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HomeMy WebLinkAbout2012-1419 CONNIE TAYLOR AND HARRY : IN THE COURT OF COMMON PLEAS OF R. DUPREY, AS ATTORNEYS- : CUMBERLAND COUNTY, PENNSYLVANIA IN-FACT FOR LOU DUPREY : Plaintiff : : v. : CIVIL ACTION – LAW : MANORCARE OF CARLISLE PA, : LLC D/B/A MANORCARE : HEALTH SERVICES-CARLISLE; : HCR MANORCARE, INC.; : MANOR CARE, INC.; HCR : HEALTHCARE, LLC; HCR II : HEALTHCARE, LLC; HCR III : HEALTHCARE, LLC; HCR IV : HEALTHCARE, LLC; : Defendants : NO. 12-1419 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF DEFENDANTS, MANORCARE OF CARLISLE PA, LLC D/B/A MANORCARE HEALTH SERVICES-CARLISLE, HCR MANORCARE, INC., MANOR CARE, INC., HCR HEALTHCARE, LLC, HCR II HEALTHCARE, LLC, HCR III HEALTHCARE, LLC, HCR IV HEALTHCARE, LLC TO PLAINTIFF’S COMPLAINT BEFORE GUIDO and PECK, JJ. OPINION AND ORDER OF COURT Peck, J., September 13, 2012 – Manorcare of Carlisle PA, LLC d/b/a Manorcare Health Services-Carlisle, HCR Manorcare, Inc., Manor Care, Inc., HCR Healthcare, LLC, HCR II Healthcare, LLC, HCR III Healthcare, LLC, and HCR IV Healthcare, LLC (“Defendant Manorcare”) have 12 raised the following preliminary objections to the complaint of Connie Taylor 1 Prelim. Objs. of Defs., Manorcare of Carlisle PA, LLC d/b/a Manorcare Health Services-Carlisle, HCR Manorcare, Inc., Manor Care, Inc., HCR Healthcare, LLC, HCR II Healthcare, LLC, HCR III Healthcare, LLC, and HCR IV Healthcare, LLC to Pl.’s Compl., Mar. 23, 2012, (hereinafter “Prel. Objs. of Defs. Manorcare”); Prelim. Objs. of Defs., Manorcare of Carlisle PA, LLC d/b/a Manorcare Health Services- Carlisle, HCR Manorcare, Inc., Manor Care, Inc., HCR Healthcare, LLC, HCR II Healthcare, LLC, HCR III Healthcare, LLC, and HCR IV Healthcare, LLC to Pl.’s Compl., Mar. 23, 2012, (hereinafter “Defs. Mot. to Move Pl.’s Suit to Arbitration”). (“Plaintiff’s Daughter”) and Harry R. Duprey, as attorneys-in-fact for Lou Duprey (“Plaintiff”): (1)Motion to move Plaintiff’s suit to arbitration; (2)Demurrer/motion to strike all allegations and claims for punitive damages; (3)Demurrer/motion to strike Count Two, a claim under crimes codes, 18 Pa.C.S. § 2713, Neglect of Care-Dependent Person; and, (4)Demurrer/motion to strike Count Three, a claim under 35 P.S. § 10225.101, et seq., a claim under the Pennsylvania Older Adults Protective Services Act (“the Act”). Accordingly, this Court will address each in turn. PROCEDURAL HISTORY On April 13, 2012, argument was heard regarding the preliminary objections of 3 Defendant Manorcare to Plaintiff’s complaint. On April 19, 2012, pursuant to Pa.R.C.P. 1028(a)(6) and the accompanying note thereto, this Court issued an order permitting 4 additional limited discovery regarding the arbitration agreement at issue. Thereafter, the 5 parties submitted supplemental memoranda of law addressing this issue. The preliminary objections of Defendant Manorcare are now before this Court. STATEMENT OF FACTS On March 15, 2010, Plaintiff, who had been living with Plaintiff’s Daughter, was 6 admitted to Defendant Manorcare’s facility for a second time. Defendant Manorcare’s 2 Compl. In Civil Action, Mar. 5, 2012 (hereinafter “Pl.’s Compl.”). 3 Prel. Objs. of Defs. Manorcare; Defs. Mot. to Move Pl.’s Suit to Arbitration. 4 In Re: Prelim. Objs. of Defs., Manorcare of Carlisle PA, LLC d/b/a Manorcare Health Services-Carlisle, HCR Manorcare, Inc., Manor Care, Inc., HCR Healthcare, LLC, HCR II Healthcare, LLC, HCR III Healthcare, LLC, and HCR IV Healthcare, LLC to Pl.’s Compl. before Guido and Peck, JJ. Order of Ct., Apr. 19, 2012. 5 Pls.’ Suppl. Mem. of Law to Defs.’ Arbitration-Related Prelim. Objs., Jun. 25, 2012; Suppl. Mem. of Law of Manor Care Defs. to Their Prelim. Objs. to Pl.’s Compl., Jun. 25, 2012; Pls.’ Resp. to Defs.’ Suppl. Mem. of Law in Supp. of Arbitration-Related Prelim. Objs., Jul. 2, 2012; Second Suppl. Mem. of Law in Supp. of Manor Care Defs.’ Prelim. Objs. to Pl.’s Compl., Jul. 6, 2012. 6 Taylor Dep. 29, 32 (May 16, 2012)(hereinafter “Taylor Dep. __”); Pl.’s Compl., ¶ 21. 2 7 facility provides long-term skilled nursing care. Plaintiff’s Daughter, Plaintiff’s other daughter Dollie Howe, and Allyson Fox representing Defendant Manorcare attended the 8 admission paperwork meeting. Plaintiff’s Daughter was not present when Plaintiff was 9 admitted to Defendant Manorcare’s facility the first time. Ms. Howe signed Plaintiff 10 into Defendant Manorcare’s facility the first time. At the time of admission to Defendant Manorcare’s facility, Plaintiff was suffering 11 from dementia and was not capable of understanding the admission paperwork. At that point in time, Plaintiff’s Daughter noticed Plaintiff was dazed, very agitated and did not 12 know what was going on. Ms. Fox asked Plaintiff’s Daughter to sign the admission 13 paperwork. It was Plaintiff’s Daughter’s understanding that she was acting on 14 Plaintiff’s behalf and with her permission when she signed the admission paperwork. The admission paperwork included Manorcare’s Arbitration Agreement (“the Manorcare 15 Agreement”). Ms. Fox signed the Manorcare Agreement as a representative of 16 Defendant Manorcare. The Manorcare Agreement is a voluntary agreement and a patient who does not sign the agreement is still “allowed to live in, and receive services in, [Defendant 7 Pl.’s Compl., ¶¶ 6, 23. 8 Taylor Dep. 34-36. 9 Taylor Dep. 27. 10 Taylor Dep. 28. 11 Taylor Dep. 38-39. 12 Taylor Dep. 38-39. 13 Taylor Dep. 22, 38. 14 Taylor Dep. 21. 15 Taylor Dep. 50-57; Fox Dep. 23. 16 Fox Dep. 57 (May 16, 2012)(hereinafter “Fox Dep. __”); Defs. Mot. to Move Pl.’s Suit to Arbitration, Ex. B, 5. 3 17 Manorcare’s facility].” Despite signing the Manorcare Agreement as “Patient’s Legal 18 Representative,” Plaintiff’s Daughter was not Plaintiff’s power of attorney. At the time of admission to Defendant Manorcare’s facility, Plaintiff’s granddaughter Stephanie 19 Kirkpatrick was serving as Plaintiff’s power-of-attorney. She, however, was not 20 present at the admission paperwork meeting. Plaintiff’s Daughter became Plaintiff’s power of attorney on March 18, 2010, three days after Plaintiff’s admission to Defendant 21 Manorcare’s facility. Ms. Fox only had a vague recollection of the admission paperwork meeting taking 22 place. She stated clearly, however, that she always asks for power of attorney 23 documentation when going through the admission process. Ms. Fox was further trained that any family member, next of kin, or a close friend that the resident designated as an 24 emergency contact or responsible party could sign the admission paperwork. Plaintiff stayed at Defendant Manorcare’s facility through August 30, 2010 and 25 then returned to live with Plaintiff’s Daughter. During the residency of Plaintiff at Defendant Manorcare’s facility, Plaintiff avers Defendant Manorcare knowingly sacrificed the quality of care received by all residents, including Plaintiff by failing to manage, care, monitor, document, chart, prevent, diagnose and treat the injuries and 17 Fox. Dep. 24; Defs. Mot. to Move Pl.’s Suit to Arbitration, Ex. B, 1. 18 Taylor Dep. 19; 21-22; 39-40; 45; Defs. Mot. to Move Pl.’s Suit to Arbitration, Ex. B, 1, 4. 19 Taylor Dep. 19; 21-22; 39-40; 45. 20 Taylor Dep. 35. 21 Taylor Dep. 39-40; 46. 22 Fox Dep. 56. 23 Fox Dep. 25-26. 24 Fox Dep. 24-25. 25 Taylor Dep. 32; Pl.’s Compl., ¶ 21. 