HomeMy WebLinkAbout12-2302HCR MANORCARE, INC.,
Plaintiff
v.
GLORIA B. POLESHUK,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY,, PENNSYLVANIA
NO. 2012- ? 3 0 a (11 U/ /-
NOTICE TO FILE ANSWER
A parry to these proceedings has filed a motion to confirm an arbitration award. If you
oppose the motion, you are required to file an answer to the motion within thirty (30) days from
the date below setting forth your objections to the motion. If you fail to file an answer, a money
judgment based on the arbitration award may be entered against you without further notice. You
may lose money or property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW
THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER.
IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE
TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER
LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE.
Cumberland County Bar Association
32 South Bedford Street
Carlisle, Pennsylvania 17013
(717) 249-3166 y
Date of Mailing or other service: personal service to be made by Sheriff
Party Filing Motion: David A. Baric, Esquire, Attorney for HCR ManorCare, Inc.
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HCR MANORCARE, INC.,
Plaintiff
V.
GLORIA B. POLESHUK,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2012-
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:
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.
Arbitration was held before Nathan C. Wolf, Esquire, Katie J. Maxwell, Esquire
Gregory Abeln, Esquire after their appointment as arbitrators.
4. Bradley L. Griffie, Esquire as arbitration administrator, served the Defendant 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 Arbitration Panel Decision and Award in this
matter a true and correct copy of which is attached hereto as Exhibit "C" and is incorporated by
reference.
6. Pursuant to 42 Pa.C.S.A. §7313, a parry 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 Arbitration Panel Decision and Award was mailed to all of the
parties on March 29, 2012.
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
David A. Baric, Esquire
I.D.# 44853
19 West South Street
Carlisle, PA 17013
(717) 249-6873
Attorney for HCR ManorCare, 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.
MaTTRATION AGREEMENT ("AGREEMIENT")
BY ACCEPTING THIS AGREEMENT, THE PARTIES ARE WAIVING THEIR RIGHT TO A TRIAL
BEFORE A JUDGE AND/OR A JURY OF ANY DISPUTE BETWEEN THEM. PLEASE READ THIS
AGREEMENT CAREFULLY AND IN ITS EN'T'IRETY BEFORE ACCEPTING ITS TERMS.
This ent made on (date) b? and between the Parties, Patient
gal Representative (collectively referred to
d/or Patient4m,M-
as "Patient"), and the Center f?Jr? is an Agrent intended to require that Disputes be
resolved by arbitration. The Patient's Legal Represve agrees that he is signing this Agreement as a Party, both in
his representative and individual capacity.
A. WHAT IS ?: Arbitration is a cost effective and time saving method of resolving disputes
without involving the courts. In using arbitration, the 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. e?rRrr', HINT TV AINT- ATE " _ ISPUTE ": 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 any subsidiary of IICR-Manor Care, Inc., whether or not related to medical malpractice, including but not
limited to disputes regarding the making, execution, validity, enforceability, voidability, unconscionability,
severability, scope, interpretation, preemption, waiver, or any other defense to enforceability of this Agreement or the
Admission Agreement, whether arising out of State or Federal law, whether existing now or arising in the future,
whether for statutory, compensatory or punitive damages and whether sounding in breach of contract, tort or breach of
statutory duties (including, without limitation except as indicated, any claim based on Patients' Rights or a claim for
unpaid Center charges), regardless of the basis for the duty or of the legal theories upon which the claim is asserted,
shall be submitted to binding arbitration. Notwithstanding the above, nothing in this Agreement prevents the Patient
from filing a grievance or complaint with the Center or appropriam governmental agency; from requesting an
inspection of the Center fxoro such agency; or from seeking review under any applicable federal, state or local law of
any decision to involuntarily discharge or transfer the Patient froin the Center.
1. Administrator: The arbitration shall be administered by National Arbitration Forum ("NAF" ), 6465 Wayzata
Blvd., Suite 500, Minneapolis, MN 55426; www arbitration-forum con (hereinafter "Administrator"). If the Parties
mutually agree in writing not to select NAF or if the NAF is unwilling or unable to serve as the Administrator, the
Parties shall agree upon another independent entity to serve as the Administrator, unless the Parties mutually agree to
not have an Administrator.
I Demand for Arbitration shall be made in writing, sent to the other Party via certified mail, return receipt
requested, and filed with NAF (unless NAF is mutually waived).
