HomeMy WebLinkAbout2012-0165
EVONNE K. WERT, Executrix : IN THE COURT OF COMMON PLEAS OF
of the ESTATE OF ANNA E. : CUMBERLAND COUNTY, PENNSYLVANIA
KEPNER, Deceased, :
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; GGNSC :
GETTYSBURG, LP, d/b/a GOLDEN :
LIVING CENTER-GETTYSBURG; :
GGNSC GETTYSBURG GP, LLC; :
GGNSC HOLDINGS, LLC; :
GOLDEN GATE NATIONAL :
SENIOR CARE, LLC; GGNSC :
EQUITY HOLDINGS, LLC; :
GGNSC ADMINISTRATIVE :
SERVICES, LLC; :
Defendants : NO. 12-0165 CIVIL TERM
IN RE: PRELIMINARY OBJECTIONS
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
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raised the following preliminary objections to the complaint of Evonne K. Wert,
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., Feb. 3, 2012, 10:29 AM (hereinafter “Prel. Objs. of
(“Decedent’s Daughter”) Executrix of the Estate (“Plaintiff”) of Anna E. Kepner
(“Decedent”), deceased:
(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”).
GGNSC Gettysburg, LP, d/b/a Golden Living Center-Gettysburg, GGNSC
Gettysburg GP, LLC, GGNSC Holdings, LLC, Golden Gate National Senior Care, LLC,
GGNSC Equity Holdings, LLC, and GGNSC Administrative Services, LLC (“Defendant
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Golden”) have raised the following preliminary objections to Plaintiff’s complaint:
(1)This Court lacks subject matter jurisdiction due to an arbitration
agreement between the parties and therefore this case should be referred
to arbitration;
(2)Plaintiff’s claim for punitive damages is legally insufficient and must be
stricken;
(3)Plaintiff’s cause of action for negligence per se for violation of Neglect
of a Care-Dependent Person, 18 Pa.C.S. § 2713, must be stricken as a
matter of law; and,
(4)Plaintiff’s cause of action for negligence per se for violation of the Act,
35 P.S. § 10225.101, must be stricken as a matter of law.
The preliminary objections of Defendant Manorcare and Defendant Golden
address four similar issues: (1) whether Defendant Manorcare’s and Defendant Golden’s
arbitration agreements are valid and, therefore, bind Plaintiff to arbitration; (2) whether
Defs. Manorcare 10:29 AM”); 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., Feb. 3, 2012,
10:30 AM (hereinafter “Prel. Objs. of Defs. Manorcare 10:30 AM”)
2
Compl. In Civil Action, Jan. 13, 2012 (hereinafter “Pl.’s Compl.”).
3
Prelim. Objs. [of Defs. Golden Living] To Pl.’s Compl., Mar. 12, 2012.
4
Pl.’s Compl.
2
all claims for punitive damages are legally insufficient and should be stricken; (3)
whether the claim for negligence per se arising from violations of 18 Pa.C.S. § 2713,
Neglect of Care-Dependent Person, is legally insufficient and should be stricken; and, (4)
whether the claim under the Act is legally insufficient and should be stricken.
Accordingly, this Court will address each in turn.
PROCEDURAL HISTORY
On April 13, 2012, argument was heard regarding the preliminary objections of
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Defendant Manorcare and Defendant Golden to Plaintiff’s complaint. On April 20,
2012, pursuant to Pa.R.C.P. 1028(a)(6) and the accompanying note thereto, this Court
issued an order permitting additional limited discovery regarding the arbitration
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agreements at issue. Thereafter, the parties submitted supplemental memoranda of law
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addressing this issue. The preliminary objections of Defendant Manorcare and
Defendant Golden are now before this Court.
STATEMENT OF FACTS
On January 13, 2010, Decedent was admitted to Defendant Manorcare’s facility
8
for rehabilitation. Defendant Manorcare’s facility provides long-term skilled nursing
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care. At the time of admission to Defendant Manorcare’s facility, Decedent’s diagnosis
5
Prel. Objs. of Defs. Manorcare 10:29 AM; Prel. Objs. of Defs. Manorcare 10:30 AM; Prelim. Objs. [of
Defs. Golden Living] To Pl.’s Compl., Mar. 12, 2012.
6
In Re: Prelim. Obj. Lmtd. Disc. before Guido and Peck, JJ. Order of Ct., Apr. 20, 2012.