4 illnesses suffered by Plaintiff, which included multiple falls including a fall resulting in a 26 fractured right wrist, multiple infections, poor hygiene, and severe pain. Plaintiff also avers Defendant Manorcare intentionally increased the number of sick, elderly and frail residents with greater health problems requiring more complex 27 medical care. Plaintiff avers Defendant Manorcare failed to provide resources necessary, including sufficient staff, to meet the needs of the residents, including 28 Plaintiff. Plaintiff avers Defendant Manorcare knowingly established staffing levels 29 that created recklessly high resident-to-nurse ratios. Plaintiff avers Defendant Manorcare knowingly disregarded patient acuity levels while making staffing decisions and knowingly disregarded the minimum time required by staff to perform essential day- 30 to-day functions and treatments. Plaintiff avers the acts and omissions of Defendant Manorcare were motivated by a desire to increase profits by knowingly, recklessly and with total disregard for the health and safety of the residents, reducing expenditures for needed staffing, training, supervision, and care to levels that would inevitably lead to 31 severe injuries, such as those suffered by Plaintiff. DISCUSSION I. The Arbitration Agreement Defendant Manorcare has raised a preliminary objection pursuant to Pa.R.C.P. 1028(a)(6) and moves to compel arbitration. An agreement for alternative dispute resolution, like an arbitration agreement, may be asserted by preliminary objection. Pa.R.C.P. 1028(a)(6)(See also the accompanying note). This Court will begin by 26 Pl.’s Compl., ¶ 48. 27 Pl.’s Compl., ¶ 39. 28 Pl.’s Compl., ¶ 42. 29 Pl.’s Compl., ¶ 43. 30 Pl.’s Compl., ¶ 44. 31 Pl.’s Compl., ¶ 45. 5 addressing the validity of the Manorcare Agreement before addressing the remaining preliminary objections. “The Supreme Court of this Commonwealth as a matter of public policy favors the settlement of disputes by arbitration to promote the swift and orderly disposition of claims.” Elkins & Co. v. Suplee, 538 A.2d 883, 885 (Pa. Super. 1988). Nevertheless, for the reasons set forth below, this Court finds the Manorcare Agreement to be invalid and, therefore, Defendant Manorcare cannot compel Plaintiff to settle this case through arbitration. Arbitration between the parties is required if this Court determines: (1) a valid agreement to arbitrate exists between the parties; and (2) the dispute involved is within the scope of the arbitration provision. Pittsburgh Logistics Sys., Inc. v. Prof’l Transp. and Logistics, Inc., 803 A.2d 776, 779 (Pa. Super. 2002). This Court does not find the Manorcare Agreement to be a valid arbitration agreement, therefore, arbitration between the parties is not required. Further, because the Manorcare Agreement is found to be invalid, no determination of the scope of the agreement will be made. Defendant Manorcare argues that the Manorcare Agreement signed by Plaintiff’s Daughter is binding on Plaintiff because there existed a principal-agent relationship between Plaintiff and Plaintiff’s Daughter. As a matter of contract, no party can be forced to arbitrate unless that party has entered into an agreement to do so. Arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed to submit. However, a party can be compelled to arbitrate under an agreement, even if he or she did not sign that agreement, if common-law principles of agency and contract support such an obligation on his or her part. Array Healthcare Facilities Solutions Inc. v. Pesce, 2 Pa. D. & C. 5th 547, (Pa.Com.Pl. 2006)(internal citations to case law of the United States Court of Appeals, Third Circuit omitted), affirmed by Pesce v. Array Healthcare, 931 A.2d 60 (Pa.Super. 