3. Arbitration Panel: The arbitration shall be conducted 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 Judge or a Member of the State Bar where the Center is located with at least 10 years of
experience as an attorney. NAF approved Arbitrators do not have to be used. If one Party refuses to select its
arbitrator within 30 days of a written request for same, then the Administrator shall select 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 making, validity, enforceability, scope, interpretation,
voidability, unconscionability, preemption, severability and/or waiver of this Agreement or the Admission Agreement,
EXHIBIT "A"
as well as resolve the Parties' underlying disputes, as it is the Parties' intent to completely avoid involving the court
system. The panel shall Mt have jurisdiction, to certify any person as a representative of a class of persons and, by
doing so, adjudicate claims of persons not directly taking part in Arbitration.
5. Procedural Rules and Substantive Law: The Panel shall apply the Federal Rules of Evidence and Federal Rules
of Civil Procedure except where otherwise stated in this Agreement. Also, the Panel shall apply, and 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'g
Code of Procedure may be obtained from NAP, (877) 655-7755, www.arbitration-forum com. The Parties hereby opt-
out of NAF Rules (45 regarding indigents; 43 regarding appeals and judicial review).
6. Refusal to Arbitrate: Any Party who refuses to go forward with arbitration acknowledges that the Panel will go
forward with the arbitration hearing and render a binding award without the participation of such party, or despite his
absence at the hearing.
7. Waiver of Claim: Any 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
claim 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 unanimous and shall be served no later than five (5) working days after the
arbitration hearing. The award must state in detail the Panels' findings of fact and conclusions of law, shall be marked
"confidential", and must be signed by all three Arbitrators. If any damages are awarded, the award must delineate
specific amounts for economy ie and/or non-economic damages.
9. Final with Limited Rights to Review (Appeal): The Panel's award binds the Parties. The Parties have a limited
right of review for only the express reasons allowed by the FAA.
D. 011SCOVE Y: Discovery shall be governed by NAF's Code of Procedure. However, discovery shall be limited
as follows: (1) Within 30 days after service of the Demand, each Party must comply with Fed. R. Civ. P., Rule
26(axl) and thereafter must comply with Rule 26(e) regarding supplementation of disclosures and responses. (2) A
Party may serve a maximum of. 30 written 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 one hundred
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 the Hearing (full name, title, address and
phone number if known) and an outline of each witnesses' intended testimony; (b) list of documents to be relied upon
at Hearing; except documents to be used solely for impeachment purposes; (e) any sworn recorded statements to be
relied upon at Hearing including the full name, tide, 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 Party sissy have up to three
(3) experts and no more than ten (10) lay witnesses for its witness list, as well as for the Hearing. Depositions of
witnesses shall be limited to those people listed on the Parties' witness lists or in the Parties' Rule 26 disclosures or
discovery responses but under no circumstances will a Party be allowed to take more than 13 depositions. A written
report summarizing 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 Demand for Arbitration is served,
shall last in duration no longer than five (5) working days, and the bearing time allowed shall be split on a pro rata
basis subject to the Panel's discretion. (6) The Parties may agree to modify these discovery terms or deadlines.
E. RIGHT IQ CHANGE YOUR MYNA: This Agreement may be cancelled by written notice sent try certified
mail to the Center's Administrator within thirty (30) calendar days of tho Patient's date of admission. If alleged acts
underlying the dispute occur before the cancellation date, this Agreement shall 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 further renewal,
s ' ??Iti ?'TCs7?
1. No Caps/Limits on Damages: There are no caps/limits on the amount of damages the Panel can award other than
those already imposed 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.e. regulatory surveys,
incident reports, etc.) expressly 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 bad an opportunity to read it (or have it read to him/her) and ask questions about it before accepting it.
Please read this Agreement very carefu4 and ask any questions that you have before signing it. Feel free to consult
with an attorney of your choice before signing this Agreement.
3. Benefits of Arbitration: The Parties' decision to select Arbitration is supported by the potential cost-
effectiveness and time-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 agree that the treasons stated
above are proper consideration for the acceptance of the Agreement.
4. FAA: The parties hereby agree and intend that this Agreement, the Admission Agreement and the Patient's stays
at the Center substantially involve intcrstabe commerce, and stipulate that the Federal Arbitration Act ("FAA") in
effect as of November 1, 2048 and federal case law interpreting such version of the FAA shall apply to this
Agreement, shall preempt any inconsistent State law and shall not be reverse prompted by the McCanw-Ferguson
Act; United States Code Title 15, Chapter 20, or other. law. Any amendment to such version of the FAA is hereby
expressly waived.
