Kohlman, D. v. Grane Healthcare Co. ( 2022 )

J-A25034-21
2022 PA Super 118DEBRA KOHLMAN, ADMINISTRATRIX : IN THE SUPERIOR COURT OF
OF THE ESTATE OF FAY A. VINCENT, : PENNSYLVANIA
DECEASED :
:
:
v. :
:
:
GRANE HEALTHCARE COMPANY; : No. 103 WDA 2021
HIGHLAND PARK CARE CENTER, LLC :
D/B/A HIGHLAND PARK CARE :
CENTER; GRANE ASSOCIATES, LP; :
GRANE ASSOCIATES, INC.; GRANE :
PROPERTIES, INC.; TREBO, INC.; :
HIGHLAND PARK PROPERTIES, LLC; :
UNIVERSITY OF PITTSBURGH :
MEDICAL CENTER A/K/A UPMC; :
UPMC PRESBYTERIAN SHADYSIDE; :
UPMS SHADYSIDE HOSPITAL :
:
:
APPEAL OF: GRANE HEALTHCARE :
COMPANY; HIGHLAND PARK CARE :
CENTER, LLC D/B/A HIGHLAND PARK :
CARE CENTER; GRANE ASSOCIATES, :
LP; GRANE ASSOCIATES, INC.; :
GRANE PROPERTIES, INC.; TREBO, :
INC.; HIGHLAND PARK PROPERTIES, :
LLC :
Appeal from the Order Entered November 30, 2020
In the Court of Common Pleas of Allegheny County Civil Division at
No(s): GD 18-010949
BEFORE: KUNSELMAN, J., KING, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED: JULY 5, 2022
Highland Park Care Center, LLC, d/b/a Highland Park Care Center
(Highland Park), Grane Healthcare Company, Grane Associates, LP, Grane
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* Retired Senior Judge assigned to the Superior Court.
J-A25034-21
Associates, Inc., Grane Properties, Inc., Trebro, Inc., and Highland Park
Properties, LLC (collectively, the Highland Park Defendants) appeal from the
order of the Court of Common Pleas of Allegheny County (trial court)
overruling their preliminary objection that sought to compel arbitration of
claims asserted against them by Debra Kohlman (Plaintiff), Administratrix of
the Estate of Fay A. Vincent (Decedent). For the reasons set forth below, we
affirm.
This action arises out of Decedent’s 2017 admission to and stay at
Highland Park, a skilled nursing home facility in Pittsburgh. On January 30,
2017, Decedent was discharged from a Pittsburgh hospital and was admitted
to Highland Park for care and rehabilitation. Highland Park Progress Notes,
1/30/17-1/31/17. At the time of her admission, Decedent was 67 years old
and was suffering from a number of conditions, including congestive heart
failure, diabetes, and pressure ulcers. Kohlman v. Grane Healthcare Co.
(Kohlman I), 228 A.3d 920, 921 & n.1 (Pa. Super. 2020); Highland Park
Resident Assessment and Care Screening at 22-31. Highland Park’s
assessment of Decedent’s condition at the time of her admission reported that
she was alert and oriented and had no memory problems or dementia, but
that she was also suffering from anxiety and sometimes had trouble
concentrating. Highland Park Resident Assessment and Care Screening at 7-
10, 22-23. Highland Park’s assessment also reported that Decedent’s vision
was impaired to the point that even with glasses, she was “not able to see
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newspaper headlines but can identify objects” and listed as one of her
diagnoses “[b]lindness, both eyes.” Id. at 6, 23. Highland Park’s assessment
reported that Decedent expressed that it was very important to her to have
her family or a close friend involved in discussions about her care. Id. at 13.