2007), reargument denied (Jul. 20, 2007). “An agency relationship can be created through actual authority, apparent authority or authority by estoppel.” Carr v. Immaculate Mary th Nursing Home, 15 Pa. D&C 5 415 (Pa. Com. Pl. 2010)(citing Bolus v. United Penn 6 Bank, 525 A.2d 1215, 1221 (1987)). “The burden of establishing an agency relationship rests with the party asserting the relationship.” Basile v. H & R Block, Inc., 761 A.2d 1115, 1120 (Pa. 2000). Defendant Manorcare contends that an agency relationship was created between Plaintiff and Plaintiff’s Daughter through actual authority and apparent authority. Plaintiff’s Daughter did not have actual authority to sign the A. Manorcare Agreement. A person without the mental capacity to manage their own affairs “lacks the ability to appoint agents to do it for [them]”. In re Dean, 74 A.2d 538, 541 (Pa. Super. 1950). An agent cannot derive more authority than the principal has capacity to delegate. Id. At the time of admission to Defendant Manorcare’s facility, Plaintiff was suffering from dementia and was not capable of understanding the admission paperwork. Plaintiff was dazed, very agitated and unaware of what was occurring. Without the mental capacity to understand the admission paperwork, Plaintiff lacked the ability to appoint an agent to sign for her. Plaintiff, therefore, could not delegate the authority to sign the admission paperwork which included the Manorcare Agreement. Plaintiff’s granddaughter, who served as Plaintiff’s power-of-attorney at that time, had the express authority to act as Plaintiff’s agent and could have signed the Manorcare Agreement on behalf of Plaintiff if she had been consulted by Defendant Manorcare. Assuming arguendo that Plaintiff had the mental capacity to delegate the signing of the admission paperwork to her daughter, there is no indication on the record that the delegated authority extended to signing the Manorcare Agreement. Actual authority is a general term that includes both express and implied authority. Jones v. Van Norman, 522 A.2d 503, 511 (Pa. 1987). “Express authority exists where the principal directly states that an agent has the authority to perform a particular act on the principal's behalf.” Jones v. Van Norman, 522 A.2d 503, 511 (Pa. 1987). “Express authority is to be strictly construed.” Id. “When an agent is given express authority, he also acquires, in addition, the implied authority to do all that is proper, necessary and ordinary to exercise the authority that has expressly been granted to him.” Id. “Such implied authority is actual 7 authority based on the premise that the principal reasonably would want the act done in order to accomplish the express purpose of the agency.” Id. There is no indication that Plaintiff was aware of the Manorcare Agreement or otherwise agreed to arbitrate. At best, Plaintiff’s Daughter had permission from Plaintiff to sign paperwork that was necessary for the admission of Plaintiff to Defendant Manorcare’s facility. The Manorcare Agreement compelling arbitration was not necessary for admission to Defendant Manorcare’s facility, however, and therefore falls outside the scope of any authority expressly or impliedly granted by Plaintiff. B. Plaintiff’s Daughter did not have apparent authority to sign the Manorcare Agreement. “[A]pparent authority exists where a principal, by words or conduct, leads people with whom the alleged agent deals to believe the principal has granted agent the authority th he or she purports to exercise.” Carr v. Immaculate Mary Nursing Home, 15 Pa. D&C 5 415 (Pa.Com.Pl. 2010)(citing Turner Hydraulics Inc. v. Susquehanna Constr. Corp., 606 A.2d 532, 535 (1992)). Apparent authority “depend[s] on manifestations by the alleged principal to a third person, and reasonable belief by the third person that the alleged agent is authorized to bind the principal.” Loyle v. Hertz Corp., 940 A.2d 401, 407 (Pa. Super. 