5. Binding on Parties & Others: The Parties intend that this Agreement shall inure to the direct benefit of and bind
the Center, its parent, affiliates, and subsidiary companies, management companies, executive directors, owners,
officers, partners, shareholders, directors, medical directors, employees, successors, assigns, agents, insurers and any
entity or person (including health care providers) that provided any services, supplies or equipment related to the
Patient's stay at the Center, and shall inure to the direct benefit of and bind the Patient (ass defined herein), his/her
successors, spouses, children, next of kin, guardians, administrators, legal representatives, responsible parties, assigns,
agents, attorneys, health care proxies, health can surrogates, third Patty beneficiaries, insurers, heirs, trustees,
survivors and representatives, including the personal representatives or executors of his/her estate, any person whose
claim is derived through or on behalf of the Patient or relates in any 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 medicine, and any person who executed this Agreement or the Admission Agreement.
6. Fees and Costs: The Panels' fees and costs will be paid by the Center except in disputes over non-payment 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 Panics. To the extent permitted by law, any Party who unsuccessfully challenges
the enforcement of this Agreement shall be required to pay the successful Parties' reasonable attorney fees and costs
incurred to enforce such contract (i.e., Motion to Compel Arbitration). The Parties shall bear 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, Exccpt as stated above, the Parties waive any right to recover attorneys' fees and costs-
7. Confidentiality: The arbitration proceedings shall remain confidential in all respects, including all filings,
deposition transcripts, discovery documents, or other materials exchanged between the Parties and the Panels' award.
In addition, following receipt of the Panels' award, each Party agrees to return 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: Either Party may file its dispute in a court of law if the other Party approves, which
approval shall only be established by such Party filing a response to the Complaint without moving in a timely
manner, 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 terms by initiating a lawsuit in the judicial forum, the Parties
expressly agree 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 Party of the contractual obligation to arbitrate other Disputes,
including both permissive and mandatory counterclaims, unless also subsequently waived.
9. Severabiility, 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, invalid or unenforceable for any reason, this Agreement shall be
interpreted as if such terra, phrase or provision were not contained herein, and the remaining provisions of this
Agreement shall not be affected by such determination and shall remain in full force and effect. This Agreement
represents the Parties' entire agreement regarding Disputes, supersedes any other agreement relating to disputes, and it
may only be changed in writing signed by all Parties. This Agreement shall remain in full force and effect
notwithstanding the termination, cancellation or natural expiration of the Admission Agreement.
14. No Jury Trial: If this Agreement is found to be unenforceable and arbitration is not compelled, then as a default,
the parties agree that the disputes shall be resolved solely by a judge via a bench trial. Under no circumstances will a
jury decide any dispute.
11. Health Care Decision: The Parties hereby stipulate that the decision to bave the Patient move into this Center
and the decision to agree to this Agreement are each a health care decision. The Parties stipulate that there are other
health care f4ciiit9es in this community 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 Agreement on behalf of the Patient.
BY SIGNING BELOW, THE PARTIES CONFIRM THAT EACH OF THEM HAS READ ALL FOUR [4)
PAGES OF.= A.GHF,FFMENT AND UNDERSTANDS THAT EACH HAS WAJVED THE RIGHT TO A
TRIAL BEFORE A JUDGE OR JURY AND THAT EACH OF THEM CONSENTS TO ALL OF THE
TERMS OF T V???RX AGREEMENT.
? I
OATIENT: PATIENT'S LECAL REPRESENTATIVE:
Printed Name (Date) Printed Name (Date)
Signature of Patient Signature of Patient's Legal Representative in his/her
Representative capacity
CENTE ... ' RESEIt IVE
Patient's Legal Representative should sign on b9 lines above containing the phrase "Patient's Legal
Representative."
4
Signature of Patient's Legal Representative in his/her
Individual capacity
S gnature o er Representative
16 12 09:12a
(717) 261-1408 p.2
G-L£TTIE & .ASSOcl.AlE5, P. C.
;lttornevs and Counselors w Lcnr
200 North Hanowr Street
Bradiet L. Grifle, Esquire Carlisle, PA 17013
Hannah Herman-Snyder, Esquirc (717) 243-54st
Robin J. Bassett 100 Lincoln Way East, Suite D
)fiicc A ian te,t Chembersburg, PA 172111
(717) 367-1:50
Kelly L. Percz
Legal Assist-V
Rsnii to: Carlisle
Nathan C. Wolf; Esquire
Wol I,& Wolf
10 West High Street
Carlisle.. PA 1701
Gregory B. Abele, Esquire
37 Fast Pomfrct Street
Carlisle, PA 17013
Katie J. Maxwell, Esquirc
Manson Law Offices
10 EasL Hioh Street
Carlisle. PA 17013
March 15, 2012
David A. Baric, Esquire
19 West South Street
Carlisle, PA 17013
Gloria B. Poleshuk
6431 Taunton Road
Harrisburg, PA 17111-6921
P -E. HCR ManorCarc vs. Gloria B. Poleshuk
Dear Ms. Poleshuk. Mr. Baric, Nis. Maxwell, Mr. Wolf and Mr. Abeltl:
(800) 34%54--32
Fax (717) 243-500
This will confirm that the hearing in the above captioned matter is scheduled for
\lonclay, March 19, 2012, at 9:00 a.m. at. my office located at 200 North Hanover Street.
