, execution; validity, enforceability, voidability, unconscionability,
severability, scope, interpretation, preemption, waiver; or any other defense to enforceability of this Agreernnent or the
Admission Agreement, whether arising out of State or Federal law. whether existing now or arislog in the al.ture,
whether for statutory, compensatory or punitive damages and whether sounding in breach of contract, tort or breach of
statutory duties (including, without lirrtitation except as indicated., any claim based. on Patients' Rights or a claim for
unpaid Center charges), re¢ardless of the basis For the duty or of the legal theories upon which the clairn is asserted,
shall be submitted to banding arbitration. Notwithstanding the above; nothing in this Agreement prevents the Patient.
fi-onfiling a grievance or complaint with the Center or appropriate goverrimentzi agency; from requesting an
inspection of the Center fronn such agency: or &orn seeking review under any applicable federal, state or local Jaw of
any decision to involuntarily discharge or transfer the Patient from the Center.
I. Administrator: The arbitration shall be adrniruzitcrud by National Arbitration forum ("NAF"), 6165 Wayzata
Blvd., Suite 500, Minneapolis, 1vlN 55426; any- rbitration-forun. (hereinafter "Administrator"). If the Parties
mutually agree in writing not to select NAF or if the NAF is u.nwillin; or unable to serve as die Administrator; die
Parties shall agree upon another independent entity to sen e as the Administrator, unless the Parties mutually agree to
trot have a.n. Administrator.
2. Demand for Arbitration shall be made in 'writing, sent to the other Party via certified mail, rettull receipt
requested., and filed with NAF (unless NAF is mutually waived).
3. Arbitration Panel: .fhc arbitration shall be conducred by three (3) Arbitrators (the "Panel"). Each Party will
select one Arbitrator. The two selected Arbitrators will select a third Arbitrator. Each Arbitrator must be a retired
State or Federal Court Jude or a Member of the State Bar where the Center is located with at least t0 years of
experience as an attorney. ~NAF approved Arbitrators do not have to be used. If one Party refuses to select its
arbirator within 30 days of a written rcqu.cst for same, then the Administrator shall 90lect that Party's Arbitrator.
4- Sole Decision Maker: The Arbitration Panel is empowered with the sole jurisdiction to, and shall, resolve all
disputes, including without limitation, any disputes about the snaking, validity, enforceability, scope, interpretation,
voidability, unconscionabi.lity, preemption. severability and.'or waiver of this Agx-eernenr or the Admission Agrcatnent,
EXHIBIT "A"
as well as resolve the Parties' underlying disputes, as it is the Parties' intent to eornpletely avoid involving the court
system. The Panel shall not have jurisdiction to certify any person as a representative of a class of persons and, by
doing so, adjudicate claims of persons not du-cctly ticking pazt in llrbih ation.
5. Procedural Rules and Substantive Law: The Panel shall apply the Federal Rules of Evidence and Federal Rules
of Civil Procedure except where other-vise stated in this Ameenrant. Also, the Parcel shall apply, urd the arbitration
award shall be consistent with, the State substantive law (including any and all statutory damage caps) ;for the State in
which the Center is located, except as otherwise stated in this Agreement or where preempted by the FAA. The Panel
shall apply NAF's Code of Procedure (in effect as of May 1, 2006) unless otherwise stated in this Agreement- NAF's
Code of Procedtu•e may be obtained froin NAF, (877) 656-7765, "ti?tiv.arbitration-forum.corx?. The Parties hereby opt-
out of NAF Rules (45 reaarditi indigents; 43 regarding appeals and judicial review).
6. Refusal to Arbitrate: Any Party who refuses to go forward with arbitration acknowledges that the Pauel will go
forward with the arbitration hearing and render- a binding award without the participation of such Panty or despite his
absence at the hearing.
7_ Waiver of Claim: Ai-o.- claim shall be forever waived if it arose prior to the arbitration hearing and is not
presented in such hearing. A claim that is not served within the statute of limitations period applicable to the same
clainr in a court of law in the state in which this Center is located shall be forever waived.
8. Award: The panel's award must be uriarnirnous and shall be served no later than five (5) working days after the
arbitration bearing. The award must staa:e hu detail the Panels' findings of fact and conchtsioras of la-w. shall be tna.rked
"confidential", and must be signed by all three Arbitrators. If any damages are awarded. the award must delineate
specific amounts for economic and/or uon-econornic dan.iages.
9. Feral with Limited Rights to Review (Appeal): The Panel `s award binds the Parties. The Parties have a limited
right of review for only the e\press reasons allowed by the FAA.
A. DISCOVERY. Discovery shall be goverzred by NAF s Code of Procedure. However, discovery shall be limited
as follows: (1) Within 30 days after senIce, of the Demand, each Party nrirst comply with Fed. R. Civ. P., Rule
26(a)(1) and thereafter rrrust comply with Rule 20(e) regarding supplementation of disclosures and responses. (2) A
Party may serve a nraxirnum of 30 %witten questions (interrogatories), 30 requests to produce documents and 30
requests for admissions; inclusive of subparts. (3) The following disclosures shall be served no later than ogre bundred
fifty (150) days before the arbitration hearing by the Claimant, and one hundred twenty (120) days before the
arbitration hearing by the Respondent: (a) list of witnesses to be called at tine Hewing (fiill name, title; address and
phone number i f known) and an outline of each kitnesses' intended testimony; (b) list of documents to be relied upon
at Hearing; except documents to be used solely for impeacluiient purposes: (c) any sworn recorded statements to be
relied upon at Hearing including the fiil.l name, title, address and phone number of the person who gave the statement.
The Parties shall supplement these disclosures per Fed. R. Civ Pr.. Rule, 26 (e). (4) Each Patty may have up to three
(3) experts and no more than ten (10) lay witnesses tbi- its witness list, as well as for the Hearing. Depositious of
witnesses shall be lirnitod to those people listed on the Parties' ,vitrness lists or in the Parties' Rule 26 disclosures or
discovery responses but under no circurnstaiwes will a Party be allowed to take more than 13 depositions- A written
report surmnarizing each expert's opinions and the basis for each opinion. and a list of all records contained in the
expert's file, must be served at least thirty (30) days before the expert's deposition; (5) Discovery shall be completed
45 days before the Hearing and the Hearing shall begin no later than 365 days after Dernand for Arbitration is served,
shall last in duration no longer than five (5) working days, and the heating time allowed shall be split on a pro rata
basis suhiect to the Panel's discretion. (6) The Parties may ag(ce to modify these discovery terms or deadlines.
E. RIGHT TO CHANGE YOUR lV JkNjD: This Agreement may be cancelled by written notice sent by certified
mail to the Center's Adinbristrator within thirty (30) calendar days of the Patient's date of admission. If alleged acts
underlying the dispute occur- before the cancellation elate- this Agreement sha.il be binding with respect to those
alleged acts. if not cancelled, this Agreement shall be binding on the Patient for this and all of the Patient's other
admissions to the Center without any need for farther renewal.
F. O HER PROVISIONS:
1. No Caps/Lintits on Damages: There are no caps/limits on the amount of damages the Panel can award other than
those already unposed by law in the state in which this Center is located. All state laws, statutes and regulations that
limit awardable damages and define the scope of admissible and inadmissible evidence (i.c. regulatory surveys,
incidelit reports, etc.) oxpressly apply to any arbitration hearing held pursuant to this Agreement.
2. Opportunity to Review & Right to Consult with Attorney: The Patient (if competent) and the Patient's Legal
Representative acknowledge that the Patient and Legal Representative have each received a copy of this Agreement,
and have had an opporttmity to read it (or have it read to him/her) and ask questions about it before accepting it.
Please read this Agreement very carefully acrd ask any questions that you have before signing it. Feel free to consult
with an attorney of your choice before Sigrzling this Agreement.
3. Benefits of Art0ration: The ;Parties' decision to select Arbitration is supported by the potential cost-
effectiveness and tune-savings offered by selecting arbitration, which seeks to avoid the expense and delay in the court
system. The Parties recognize that often the Patient is elderly and may have a limited life-expectancy, and therefore
selecting a quick method of resolution is potentially to a Patient's advantage. The Parties a2ruc that the reasons stated
above arc proper cotrsideration F.or the acceptance of the Agreement.
4. FAA: The Parties hereby agree and intend that this Ageement, the Admission Agreement and the Patient's stays
at the Center substantially involve interstate conutrerce, and stipulate that the Federal Arbitration Act ("FAA") in
effect as of November 1, 2008 and federal case law latcrpreting such version of the FAA shall -apply to this
Agreement, shall pr"mpt any inconsistent State lax and shall not be revei-se preempted by the McCarran-Per2u:son
Act; United States Code Title 15, Chapter 20, or other law. Any amendment to stied version of the FAA is hereby
expressly waived.