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Pl.’s Suppl. Mem. of Law in Opp’n to Arbitration-Related Prelim. Objs. of [Manor Care] Defs. to Pl.’s
Compl., Jun. 25, 2012; Suppl. Mem. of Law of Manor Care Defs. to Their Prelim. Objs. to Pl.’s Compl.,
Jun. 25, 2012; Pl.’s Resp. to [Manor Care] 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; Pl.’s Suppl. Mem. of Law in Opp’n to Prelim. Objs. of Golden Living Defs. to
Pl.’s Compl., Jun. 25, 2012; Suppl. Br. in Supp. of [Golden Living Defs.] Prelim. Objs., Jun. 25, 2012;
Pl.’s Resp. to [Golden Living] Defs.’ Suppl. Mem. of Law in Supp. of Arbitration-Related Prelim. Objs.,
Jul. 2, 2012.
8
Wert Dep. 29 (May 16, 2012)(hereinafter “Wert Dep. __”); Pl.’s Compl., ¶ 35.
9
Pl.’s Compl., ¶¶ 7, 37.
3
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information included dizziness, giddiness, and cardiac concerns. Decedent, however,
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was capable of signing the admission paperwork herself. Decedent’s Daughter was told
she needed to sign the admission paperwork in order to have Decedent admitted to
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Defendant Manorcare’s facility. The admission paperwork included Manorcare’s
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Arbitration Agreement (“the Manorcare Agreement”). Allyson O. Fox signed the
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Manorcare Agreement as a representative of Defendant Manorcare. While Ms. Fox
does not recall the event taking place, she testified that usually when going through the
admission process with family members of a potential resident, she asks whether there
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exists a current power of attorney. If there is no power of attorney, Ms. Fox, based on
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her training, believed that any family member could fill out the admission paperwork.
If a family member asked if they needed a power of attorney, Ms. Fox would tell them
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they did not. Decedent’s Daughter signed the admission paperwork without the
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authority to do so. Despite signing the Manorcare Agreement as “Patient’s Legal
19
Representative,” Decedent’s Daughter did not have power of attorney.
10
Suppl. Mem. of Law of Manor Care Def. to Their Prelim. Objs. to Pl.’s Compl., Jun. 25, 2012, Ex. A,
Admitting Record, Wert-1.
11
Wert Dep. 31-33.
12
Wert Dep. 30, 34, 48, 68-69.
13
Wert Dep. 36, 48; Prel. Objs. of Defs. Manorcare 10:30 AM, Ex. B; Fox 23.
14
Fox Dep. 55 (May 16, 2012)(hereinafter “Fox Dep. __”); Prel. Objs. of Def. Manorcare 10:30 AM, Ex.
B.
15
Fox Dep. 55-56.
16
Fox Dep. 57.
17
Fox Dep. 57.
18
Wert Dep. 39-40, 47-48.
19
Wert Dep. 25, 48, 68; Prel. Objs. of Defs. Manorcare 10:30 AM, Ex. B.
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Decedent lived at Defendant Manorcare’s facility from January 13, 2010 through
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March 14, 2010. During this time, Plaintiff avers Defendant Manorcare knowingly
sacrificed the quality of care received by all residents, including Decedent by failing to
manage, care, monitor, document, chart, prevent, diagnose and treat the injuries and
illnesses suffered by Decedent, which included pressure ulcers, poor wound care, mouth
sores, poor hygiene, poor medication management, malnutrition, infections of the eye and
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urinary tract, severe pain, and death.
22
On March 24, 2010, Decedent was admitted to Defendant Golden’s facility.
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Defendant Golden’s facility provides long-term skilled nursing care. At the time,
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Decedent’s Daughter was very upset because of how ill Decedent had become.
25
Stephanie Roe served as Defendant Golden’s Facility Sales and Marketing Director.
Ms. Rohe observed that Decedent was slightly confused so she asked Decedent if she felt
26
comfortable with Decedent’s Daughter signing the admission paperwork. Decedent
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said yes and Ms. Rohe took Decedent’s Daughter to her office. Decedent’s Daughter
was told by Ms. Rohe that the admission paperwork needed to be signed to get Decedent
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in a bed, make her comfortable, help her get well, and get the process going. Ms. Rohe
knew that Decedent’s Daughter did not have power of attorney but considered
20
Pl.’s Compl., ¶ 1.
21
Pl.’s Compl., ¶ 63.
22
Wert Dep. 57.
23
Pl.’s Compl., ¶¶ 24, 109.