Carlisle, Pelulsylvania. We look for all parties.. counsel and the Arbitration panel Lo be
present at that time.
Sincerely.
ad1 ti L. Griffie, Esquire
BL?lirih
VIA I'AC:SINTILE AND US MAIL
EXHIBIT "B"
HCR MANORCARE, INC.,
Plaintiff
VS.
GLORIA B. POLESHUK,
Defendant
ARBITRATION PROCEEDING
ARBITRATION PANEL DECISION AND AWARD
1. PROCEDURAL HISTORY:
By correspondence of July 21, 2011, 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 Gloria B. Poleshuk (hereinafter referred to as the
"Patient"). The Arbitration Administrator gave notice of his willingness to serve in this
capacity by correspondence dated August 3, 2011, 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 July
2, 2011, the facility named Attorney Nathan C. Wolf as its Arbitrator. By
correspondence dated August 9, 2011, the facility gave notice to the Arbitration
Administrator of the facility's intended witnesses and exhibits, pursuant to the
requirements of the Arbitration Agreement. Upon failure of the Patient to name an
Arbitrator after notice and request, the Arbitration Administrator named Attorney Katie J.
Maxwell as the Patient's Arbitrator. Mr. Wolf and Ms. Maxwell selected Attorney
Gregory Abeln as the third Arbitrator for the panel.
By correspondence and Notice of Hearing dated October 6, 2011, a hearing was
scheduled in this matter to take place on March 19, 2012 to begin at 9:00 a.m. at 200
EXHIBIT "C"
North Hanover Street, Carlisle, Cumberland County, Pennsylvania. No requests for a
continuance were received from either party or counsel. Appearing at the hearing before
the Arbitration Panel on Monday, March 19, 2012 were Steve Vignati, Business Office
Manager of HCR ManorCare, Inc., and David A. Baric, Esquire for HCR ManorCare,
Inc. Arbitrator Gregory Abeln was unable to attend due to his obligation to attend
emergency Court proceedings.
II. FINDINGS OF FACT:
1. On September 28, 2009, Gloria B. Poleshuk (hereinafter "Patient") executed an
Admission 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 she 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 she would pay all charges that she incurred while at the facility located at
1700 Market Street, Camp Hill, Cumberland County, Pennsylvania.
4. The Patient agreed that room and board charges in the amount of $215.97 per
day would be charged for any period that the Patient was at the facility at 1700
Market Street, Camp Hill, Cumberland County, Pennsylvania.
5. The per diem rate was increased to $258.00 per day beginning in December
2009, after appropriate notice to the Patient and pursuant to the terms of the
Admission Agreement.
6. Statements of charges were submitted to the Patient for the period from
September 28, 2009 through and including the period covering August 7, 2011
for room and board services, cable charges, beauty shop charges and related
charges that were billable on a private pay basis.
7. All appropriate insurance payments or applicable payments from Medicare or
Medicaid have been applied to the outstanding bill of the Patient by the facility.
8. The facility billed the Patient directly on a monthly basis for services provided to
the Patient.
9. The facility provided monthly past-due notices to the Patient for fees and
charges due to the facility for services rendered which remained unpaid.
10. Neither the Patient nor anyone on her behalf objected to the billings.
11. The Patient moved from the facility on or about August 7, 2011.
12. All payments made to the facility from all sources have been applied to the
Patient's billing for services provided by the facility.
13. 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.
14. The total balance due for services provided to the Patient from admission on
September 28, 2009 to the date of Patient moving from the facility on August 7,
2011 is $77,062.85.
15. 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.
16. The dispute between the parties in this matter involved the non-payment of
charges.
17. The facility made a formal Demand for Arbitration pursuant to the terms of the
Arbitration Agreement upon the Patient by correspondence dated July 5, 2011.
IS. 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.
19. No request for a continuance or other contact was made by the Patient with the
Arbitration Administrator, nor with any member of the Arbitration Panel, prior
to the hearing.
20. The hearing began at 9:15 a.m. on Monday, March 19, 2012, 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 9:30
a.m., to allow the Patient to appear or otherwise make contact with the
Arbitration Administrator.
21. The Arbitration Administrator is not aware of any efforts made by the Patient to
contact the Arbitration Administrator relative to her inability to attend the
hearing.