In connection with her admission to Highland Park, Decedent signed a
number of documents, including a seven-page Nursing Services Agreement,
a two-page Agreement to Arbitrate Disputes (the Arbitration Agreement), and
a Resident Representative Agreement concerning the handling of her finances,
in which Decedent designated herself as her representative. Highland Park
Resident Admission Package. The Arbitration Agreement provided:
PLEASE READ CAREFULLY, YOU ARE GIVING UP
YOUR RIGHT TO SUE [HIGHLAND PARK] IN COURT
Resident and [Highland Park] agree that all matters in dispute
between Resident and [Highland Park], its agents, servants,
employees, officers, contractors and affiliates (hereinafter “the
parties”), including but not limited to claims for personal injuries
or any controversy or claim between the parties arising out of or
relating to the agreement for admission and for the provision of
nursing facility services, whether by virtue of contract, tort or
otherwise, including the scope of this arbitration agreement and
the arbitrability of any claim or dispute shall be resolved
exclusively by binding arbitration. Such arbitration shall be
conducted in the county in which [Highland Park] is located and in
accordance with the terms of this Agreement and the
Pennsylvania Uniform Arbitration Act, and judgment on the award
rendered by the arbitrator may be entered in any court having
jurisdiction thereof.
To the extent the parties can agree upon a single, neutral
arbitrator, that single arbitrator shall hear and decide the
controversy. To the extent the parties cannot agree on a single
arbitrator, any party may request one to be appointed by the
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court. The parties shall be entitled to limited discovery, the
manner and scope of which shall be governed by the arbitrator.
The parties agree that any administrative fees and costs, including
the fees of the arbitrator, shall be split equally between the
parties, and that each party shall be responsible for their own
attorneys’ fees.
In the event a court having jurisdiction finds any portion of this
agreement unenforceable, then that portion shall not be effective
and the remainder of the agreement shall remain effective.
Resident retains all rights under federal and state law to
file grievances with or to complain to authorities or
advocacy groups concerning care and treatment
This agreement binds all persons whose claims may arise out of
or relate to treatment or service provided by [Highland Park] or
whose claim is derived through or on behalf of the Resident
including any spouse, parent, sibling, child, guardian, executor,
legal representative, administrator, heir, or survivor of the
Resident, as well as anyone entitled to bring a wrongful death
claim relating to the Resident. This agreement applies to
[Highland Park’s] agents, servants, employees, officers,
contractors and affiliates.
The parties understand that as a result of this arbitration
agreement, any claims that the parties may have against the
other cannot be brought as a lawsuit in court before a judge or
jury, and agree that all such claims will be resolved as described
in this agreement.
Resident understands that he/she has the right to consult legal
counsel concerning this arbitration agreement; that execution of
this arbitration agreement is not a condition of admission or to the
furnishing of services to Resident by [Highland Park]; and that this
arbitration agreement may be rescinded by written notice
delivered to [Highland Park] within ten (10) days of signature. If
not rescinded within ten (10) days, this agreement shall remain
in effect for all subsequent stays at [Highland Park], even if
Resident is discharged and readmitted to [Highland Park].
The undersigned certifies that he/she has read this arbitration
agreement and that it has been fully explained to him/her, that
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he/she understands its contents, and that he/she is the Resident
or a person duly authorized by the Resident or otherwise to
execute this agreement and accept its terms.
Arbitration Agreement, 2/1/17 (emphasis in original). Decedent and Highland
Park’s admissions director both signed the Arbitration Agreement and the
admissions director printed their names and dated it. Id. at 2; Blasco Dep.
at 10, 32-33, 44, 54.
Decedent died approximately three months after she was admitted to
Highland Park. Kohlman I, 228 A.3d at 922. On August 27, 2018, Plaintiff,
who is Decedent’s daughter, filed this negligence action against the Highland
Park Defendants, a hospital that had treated her, and the hospital’s affiliates
asserting survival and wrongful death claims. The Highland Park Defendants
filed preliminary objections that sought, inter alia, to compel arbitration of
Plaintiff’s claims. By order entered on January 8, 2019, the trial court denied
Highland Park Defendants’ preliminary objection to compel arbitration. The
Highland Park Defendants appealed this order and the trial court issued an
opinion in which it concluded that the Arbitration Agreement could not bind
wrongful death claimants and that arbitration of the survival claims could not
be required because the Arbitration Agreement was unconscionable. Trial
Court Opinion, 3/13/19, at 2-4. The trial court based its conclusion that the
Arbitration Agreement was unconscionable on Decedent’s condition when she
signed it coupled with the requirement that she pay half of the costs of
arbitration, which the trial court characterized as an “overreach.” Id. at 4.