5. Bin(litig oil Parties & Others: The Parties intend that this Agreerrieut shall inure to the direct benefit of and bind
the Center, its parent, affiliates, and st.:bsidia y companies, management companies, executive directors, owmers,
officers, partners, shareholders, directors, medical directors, employees, successors, assigais, agents insurers and any
entity or person (including health care providers) that provided any services, supplies or equipment related to dre
Patient's stay at. the Center, and shall inure to the direct ben.efrt of and hind the Patient (as defined herein), his/her
successors, spouses, children, next of kill, guardians, administrators, legal representatives, responsible parties, assigns;
agents, attorneys, health care proxies; health care satTogates, third Patrty beneficiaries, insuurers, heirs, trustees,
survivors and representatives, includurc the personal representatives or executors of his/her estate, any person whose
claim is derived throtzQh or on behalf of the Patient or relates in anv way to the Patient's stay(s) at this Center. or any
person who previously assumed responsibility for providing Patient with necessary services such as food. shelter,
clothing, or inedicine, and any person who executed this Azreentent or the Admission Agreernent-
6. Fees and Costs: The Panels' fees and costs will be paid by the Center except in disputes over non-payinent of'
Center charges wherein such fees and costs will be divided equally between the Parties. NAF's administrative fees
shall be divided. equally among the Partit:s. To the extent pennitted by law, airy Party who unsuccessfully challenges
the enforcement of this Agreement shall be required to pay the succcssfu.l Parties' reasonable attorney fees and costs
incurred to enforce such contract (i-e., Motion to Compel Arbitration). The Parties shall bean their own attorney fees
and costs in relation to all preparation and attendance at the arbitration hearing, unless the Panel concludes that the
law provides otherwise. Except as stated ahov,+, the Parties waive ariy right to recover attorneys' fees and costs.
7. Confidentiality: The arbitration proceedings shall remain confidential in all respects, including all fiingS,
deposition transcripts, discovet?f documents, or other materials exchanged be.ttveen the Parties and the Panels' award.
In addition, following receipt of the Pataels' award., each Party, agrees to rettun to the producing Party within 30 days
the original and all copies of documents exchanged in discovery and at the arbitration Hearing.
8. Waiver of this Agreement: I'lither Patty may tale its dispute in a court of law if the other Patty approves, which
approval shall only be established by such Pate filing a response to the, Complaint without moving it) a timely
martner, as prescribed by the applicable rules of court. to enforce this Agreement. However; should one of the Parties
to this Binding Arbitration Agreement breach its ternhs by initiating a lawsuit in the judicial forunh, the Patties
expressly aeacc that participation in cooperative general discovery while a motion to compel arbitration is pending
shall not constitute evidence of a waiver of the right to arbitrate. A waiver of the right to arbitrate a specific Dispute or
series of Disputes. as described above, relieves neither Patty of the contractual obligation to arbitrate other Disputes,
including both permissive and mandatory cotuhterclaims. unless also subsequently waived.
9. Severability, Integration and Survival: Any term, phrase or provision contained in this Agreement is severable,
and in the event any of them is found to be void, iztvalid or unenforceable for any reason, this Agtreenient shhall be
interpreted as if such terra, plu-ase or provision were not contained herein; and the remaining provisions of this
Agreement shall not be affected by such detertnitration and shall remain in frill force and effect. This Agreement
rep, esznts the Patties' entire aPreetnent regarding Disputes, supersedes any other agreement relating to disputes, and it
may only be changed in writing signed by all Parties. This A reement shall retrain in Rill force and effect
no[withstandutg the termination, cancellation or natural expiration of the Admission Agreement.
10. No Jury Trial: If this Agreement is found to be unenforceable and arbitration is not compelled, then its a default,
the Parties agree that the disputes shall be resolved solely by a judge via a bench trial. Under no circumstances will a
jtuy decide any dispute.
11. Health Care Decision: The Parties hereby stipulate that the decision to have the Patient move into this Center
and. the decision to agree to this Agreement are each a health care decision. The Panics stipulate that there are other
health care facilities in this conuntmi1.y currently available to meet the patient's needs.
12. Legal Representative: The Patient's Legal Representative, by his or her signature below, hereby represents and
stipulates that he/she has been authorized by the Patient to sign this Agreernettt on behalf of the Patient.
13Y SIGNING BELOW, THE PARTIES CONFIRM THAT EACH OF THEM HAS READ ALL FOUR (4)
PAGES OF THIS AGREEMENT AND UNDERSTANDS THAT EACH HAS WAIVED THE RIGHT TO A
TRIAL BEFORE A JUDGE OR KRY AND THAT EACH OF THEM CONSENT'S TO ALL OF THE
TERMS OF THIS VOLUNTARY AGREEMENT.
PATIENT:
- Ips,)o
Printed. Name (Date)
S ).ree of atient
PATIENT'S LEGAL REPRESENTATIVE:
Printed Name
(Date)
Signature of Patients Legal Representative' in his/her
Representative capacity
CENTEt?I'R .''IV Patients Legal Representative should sign on q.t It hues above containaig the phrase-Patient's Legal
Representative."
Signature v i cr Rep ivc
Signature of Patient's Legal Rfpre-sentative in his/her
individual capacity
Attmaevs Gnu.' Counselors ar La v
Bradley L. Griffie, Esquire
Hannah Herman-Snyder, Esquire
Robin J. Bassett
Office Manager
Kelly L. Perez
Legal Assistant
Reply to: Carlisle
December 28, 2010
David A. Baric, Esquire
19 West South Street
Carlisle, PA 17013
James E. Johnson, Sr.
322 Pine Street
Steelton, PA 17113
RE: HCR ManorCare vs. James E. Johnson, Sr.
Dear Mr. Baric and Mr. Johnson:
200 North Hanover Street
Carlisle, PA 17013
(717) 243-5551
100 Lincoln Way East, Suite D
Chambersburg, PA 17201
(717) 267-1350
(800) 347-5552
Fax (717) 243-5063
Please be advised that the following attorneys will serve as the Arbitration Panel
to resolve the issue of collection of past clue fees claimed by HCR ManorCare against Mr.
Johnson:
Nathan C. Wolf, Esquire
10 'West High Street
Carlisle, PA 17013
Jacqueline M. Verney, Esquire
44 South Hanover Street
Carlisle, PA 17013
Katie J. Maxwell, Esquire
Mart:son Law Offices
10 East High Street
Carlisle, PA 17013
Please be advised 'that pursuant to the Arbitration Agreement executed by HCR
ManorCare and by Mr. Johnson, I have scheduled the Arbitration hearing in this matter
for Tuesday, May 24, 2011., at 9:00 a.m. to take place at my office at 200 North Hanover
Street, Carlisle, Cumberland County, Pennsylvania.
At this time, I remind Mr. Johnson that he has obligations under the Arbitration
Agreement to disclose information that he intends to prove at the time of trial. HCR
ManorCare has previously made the necessary disclosures as described :i.n paragraph "D"
of the Arbitration Agreement by providing a list of witnesses to be called by HCR
ManorCare and by providing other relevant information as described in that paragraph.
EXHIBIT ":B"
Page 2
David A. Baric, Esquire
James E. Johnson, Sr.
December 28, 2010
Mr. Johnson's information must be provided immediately to be in compliance with
paragraph "D".
Mr. Johnson must provide us with the following: (a) list of witnesses to be called
at the hearing (full name, title, address and phone number if known) and an outline of
each witness' testimony; (b) list of documents to be relied upon at the hearing; except
document to be used solely for impeachment purposes; and (c) any sworn, recorded
statements to be relied upon at hearing, including the full name, title, address and phone
number of the person who gave the statement. This information must be provided
promptly as it is to be provided no less than 120 days before the hearing, pursuant to the
Agreement.
I again remind Mr. Johnson, as well as Mr. Baric, that we will be moving forward
with this Arbitration as scheduled absent a resolution between the parties by agreement,
which is confirmed with me in advance of the hearing.
As the Arbitration Agreement provides that the fees incurred by the Arbitration
Administrator and the panel are to be shared equally by the parties, I am instructing each
of you to deposit the sum of $750.00 with my office to use as compensation to the
Arbitrators and for my fees by April 24, 2011.
I anticipate that this hearing will not be continued from this date without good
cause shown, which will be at my discretion. Your attention to these matters I
appreciated.
Very Truly Yours,
Griffie
BLG/klp
Enclosure
Cc: Nathan C. Wolf, Esquire
Jacqueline M. Verney, Esquire
Katie J. Maxwell, Esquire
HCR MANORCARE INC. ARBITRATION PROCEEDING
V.