III. CONCLUSIONS OF LAW:
The Patient, Gloria B. Poleshuk, (hereinafter "Patient") entered into the terms and
conditions of the Admission Agreement and the Arbitration Agreement executed by the
Patient with the facility, HCR ManorCare, Inc., on September 28, 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 her 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
Gloria B. Poleshuk, in favor of HCR ManorCare, Inc. in the amount of $77,062.85.
Administration fees for the Arbitration Administrator in the amount of $360.00
(including certified mail costs) and Arbitrators' fees of $300.00 ($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 $330.00 and Gloria B. Poleshuk shall likewise compensate the
Arbitration Administrator for his fees and for compensation of the Arbitrators the sum of
$330.00. In the event that HCR ManorCare, Inc. compensates the Arbitration
Administrator in the full amount of the fees and costs due, HCR ManorCare's Judgment
is adjusted from the $77,062.85 amount set forth above to include the share of
Arbitrator's fees and costs of Gloria B. Poleshuk in the amount of $330.00 for the total
Judgment of $77,392.85.
N olf, Esquire
HCR MANORCARE, INC.,
Plaintiff
ARBITRATION PROCEEDING
VS.
GLORIA B. POLESHUK,
Defendant
CERTIFICATE OF SERVICE
I, Bradley L. Griffie, Esquire hereby certify that I did, the day of March,
2012, cause a copy of the Arbitration Panel Decision and Award to be served upon the
Plaintiff by serving him by first class mail, postage prepaid, at the following address:
David A. Baric, Esquire
19 West South Street
Carlisle, PA 17013
AND BY certified mail, return receipt requested, upon Defendant at the following
address:
Gloria B. Poleshuk
6431 Taunton Road
Harrisburg, PA 17111-6921
DATE: J-9
/02
VaAr - i e, Esquire
r
'? Administrator
GRIFFIE & ASSOCIATES, P.C.
200 North Hanover Street
Carlisle, PA 17013
(717) 243-5551
(800) 347-5552
G2ZlFFTE & AssOcTArES, P.C.
Attorneys and Counselors at Lam,
Bradley L. Griffie, Esquire
Hannah Herman-Snyder, Esquire
Robin J. Bassett
Office Manager
Kelly L. Perez
Legal Assistant
Reply to: Carlisle
March 29, 2012
David A. Baric, Esquire
19 West South Street
Carlisle, PA 17013
Gloria B. Poleshuk
6431 Taunton Road
Harrisburg, PA 17111-6921
CERTIFIED AND REGULAR MAIL
RE: HCR ManorCare vs. Gloria B. Poleshuk
Dear Mr. Baric and Ms. Poleshuk:
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
Enclosed herein please find a copy of the Arbitration Panel Decision and Award
in this matter. With the entry of this Decision, the Arbitration Panel's work is complete.
We look forward to receiving the compensation for the Arbitration Panel members and to
the Arbitration Administrator pursuant to the terms of this Award.
ours,
iriffie
BLG/rjb
Enclosure
EXHIBIT "D"
HCR MANORCARE, INC.,
Plaintiff
V.
GLORIA B. POLESHUK,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2012-
RULE
AND NOW, this day of • 1 , 2012, 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 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 an ,-gym day -0,=
p.m. m om o e um er an ounty
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(6) notice of the entry of this order shall be provided to all parties by the Plaintiff.
BY THE COURT,
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HCR MANORCARE, INC., IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
vs. CIVIL ACTION - LAW
NO. 2012-2302 CIVIL
GLORIA B. POLESHUK,
Defendant
ORDER
AND NOW, this / S * day of April, 2012, our order of April 16, 2012, is amended
to provide that the defendant shall file an answer to the Application within twenty (20) days of
this date. All other provisions of said order of April 16, 2012, to remain in full force and effect.
BY THE COURT,
ZDavid Baric, Esquire
For the Plaintiff
/ciloria Poleshuk
6431 taunton Road
Harrisburg, PA 17111-6921
Defendant
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Kevin .Hess, P. J.
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SHERIFF'S OFFICE OF CUMBERLAND COUNTY
Ronny R Anderson
Sheriff
Jody S Smith
Chief Deputy
Richard W Stewart
Solicitor
L- IL I
THE PRO 1101 0,141'"',
2012 APR 27 AM 9: 52
CUMBERLAND COUNTS
PENNSYLVANIA
HCR ManorCare, Inc.
vs.
Gloria Poleshuk
Case Number
2012-2302
SHERIFF'S RETURN OF SERVICE
04/12/2012 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: Gloria Poleshuk, but was unable to locate her in his
bailiwick. He therefore deputized the Sheriff of Dauphin County, Pennsylvania to serve the within Notice
to File Answer according to law.
