HARRISBURG – The Superior Court of Pennsylvania has upheld the judgment reached in a trial court for a nursing home targeted with a wrongful death lawsuit, in favor of the nursing facility.
A trio of judges from the appeals court, Deborah A. Kunselman, James Gardner Colins and Megan McCarthy King opted to affirm the trial court ruling on Sept. 10, with Colins authoring the Court’s opinion.
Marie Glomb, as administratrix of the Estate of Evelyn C. Sofranko, appealed from the judgment entered by the Allegheny County Court of Common Pleas against plaintiff and in favor of St. Barnabas Nursing Home, Inc. doing business as St. Barnabas Nursing Home following arbitration.
Sofranko was a resident at the nursing home from Dec. 21, 2011 until Nov. 5, 2013. Upon admission to the nursing home, Evelyn Sofranko’s son, Thomas Sofranko, as power of attorney, signed an arbitration agreement on her behalf. Sofranko died on Nov. 16, 2013.
On March 19, 2015, Glomb filed a Survival and Wrongful Death action against the nursing home and other defendants alleging that Sofranko sustained numerous injuries while a resident at the nursing home, the nursing home was negligent in the care it rendered to Sofranko, and that the nursing home’s negligence caused her death.
On May 7, 2015, preliminary objections to plaintiff’s complaint were filed, seeking, in part, to enforce the arbitration agreement. On July 21, 2015, the nursing home filed an Answer, raising as new matter that the claims should be adjudicated in arbitration based on the arbitration agreement.
On Nov. 21, 2016, a “Motion to Compel Arbitration of Survival Act Claim and Stay of Remaining Claims” was filed on behalf of the nursing home. The parties engaged in brief discovery and filed briefs to the trial court regarding the motion. On May 2, 2017, the trial court held a hearing for arguments on the motion.
On May 24, 2017, the trial court issued an order, which granted in part, the motion to compel arbitration, and ordered that plaintiff’s Survival Act claims against the nursing home be submitted to arbitration.
The survival claims between plaintiff and the nursing home proceeded to an arbitration trial and, thereafter, the arbitrator found in favor of the nursing home. On Nov. 30, 2018, plaintiff filed a motion to confirm the arbitration award.
That same day, the trial court entered an order granting the motion. On Dec. 4, 2018, judgment was entered for the nursing home and against plaintiff. Two days later, plaintiff filed a notice of appeal.
Glomb raised the following issues on appeal:
• Should plaintiff’s claims be resolved in a court of law?
• Is the nursing home’s arbitration agreement an unconscionable contract of adhesion and thus enforceable?
• Did the nursing home breach its duty of good faith and fair dealing, thereby rendering the arbitration agreement void and unenforceable?
“Plaintiff’s first issue is not a separate issue. Plaintiff’s only arguments that the Survival Act claims against the nursing home should have been tried in a court of law, not arbitration, are based on her claims in her second and third issues that the arbitration agreement is unconscionable and that a provision of the arbitration agreement renders it void,” Colins said.
“There is no dispute that Ms. Sofranko’s son signed the arbitration agreement on her behalf under a power of attorney and that he had authority to sign the arbitration agreement on her behalf.”
The Court further dismissed plaintiff assertions that arbitration agreement was “procedurally unconscionable” because the circumstances surrounding the signing of the arbitration agreement were unfair, and further that the agreement was not “substantively unconscionable”, because it was not unreasonably favorable to the drafter.
“Contrary to plaintiff’s assertions, the MCARE provision in the arbitration agreement does not permit the nursing home to void the arbitration agreement if it is dissatisfied with the arbitration proceeding,” Colins said.
“Upon review of the arbitration agreement and consideration of the federal policy favoring arbitration, we conclude that the arbitration agreement is neither procedurally or substantively unconscionable.”
Glomb also argued that the arbitration agreement is unenforceable because the Nursing home breached its duty of good faith and fair dealing by including a clause stating the National Arbitration Forum (NAF) will govern the arbitration two years after the NAF agreed to cease all consumer arbitrations.
However, the Court disagreed with that notion.
In MacPherson, the Court held that, “In the instant absence of an exclusive forum-selection clause, we hold that the provisions relating to the use of the [NAF] 2006 Code are not integral to the agreement. Moreover, because the provisions referring to the use of the [NAF] 2006 Code are not integral to the Agreement…they can be severed under the severance provision.”
“The arbitration agreement here is indistinguishable from the agreement that this Court held was valid and enforceable in MacPherson. The arbitration agreement does not provide for an exclusive forum-selection clause,” Colins concluded.
“Additionally, the arbitration agreement contains a severability clause and the NAF provision can be severed. Therefore, its inclusion did not invalidate the arbitration agreement. Accordingly, we affirm the judgment.”
Superior Court of Pennsylvania case 1724 WD 2018
Allegheny County Court of Common Pleas case GD-14-011106
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com