2007). Plaintiff’s Daughter was not present when Plaintiff was admitted to Defendant Manorcare’s facility the first time nor had she signed Plaintiff into Defendant Manorcare’s facility that first time. There was no evidence presented of any manifestation by Plaintiff to Defendant Manorcare that Plaintiff’s Daughter was authorized to act on her behalf. Indeed, Defendant Manorcare’s argument focuses on the actions of Plaintiff’s Daughter, the purported agent, in attempting to establish apparent authority. “An agent cannot, simply by his own words, invest himself with apparent authority. Such authority emanates from the action of the principal and not the agent.” Turnway Corp. v. Soffer, 336 A.2d 871, 876 (Pa. 1975)(citing Jennings v. Pittsburgh Mercantile Co., 202 A.2d 51, 54 (Pa. 1964)). Defendant Manorcare cites Chighizola v. Beverly Enter. Inc., 79 Pa. D. & C.4th 416 (Pa. Com. Pl. 2006) a Monroe County Common Pleas Court case compelling 8 arbitration and holding that the arbitration agreement signed by the daughter of the decedent had authority to bind the decedent’s estate to arbitration. Id. at 422. In that case, however, decedent was of sound mind and conscience when admitted. Id. The court found that the decedent held her daughter “out as having the authority to sign decedent's admission forms” and, therefore, the daughter as “her agent [had] the apparent authority to sign the arbitration [agreement] because of the similarities of how and when the documents were signed”. Id. Unlike the decedent in Chighizola who was of sound mind and conscience when admitted, in the present case, Plaintiff was suffering from symptoms of dementia. Unlike the decedent in Chighizola, no evidence was presented to show that Plaintiff held her daughter out as having authority to sign the admission forms. There was no evidence presented of any manifestation by Plaintiff to Defendant Manorcare that Plaintiff’s Daughter was authorized to act on her behalf. Lastly, a trial court decision from a different county provides no binding precedent for this county’s trial court. Castle Pre- Cast Superior Walls of Delaware, Inc. v. Strauss-Hammer, 610 A.2d 503, 505 (Pa. Super. 1992). This Court finds our facts to be more similar to the decision in Carr v. Immaculate th Mary Nursing Home, 15 Pa. D&C 5 415 (Pa. Com. Pl. 2010), a Philadelphia County case. In Carr, the court held there was insufficient evidence to find the patient's wife had authority to bind the patient to arbitration. Id. at 422. The patient was admitted to a nursing facility with symptoms of dementia. Id. at 417. The patient’s wife executed an agreement at admission containing a binding, mandatory arbitration clause. Id. The patient’s wife signed as the designated “responsible person” on the patient’s behalf. Id. at 418. The patient’s wife did not have power of attorney and had not been appointed legal th guardian. 15 Pa. D&C 5 at 418. There was no evidence of a writing expressly granting the patient's wife actual authority. Id. at 421. There was no evidence showing the patient knew of the arbitration clause, authorized his wife to sign the agreement, or otherwise agreed to arbitrate. Id. There was no evidence of the patient’s conduct when the agreement was executed. Id. 9 In the present case, when Plaintiff was admitted to Defendant Manorcare’s facility she like the patient in Carr suffered from symptoms of dementia. Plaintiff was dazed, very agitated and did not know what was going on. At the time of admission, Plaintiff’s Daughter executed the Manorcare Agreement. Like the patient’s wife in Carr, Plaintiff’s Daughter did not have power of attorney. There was no evidence of a writing expressly granting the Plaintiff’s Daughter actual authority. Ms. Kirkpatrick was Plaintiff’s power of attorney and she was not present at the admission paperwork meeting. As in Carr, there was no evidence showing Plaintiff knew of the Manorcare Agreement, authorized her daughter to sign the agreement, or otherwise agreed to arbitrate. As in Carr, there is no evidence of the Plaintiff’s conduct when