04/17/2012 Dauphin County Return: And now April 17, 2012 at 0851 hours I, Jack Lotwick, Sheriff of Dauphin County
Pennsylvania, do hereby certify and return that I served a true copy of the within Notice to File Answer,
upon the within named defendant, to wit: Gloria Poleshuk by making known unto Gloria Poleshuk,
Daughter of Defendant at 6431 Taunton Road, Harrisburg, Pennsylvania 17111 its contents and at the
same time handing to her personally the said true and correct copy of the same. Deputies were advised,
Gloria Poleshuk is currently residing at Spring Creek Nursing Home.
SHERIFF COST: $37.45 SO ANSWERS,
April 26, 2012 RON R ANDERSON, SHERIFF
(,ptlirt Of the ?$4vrfr
r -f
William. T. Tully
Solicitor
Commonwealth of Pennsylvania
County of Dauphin
Jack Lotwick
Sheriff
Jack,Duignan
Chef Deputy
Michael W. Rinehart
Assistant Chief Deputy
HCR MANORCARE, INC.
VS
GLORIA POLESHUK
Sheriff s Return
No. 2012-T-1114
OTHER COUNTY NO. 2012-2302
And now: APRIL 17, 2012 at 8:51:00 AM served the within APP TO CONFIRM ARBITRATION
AWARD & NOT TO FILE ANS upon GLORIA POLESHUK by personally handing to MARGARET
POLESHUK 1 true attested copy of the original APP TO CONFIRM ARBITRATION AWARD &
NOT TO FILE ANS and making known to him/her the contents thereof at 6431 TAUNTON ROAD
HARRISBURG PA 17111
ADULT DAUGHTER OF DEFENDANT
DEFENDANT IS CURRENTLY RESIDING IN SPRING CREEK NURSING HOME. DAUGHTER
STATED WILL GIVE DOCUMENTS TO DEFENDANT.
Sworn and subscribed to So Answers,
Q
before me this 18TH day of April, 2012 ? /I
-)P? Z
COMMONWEALTH OF PENNSYLVANIA
NOTARIAL SEAL
Karen M. Hoffman, Notary Public
City of Harrisburg, Dauphin County
M Commission Expires August 17, 2014
Dauphin County
101 Market Street
Harrisburg, Pennsylvania 17101-2079
ph: (717) 780-6590 fax: (717) 255-2889
Sher?f I Dauphin Cou y, Pa.
By. _/ ??/?'?(.
De Sheriff
D ty: J MILLER
S iffs Costs: $47.25 4/16/2012
HCR MANORCARE, INC. IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
V. NO. 2012-2302
GLORIA B. POLESHUK
Defendant C()
`
MOTION NOT TO CONFIRM ARBITRATION AWARD AND ISSUE CONTINUANCE
I Robert J. Poleshuk , Son of Gloria B. Poleshuk and Applicant for Guardian of Both her
Person and Estate file this Motion on Gloria's behalf.
In so doing I advise the Court that Gloria is an incapacitated person currently residing
at Spring Creek Nursing in Harrisburg PA. By virtue of never receiving notices of Arbitration or
Court Proceedings at her residence, and being cognitively impaired, Gloria has no knowledge of
the Arbitration Proceedings undertaken by HCR Manor Care and the subsequent APPLICATION
TO CONFIRM ARBITRATION AWARD. Gloria is currently without a Guardian or POA.
I request that the CONFIRMATION OF THE ARBITRATION be set aside. I request that this
matter be continued subject to my being awarded Guardianship. In the role of Guardian I will
seek Legal Counsel to oppose the arbitration action as it exists.
My knowledge of this matter leads me to believe that:
1. Gloria never freely entered into an Arbitration Agreement with HCR Manor Care.
2. Had a Federal Medicaid entitlement to compensate HCR Manor Care for much of
the monetary sum they are seeking.
1
3
4
5
Should not have to pay and does not owe $77,062.85
HCR Manor Care unjustly assumed a role of representative for Gloria and then failed in
that role to both her and their financial detriment.
HCR Manor Care owes the Estate of Gloria B. Poleshuk approximately $65,000 for
overpayment to them for services rendered.
lam
Robert J. Poleshuk
4273 Milords Lane
Doylestown, PA 18902
Phone 215-230-3453
Signed
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Date
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PRAECIPE FOR LISTING CASE FOR ARGUMENT
(Must be typewritten and submitted in triplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next
Argument Court.)
CAPTION OF CASE
(entire caption must be stated in full)
HCR MANORCARE, INC., rnto
Plaintiff :zM
vs. ;r r
GLORIA B. POLESHUK,,
GA- - A
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v.?