24
Rohe Dep. 41 (May 22, 2012)(hereinafter “Rohe Dep. __”).
25
Rohe Dep. 9-10.
26
Rohe Dep. 42, 60, 63.
27
Rohe Dep. 42, 60.
28
Wert Dep. 72-73.
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Decedent’s Daughter to be Decedent’s agent. Decedent’s Daughter signed the
admission paperwork and the Resident and Facility Arbitration Agreement (“the Golden
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Agreement”) included therein.
Decedent lived at Defendant Golden’s facility from March 24, 2010 through
3132
August 12, 2010. Decedent died on August 12, 2010. During this time, Plaintiff
avers Defendant Golden knowingly sacrificed the quality of care received by all
residents, including Decedent by failing to manage, care, monitor, document, chart,
prevent, diagnose and treat the injuries and illnesses suffered by Decedent, which
included pressure ulcers, poor wound care, poor hygiene, severe malnutrition, severe
weight loss; poor medication management, severe dehydration, contractions, several
urinary tract infections, a Methicillin-resistant Staphylococcus aureus infection, a severe
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infection to her left hand, severe pain, and death.
Plaintiff also avers Defendant Manorcare and Defendant Golden intentionally
increased the number of residents with greater health problems requiring more complex
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medical and custodial care. Plaintiff avers Defendant Manorcare and Defendant Golden
failed to provide resources necessary, including sufficiently trained staff, to meet the
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needs of the residents, including Decedent. Plaintiff avers Defendant Manorcare and
Defendant Golden knowingly established staffing levels that created recklessly high
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resident-to-nurse ratios. Plaintiff avers Defendant Manorcare and Defendant Golden
knowingly disregarded patient acuity levels while making staffing decisions and
29
Wert Dep. 74; Rohe Dep. 44-45, 60.
30
Wert Dep. 71-73; Rohe Dep. 62.
31
Pl.’s Compl., ¶ 2.
32
Pl.’s Compl., ¶ 3.
33
Pl.’s Compl., ¶ 135.
34
Pl.’s Compl., ¶ 53, 125.
35
Pl.’s Compl., ¶ 56, 128.
36
Pl.’s Compl., ¶ 57, 129.
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knowingly disregarded the minimum time required by staff to perform essential day-to-
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day functions and treatment. Plaintiff avers the acts and omissions of Defendant
Manorcare and Defendant Golden were motivated by a desire to increase profits by
knowingly reducing expenditures for needed staffing, training, supervision, and care to
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levels that would inevitably lead to severe injuries, such as those suffered by Decedent.
DISCUSSION
I. The Arbitration Agreements
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). Defendant Golden has raised
preliminary objections pursuant to Pa.R.C.P. 1028(a)(1) and Pa.R.C.P. 1028(a)(6),
contending that based on the Golden Agreement this Court lacks subject matter
jurisdiction and that this case should be referred to arbitration.
This Court will begin by addressing the validity of the Manorcare Agreement and
Golden 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 both the Manorcare Agreement and Golden Agreement to be
invalid and, therefore, the defendants cannot compel Plaintiff to settle this case through
arbitration.
37
Pl.’s Compl., ¶ 58, 130.
38
Pl.’s Compl., ¶ 59, 131
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A. The Manorcare Agreement is invalid.
Defendant Manorcare seeks to compel arbitration of the pending action by binding
Plaintiff to the Manorcare Agreement signed by Decedent’s Daughter. Decedent’s
Daughter, who was not Decedent’s legal representative, signed the Manorcare Agreement
when Decedent was admitted to Defendant Manorcare’s facility. 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 Decedent’s
Daughter is binding on Plaintiff because there existed a principal-agent relationship
between Decedent and Decedent’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
Bank, 525 A.2d 1215, 1221 (1987)). “The burden of establishing an agency relationship
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rests with the party asserting the relationship.” Basile v. H & R Block, Inc., 761 A.2d
1115, 1120 (Pa. 2000). Defendant Manorcare contends that the agency relationship was
created through apparent authority. “[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 he or she purports to exercise.” Carr v. Immaculate Mary
th
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)).
Defendant Manorcare’s argument, however, focuses on the actions of Decedent’s
Daughter, the purported agent, in attempting to establish apparent authority. As the case
law makes clear, it is through the words or conduct of the principal, that agency through
apparent authority is created. “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)).
Common Pleas courts appear to have a differing view of agency as it pertains to
mandatory arbitration agreements. Compare Chighizola v. Beverly Enter. Inc., 79 Pa. D.