the agreement was executed. Plaintiff was not present at the meeting in which the Manorcare Agreement was signed. Defendant Manorcare has failed to show that Plaintiff’s Daughter had authority to bind the Plaintiff to arbitration. II. The Remaining Preliminary Objections Having found the Manorcare Agreement to be invalid, this Court will now address Defendant Manorcare’s remaining preliminary objections. A. Standard of Review for Preliminary Objections in General When considering the appropriateness of a ruling on preliminary objections, the court must accept as true all well pled material facts set forth in the complaint along with all reasonably deducible inferences from those facts. Schuylkill Navy v. Langbord, 728 A.2d 964, 968 (Pa. Super. 1999). Such an inquiry assesses the legal sufficiency of the complaint. Id. In reviewing the complaint, “only well pleaded material facts are admitted, and not conclusions of law.” McKeeman v. Corestates Bank, N.A., 751 A.2d 655, 658 (Pa. Super. 2000). Preliminary objections will be sustained only if they are clear and free of doubt. Id. When ruling on a preliminary objection, any doubt should be resolved against the objecting party. Koken v. Steinberg, 825 A.2d 723, 726 (Pa. Cmwlth. 2003). The court must be able to say with certainty that upon the facts averred, the law will not permit recovery. Schuylkill Navy, 728 A.2d at 968. 10 Even where a trial court sustains preliminary objections on their merits, it is generally an abuse of discretion to dismiss the complaint without leave to amend. Harley Davidson Motor Co., Inc. v. Hartman, 442 A.2d 284, 286 (Pa. Super. 1982). A trial court’s decision regarding preliminary objections will be reversed only where there has been an error of law or abuse of discretion. Cooper v. Frankford Health Care Sys., Inc., 960 A.2d 134, 144 (Pa. Super. 2008). B. Standard of Review for a Demurrer A demurrer, under Pa.R.C.P. Rule 1028(a)(4), is an assertion that a complaint does not set forth a cause of action or a claim on which relief can be granted. Lerner v. Lerner, 954 A.2d 1229, 1234 (Pa. Super. 2008). In ruling on a demurrer, the court may consider only matters that arise out of the complaint itself; it cannot supply a fact missing in the complaint. Hess v. Fox Rothschild, LLP, 925 A.2d 798, 805 (Pa. Super. 2007). In evaluating a demurrer, all material facts set forth in the complaint and all inferences reasonably deducible therefrom must be admitted as true. Id. at 806. The question presented by a demurrer is whether, based on the facts averred, the law says with certainty that the contested pleading is legally insufficient and no recovery is possible. Schuylkill Navy, 728 A.2d at 968. If there is any doubt as to whether a demurrer should be sustained, the doubt should be resolved in favor of overruling it. Lerner, 954 A.2d at 1234. Therefore, a preliminary objection in the nature of a demurrer may be properly granted only where the contested pleading is legally insufficient. Hess, 925 A.2d at 805. C. Plaintiff has pled sufficient facts to justify an award of punitive damages Defendant Manorcare contends that all allegations and claims for punitive damages by Plaintiff in its complaint are legally insufficient and, therefore, should be stricken. This Court, accepting as true all well-pled material facts set forth in Plaintiff’s complaint along with all reasonably deducible inferences from those facts, finds Plaintiff’s claim for punitive damages legally sufficient and, therefore, Defendant Manorcare’s preliminary objection is overruled. “Our case law makes it clear that punitive damages are an ‘extreme remedy’ available in only the most exceptional matters.” Phillips v. Cricket Lighters, 883 A.2d 11 439, 445 (Pa. 2005). The Pennsylvania Supreme Court has stated that “[p]unitive damages