Defendant y`???
N0.2012-2302 Civil -4@n
1. State matter to be argued (i.e., plaintiff s motion for new trial, defendant's demurrer to. ='
complaint, etc.):
Plaintiff's Application To Confirm Arbitration Award
2. Identify all counsel who will argue cases:
(a) for plaintiffs:
David A. Baric, Esq., 19 West South Street, Carlisle, PA 17013
(Name and Address)
pro se
(b) for defendants:
(Name and Address)
3. 1 will notify all parties in writing within two days that this case has been listed for
argument.
4. Argument Court Date: July 13, 2012
r
Signature
David A. Baric, Esquire
Print your name
Date: May 15, 2012
Plaintiff
Attorney for
INSTRUCTIONS:
1. Original and two copies of all briefs must be filed with the COURT
ADMINISTRATOR (not the Prothonotary) before argument.
2. The moving party shall file and serve their brief 14 days prior to argument.
3. The responding party shall file their brief 7 days prior to argument.
4. If argument is continued new briefs must be filed with the COURT
ADMINISTRATOR (not the Prothonotary) after the case is relisted.
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A* a?s3JY
HCR MANORCARE, INC.,
Plaintiff
VS.
GLORIA B. POLESHUK,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 2012-2302 CIVIL
IN RE: DEFENDANT'S MOTION TO NOT CONFIRM ARBITRATION AWARD
ORDER
AND NOW, this 2 3'1 day of May, 2012, an argument on the above-captioned
motion is set for Tuesday, June 12, 2012, at 11:30 a.m. in Courtroom Number 4, Cumberland
County Courthouse, Carlisle, PA.
BY THE COURT,
A . /9=,Xl,
Hess, P. J.
David Baric, Esquire
For the Plaintiff
? Robert J. Poleshuk
4273 Milords Lane
Doylestown, PA 18902
v Gloria Poleshuk
6431 Taunton Road
Harrisburg, PA 17111-6921
Defendant
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HCR MANORCARE, INC., IN THE COURT OF COMMON PLEAS OF
Plaintiff
CUMBERLAND COUNTY, PENNSYLVANIA
V
CIVIL ACTION - LAW
GLORIA B. POLESHUK, 2012-2302 CIVIL TERM
Defendant
IN RE: ARGUMENT STRICKEN FROM LIST
ORDER OF COURT
AND NOW, this 12th day of June, 2012, the
Prothonotary is directed to strike this matter from the
list of arguments to be held on July 13, 2012.
By the Court,
? David Baric, Esquire
For the Plaintiff
Robert J. Poleshuk
4273 Milords Lane
Doylestown, PA 18902
Gloria Poleshuk
6431 Taunton Road
Harrisburg, PA 17111-6921
Defendant
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HCR MANORCARE, INC., IN THE COURT OF COMMON PLEAS OF
Plaintiff
CUMBERLAND COUNTY, PENNSYLVANIA
V
CIVIL ACTION - LAW
GLORIA B. POLESHUK, 2012-2302 CIVIL TERM
Defendant
IN RE: DEFENDANT'S MOTION NOT TO CONFIRM ARBITRATION AWARD
ORDER OF COURT
AND NOW, this 12th day of June, 2012, hearing on the
merits of the "Motion not to Confirm," which the court will
characterize as a motion to vacate the arbitration award, is
set for Tuesday, August 7, 2012, at 9:30 a.m. The purpose
of the deferral, among other things, is to give the family
member of the defendant the opportunity to apply for and
obtain a guardianship and/or retain counsel.
By the Court,
-,?, /-I /?- -
Kevin A. Hess, P.J.
? David Baric, Esquire
For the Plaintiff
Robert J. Poleshuk
4273 Milords Lane
Doylestown, PA 18902
'/Gloria Poleshuk
6431 Taunton Road
Harrisburg, PA 17111-6921
Defendant
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HCR MANORCARE, INC., IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
vs. CIVIL ACTION - LAW
NO. 2012-2302 CIVIL
GLORIA B. POLESHUK,
Defendant :
IN RE: DEFENDANT'S MOTION NOT TO CONFIRM ARBITRATION AWARD
ORDER
AND NOW, this F day of August, 2012, the Court being of the view that these
proceedings are governed by Pa.R.C.P. 2056(b)-(e) and having communicated same to the
parties, and counsel for the plaintiff having expressed a desire to further review the rule, and
Robert J. Poleshuk having indicated his desire to seek his appointment as guardian of the person
and estate of Gloria B. Poleshuk in Dauphin County, further hearing in this case is set for
Wednesday, October 3, 2012, at 10:00 a.m. in Courtroom Number 4, Cumberland County
Courthouse, Carlisle, PA.