JAMES E. JOHNSON, SR. :
NOTICE OF HEARING
It is hereby directed that the hearing in the above captioned matter shall be held
Tuesday, May 24, 2011, to begin at 9:00 a.m., said Arbitration Hearing to be held at the
law offices of Griffie and Associates, 200 North Hanover Street, Carlisle, Cumberland
County, Pennsylvania.
No later than fourteen (14) days prior to the said Arbitration Hearing, each party
shall exchange a list of witnesses to be called at the hearing, including their full name,
title, address, and phone number, and an outline of each witnesses intended testimony.
Within the same time frame, each party shall exchange a list of documents to be relied
upon at the hearing and any sworn recorded statements to be relied upon at the hearing,
including full name, title, address, and phone number of the statements declarant.
The hearing shall proceed pursuant to the terms of the Arbitration and Limitation
of Liability Agreement executed by the parties on July 22, 2009.
1? ? 1 U
Date ra ffie, Esquire
Arbitra or
100 Lincoln Way East, Suite D
Chambersburg, PA 17201
(717) 267-1350
200 North Hanover Street
Carlisle, PA 17013
(717)243-5551
(800)347-5552
Distribution:
David A. Baric, Esquire
James E. Johnson, Sr.
?7-11
L
HCR MANORCARE, INC.,
Plaintiff
: ARBITRATION PROCEEDING
vs.
JAMES E. JOHNSON, SR.,
Defendant
ARBITRATION PANEL DECISION AND AWARD
1. PROCEDURAL HISTORY:
By correspondence of November 9, 2010, counsel for HCR ManorCare, Inc.
(hereinafter "the facility") requested the services of Bradley L. Griffie, Esquire, to serve
as Arbitration Administrator pursuant to the terms of an Arbitration Agreement executed
by a representative of the facility and by James E. Johnson, Sr. (hereinafter "Patient").
The Arbitration Administrator gave notice of his willingness to serve in this capacity by
correspondence dated November 11, 2010, further confirming that he had no interest in
the facility nor knowledge of the parties in a manner that would cause the Arbitration
Administrator to be unable to be independent. By correspondence dated November 16,
2010, the facility gave notice to the Arbitration Administrator of the facility's intended
witnesses and exhibits, pursuant to the requirements of the Arbitration Agreement. By
correspondence dated November 16. 2011; the facility named Attorney Nathan Wolf as
its Arbitrator. Upon failure of the Patient to name an Arbitrator after two written notices
and requests to do so, the Arbitration Administrator named Attorney Jacqueline Verney
as the Patient's Arbitrator. Mr. Wolf and Ms. Verney selected Attorney Katie J. Maxwell
as the third Arbitrator for the panel.
EXHIBIT "C"
By correspondence and Notice of Hearing dated December 28, 2010, a hearing
was scheduled in this matter to take place on Tuesday May 24, 2011 to begin at 9:00 a.m.
at 200 North Hanover Street, Carlisle, Cumberland County, Pennsylvania. Notice was
provided to the Arbitration Panel, legal counsel for the facility and the Patient, all at their
last known mailing addresses. No requests for a continuance were received from either
party or counsel. Appearing at the hearing before the Arbitration Panel on Tuesday, May
24, 2011, were Steve Vignati, Business Office Representative of HCR ManorCare, Inc.
and David A. Baric, Esquire for HCR ManorCare, Inc.
II. FINDINGS OF FACT:
1. On July 20, 2009, James E. Johnson, Sr. (hereinafter "Patient"), executed an
Admissions Agreement and an Arbitration Agreement associated with the
Patient's admission to the facility located at 1700 Market Street, Camp Hill,
Cumberland County, Pennsylvania.
2. Paragraph 3.2 of the referenced Admission Agreement provided confirmation
from the Patient that he would pay the room and board rates to the facility,
exclusive of expenses covered by insurance, Medicaid, Medicare, Veteran's
Administration payments, or related payments, on behalf of the Patient.
3. Pursuant to paragraph 3.2A of the said Admission Agreement, Patient agreed
that he would pay all charges that he incurred while at the facility located at
1700 Market Street, Camp Hill, Cumberland County, Pennsylvania.
4. While the Patient originally entered the facility as a Medicare patient, thus
having all room and board fees paid by Medicare, the room and board charges to
the patient were $7,099.00 per month effective August 17, 2009 and $7,533.00
per month effective November 1, 2009 for services provided to the Patient while
at the facility at 1700 Market Street, Camp Hill, Cumberland County,
Pennsylvania.
5. Statements of charges were submitted to the Patient for the period from August
17, 2009 through and including the period covering November 9, 2009 for room
and board services, cable charges, beauty shop charges and related charges, that
were billable on a private pay basis.
6. All appropriate insurance payments or applicable payments from Medicare or
Medicaid have been applied to the outstanding bill of the Patient by the facility.
7. The facility billed the Patient directly on a monthly basis for services provided to
the Patient.
8. The facility provided monthly past-due notices to the Patient for fees due to the
facility for services rendered which remained unpaid.
9. Neither the Patient nor anyone on his behalf objected to the billings.
10. The Patient was discharged from the facility on November 9, 2009.
11. All payments made to the facility from all sources have been applied to the
Patient's billing for services provided by the facility.
12. While some private payments have been received, an outstanding balance
remains due for services provided to the Patient by the facility for which private
payment is still due.
13. The total balance due for services provided to the Patient from admission on July
21, 2009 to the date of hearing is $21,282.81.
14. Pursuant to paragraph 6 of the Arbitration Agreement executed between the
parties, in a dispute over non-payment of facility charges the Panel's and
Administration fees will be paid equally by the parties.
15. The dispute between the parties in this matter involved the non-payment of
charges.
16. The facility made a formal Demand for Arbitration pursuant to the terms of the
Arbitration Agreement upon the Patient and the Responsible Party by
correspondence October 27, 2010.
17. Proper notice of the time and place of the hearing was provided to the facility
and to the Patient, pursuant to the terms of the Arbitration Agreement.
18. No,:gequest for a continuance, nor other contact, was made by the Patient with
the..Arbitration Administrator, nor with any member of the Arbitration Panel,
prior to the hearing.
19. The hearing began at 9:15 a.m. on Tuesday, May 24, 2011 at 200 North Hanover
Street, Carlisle, Cumberland County, Pennsylvania, after delaying the hearing 15
minutes from the original scheduled start time for the hearing of 9:00 a.m., to
allow the Patient to appear or otherwise make contact with the Arbitration
Administrator.
20. The Arbitration Administrator is not aware of any efforts made by the Patient
nor anyone on his behalf to contact the Arbitration Administrator relative to the
Patient's inability to attend the hearing.
III. CONCLUSIONS OF LAW:
The Patient, James E. Johnson, Sr., (hereinafter "Patient") entered into the terms
and conditions of the Admission Agreement and the Arbitration Agreement executed by
the Patient's Legal Representative, with the facility, HCR ManorCare, Inc., on July 20,
2009. The contracts are binding and provide all appropriate notices pursuant to
Pennsylvania law. The binding Arbitration Agreement provides that all claims and
controversies between the facility and the Patient will be resolved through application of
the terms of the Arbitration Agreement. The Patient has failed to meet his obligations
under the terms of the Admission Agreement to compensate the facility for services
provided to the Patient. Proper notice of services rendered and fees incurred was
provided by the facility to the Patient pursuant to the terms of the Admission Agreement.
The parties and legal counsel received proper notice of all proceedings under the
Arbitration Agreement, including Notice of the hearing.
ARBITRATORS' AWARD
Pursuant to the findings set forth herein, Judgment is hereby entered against
James E. Johnson, Sr., in favor of HCR ManorCare, Inc. in the amount of $21,282.81.
Administration fees for the Arbitration Administrator in the amount of $360.00 and
Arbitrator's fees of $450.00 ($150.00 per Arbitrator) shall be divided equally between the
parties, such that HCR ManorCare, Inc. shall compensate the Arbitration Administrator
for his fees and for compensation of the Arbitrators the sum of $405.00 and James E.
Johnson, Sr. shall likewise compensate the Arbitration Administrator for his fees and for
compensation of the Arbitrators the sum of $405.00. In the event that HCR ManorCare,
Inc. compensates the Arbitration Administrator in the full amount of fees and costs due,
HCR ManorCare's Judgment is adjusted from the $21,282.81 amount set forth above to
include the share of Arbitrator's fees and costs of James E. Johnson, Sr. in the amount of
$405.00 for a total Judgment of $21,687,81.
Nathan Wolf, Esq
1.
r acqu ' e M. Verney, Esquire
Katie J. xwell, Es4uire
rl-. Griffie, Esquire
tion Administrator
HCR MANORCARE, INC., ;
Plaintiff
vs.