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On February 10, 2020, this Court affirmed the denial of arbitration with
respect to the wrongful death claim, but held with respect to the survival
claims that the record was inadequate to determine whether the Arbitration
Agreement was unconscionable. Kohlman I, 228 A.3d at 926-27. This Court
accordingly vacated the trial court’s denial of arbitration with respect to the
survival claims and remanded the case for discovery and further proceedings
to address, inter alia, the following:
•[D]ecedent’s physical and mental state at the time that she
executed the Arbitration Agreement;
• whether [D]ecedent was accompanied by anyone at this time;
•the nature of the admission agreement that [D]ecedent executed
(and whether the Arbitration Agreement was part of, or buried
within, a potentially lengthy admissions packet that [D]ecedent
was required to complete, while in ill health);
•whether the Hospital sent the ill [D]ecedent directly to Highland
Park upon her discharge from the Hospital;
• whether [D]ecedent was aware that she could receive treatment
from other skilled nursing care facilities, and whether she had the
ability to research other options;
•whether [D]ecedent was economically constrained to enter into
an agreement with Highland Park to provide her care (and
relatedly, whether she had the means to pay for arbitration).
Id. at 927 (footnote omitted).
On remand, the parties took discovery on these issues and, following
further briefing and submission of evidence from that discovery, the trial court
reaffirmed its conclusion that the Arbitration Agreement was unconscionable
and again overruled the Highland Park Defendants’ preliminary objection to
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compel arbitration. Trial Court Order, 11/30/20; Trial Court Opinion,
11/30/20, at 6. With respect to the specific issues raised by this Court, the
trial court found that Decedent was not incompetent, but was not well and
was in severe pain and medicated at the time that she signed the Arbitration
Agreement. Id. at 4. The trial court found that Decedent was alone when
she was asked to sign the Arbitration Agreement, that Decedent was not given
a chance to read the Arbitration Agreement and other admission documents
before signing, that Decedent was not given a copy of the Arbitration
Agreement after she signed, even though it permitted her to rescind within
ten days, and that the admissions director did not read or explain to Decedent
all of Arbitration Agreement’s provisions. Id. at 4-5. The trial court also found
that Decedent was transferred directly from the hospital to Highland Park and
that it was more likely than not that she did not have awareness of ability to
research other nursing care options and concluded that Decedent’s financial
condition was irrelevant to whether the Arbitration Agreement was
unconscionable. Id. at 5.
The Highland Park Defendants again timely appealed the trial court’s
denial of arbitration. Although the trial court’s order is not a final order, we
have jurisdiction over this appeal because an order overruling preliminary
objections that seek to compel arbitration is an interlocutory order appealable
as of right pursuant to 42 Pa.C.S. § 7320(a)(1) and Pa.R.A.P. 311(a)(8).
Saltzman v. Thomas Jefferson University Hospitals, Inc., 166 A.3d 465,
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468 n.1 (Pa. Super. 2017); Cardinal v. Kindred Healthcare, Inc., 155 A.3d
46, 49 n.1 (Pa. Super. 2017).
Our review of a decision denying preliminary objections to compel
arbitration is limited to determining whether the court’s findings are supported
by substantial evidence and whether the court abused its discretion in denying
arbitration. Kohlman I, 228 A.3d at 923; Saltzman, 166 A.3d at 471;
Cardinal, 155 A.3d at 49-50. Interpretation of the parties’ contract is
a question of law as to which our review is de novo and plenary. Traver v.
Reliant Senior Care Holdings, Inc., 228 A.3d 280, 285 (Pa. Super.
2020). The issue of unconscionability is a question of law, but can turn on
factual determinations. Salley v. Option One Mortgage Corp., 925 A.2d
115, 124 (Pa. 2007) (“While … the determination of whether an agreement is
unconscionable is ultimately a question of law, … the necessary inquiry is often
fact sensitive”); Kohlman I, 228 A.3d at 926-27 & n.10.
Both Pennsylvania and federal law impose a strong public policy in favor
of enforcing arbitration agreements. Marmet Health Care Center, Inc. v.
Brown, 565 U.S. 530, 532-33 (2012); Moses H. Cone Memorial Hospital
v. Mercury Construction Corp., 460 U.S. 1, 24 (1983); In re Estate of
Atkinson, 231 A.3d 891, 898 (Pa. Super. 2020); Cardinal, 155 A.3d at 52.