may be awarded for conduct that is outrageous, because of the defendant's evil motive or his reckless indifference to the rights of others.” SHV Coal, Inc. v. Continental Grain Co., 587 A.2d 702, 704 (Pa. 1991)(citing REST 2d TORTS § 908(2)). Under Pennsylvania law, the only type of reckless conduct sufficient to create a jury question on the issue of punitive damages arises where the defendant “knows, or has reason to know, ... of facts which create a high degree of risk of physical harm to another, and deliberately proceeds to act, or to fail to act, in conscious disregard of, or indifference to, that risk.” Id. at 704-705, (citing REST 2d TORTS § 500 Comment (a)). “The determination of whether a person's actions arise to outrageous conduct lies within the sound discretion of the fact-finder.” Id. at 705. In Scampone v. Grane Healthcare Co., 11 A.3d 967, 991. (Pa. Super. 2010), the defendants’ nursing home “was chronically understaffed”. The defendants’ “employees not only were aware of the understaffing that was leading to improper patient care, they deliberately altered records to hide that substandard care”. Id. at 991-992. “The effects of understaffing was specifically connected to [the decedent’s] care.” Id. at 992. The decedent was in deplorable condition at the end of her stay at the nursing home and there was a lack of nursing care prior to her death. Id. at 971, 991-992. The Pennsylvania Superior Court found that the defendants “acted with reckless disregard to the rights of others and created an unreasonable risk of physical harm to the residents of the nursing home” and “there was sufficient evidence of misconduct … to warrant submission of the issue of punitive damages to the jury”. Id. at 971, 991. In Capriotti v. Beverly Enterprises Pennsylvania, Inc., 72 Pa. D. & C.4th 564, 568 (Pa.Com.Pl. 2004), the plaintiff brought a negligence and malpractice action against a corporate defendant’s facility where the plaintiff had received long-term nursing care. The plaintiff “aver[ed] that the corporate defendants, in an attempt to maximize profits, knowingly acted with reckless disregard for the health and well-being of the facility residents by increasing the number of acutely ill residents while grossly under-staffing and under-funding the facility and failing to appropriately train the staff”. Id. at 575- 12 576. The court held that “the plaintiffs ... pleaded sufficient facts which, if believed, would entitle the plaintiff to punitive damages”. Id. Similar to the factual situation of Scampone and Capriotti, Plaintiff has alleged that Defendant Manorcare, motivated by a desire to increase profits, knowingly reduced expenditures for needed staffing, training, supervision, and care to levels that it knew created recklessly high resident-to-nurse ratios that inevitably would lead to severe injuries, such as those suffered by Plaintiff. Plaintiff has averred facts that establish Defendant Manorcare knew that understaffing created a high degree of risk of physical harm to its patients, and deliberately proceeded to understaff its facility in conscious disregard to that risk in order to maximize its profits. This Court cannot say with certainty that upon the facts averred, the law will not permit Plaintiff to recover punitive damages. This Court holds that Plaintiff has averred sufficient facts of outrageous conduct to sustain the claim for punitive damages and, therefore, Defendant Manorcare’s preliminary objections are overruled. D. Plaintiff’s claim for negligence for violations of 18 Pa.C.S. § 2713, per se Neglect of Care-Dependent Person, and Plaintiff’s claim for negligence per for violations of the Pennsylvania Older Adults Protective Services Act se (“the Act”) are legally sufficient. Defendant Manorcare contends that Plaintiff’s claims of negligence per