ARBITRATION PROCEEDING
JAMES E. JOHNSON, SR.,
Defendants
CERTIFICATE OF SERVICE
7
I, Bradley L. Griffie, Esquire hereby certify that I did, the 7 day of June, 2011,
cause a copy of the Arbitration Panel Decision and Award to be served upon the Plaintiff
by first class mail, postage prepaid, and upon Defendant by serving him by first class
mail, postage prepaid, and certified mail, restricted delivery, at the following addresses:
David A. Baric, Esquire
19 West South Street
Carlisle, PA 17013
James E. Johnson, Sr.
322 Pine Street
Steelton, PA 17113
DATE: /
riffie, Esquire
'r
o
n Administrator
RIFFIE & ASSOCIATES
200 North Hanover Street
Carlisle, PA 17013
(717) 243-5551
(800) 347-5552
1 .
HCR MANORCARE, INC., IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
V. NO.2011-
JAMES E. JOHNSON, SR.,
Defendant
RULE
AND NOW, this day of , 2011, upon consideration of thet
foregoing Application To Confirm Arbitration Award, it is hereby ordered that
(1) a rule is issued upon the Defendant to show cause why the Plaintiff is not entitled
to the relief requested;
(2) the Defendant shall file an answer to the Application within Z O days of this
date;
(3) the Application shall be decided under Pa.R.C.P. No. 206.7;
(4) depositions shall be completed within days of this date;
(5) argument shall be held on I?
the ? ' day of
2011, at a.m./. in Courtroom -?/- of the Cumberland County
Courthouse; and
(6) notice of the entry of this order shall be provided to all parties by the Plaintiff.
BY THE COURT,
? Dau ?d A . I.?arie, ?a? J.
a
SHERIFF'S OFFICE OF CUMBERLAND COUNTY
Ronny R Anderson
Sheriff
Jody S Smith Chief Deputy '0 I AUG 10 PM 2: S
Richard W Stewart ,•^,UM$ERLA O ,
Solicitor ?" `" • ??` ?`?'??
HCR ManorCare, Inc.
Case Number
vs.
James E. Johnson, Sr. 2011-5787
SHERIFF'S RETURN OF SERVICE
07/25/2011 Ronny R. Anderson, Sheriff who being duly sworn according to law states that he made a diligent search
and inquiry for the within named defendant, to wit: James E. Johnson Sr., but was unable to locate him in
his bailiwick. He therefore deputized the Sheriff of Dauphin County, Pennsylvania to serve the within Rule
and Application to Confirm Arbitration Award according to law.
07/28/2011 08:09 AM - Dauphin County Return: And now July 28, 2011 at 0809 hours I, Jack Lotwick, Sheriff of
Dauphin County, Pennsylvania, do hereby certify and return that I served a true copy of the within Rule
and Application to Confirm Arbitration Award, upon the within named defendant, to wit: James E. Johnson
Sr. by making known unto Samuel Morris Jr., adult in charge at 322 Pine Street, Steelton, Pennsylvania
17113 its contents and at the same time handing to him personally the said true and correct copy of the
same.
SHERIFF COST: $37.44
August 04, 2011
SO ANSWERS,
RON R ANDERSON, SHERIFF
is Coua}ySuttc shenft Iej'oc oT. In:;.
HCR MANORCARE, INC.,
Plaintiff
V.
JAMES E. JOHNSON, SR.,
Defendant
IN THE COURT OF COMMON PLEAS
QF 17
,.
,
CUMBERLAND COUNTY, PENNSY ?N 3
,
NO. 2011-5787 CIVIL TERM -Z' CY'' ,-,
c, ,
-;c-
MOTION TO MAKE RULE ABSOLUTE
AND NOW, comes Plaintiff, HCR ManorCare, Inc., by and through its attorneys, Baric
Scherer LLC, and files the within Motion to Make Rule Absolute and, in support thereof, sets
forth the following:
1. Plaintiff filed an Application To Confirm Arbitration Award in this matter, a true
and correct copy of said Application is attached hereto as Exhibit "A" and is incorporated.
2. By Rule dated July 22, 2011, the Honorable Kevin A. Hess, directed the
Defendant, to show cause why the Application should not be granted within twenty (20) days of
service. A true and correct copy of the Rule is attached hereto as Exhibit "B" and is
incorporated.
3. To August 16, 2011, no answer has been filed by the Defendant.
WHEREFORE, Plaintiff requests confirmation of the arbitration award in this matter in
the amount of $21,687.81 and a judgment entered of record in this matter.
Respectfully submitted,
F-RARIC SCHERER LLC
r
A
David A. Baric, Esquire
I.D. # 44853
19 West South Street
Carlisle, Pennsylvania 17013
(717) 249-6873
Attorney for Plaintiff
HCR MANORCARE, INC., IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
V. : NO. 2011- -51767 Ct
JAMES E. JOHNSON, SR.,
Defendant
APPLICATION TO CONFIRM ARBITRATION AWARD
NOW, comes HCR ManorCare, Inc., Plaintiff, by and through its attorneys, BARIC
SCHERER LLC, and files the within Application to Confirm Arbitration Award and, in support
thereof, sets forth the following:
1. The parties to this matter were bound by a certain Arbitration and Limitation of
Liability Agreement, a true and correct copy of which is attached hereto as Exhibit "A" and is
incorporated by reference.
2. A dispute arose amongst the parties and HCR ManorCare sought arbitration of the
dispute under the terms of the Arbitration and Limitation of Liability Agreement.
3. Arbitration was held before Nathan C. Wolf, Esquire, Jacqueline M. Vernev,
Esquire and Katie J. Maxwell, Esquire after their appointment as arbitrators.
4. Bradley L. Griffie, Esquire as arbitration administrator, served the Defendants
with notice of the arbitration hearing. Proof of said service is attached hereto as Exhibit "B" and
is incorporated by reference.
5. The arbitrators have rendered an Arbitrators' Decision and Award in this matter a
true and correct copy of which is attached hereto as Exhibit "C" and is incorporated by reference.
EXHIBIT "A"
6. Pursuant to 42 Pa.C.S.A. §7313, a party to an arbitration may make application to
the Court of Common Pleas for confirmation of the award by the Court.
7. Pursuant to 42 Pa.C.S.A. §7316, upon confirmation of the award, a judgment or
decree shall be entered in conformity with the order.
8. Copies of the Arbitrators' Award was mailed to all of the parties on June 7, 2011.
9. No request for modification or correction of the award has been filed by the
Defendant to the date of this application.
WHEREFORE, Applicant requests that the award of the arbitration administrator be
confirmed and judgment be entered in conformance therewith.
Respectfully submitted,
BARIC SCHERER LLC
AZ , - J?V--
David A. Baric, Esquire
I.D.# 44853
19 West South Street
Carlisle, PA 17013
(717) 249-6873
Attorney for HCR NlanorCare, Inc.
VOLUNTARY AGREEMENT: If you do not accept this Agreement, the Patient will still be allowed to live in,
and receive services in, this Center.
ARBITRATION AG EMEN'T ("<IGREEMEN "
BY ACCEPTING THIS AGREEMENT. THE PARTIES ARE W.kIV[NG THEIR RIGHT TO A TRIAL
BEFORE A JUDGE A.NWOR A JURY OF ANY DISPUTE BETWEE_NI THEM. PLEASE READ THIS
AGREEMENT CAREFULLY AND IN ITS ENTIRETY BEFORE ACCEPTING ITS TERMS.
This Am-cornent made: on (dare) b and bat,veen the Patties, Patient
?C•I?MII x, ,11 and/or Pa.ti, nt's Legal Representati.?-c ? - ._ (callectivelyra£etred to
as `Patient"), and the Center ` is an Agreetnlent intand.ed to require that Disputes be
-:
resoived by arbitration, The .Patient's Legal Rcpresen:tative agrees that he is sivning rbis rtgreeu3ent as a Party, both in
his representative and individual capacity
A. WHAT IS AJ2BITRATION': Arbitration is a cos' effective and [Ilse saving method of tesolving disputes
without involving fihe courts. to using arbitration, [tie disputes arc heard and decided by a. private individual called ar
arbitrator. Me dispute,,3ill not be heard or decided by a judge orjury.