Under the Federal Arbitration Act, 9 U.S.C. § 2, our courts are required to
compel arbitration of claims that are subject to a valid arbitration agreement.
Taylor v. Extendicare Health Facilities, Inc., 147 A.3d 490, 509 (Pa.
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2016); Estate of Atkinson, 231 A.3d at 900; Kohlman I, 228 A.3d at 925.
Enforcement of an agreement to arbitrate may be denied only where the party
opposing arbitration proves that a contract defense that applies equally to
non-arbitration contracts invalidates the agreement to arbitrate. Taylor, 147
A.3d at 509; Kohlman I, 228 A.3d at 925-26; Saltzman, 166 A.3d at 471.1
The only contract defense that the trial court found applicable to the
Arbitration Agreement was the defense of unconscionability. To invalidate or
bar enforcement of a contract based on unconscionability, the party
challenging the contract must show both an absence of meaningful choice,
also referred to as procedural unconscionability, and contract terms that are
unreasonably favorable to the other party, known as substantive
unconscionability. Salley, 925 A.2d at 919-20; Cardinal, 155 A.3d at 53;
MacPherson v. Magee Memorial Hospital for Convalescence, 128 A.3d
1209, 1221 (Pa. Super. 2015). Procedural and substantive unconscionability
are assessed under a sliding-scale approach, with a lesser degree of
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1 Plaintiff argues that Federal Arbitration Act does not apply here and that
arbitration may be denied on grounds other than generally applicable contract
defenses because the Arbitration Agreement references the Pennsylvania
Uniform Arbitration Act, Arbitration Agreement at 1, and is a separate
agreement. This argument is without merit. In Taylor, the arbitration
agreement that our Supreme Court held was subject to the Federal Arbitration
Act was also a separate document, rather than a provision of a nursing home
services agreement, and likewise referenced the Pennsylvania Uniform
Arbitration Act. 147 A.3d at 494. There is therefore no basis for holding that
the Arbitration Agreement here is not equally subject to the Federal Arbitration
Act.
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substantive unconscionability required where the procedural unconscionability
is very high. Salley, 925 A.2d at 125 n.12; Lomax v. Care One, LLC, No.
344 WDA 2020, at 8-9, 18 (Pa. Super. March 5, 2021) (unpublished
memorandum).
The Highland Park Defendants argue that the trial court erred in finding
the Arbitration Agreement unconscionable because Plaintiff did not prove that
the Arbitration Agreement was both procedurally and substantively
unconscionable. We do not agree.
The trial court found that the Arbitration Agreement was procedurally
unconscionable because Decedent was in pain and was medicated at the time
that she signed the Arbitration Agreement, Decedent was alone when she was
asked to sign the Arbitration Agreement, had no opportunity to read the
Arbitration Agreement and was not given a copy to review, and the provisions
of the Arbitration Agreement were not fully read or explained to Decedent.
Trial Court Opinion, 11/30/20, at 4-5. The record supports these
determinations.
Decedent’s medical records show that she was receiving Oxycodone and
Xanax from the day that she was admitted to Highland Park through February
1, 2021. Highland Park Progress Notes, 1/30/17-2/1/17. The admissions
director testified that no one else was with Decedent when she obtained
Decedent’s signatures on the Arbitration Agreement and other documents in
the admissions packet. Blasco Dep. at 34. The admissions director did not
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recall what she and Decedent said or discussed when she presented the
Arbitration Agreement and other admissions documents to Decedent for
signing and testified to what she generally does with all residents. Id. at 32-
37, 57-61, 64. The admissions director testified that when she has residents
sign the admissions documents, “I usually just sit beside them and go over
the paperwork and read -- I guess you can say that I read it to them.” Id. at
36. The admissions director testified that residents can remain at Highland
Park even if they refuse to sign any of the admissions documents and that she
tells residents that the whole admission packet is optional, but that she does
not tell them that they can sign the other documents and refuse the arbitration
agreement. Id. at 37-38, 55-56. The admissions director testified that while
she can recall residents refusing to sign any of the documents, she does not
recall any resident ever refusing only the arbitration agreement or seeking to
revoke an arbitration agreement. Id. at 27-28, 40, 53. The admissions
director testified that she did not tell Decedent that she could consult an
attorney before signing the Arbitration Agreement and that she has never told
any resident that the resident has a right to revoke the agreement to arbitrate
after signing. Id. at 38, 40.2 The admissions director did not testify that she
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2 The admissions director under examination by the Highland Park Defendants’
counsel later testified that she typically reads the Arbitration Agreement to
residents in its entirety, including the paragraph discussing those subjects.