se for violations of 18 Pa.C.S. § 2713, Neglect of Care-Dependent Person and for violations of the Act are legally insufficient and, therefore, should be stricken. This Court, accepting as true all well-pled material facts set forth in Plaintiff’s complaint along with all reasonably deducible inferences from those facts, finds that Plaintiff’s claims for negligence per se against Defendant Manorcare for violations of 18 Pa.C.S. § 2713, Neglect of Care-Dependent Person, and for violations of the Act are legally sufficient and, therefore, Defendant Manorcare’s preliminary objections to these claims are overruled. Judge Edward E. Guido of the Cumberland County Court of Common Pleas recently adopted the reasoning of Judge Carmen D. Minora in South v. Osprey Ridge Healthcare Ctr., et al., Court of Common Pleas Lackawanna County, 10 CV 5688, when 13 32 addressing these same two issues before his court. Like Judge Guido, this Court also finds the well-reasoned opinion of Judge Minora in South to be persuasive in this case on these two issues and, therefore, adopt his reasoning in finding Plaintiff’s claims of negligence per se for violations of 18 Pa.C.S. § 2713, Neglect of Care-Dependent Person and for violations of the Act to be legally sufficient. Defendant Manorcare’s preliminary objections, therefore, are overruled. Accordingly, the following order is entered: ORDER OF COURT th AND NOW , this 13 day of September, 2012, upon consideration of the preliminary objections of Defendant Manorcare to Plaintiff’s complaint, the briefs filed by the parties, oral argument, and the supplemental memoranda submitted by the parties, IT IS HEREBY ORDERED AND DIRECTED that: Defendant Manorcare’s preliminary objections to Plaintiff’s complaint are OVERRULED andDefendant Manorcare’s motion to move Plaintiff’s suit to DENIED arbitration is . BY THE COURT, s/ Christylee L. Peck Christylee L. Peck, J. Ian T. Norris, Esq. Three Parkway 1601 Cherry Street,Suite 1300 Philadelphia, PA 19102 Attorney for Plaintiff John M. Skrocki, Esq. BURNS WHITE 100 Four Falls, Suite 515 1001 Conshohocken State Rd. West Conshohocken, PA 19428 Attorney for Defendant Manorcare 32 In Re: Defs.’ Prelim. Objs. Before Guido, Oler, JJ., Order of Court, Jan. 10, 2012 (re: No. 2010 – 6924 Civil Term). 14 15 CONNIE TAYLOR AND HARRY : IN THE COURT OF COMMON PLEAS OF R. DUPREY, AS ATTORNEYS- : CUMBERLAND COUNTY, PENNSYLVANIA IN-FACT FOR LOU DUPREY : Plaintiff : : v. : CIVIL ACTION – LAW : MANORCARE OF CARLISLE PA, : LLC D/B/A MANORCARE : HEALTH SERVICES-CARLISLE; : HCR MANORCARE, INC.; : MANOR CARE, INC.; HCR : HEALTHCARE, LLC; HCR II : HEALTHCARE, LLC; HCR III : HEALTHCARE, LLC; HCR IV : HEALTHCARE, LLC; : Defendants : NO. 12-1419 CIVIL TERM IN RE: PRELIMINARY OBJECTIONS OF DEFENDANTS, MANORCARE OF CARLISLE PA, LLC D/B/A MANORCARE HEALTH SERVICES-CARLISLE, HCR MANORCARE, INC., MANOR CARE, INC., HCR HEALTHCARE, LLC, HCR II HEALTHCARE, LLC, HCR III HEALTHCARE, LLC, HCR IV HEALTHCARE, LLC TO PLAINTIFF’S COMPLAINT BEFORE GUIDO and PECK, JJ. ORDER OF COURT th AND NOW , this 13 day of September, 2012, upon consideration of the preliminary objections of Defendant Manorcare to Plaintiff’s complaint, the briefs filed by the parties, oral argument, and the supplemental memoranda submitted by the parties, IT IS HEREBY ORDERED AND DIRECTED that: Defendant Manorcare’s preliminary objections to Plaintiff’s complaint are OVERRULED andDefendant Manorcare’s motion to move Plaintiff’s suit to DENIED arbitration is . 16 BY THE COURT, ___________________ Christylee L. Peck, J. Ian T. Norris, Esq. Three Parkway 1601 Cherry Street, Suite 1300 Philadelphia, PA 19102 Attorney for Plaintiff John M. Skrocki, Esq. BURNS WHITE 100 Four Falls, Suite 515 1001 Conshohocken State Rd. West Conshohocken, PA 19428 Attorney for Defendant Manorcare 17