B. AGREEMENT TO ARBITRATE "DISPUTES,,: Any and all claims or controversies arising out of or in cart'
wall' relating to this Agreement; the Admn &Sioa Agreement or any of the Patient's stays at this Center, or any Center
operated by azty subsidiary of HCR-Manor Care, Inc., whether or not related to incdical in.alpracticc, including but not
limited to disputes regarding the m.at<ing, execution; validity, enforceability, voidability, uaeonscionability,
severability, scope, mterpretatiotn< preemption, waiver, or arty other defense to ea;orceability of 'his Agreement or the
Admission Age-zinent, whether arisin? cut of State or Federal law. whether eNisting now or aiisiog in the filtare.
whether for statutory, compensatory or punitive damages and whether sounding in breach of contract, tort or breach of
sta.tut.ory duties (inc...udina, without i rnitation except as indicated., any claim based. oa Pat;ems' Rights or a claim for
unpald Cetiuer charges), regardless of the basis For the ditty a of the legal theories upon which the Claim is asserted,
shall be submitted m biidin2 arbitration. Not,,i?imstandi iu the above, nothing in this Agreement przveuts the Patient
5:om filing a grizvance or complaint with the Center or appropriate ?overnmentrtl agenci,; from regiiasting an
insp?ction of the Ccn'er f:oln such agency; or fi-om seeking review under any applicable federal, state or loca'. law of
any dacisios to involuntarily discharge or transfer the Patient from the Center.
1. Administrator: The arbitration shat] be admiitistcrr.d by Narioaal Arbirration Forum. -NAF'), 6465 Wayzata
Blvd„ Suite 500, Minneapolis, Ivfti 5142.6 wzvtic,arbitratiort-farurl, (hereinafter "Administrator`) Ifthe Parties
mutually agree in writing not to select NAF or if the NAF is unwilling or unable to serve as the Administrator; 1te
Parties shall azre2 Ltpon -another in.dc.pendent entity to serva 33 the Adwinistrator, unle>s tha ?ixties, mutually agrae to
riot have ail .-administrator.
2. Demalyd for Arbitration shall be suade in writing. sent to [tie other Patty r;a -aiTifiad mail, rcluln receipt
requested, and tiled with NAF (unless NAF is mutually «aived).
3. Arbitration Panel: fbc arbitration shall be conducred by thug (3) Art,itc•arors (dic "Panct"). Each Party will
select ona Arbitrator. The t,,vo selected Arbitrators will select a third ,Arbitrator. Each Arbirator [Host be a retired
State or Federal' Colu't Jude or a Member of the State Bar wllere the Center is located xic[I at least N years of
experience as an attorney. NAF approved Arbitrators do not have to be used. if one Party refiises to select its
arbin ator within 30 days of a written rcqu.c?t. For same, then the Administrator 311;1]1 3alect. that Patty's Arbitrator.
1- Sole Decision Maker: The Arbitratiou Panel is ?rnpowared with th.a sole jiLI-isdiction to7 anct =halt, resolve all
disputes; including without limitation, any disputes about the staking; validity, enforceability, :cope, interpretation,
voidahility, ttncorscionabili ?, preemption. severzbility and/or wuver of this Ageernenr or the \dniission Agrecuierrt,
EXHIBIT "A"
as well as [-solve tl e Parties' tuiderlyina disputes, as it is the Paities' alter[ to completely avoid atvolvinz rate tour,
system. Tlic Panel shall not have jurisdiction to certify ally person as a repre3ent3ttve of a lass of nersOtls and, by
doing so, adjudicafe claims of persons not db-ectly taking part is :Arbitration
5. Procedural Rules and Substantive Law: The Panel shall apply th:: Federal Rttles of'rvidence and Federal Rules
of Civil Procedure except where otherwise stated in this Agreement Also, the Panel shall apply. uid the arbitration
award shall be corlsistent xith, the Sate substantive iaW (in.cluding any and all statutoiy damage caps) for the State in
which the Gcnrer is located. except as otherwise stated i i this Agzeeuient or where preempted b the FAA, The Panel
shall apply NAF's Code of Procedure (in effect as of May 1, 2006) unless othetvtise stated in this Agreement. NAF's
Code o;`Procedtu•e may be obtained from •N<AF, (877) 666-7755, z:ti?tiv,arbitration forwr.com The Parties hereby opt-
out of NAF Rules (45 reaarftZ, indigents; 43 regarding appeals and ittdicial rr,view).
6. Refusal to Arbitrate: Any Patty who refuses to go forward with arbitration aclenowledoes that the Panel will go
forward with the arbitration hearing arid render a bind.,rig award without the patticipation of such Pat y or despite his
absence at tIc hearing.
I. Waiver of Claim: ka claim shall ba forever waived if it arose prior to the arbin-atioa hearing and is not
pr:sented in suet,, hearing. rN claim that is not served Mtliin the statute of lirnimtioas period appkcable to the -ante
olaint in, a count cf law in the state in wliich this Center is located shall be farvcr waived.
S. Award: Tile Panel's award must be unanullous .111d shall be served no later that[ rive (;) working days after the
arbitration hearing. The award inust state in detail the Panels' findings of fact and conclusions of la,v, shall be rnarked
''confidential". and must be signed by all three Arbitrators. If any damages are awarded, the a,.v,-lrd must delirieat2
speci`,c atnounrs for economic and;;)r non-cconornic damages
9. Final with Limited Rights ro Review (Appeal): The Panels award binds tits Parties l ate Patties have a limited
riatt of revi2sv for only tha etpress reasons allo,ved 6y the FA.4.
D. D _SCOV RY: Discovor y shall be governed by NAP's Code of Procedure. HoWwer, discovery shall be limited
as follows. (1) Withal 30 days after seraice? of the Demand, each Party must :onrply with Fad. R. Civ. P., Rule
26(a)(1) and thereafter must comply with Rule 26)(e) regarding supplementation of disclosures and responses. (2) A
Party may sei e a matirttum of 30 writtan questions (intau,ogatories), 30 requests ic produce documents and 30
requests for admissions; ittclusv-_ of subparts. (3) The followtn2 disclosures shall he served no Icier titan one Iiuudred
fifty (150) days befor° the arbitration hearing by the Claimant. and one hundred twenty (120) days before the
arbitration hea.rittg by the Respondent: (a) list of witnesses to be called at die Hatu ng (Rill name; title, address and
phone number If known) and an outline of each witnesses' bltended testimony; {b) dg at docunents to be relied upon
at Hearing; except documents to be used solely for impeaclunent purposes; (c) any shorn recorded staterrtenrs to be
relied upon at Hearing inci,,din_v- the fill.. name, title, address and phone number of the person who gave the statement.
The Pasties shall supplement These disclosures oer Fed. R. Civ_ Pr . Rule. 26 (e). (4) Each Patty niay ha?e tip to three
3) axpzrts and no more than teri (10) lay wimasses for its wimess li_t, as well as fcr:hc Hearing. Depositions of
witncsscs shall be limi`.od to those people listed on the Parties' witness lists or in the Psr'.i_s' Rule 26 disclosures or,
disco every responses but under no circtunstatices wili a Party be allowed to take Dior- d^an 1 depositions- A Written
report surmnarizing each expert's opinions and the basis for each opinion, and a list of all record; contained in the
axpez- s file, mast ba served at least thirty (30) days before the expert's deposition; (5) Discovery sha11 be completed
45 days before the Haaiinz and the Hoaring shall begin no later than 365 days alter Deimmd for Arbi!ralicn is served,
shall fast in :b.rration no gouge- thar. the (5) ?xorkirg days- and the hearalg tune allowed shall be split on a pro rata
oasis sub;ecr t-) the Panel's discrction. (6) The Parties may agree to modifti these discose? tertzs or deadlines.
E. RIGHT O CHANGE 1:7OUR MfUNQD: This Agreement may be cancelled b;, ?-n•irtai, uotzce sent b,- certified
maid to the Center's Alin usistrator .within thiry (30) calendar dais of the Patients data of adinission. If alleged acts
utcierlvir rite dispute occur before the canc,?liaiion dote. this .'1Rraement -hat's be l bA: g with respect ro those
aileoed acts. If not cancelled, this Agz-eemEmt shall be binding on the Patient for rJT; and all of the Patient's other
admissions to the Center wit}tout any need for fbrTher renewal.
F. OTHER PR.OVZS -01NM:
1. No Caps/Lintits on Damages: There arP no caps/limits on the amount of damages the Panel can award other than
those already unposed by law in the state ui which this Center is located. All state lams, ststtaes and regulations that
limn awardable damages Ind define the =cope of admissible and inadmissible ewdencs (i.c. regulatory surveys,
incident reports, etc.) axprcasly apply to any arbitration hearing held pursuant to this A7r°etalent.
2. Opportunity to Review & Right to Consult With Attorney: Tire Patient (if competent) and die Patient's Legal
kepresentative acknowledge that the Patient and Legal Representative leave each recei,ied a copy of this Agreement,
and have had an opportunity to read it (or leave it read to him/her) and ask questions about it before accepting it.
Plaase road rhis Agaemert very carefully aitd ask any question- rha.t you have before s?_gnnz it. Feel -tee to consult
with an attorney of your choice before sigzling this Azy=uent.