& C.4th 416 (Pa. Com. Pl. 2006) with Carr v. Immaculate Mary Nursing Home, 15 Pa.
th
D&C 5 415 (Pa. Com. Pl. 2010). 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
does, however, find the analysis of two recently decided Court of Common Pleas
decisions guiding in the instant case.
The first decision is Kazimer v. Manor Care of Carlisle PA LLC, 2010 WL
8585411 (Pa. Com. Pl. 2010), a Cumberland County case, decided by President Judge
Kevin A. Hess. In that case, the court held that the untimeliness of the defendant’s
preliminary objections justified their dismissal. Id. The court also held that the
defendant failed to show the patient’s husband had authority to bind the patient to
arbitration. Id. The patient’s husband signed an agreement for the patient without the
authority to do so. Id. The agreement contained a mandatory arbitration provision. Id.
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The record in that case did not show the patient gave authority to her husband to act as
her agent. 2010 WL 8585411. The patient was not mentally impaired at the time her
husband signed the arbitration agreement. Id. There were no actions taken to induce the
defendant’s belief that the patient’s husband was acting as the patient’s agent. Id.
th
The second decision is Carr, 15 Pa. D&C 5 415, 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. On admission, the patient’s wife
executed an agreement 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.
In the instant case, the facts presented show that Decedent was capable of signing
the admission paperwork and the Manorcare Agreement herself. Defendant Manorcare
failed to establish that Decedent’s Daughter had any authority to bind Decedent to
arbitration. Decedent did not have a power of attorney and Decedent’s Daughter was not
Decedent’s legal representative. Further, it was not Defendant Manorcare’s practice to
require the admission paperwork be signed by a family member with power of attorney.
No facts were presented to indicate that Decedent, by words or conduct, lead Defendant
Manorcare to believe Decedent had granted her daughter the authority to sign the
admission paperwork. This Court does not find the Manorcare Agreement to be a valid
arbitration agreement between Defendant Manorcare and Plaintiff. Defendant
Manorcare’s preliminary objection is overruled and its motion to move Plaintiff’s suit to
arbitration is denied.
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B. The Golden Agreement is invalid.
Defendant Golden contends that based on the Golden Agreement this Court lacks
subject matter jurisdiction and that this case should be referred to arbitration. “A line of
Pennsylvania cases holds that a mandatory arbitration provision deprives [a] court of
subject matter jurisdiction.” James J. Gory Mechanical Contracting, Inc. v. Philadelphia
Housing Authority, 53 Pa.D.&C.4th 87, 90 (Pa.Com.Pl. 2001)(referencing Shumake v.
Philadelphia Board of Education, 686 A.2d 22, 25 (Pa. Super. 1996). In the present case,
however, this Court finds the Golden Agreement to be invalid per the Pennsylvania
Superior Court’s reasoning in Stewart v. GGNSC-Canonsburg, L.P., 9 A.3d 215 (Pa.
Super. 2010) and, therefore, the agreement does not deprive this Court of subject matter
jurisdiction nor compel arbitration. Because this Court finds the Golden Agreement to be
invalid, no determination of the scope of the Golden Agreement will be made.
In Stewart, the plaintiff brought a cause of action sounding in negligence against a
nursing home facility. Id. at 216. The nursing home facility filed preliminary objections
seeking to compel the enforcement of an arbitration agreement. Id. The Stewart court
held that the arbitration agreement was “unenforceable, and the trial court did not err in
overruling [the nursing home facility's] preliminary objections to compel arbitration.” Id.
at 222. In reaching that decision, the Pennsylvania Superior Court upheld the trial court’s
finding that “the arbitration forum selection clause designating the [National Arbitration
Forum (“NAF”)] and its procedures were integral to the [arbitration agreement] and could
not be enforced because the NAF was no longer available to act as arbitrators.” Id. at
217.
As Defendant Golden readily acknowledged, Stewart is a decision that invalidated
an arbitration agreement that was identical to that of the Golden Agreement now before
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this Court. Therefore, like the parties in Stewart, the parties to the Golden Agreement
agreed to be bound by the following: “(1) that the law governing the arbitration
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Suppl. Br. in Supp. of [Golden Living Defs.] Prelim. Objs., Jun. 25, 2012, p. 8.
