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HomeMy WebLinkAbout2010-3391 RICHARD KAZIMER, Individually : IN THE COURT OF COMMON PLEAS OF and as Administrator for the Estate : CUMBERLAND COUNTY, PENNSYLVANIA of SHIRLEY KAZIMER, Deceased, : Plaintiff : CIVIL ACTION – LAW : VS. : NO. 10-3391 CIVIL : MANOR CARE OF CARLISLE : PA LLC, MANOR HEALTHCARE : CORP., MANORCARE HEALTH : SERVICES CARLISLE, HEALTH : CARE AND RETIREMENT : CORPORATION OF AMERICA, : MANOR CARE OF AMERICA, : INC., MANOR CARE INC., HCR : MANOR CARE INC., HCR : MANOR CARE, CARLISLE : REGIONAL MEDICAL CENTER, : DARRYL K. GUISTWITE, D.O., : Defendants : JURY TRIAL DEMANDED IN RE: PRELIMINARY OBJECTIONS OF THE MANOR CARE DEFENDANTS TO THE PLAINTIFF’S COMPLAINT BEFORE HESS, P.J. AND EBERT, J. OPINION AND ORDER Plaintiffs Shirley Kazimer (now deceased) and Richard Kazimer filed a Writ of Summons in this case on May 21, 2010. Plaintiffs thereafter filed a Complaint on November 3, 2010 and a Certificate of Merit on March 28, 2011. All defendants were served with the Complaint on November 3, 2010. Defendant Carlisle Regional Medical Center filed an Answer on April 11, 2011, requesting a trial by jury. Answer with New Matter of Def. Carlisle Regional Medical Center to Pl.’s Comp. ¶ 75. On May 9, 2011, counsel entered their appearance for the following defendants: Manor Care of Carlisle, PA, LLC, Manor Healthcare Corp., Manorcare Health Services of Carlisle, Health Care and Retirement Corporation of America, Manor Care of America, Inc., Manor Care Inc., HCR Manor Care, Inc., and HCR Manor Care (hereinafter referred to as “Manor Care”). Manor Care filed Preliminary Objections on or about June 8, 2011, asserting that Plaintiffs must submit their claims to alternative dispute resolution pursuant 1 to an agreement signed by Richard Kazimer. The aforementioned agreement, dated February 5, 2008, contains a mandatory arbitration provision that states the following: The Resident acknowledges that he/she voluntarily enters into this agreement and agrees to be bound by the terms and conditions stated herein . . . . Any and all claims or controversies between the Facility and the Resident arising out of or in any way related to or connected to the Resident’s stay and care at the Facility . . . shall be submitted to final and binding arbitration. Ex. “B” (emphasis added). Plaintiff Richard Kazimer (hereinafter “Mr. Kazimer”), acting individually and as the Administrator for Shirley Kazimer’s Estate, asserts that Manor Care’s Preliminary Objections were untimely filed. Pl.’s Resp. Prelim. Obj. at 3-4. Mr. Kazimer also avers that the agreement is non-binding on Shirley Kazimer because Mr. Kazimer signed the agreement for his wife without the authority to do so. Finally, Mr. Kazimer avers that the agreement is unconscionable because it denied the right to a jury trial, the right to an appeal, and the right to have Mr. and Mrs. Kazimer testify. Pl.’s Mem. Opp. Prelim. Obj. at 2-3. An agreement to arbitrate may be asserted by preliminary objection pursuant to Pennsylvania Rule of Civil Procedure 1028(a)(6). The rule provides, in pertinent part, the following: (a) Preliminary objections may be filed by any party to any pleading and are limited to the following grounds: …. (6) pendency of a prior action or agreement for alternative dispute resolution; 1 The arbitration agreement is attached as “Exhibit B” in the Memorandum of Law in Support of the Preliminary Objections of the Manor Care Defendants to Plaintiff’s Complaint. 