3. Benefits of Arbitration: The Patties' decision to select kibitrarion is suppcrtad by the potential
cost- a-,,,d tune-savings offered by selecting arbitration. which seeks to avoid the expense and delay in the tout?
system. The Parties reco.plize that often the Patient is elderly and may have a limited life-expectancy; and therefore
selecting a quiok method of resolurion is potentially to a Patient', advanuage The Parda3 a?co that the reasons stated
above are; prover aowsiderauion for the acceptance of the Agreement
4. FAA: The Parties hareb- agee and intend that this Agreensert, the Acbrission ,1 e attar and rha Patient's stays
at the Canter subsr ttiaiiy involve interstate coniznerce, Ind stipulate that the Federal Vbilxazion Act ("FAA'') in
effecr as of NovctnC?er 1, 2008 and federal case lain intotprerin- such version of the FAA Shall apply to this
??lcCarrait-Ferguson
Ajeemenr, shall pr, ? ipt any inconsistent State law and skull not be reverse preempt-,d b-y the
cr. United Status Code Tula I I, Chapter 20, or other law. Any atnendnaent to such version of the FAA is hareb,?
expressly waives,
5. Dimling on Parties & Others: The Parties intend that this Agreement shall inure :o the direct benefit of and birld
the Center, its parent, of iliates, and suibsidivy companies; management colnparies. axecutive directors, owners,
of scars, partners, shareholders, directors, medical directors, employees, successors, assi. sis, agents, insurers and any
entity or person (including health cm•e providers) that provided an, service, supplies or equipment related to cite
Patient's stay at tk:a Center; anti shall inure to the direct benefit of and hind the Patient (as defined herein), his/her
successors, spouses, children; next ofkut, guardians, administrators, legal representatives, rasporisibia parties. assign;,
agents. attonleys, health tale proxies; health care su.tTowates, third Pat^y bereticiaries, instuers, heirs, trustees,
survivors arid represcntatives, lncludnac the personal represcntativzs or B.x=itot3 of ilis/iar estate, ,iny person whose
claim -s derived throrth or oil behalf of the Patient or relates in an_i way to the Patients stay(s) a- `his Center, or any
Verson who previously assutlaed responsibility for providitlg Patient ,v;t1l necessary servi;es suc,l as food. shelter,
clothu.g. or medicine, and any person who executed this Aa-eeinent er the Admissiou A4reenjent_
6. Fees and Costs: The Panels' fees aad costs will be paid by the Center e;ccept ut dispu.es over non-payment or
Center charges wharein such fees and costs will he divided equally bei:lveen the fames. NAF's administrative fees
shall be divided. equall) among the Parties To the extent permitted by 1gWw M), Paid who unsuecesslahly cltalleri-ges
the er-,orcemenr of this Agreement shall be required to pay the succcssfuJ Parties' reasonable attorney fees and costs
incurred to enforce such coattract (i.e., Motion to Compel Arbitration.). The Parities shali bear theu. owri attorney foes
acid costs in relation, to all, preparation and attendance qt the arbitration hearing, unless ti:e Panel concludes tat the
law provides )therwis2. Except as stated above, the Firties waive any ri.aht to recover atronleys' fees and costs.
Confidentiality: Tree arbitration prcccedings shall remain confidential ut all respect;- tn0lading al'?filings,
deposition `ranscnpts, discover; documents, or other mate-nals exchanged '?ehs'azn the P3rti?s and the Panel' award
In addition, following receipt of the Panels' award.. each Part, agaees to renull to the producing Party within 30 days
the original and all copies of documents exchanged in discovery and at tare arbitration Hearing.
3. Waiver of this Agreement: hither Pasty stray tilt its dispute ur a court of iaw if the other Patty approves, which
approval shall only be established by such Pate riling a response to the Complaint without moving in a timely
inanner, as prescribed by the applicable rules of torsi, to enforce this AD7,;atent. However, should one of the Parties
to this Binding Arbitration Agreement breach its terms by initiating a lawsuit in the Judicial foruntr the Pmti05
expressly agree that participation in cooperative general discovery %vlila a motion to compel arhitration is pending
shall not constitute evidence of a waiver of the right to arbitratf. A Waiver of the ri;bt to arbitrate a specific Dispute or
series of Disputes. as described above, relieves neither Parry of the contractual obligation to arbitrate othc)- Disputes.
including borlr perrnissive and mandatory cotuaterclaims. tu11CS5 also subsequently waived.
9. Scverability, Integration and Survival: Any term, phrase or provision contame3 in this Agreement is severable,
and in the event any of diem is found to be void, invalid or unenforceable for any tea on, this Agreement shall be
interpreted as if such term, plu•ase or provision ware not contained herein, and the remaining provisions of rhis
A21-eement shall not be affected by such dctertnirtation and shall remain in fitll force and affect. This Agreement
represents the Parties' entire a_a_reamant rebar1ng Disputes, supersede, as-ly other aat'eement relating to disputes, and it
May only ''oe changed in t.G.-i_ting signed by all Parties. This A Arc. sni :nt shall r-ernain in pill force and effect
nottwitastauduig the reiminadon, cancellation or natural expiration of the Admission .1 eetneur.
10. No Jury Trial: Ifthis Agreement is found to be unenforceable and arbitration is not compelled, then as a defauit.
the Panics agree That talc disputes 9Jlall be resolved solely by ajudge via a beach trial Under no circumstances will a
]lliy decid.; an`: dispute
11. Health Care Decision: The Parties iaereby stipuisze that the derision to have die ?atiinn° move into this Conte,
and :1.e decision to agree to this AueeMent are each a ileaiih care dccisiort. Ttre Patios stipulate that tlicr3 other
heal?lr care facilities in this conuuunity currently 3vai1ible to meet the Patients needs
12. Legal Representative: The. Patient's Legal Representative, by his or t'.er signattue belo,v. hereby represents and
stipulates that he/she has been authorized by the Patient to sign this ,4greeuient on behalf of tine Patient.
BY SIGNING BELOW, THE PARTIES CONFIRM THAT EACH OF THEM HAS READ ALL FOUR (4)
PAGES OF THIS AGREEMENT AND UNDERSTANDS THAT EACH HAS WAIVED THE RIGHT TO A
TRIAL BEFORE. A JUDGE OR JURY AND THAT EACH OF THEM CONSENTS TO ALL OF THE
TERivIS OF THIS VOLUNTARY AGREEMENT.
PATIENT:
??"?? CIO nflS:Gt? --
Printed Name ();Jere)
?J
S )re of anent
PATIENT'S LEGAL REPRESENTATIVE;
Printed Naine
(Date}
Si2jnaturv of Patient's Legal Representative' ill his/lrer
Representat-,- capacity
Patient's Legal Representative should sign on b9il lines above containirig the please Twient's Legal
Representative."
Si?na[ure v I cr Rcp Lvc
Si-nature of Patient's Legal Rapres-,nrativa in his/h.er
Indivildual capacity
car ASSOCIATES
Attorneys and Co,znseiors a` L v
Bradley L. Griffie, Esquire
Hannah Herman-Snyder, Esquire
Robin I Bassett
Office Manager
Kelly L. Perez
Legal Assistant
Reply to: Carlisle
David A. Baric, Esgtl.ire
19 West South Street
Carlisle, PA 17013
James E. Johnson, Sr
322 Pine Street
Steelton, PA 17113
December 28, 2010
RE: HCR ManorCare vs. James E. Johnson, Sr.
Dear Mr. Baric and Mr. Johnson:
200 North Hanover Street
Carlisle, PA 17013
(717) 243-5551
100 Lincoln Way East, Suite D
Chambersbur;, PA 17201
(717) 267-1350
(800) 347-5552
Fax (717) 243-5063
Please be advised that the following attorneys will serve as the Arbitration Panel
to resolve the issue of collection of past due fees claimed by HCR ManorCare against Mr.
Johnson:
Nathan C. Wolf, Esquire
10 West High Street
Carlisle, PA 17013
Jacqueline M. Verney, Esquire
44 South Hanover Street
Carlisle, PA 17013
Katie J. Maxwell, Esquire
Martson Law Offices
10 East High Street
Carlisle, PA 17013
Please be advised that pursuant to the Arbitration Agreement executed by HCR
ManorCare and by Mr. Johnson, I have scheduled the Arbitration hearing in this matter
for Tuesday, May 24, 2011, at 9:00 a.m. to take place at my office at 200 North Hanover
Street, Carlisle, Cumberland County, Pennsylvania.
At this time, I :remind Mr. Johnson that he has obligations under the Arbitration
Agreement to disclose information that he intends to prove at the time of trial. HCR
ManorCare has previously made the necessary disclosures as described in paragraph "D"
of the Arbitration Agreement by providing a list of witnesses to be called by HCR
ManorCare and by providing other relevant information as described in that paragraph.