Blasco Dep. at 64-65. The trial court, however, was not required to find that
this testimony overrode her prior unequivocal testimony that she did not give
(Footnote Continued Next Page)
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gave Decedent a copy of any of the documents that she had Decedent sign or
told her to have a family member or any other person read over the paper
work for her.
The incompleteness of the information that was orally provided to
Decedent and the fact that Decedent had no family member with her and was
not given a copy for a family member to review are particularly significant
here given Decedent’s physical inability to read the Arbitration Agreement and
other documents that she was signing. The record shows that when she
arrived at Highland Park, Decedent was sufficiently blind that she was unable
to even read newspaper headlines. Highland Park Resident Assessment and
Care Screening at 6, 23. The admissions director did not testify that she took
any additional steps to ensure that Decedent had a full opportunity to know
what she was signing in light of her inability to read the documents herself.
Rather, the admissions director testified that “[n]othing stands out that there
were any issues with [Decedent] signing [the Arbitration Agreement].” Blasco
Dep. at 37. It also does not appear that Highland Park lacked the ability to
locate and communicate with family members. Highland Park’s records show
that Decedent’s daughter and granddaughters were with her when she arrived
at Highland Park from the hospital. Highland Park Progress Note, 1/30/17
22:10.
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this information to residents, particularly in light of her testimony that no
resident has ever sought to revoke an arbitration agreement after signing.
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Given Decedent’s lack of ability to read the Arbitration Agreement, our
decisions holding that nursing home arbitration agreements were not
procedurally unconscionable are inapposite here. In those cases, there was
no evidence or claim that the individuals who signed the arbitration
agreements lacked the ability to read them and the written agreements that
the signers could have read clearly stated that signing the arbitration
agreement was not required for nursing home admission, that they had right
to consult a lawyer before signing, and that they had a right to revoke the
arbitration agreement. Cardinal, 155 A.3d at 52-54; MacPherson, 128 A.3d
at 1212-18, 1220-22; Glomb v. St. Barnabas Nursing Home, Inc., No.
1724 WDA 2018, at 4, 6-10 (Pa. Super. September 10, 2020) (unpublished
memorandum); Davis v. 1245 Church Road Operations, LLC, No. 3539
EDA 2018, at 10-12 (Pa. Super. April 16, 2020) (unpublished memorandum).
Here, in contrast, although the Arbitration Agreement contains such
provisions, the record shows that those provisions were omitted from or not
fully and accurately stated in the oral information given to Decedent, which
was the only information that Decedent had when she decided to sign the
Arbitration Agreement. Because Decedent was not fully orally advised of this
information and was denied the ability to obtain assistance from a family
member or other person not employed by Highland Park who could read the
Arbitration Agreement, the process by which Decedent’s signature was
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obtained denied her a meaningful choice and therefore was procedurally
unconscionable.
On the issue of substantive unconscionability, the trial court found that
the provision requiring that Decedent pay one-half of the costs of any
arbitration, including one-half of the arbitrator’s fees, was substantively
unconscionable because it imposed additional expenses for bringing a claim
that Decedent would not have to bear in a court action. Trial Court Opinion,
3/13/19, at 4; Trial Court Opinion, 11/30/20, at 5-6. We agree that imposing
this additional expense on all claims for damages brought by a resident
unreasonably favors the nursing home and is sufficient to satisfy the
requirement of substantive unconscionability where, as here, the record
establishes that the resident was not given full information concerning her
choices or any opportunity to inform herself of what she was signing or to
exercise those choices.
The cases where this Court has rejected claims of substantive
unconscionability are not to the contrary. In Cardinal, MacPherson, and
Glomb, the arbitration agreements did not require the resident to pay any
arbitrator fees to litigate a claim against the nursing home. Rather, in all of
those cases, the arbitration agreements provided that the nursing home would
pay the arbitrators’ fees and this Court specifically noted this fact in holding
that the agreements were not unconscionable. Cardinal, 155 A.3d at 53-54;
MacPherson, 128 A.3d at 1217, 1222; Glomb, slip op. at 7, 9.