2 Note: An agreement to arbitrate may be asserted by preliminary objection or by petition to compel arbitration pursuant to the Uniform Arbitration Act, 42 Pa.C.S. § 7304, or the common law, 42 Pa.C.S. § 7342(a). Pa. R.C.P. 1028. Like other responsive pleadings, preliminary objections must be filed within twenty days of the preceding pleading according to Rule 1026(a) of the Pennsylvania Rules of Civil Procedure. Monaco v. Montgomery Cab Co., 208 A.2d 252, 254 (Pa. 1965). Nevertheless, our Superior Court has interpreted Rule 1026(a) as “permissive rather than mandatory.” Francisco v. Ford Motor Co., 580 A.2d 374, 376 (Pa. Super. Ct. 1990), allocatur denied, 592 A.2d 1301 (Pa. 1991). It is within the trial court’s discretion to determine whether to extend the filing period past twenty days. Id. at 376. The trial court may use such discretion to strike preliminary objections or “permit a late filing . . . where the opposing party will not be prejudiced and justice so requires.” Ambrose v. Cross Creek Condo., 602 A.2d 864, 868 (Pa. Super. Ct. 1992). See also Peters Creek Sanitary Auth. v. Welch, 681 A.2d 167, 170 (Pa. 1996). Our Superior Court has determined prejudice to include “any substantial diminution [in one’s] ability to present factual information in the event of trial.” Am. Bank & Trust Co. v. Ritter, Todd & Haayen, 418 A.2d 408, 410 (Pa. Super. Ct. 1980). Nevertheless, a party is not required to establish prejudice unless the opposing party has provided a basis for his or her untimely motion. Peters Creek, 681 A.2d at 170. Accord McCullough v. Clark, 784 A.2d 156, 158 (Pa. Super. Ct. 2001), citing Francisco, 580 A.2d at 378. Because arbitration is a matter of contract, the trial court must determine whether the parties made an express agreement to arbitrate. Midomo Co. v. Presbyterian Hous. Dev. Co., 739 A.2d 180, 187 (Pa. Super. Ct. 1999). Our courts generally favor the enforceability of arbitration agreements. Keystone Tech. Grp., Inc. v. Kerr Grp., Inc., 824 A.2d 1223, 1226 (Pa. 3 Super. Ct. 2003). However, such agreements are valid only where it is evident that the parties had agreed, in a “clear and unmistakable manner,” to arbitrate. Quiles v. Fin. Exch. Co., 879 A.2d 281, 287 (Pa. Super. Ct. 2005) (citing Emmaus Mun. Auth. v. Eltz, 204 A.2d 926, 927 (Pa. 1964)). Our courts have established the following three elements of agency: “ ‘the manifestation by the principal that the agent shall act for him, the agent’s acceptance of the undertaking, and the understanding of the parties that the principal is to be in control of the undertaking.’ ” Basil v. H & R Block, Inc., 761 A.2d 1115, 1120 (Pa. 2000) (citing Scott v. Purcell, 415 A.2d 56, 60 (Pa. 1980), quoting Restatement (Second) of Agency § 1 Comment b (1958)). The burden of establishing agency lies with the party who asserts the relationship. Basil, 761 A.2d at 1120. Generally, a spouse is not empowered to act as an agent for the other because agency does not arise from the marital relationship alone. Lapio v. Robbins, 729 A.2d 1229, 1234 (Pa. Super. Ct. 1999). More specifically, our Superior Court has expressed the following: Neither husband nor wife by virtue of the relation has power to act as agent for the other. The relation is of such a nature, however, that circumstances which in the case of strangers would not indicate the creation of authority may indicate it in the case of husband or wife. Thus, a husband habitually permitted by his wife to attend to some of her business matters may be found to have authority to transact all her business affairs. Restatement, Agency 2d, § 22(b). The law of Pennsylvania is in accord with the Restatement. (Citations omitted). Bradney v. Sakelson, 473 A.2d 189, 191 (Pa. Super. Ct. 1984) (quoting Tonuci v. Beegal, 145 A.2d 885, 888 (Pa. 1958)). Pennsylvania case law suggests that an arbitration agreement is binding on a nursing home resident where the resident’s personal representative signed the agreement. Mannion v. Manor Care Inc., 4 Pa. D. & C.5th 321, 2006 WL 6012873 (Pa. C.P. 2006) (binding arbitration agreement where mother was in confused state and daughter held power of attorney authorizing 4 her to act on mother’s behalf). See also Smalley v. JHA-Markleysburg Inc., 3 Pa. D. & C.5th 471, 2007 WL 5323786 (Pa. C.P. 2007) (binding arbitration agreement where father suffered from dementia and son held power of attorney authorizing him to act on father’s behalf). On