EXHIBIT "B"
Page 2
David A. Baric, Esquire
James E. Johnson, Sr.
December 28, 2010
Mr. Johnson's information must be provided immediately to be in compliance with
paragraph "D".
Mr. Johnson must provide us with the following: (a) list of witnesses to be called
at the hearing (full name, title, address and phone number if known) and an outline of
each witness' testimony; (b) list of documents to be relied upon at the hearing; except
document to be used solely for impeachment purposes; and (c) any sworn, recorded
statements to be relied upon at hearing, including the full name, title, address and phone
number of the person who gave the statement. This information must be provided
promptly as it is to be provided no less than 120 days before the hearing, pursuant to the
Agreement.
I again remind Mr. Johnson, as well as Mr. Baric, that we will be moving forward
with this Arbitration as scheduled absent a resolution between the parties by agreement,
which is confirmed with me in advance of the hearing.
As the Arbitration Agreement provides that the fees incurred by the Arbitration
Administrator and the panel are to be shared equally by the parties, I am instructing each
of you to deposit the sum of $750.00 with my office to use as compensation to the
Arbitrators and for my fees by April 24, 2011.
I anticipate that this hearing will not be continued from this date without good
cause shown, which will be at my discretion. Your attention to these matters I
appreciated.
y Yours,
Griffie
BLG, Jp
Enclosure
Cc: Nathan C. Wolf, Esquire
Jacqueline M. Verney, Esquire
Katie J. Maxwell, Esquire
HCR NLANORCARE INC. ARBITRATION PROCEEDING
?T
JAMES E. JOHNSON, SR.
NOTICE OF HEARING
It is hereby directed that the hearing in the above captioned matter shall be held
Tuesday, May 24, 2011, to begin at 9:00 a.m., said Arbitration Hearing to be held at the
law offices of Griffie and Associates, 200 North Hanover Street, Carlisle, Cumberland
County, Pennsylvania.
No later than fourteen (14) days prior to the said Arbitration Hearing, each party
shall exchange a list of witnesses to be called at the hearing, including their full name,
title, address, and phone number, and an outline of each witnesses intended testimony.
Within the same time frame, each party shall exchange a list of documents to be relied
upon at the hearing and any sworn recorded statements to be relied upon at the hearing,
including full name, title, address, and phone number of the statements declarant.
The hearing shall proceed pursuant to the terms of the Arbitration and Limitation
of Liability Agreement executed by the parties on July 22, 2009.
Date ra `fie, Esquire
Arbitra or
100 Lincoln Way East, Suite D
Chambersburg, PA 17201
(717) 267-1350
200 North Hanover Street
Carlisle, PA 17013
(717)243-5551
(800)347-5552
Distribution:
David A. Baric, Esquire
James E. Johnson, Sr.
V AIL
HCR MANORCARE, INC.,
Plaintiff
ARBITRATION PROCEEDING
vs.
JAMES E. JOHNSON, SR.,
Defendant
ARBITRATION PANEL DECISION AND AWARD
1. PROCEDURAL HISTORY:
By correspondence of November 9, 2010, counsel for HCR ManorCare, Inc.
(hereinafter "the facility") requested the services of Bradley L. Griffie, Esquire, to serve
as Arbitration Administrator pursuant to the terms of an Arbitration Agreement executed
by a representative of the facility and by James E. Johnson, Sr. (hereinafter "Patient")
The Arbitration Administrator gave notice of his willingness to serve in this capacity by
correspondence dated November 11, 2010, further confirming that he had no interest in
the facility nor knowledge of the parties in a manner that would cause the Arbitration
Administrator to be unable to be independent. By correspondence dated November 16,
2010, the facility gave notice to the Arbitration Administrator of the facility's intended
witnesses and exhibits, pursuant to the requirements of the Arbitration Agreement. By
correspondence dated November 1.6; 2011; the facility named Attorney Nathan Wolf as
its Arbitrator. Upon failure of the Patient to name an Arbitrator after two written notices
and requests to do so, the Arbitration Administrator named Attorney Jacqueline Verney
as the Patient's Arbitrator. Mr. Wolf and Ms. Verney selected Attorney Katie J. Maxwell
as the third Arbitrator for the panel.
EXHIBIT "C"
By correspondence and Notice of Hearing dated December 28, 2010, a hearing
was scheduled in this matter to take place on Tuesday May 24, 2011 to begin at 9:00 a.m.
at 200 North Hanover Street, Carlisle, Cumberland County, Pennsylvania. Notice was
provided to the Arbitration Panel, legal counsel for the facility and the Patient, all at their
last known mailing addresses. No requests for a continuance were received from either
party or counsel. Appearing at the hearing before the Arbitration Panel on Tuesday, May
24, 2011, were Steve Vignati, Business Office Representative of HCR ManorCare, Inc.
and David A. Baric, Esquire for HCR ManorCare, Inc.
II. FINDINGS OF FACT:
1. On July 20, 2009, James E. Johnson, Sr. (hereinafter "Patient"), executed an
Admissions Agreement and an Arbitration Agreement associated with the
Patient's admission to the facility located at 1700 Market Street, Camp Hill,
Cumberland County, Pennsylvania.
2. Paragraph 3.2 of the referenced Admission Agreement provided confirmation
from the Patient that he would pay the room and board rates to the facility,
exclusive of expenses covered by insurance, Medicaid, Medicare, Veteran's
Administration payments, or related payments, on behalf of the Patient.
3. Pursuant to paragraph 3.2A of the said Admission Agreement, Patient agreed
that he would pay all charges that he incurred while at the facility located at
1700 Market Street, Camp Hill, Cumberland County, Pennsylvania.
4. While the Patient originally entered the facility as a Medicare patient, thus
having all room and board fees paid by Medicare, the room and board charges to
the patient were $7,099.00 per month effective August 17, 2009 and $7,533.00
per month effective November 1, 2009 for services provided to the Patient while
at the facility at 1700 Market Street, Camp Hill, Cumberland County,
Pennsylvania.
5. Statements of charges were submitted to the Patient for the period from August
17, 2009 through and including the period covering November 9, 2009 for room
and board services, cable charges, beauty shop charges and related charges, that
were billable on a private pay basis.
6. All appropriate insurance payments or applicable payments from Medicare or
Medicaid have been applied to the outstanding bill of the Patient by the facility.
7. The facility billed the Patient directly on a monthly basis for services provided to
the Patient.
S. The facility provided monthly past-due notices to the Patient for fees due to the
facility for services rendered which remained unpaid.
9. Neither the Patient nor anyone on his behalf objected to the billings.
10. The Patient was discharged from the facility on November 9, 2009.
11. All payments made to the facility from all sources have been applied to the
Patient's billing for services provided by the facility.
12. While some private payments have been received, an outstanding balance
remains due for services provided to the Patient by the facility for which private
payment is still due.
13. The total balance due for services provided to the Patient from admission on July
21, 2009 to the date of hearing is $21,282.81.
14. Pursuant to paragraph 6 of the Arbitration Agreement executed between the
parties, in a dispute over non-payment of facility charges the Panel's and
Administration fees will be paid equally by the parties.
15. The dispute between the parties in this matter involved the non-payment of
charges.
16. The facility made a formal Demand for Arbitration pursuant to the terms of the
Arbitration Agreement upon the Patient and the Responsible Party by
correspondence October 27, 2010.
17. Proper notice of the time and place of the hearing was provided to the facility
and to the Patient, pursuant to the terms of the Arbitration Agreement.
18. No: Bequest for a continuance, nor other contact, was made by the Patient with
the.lArbitration Administrator, nor with any member of the Arbitration Panel,
prior to the hearing.
19. The hearing began at 9:15 a.m. on Tuesday, May 24, 2011 at 200 worth Hanover
Street, Carlisle, Cumberland County, Pennsylvania, after delaying the hearing 15
minutes from the original scheduled start time for the hearing of 9:00 a.m., to
all Icvv the Patient to appe r or othGrwlse rnak- contact with tn-? Arbitration
Administrator.
20. The Arbitration Administrator is not aware of any efforts made by the Patient
nor anyone on his behalf to contact the Arbitration Administrator relative to the
Patient's inability to attend the hearing.
III. CONCLUSIONS OF LAW:
The Patient, James E. Johnson, Sr., (hereinafter "Patient") entered into the terms
and conditions of the Admission Agreement and the Arbitration Agreement executed by
the Patient's Legal Representative, with the facility, HCR ManorCare, Inc., on July 20,
2009. The contracts are binding and provide all appropriate notices pursuant to
Pennsylvania law. The binding Arbitration Agreement provides that all claims and
controversies between the facility and the Patient will be resolved through application of
the terms of the Arbitration Agreement. The Patient has failed to meet his obligations
under the terms of the Admission Agreement to compensate the facility for services
provided to the Patient. Proper notice of services rendered and fees incurred was
provided by the facility to the Patient pursuant to the terms of the Admission Agreement.