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In Riley v. Premier Healthcare Management, LLC, No. 3538 EDA
2019 (Pa. Super. May 28, 2021) (unpublished memorandum), this Court held
that an arbitration agreement that required the nursing home resident to pay
one-half of the costs of arbitration was not substantively unconscionable. Slip
op. at 7-8, 18-19. In Riley, however, the arbitration provisions did not require
the resident to arbitrate all claims against the nursing home regardless of
whether the costs of arbitration would be an impediment to asserting a claim,
as they specifically excluded claims under $12,000 from mandatory
arbitration. Id. at 4, 6. Moreover, in Riley, the decedent had the opportunity
to read the arbitration provisions, which were set forth in all capital letters,
and the plaintiff did not argue that requiring the payment of half of arbitration
costs by an individual claimant created an impediment to asserting claims
against the nursing home. Id. at 3, 12, 16-18.
The Highland Park Defendants also argue that if the provision requiring
payment of half of the costs of arbitration renders the Arbitration Agreement
unconscionable, the trial court should have severed that provision and
enforced the remainder of the Arbitration Agreement. This contention likewise
fails.
Where an arbitration agreement contains a severability clause and a
provision of the agreement that is not an integral part of the agreement to
arbitrate is unenforceable, that separate provision may be stricken and the
remainder of the arbitration agreement may be enforced. Fellerman v.
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PECO Energy Co., 159 A.3d 22, 29 (Pa. Super. 2017); MacPherson, 128
A.3d at 1225-26. Thus, where a severability clause is present, a non-exclusive
designation of a particular arbitration forum that has become unavailable may
be severed and does not invalidate the agreement to arbitrate. MacPherson,
128 A.3d at 1222-26. A limitation on damages that is void as against public
policy that can also be stricken from an agreement to arbitrate and the
remainder of the agreement may be enforced where a severability clause is
present and the damage limitation is separate and distinct from the agreement
to arbitrate. Fellerman, 159 A.3d at 28-29; Davis, slip op. at 13-14.
The Arbitration Agreement contains a severability clause that provides
that “[i]n the event a court having jurisdiction finds any portion of this
agreement unenforceable, then that portion shall not be effective and the
remainder of the agreement shall remain effective.” Arbitration Agreement at
1. Severance, however, cannot remove the unconscionability that the trial
court found here for two reasons.
First, the determination is not that requiring nursing home residents to
share the cost of an arbitrator’s fees is so unreasonable that it is per se against
public policy and inherently unenforceable. The Arbitration Agreement is
unconscionable because imposing that further expense for litigation by an
individual is sufficiently unreasonably favorable to the nursing home to satisfy
the requirement of substantive unconscionability when coupled with the high
degree of procedural unconscionability that is present here. No such
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procedural unconscionability was present in Fellerman, MacPherson, or
Davis, where this Court held that the provision in question could be severed
from the arbitration agreement. Fellerman, 159 A.3d at 27-28;
MacPherson, 128 A.3d at 1221-22; Davis, slip op. at 10-12.
Second, severance would only remove the arbitration fee provision
requiring the fees to be split evenly, but would not require the Highland Park
Defendants to pay all the arbitration fees, like the agreements we upheld in
Cardinal, MacPherson, and Glomb. Without the essential provision of who
will pay the arbitration fees, there is no arbitration agreement to
enforce. Here, the parties did not simply omit a term, in which case, the
court could supply a reasonable one for them. See, e.g., Greene v. Oliver
Realty Inc., 526 A.2d 1192, 1194 (Pa. Super. 1987). Instead, one party
clearly sought to take advantage of the other. Under these circumstances, we
decline to provide an alternate fee provision and allow the arbitration
agreement to stand.
Because the circumstances under which Highland Park obtained
Decedent’s signature on the Arbitration Agreement imposed terms
unfavorable to her without giving her any meaningful choice to accept or reject
the Arbitration Agreement, the trial court correctly concluded that the
Arbitration Agreement was unconscionable as a matter of law. Accordingly,
we find no abuse of discretion and affirm the trial court’s order overruling the
Highland Park Defendants’ preliminary objection to compel arbitration.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/5/2022
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