11
proceedings would be the NAF Code, and (2) that under the NAF Code, the arbitrators
would be members of the NAF, who are the only people authorized to administrator and
apply the NAF Code.” 9 A.3d at 220. Also like the parties in Stewart, the parties in the
present case “expressly agreed that any disputes ‘shall be resolved exclusively’ through
arbitration with the NAF.” Id. This Court, following the reasoning of the Stewart court,
concludes that the Golden Agreement compelling arbitration is unenforceable and,
therefore, Defendant Golden’s preliminary objection related to subject matter jurisdiction
is overruled.
II. The Remaining Preliminary Objections
Having found both the Manorcare Agreement and the Golden Agreement to be
invalid, this Court will now address the remaining preliminary objections of Defendant
Manorcare and Defendant Golden.
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.
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
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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 and Defendant Golden contend 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 and Defendant Golden’s preliminary objections are 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
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
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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-
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 both Defendant Manorcare and Defendant Golden, motivated by a desire to increase
14
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 Decedent. Plaintiff has averred
facts that establish Defendant Manorcare and Defendant Golden 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 and Defendant Golden’s preliminary objections are
overruled.
D. Plaintiff’s claim for negligence arising from violations of 18 Pa.C.S.
per se
§ 2713, Neglect of Care-Dependent Person, and Plaintiff’s claim for
negligence arising from violations of the Pennsylvania Older Adults
per se
Protective Services Act (“the Act”) are legally sufficient.
Defendant Manorcare and Defendant Golden contend that Plaintiff’s claims of
negligence per se arising from violations of 18 Pa.C.S. § 2713, Neglect of Care-
Dependent Person and arising from 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 and
Defendant Golden arising from violations of 18 Pa.C.S. § 2713, Neglect of Care-
Dependent Person, and arising from violations of the Act are legally sufficient and,
therefore, Defendant Manorcare’s and Defendant Golden’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
15
40
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 arising from violations of 18 Pa.C.S. § 2713, Neglect of Care-
Dependent Person and arising from violations of the Act to be legally sufficient.
Defendant Manorcare’s and Defendant Golden’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 preliminary
objections of Defendant Golden 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:
1.Defendant Manorcare’s preliminary objections to Plaintiff’s Complaint are
OVERRULED
andDefendant Manorcare’s motion to move Plaintiff’s suit to
DENIED
arbitration is .
2.Defendant Golden’s preliminary objections to Plaintiff’s Complaint are
OVERRULED
.
BY THE COURT,
s/ Christylee L. Peck__
Christylee L. Peck, J.
40
In Re: Defs.’ Prelim. Objs. Before Guido, Oler, JJ., Order of Court, Jan. 10, 2012 (re: No. 2010 – 6924
Civil Term).
16
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 Conshocken State Rd.
West Conshocken, PA 19428
Attorney for Defendant Manorcare
Patrick L. Mechas, Esq.
William M. Buchanan, Esq.
Ira L. Podheiser, Esq.
BURNS WHITE
106 Isabella S treet
Pittsburgh, PA 15212
Attorneys for Defendant Golden
17
EVONNE K. WERT, Executrix : IN THE COURT OF COMMON PLEAS OF
of the ESTATE OF ANNA E. : CUMBERLAND COUNTY, PENNSYLVANIA
KEPNER, Deceased, :
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; GGNSC :
GETTYSBURG, LP, d/b/a GOLDEN :
LIVING CENTER-GETTYSBURG; :
GGNSC GETTYSBURG GP, LLC; :
GGNSC HOLDINGS, LLC; :
GOLDEN GATE NATIONAL :
SENIOR CARE, LLC; GGNSC :
EQUITY HOLDINGS, LLC; :
GGNSC ADMINISTRATIVE :
SERVICES, LLC; :
Defendants : NO. 12-0165 CIVIL TERM
IN RE: PRELIMINARY OBJECTIONS
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 preliminary
objections of Defendant Golden 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:
1.Defendant Manorcare’s preliminary objections to Plaintiff’s Complaint are
OVERRULED
andDefendant Manorcare’s motion to move Plaintiff’s suit to
18
DENIED
arbitration is .
2.Defendant Golden’s preliminary objections to Plaintiff’s Complaint are
OVERRULED
.
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 Conshocken State Rd.
West Conshocken, PA 19428
Attorney for Defendant Manorcare
Patrick L. Mechas, Esq.
William M. Buchanan, Esq.
Ira L. Podheiser, Esq.
BURNS WHITE
106 Isabella S treet
Pittsburgh, PA 15212
Attorneys for Defendant Golden
19