the other hand, ample authority from other jurisdictions suggests that such arbitration agreements are invalid where there is no evidence that the resident was mentally impaired or that the resident’s legal representative had signed the agreement. See, e.g., Warfield v. Summerville Senior Living, Inc., 69 Cal. Rptr. 3d 783 (Cal. Ct. App. 2007) (husband not permitted to sign agreement for resident wife absent wife’s express or implied consent to have husband act as 2 agent). See also Robbins v. Beverly Enter., Inc., No. 3:07CV047-B-A, 2008 WL 907465 (N.D. Miss. March 31, 2008.); Ashburn Health Care Ctr., Inc. v. Poole, 648 S.E.2d 430 (Ga. Ct. App. 2007); Sikes v. Heritage Oaks W. Ret. Vill., 238 S.W.3d 807 (Tex. App. 2007). In the present case, Manor Care failed to abide by the prescribed twenty-day filing period 3 pursuant to Rule 1028(a)(6) of the Pennsylvania Rules of Civil Procedure. In fact, Manor Care delayed nearly seven months before filing Objections and has failed to provide any justification for the delay. We are satisfied that untimeliness, alone, would justify dismissal of the Preliminary Objections. Assuming, arguendo, that Manor Care filed the Preliminary Objections within the prescribed period, we find no evidence that the arbitration agreement is binding on the Kazimers. The record does not show that Mrs. Kazimer gave authority to Mr. Kazimer to act as her agent, nor does it suggest that Mrs. Kazimer was mentally impaired at the time Mr. Kazimer signed the 2 See the following for an exhaustive overview on the validity of arbitration agreements in the nursing home context: Marjorie A. Shields, Annotation, Validity, Construction, and Application of Arbitration Agreement in Contract for Admission to Nursing Home, 50 A.L.R. 6th 187 (2009). 3 Manor Care filed Preliminary Objections on June 8, 2011. Objections were due no later than November 23, 2010. 5 agreement. Manor Care has the burden of establishing an agency relationship. Here, there is no proof that actions were taken to induce Manor Care’s belief that Mr. Kazimer acted as Mrs. Kazimer’s agent. Thus, we find that Manor Care has failed to show that Mr. Kazimer had 4 authority to bind his wife by signing the agreement. ORDER AND NOW, this day of August, 2011, following argument, the Preliminary Objections of the Manor Care Defendants are DENIED. BY THE COURT, _____________________ Kevin A. Hess, P. J. Robin J. Marzella, Esquire For the Plaintiff William J. Mundy, Esquire John M. Skrocki, Esquire For the Manor Care Defendants Craig A. Stone, Esquire For Defendant Carlisle Regional Medical Center Andrew Foulkrod, Esquire For Defendant Darryl Guistwite, D.O. :rlm 4 Because the agreement is unenforceable based on the aforementioned reasons, it is unnecessary to discuss Plaintiff’s issue of unconscionability in the arbitration agreement. 6 RICHARD KAZIMER, Individually : IN THE COURT OF COMMON PLEAS OF and as Administrator for the Estate : CUMBERLAND COUNTY, PENNSYLVANIA of SHIRLEY KAZIMER, Deceased, : Plaintiff : CIVIL ACTION – LAW : VS. : NO. 10-3391 CIVIL : MANOR CARE OF CARLISLE : PA LLC, MANOR HEALTHCARE : CORP., MANORCARE HEALTH : SERVICES CARLISLE, HEALTH : CARE AND RETIREMENT : CORPORATION OF AMERICA, : MANOR CARE OF AMERICA, : INC., MANOR CARE INC., HCR : MANOR CARE INC., HCR : MANOR CARE, CARLISLE : REGIONAL MEDICAL CENTER, : DARRYL K. GUISTWITE, D.O., : Defendants : JURY TRIAL DEMANDED IN RE: PRELIMINARY OBJECTIONS OF THE MANOR CARE DEFENDANTS TO THE PLAINTIFF’S COMPLAINT BEFORE HESS, P.J. AND EBERT, J. ORDER AND NOW, this day of August, 2011, following argument, the Preliminary Objections of the Manor Care Defendants are DENIED. BY THE COURT, _____________________ Kevin A. Hess, P. J. Robin J. Marzella, Esquire For the Plaintiff William J. Mundy, Esquire John M. Skrocki, Esquire For the Manor Care Defendants 9 Craig A. Stone, Esquire For Defendant Carlisle Regional Medical Center Andrew Foulkrod, Esquire For Defendant Darryl Guistwite, D.O.