The parties and legal counsel received proper notice of all proceedings under the
Arbitration Agreement, including Notice of the hearing.
ARBITRATORS' AWARD
Pursuant to the findings set forth herein, Judgment is hereby entered against
James E. Johnson, Sr., in favor of HCR ManorCare, Inc. in the amount of $21,282.81.
Administration fees for the Arbitration Administrator in the amount of $360.00 and
Arbitrator's fees of $450.00 ($150.00 per Arbitrator) shall be divided equally between the
parties, such that HCR ManorCare, Inc. shall compensate the Arbitration Administrator
for his fees and for compensation of the Arbitrators the sum of $405.00 and James E.
Johnson, Sr. shall likewise compensate the Arbitration Administrator for his fees and for
compensation of the Arbitrators the sum of $405.00. In the event that HCR ManorCare,
Inc. compensates the Arbitration Administrator in the full amount of fees and costs due,
HCR ManorCare's Judgment is adjusted from the $21,282.81 amount set forth above to
include the share of Arbitrator's fees and costs of James E. Johnson, Sr. in the amount of
$405.00 for a total Judgment of $21,687,81.
Nathan C /Wolf, EI?57
O acqu ' e M. Verney, Esquire
Katie J. ax"well, NtIire
L. Griffie, Esquire
on Administrator
HCR MANORCARE, INC.,
Plaintiff
: ARBITRATION PROCEEDING
vs.
JAMES E. JOHNSON, SR.,
Defendants
CERTIFICATE OF SERVICE
7?
I, Bradley L. Griffie, Esquire hereby certify that I did, the day of June, 2011,
cause a copy of the Arbitration Panel Decision and Award to be served upon the Plaintiff
by first class mail, postage prepaid, and upon Defendant by serving him by first class
mail, postage prepaid, and certified mail, restricted delivery, at the following addresses:
David A. Baric, Esquire
19 West South Street
Carlisle, PA 17013
James E. Johnson, Sr.
322 Pine Street
Steelton, PA 17113
DATE: & fb? / /
Sr- . Griffie, Esquire
ion Administrator
RIFFIE & ASSOCIATES
200 North Hanover Street
Carlisle, PA 17013
(717) 243-5551
(800) 347-5552
HCR MANORCARE, INC.,
Plaintiff
v.
JAMES E. JOHNSON, SR.,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2011- 5 787
RULE
AND NOW, this Af? day of?--, 2011, upon consideration of the
foregoing Application To Confirm Arbitration Award, it is hereby ordered that
(1) a rule is issued upon the Defendant to show cause why the Plaintiff is not entitled
to the relief requested;
(2) the Defendant shall file an answer to the Application within A days of this
date;
(3) the Application shall be decided under Pa.R.C.P. No. 206.7;
(=1) depositions shall be completed within days of this date;
(5) argument shall be held on the day of
I Al R 04
_, 2011, at 9:15 a.m./fit. in Courtroom -4- of the Cumberland County
70" "
Courthouse; and
(6) notice of the entry of this order shall be provided to all parties by the Plaintiff.
BY THE COURT,
s
J.
EXHIBIT "B"
CERTIFICATE OF SERVICE
I hereby certify that on August 1 b , 2011, I, David A. Baric, Esquire of Baric Scherer LLC,
did serve a copy of Motion To Make Rule Absolute, by first class U.S. mail, postage prepaid, to the
party listed below, as follows:
James E. Johnson, Sr.
322 Pine Street
Steelton, Penn lvania 17113
David A. Baric, Esquire
4.
HCR MANORCARE, INC.,
Plaintiff
V.
JAMES E. JOHNSON, SR.
Defendant
TO THE PROTHONOTARY:
IN THE COURT OF COMMON PLEAS OF,
v
CUMBERLAND COUNTY, PENNSYL16*- M `-
1
r-q zi??
r
NO. 2011-5787 CIVIL TERM'- c? ?
T
r
AFFIDAVIT OF SERVICE -
I certify that the attached correspondence dated July 26, 2011 along with a copy of the
July 22, 2011 Rule signed by Judge Hess was mailed to the Defendant via United States First
Class mail and was not returned to me as undeliverable.
r
David A. Baric, Esquire
DATE: August 16, 2011
BARIC
Attorneys at Law
SCHERER
LLC
David A. Baric
Michael A. Scherer
Tricia D. Naylor
Bret P. Shaffer
19 West South Street
Carlisle, Pennsylvania 17013
(717) 249-6873
(717) 249-5755 - Fax
dbaric@baricscherer.com
July 26, 2011
James E. Johnson, Sr.
3 22 Pine Street
Steelton, Pennsylvania 17113
RE: HCR ManorCare v. James E. Johnson. Sr.
No. 2011-5787 Civil Term
Dear Mr. Johnson:
Enclosed find a copy of the Rule signed in the above matter by Judge Hess on July 22, 2011
in connection with the Application To Confirm Arbitration Award I filed on behalf of my client,
HCR ManorCare, Inc.
Very truly yours,
BARIC SCHERER L
David A. Baric, Esquire
DAB/jl
Enc.
cc: Steve Vignati w/Enc. VIA FACSIMILE: (717) 737-2189
(!ED
dab. dir/manoreare/johnson-james/james2.ltr
HCR MANORCARE, INC.,
Plaintiff
V.
JAMES E. JOHNSON, SR.,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2011- 5 787
RULE
AND NOW, this day of , 2011, upon consideration of the
foregoing Application To Confirm Arbitration Award, it is hereby ordered that
(1) a rule is issued upon the Defendant to show cause why- the Plaintiff is not entitled
to the relief requested;
(2) the Defendant shall file an answer to the Application within ob days of this
date;
(;) the Application shall be decided under Pa.R.C.P. No. 206.7;
(4) depositions shall be completed within days of this date;
(5) argument shall be held on t`idQ.V , the _ day of
2011, at 5 a.m./. in Courtroom -4- of the Cumberland County
Courthouse; and
(6) notice of the entry of this order shall be provided to all parties by the Plaintiff.
BY THE COURT,
s
A. 4ms&
J.
HCR MANORCARE, INC., IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
V. NO. 2011-5787 CIVIL TERM
JAMES E. JOHNSON, SR.,
Defendant --- '
ORDER OF COURT
AND NOW, this / day of /??'I4, - , 2011, upon review of the
attached Motion To Make Rule Absolute, it is hereby ordered and decreed that Rule previously
issued relative to this matter is absolute and the arbitration award is confirmed and a judgment in
the amount of $21,687.81 is entered of record in this matter
BY THE COURT,
/David A. Baric, Esquire
Baric Scherer LLC
19 West South Street
Carlisle, Pennsylvania 17013
01 James E. Johnson, Sr.
322 Pine Street
Steelton, Pennsylvania 17113
?,Pies M0?11?
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HCR MANORCARE, INC.,
Plaintiff
V.
JAMES E. JOHNSON, SR.,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
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NO. 2011-5787 CIVIL TERM •
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PRAECIPE TO ENTER JUDGMENT ON ORDER
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TO THE PROTHONOTARY:
Please enter judgment in the above-captioned matter pursuant to the Order Of Court
signed by the Honorable Kevin A. Hess on August 17, 2011, entering judgment in favor of the
Plaintiff in the amount of $21,687.81.
Respectfully submitted,
B C SCHERER LLC
1
David A. Baric, Esquire
I.D. 44853
19 West South Street
Carlisle, Pennsylvania 17013
(717) 249-6873
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4.
HCR MANORCARE, INC.,
Plaintiff
V.
JAMES E. JOHNSON, SR.,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2011-5787 CIVIL TERM
ORDER OF COURT
AND NOW, this _J_*- day of _, 2011, upon review of the
attached Motion To Make Rule Absolute, it is hereby ordered and decreed that Rule previously
issued relative to this matter is absolute and the arbitration award is confirmed and a judgment in
the amount of $21,687.81 is entered of record in this matter
BY THE COURT,
David A. Baric, Esquire
Baric Scherer LLC
19 West South Street
Carlisle, Pennsylvania 17013
James E. Johnson, Sr.
322 Pine Street
Steelton, Pennsylvania 17113
--t*4'evin A. Hess, J.
C?I WI 1 1?' 1
CERTIFICATE OF SERVICE
I hereby certify that on August 23, 2011, I, David A. Baric, Esquire of Baric Scherer LLC,
did serve a copy of the Praecipe Enter Judgment On Order, by first class U.S. mail, postage
prepaid, to the party listed below, as follows:
James E. Johnson, Sr.
322 Pine Street
Steelton, Pennsy is 17113
David A. Baric, Esquire