David Baric, Esquire
For the Plaintiff
Robert J. Poleshuk
4273 Milords Lane
Doylestown, PA 18902
Gloria Poleshuk
6431 Taunton Road
Harrisburg, PA 17111-6921
Defendant 6I
BY THE COURT,
Kevin A., ess, P. J.
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HCR MANORCARE, INC., IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
v. N0.2012-2302 CIVIL TERM
,v--~,
GLORIA B. POLESHUK, CIVIL ACTION-LAW c
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Defendant ~
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MOTION TO VACATE ARBITRATION AWARD ~ -o ~~
AND REMAND MATTER FOR ARBITRATION ~~ ~
AND NOW, comes Plaintiff, HCR ManorCaze, Inc. ("ManorCaze"), by and thrgh~s ~~.
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attorneys BARK SCHERER LLC, and files this Motion to Vacate Arbitration Awazd and
Remand Matter for Arbitration and, in support thereof, sets forth the following:
1. Currently pending before the Court aze ManorCaze's Motion to Confirm an award
of the azbitrators and Defendant's response to that motion.
2. At a series of hearings before this Court, Robert Poleshuk, the son of Defendant,
has "appeared" on behalf of Defendant.
3. At the most recent hearing on August 8, 2012, the Court expressed its view that
Robert Poleshuk could be appointed as the guazdian ad litem for Defendant.
4. Robert Poleshuk appeazed to express a willingness to serve in that capacity.
5. Based upon statements made previously to this Court by Robert Poleshuk, it
would appeaz that Mr. Poleshuk wants to raise an issue as to the capacity of Gloria Poleshuk at
the time she executed the Admission Agreement and Voluntary Arbitration Agreement when she
sought admission to the ManorCaze skilled caze facility.
6. This issue of capacity was not raised at the time of the azbitration and,
consequently, the azbitrators made no findings of fact touching on the issue of capacity.
7. Robert Poleshuk did not appeaz before the azbitration panel as guardian ad litem
for Gloria Poleshuk.
In order to provide the arbitration panel with an opportunity to heaz all azguments
that may be presented in this case, Plaintiff requests this Court vacate the awazd of the azbitrators
dated Mazch 29, 2012 and remand this matter to the same azbitrators for a hearing de novo with
Robert Poleshuk serving as the guardian ad litem of Defendant at such arbitration hearing.
WHEREFORE, Plaintiff requests this Court appoint Robert Poleshuk guazdian ad litem
for Gloria Poleshuk, vacate the azbitration award dated Mazch 29, 2012 and remand this matter to
the same azbitrators for a heazing de novo.
Respectfully submitted,
Date: ~ ~ l Z
C SCH R LLC
i
David A. Baric, Esquire
I.D. 44853
19 West South Street
Cazlisle, Pennsylvania 17013
(717) 249-6873
4
CERTIFICATE OF SERVICE
I hereby certify that on September 4, 2012, I, David A. Baric, Esquire of Baric Scherer LLC,
did serve a copy of the Motion To Vacate Arbitration Award and Remand Matter For Arbitration,
by first class U.S. mail, postage prepaid, to the parties listed below, as follows:
Robert J. Poleshuk
4273 Milords Lane
Doylestown, Pennsylvania 18902
Gloria Poleshuk
6431 Taunton Road
Harrisburg, Pennsylvania 17111
1. (~
David A. Basic, Esquire
HCR MANORCARE, INC., IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA _
C") ;
V. NO. 2012-2302 CIVIL TERM ' ,
=M M.....
GLORIA B. POLESHUK, CIVIL ACTION-LAW cn r— ' =
Defendant �C-3 =--n
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SUGGESTION OF DEATH
TO THE PROTHONOTARY:
It is respectfully suggested that Gloria B. Poleshuk is deceased, having departed this life
on February 1, 2013.
Respectfully submitted,
BARIC SCHERER C
J
s
Date: May 30, 2013 David A. Baric, Esquire
I.D. #44853
19 West South Street
Carlisle, Pennsylvania 17013
(717) 249-6873
Attorney for Plaintiff, HCR ManorCare, Inc.
r^
CERTIFICATE OF SERVICE
I hereby certify that on May 30,2013,1,David A. Baric,Esquire of Baric Scherer LLC,did
serve a copy of the Suggestion Of Death,by first class U.S.mail,postage prepaid,to the party listed
below, as follows:
Robert J. Poleshuk
4273 Milords Lane
Doylestown, Pennsylvania 18902
David A. Baric, Esquire