J-A04021-20


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

    CHARLES DAVIS, ADMINISTRATOR OF            : IN THE SUPERIOR COURT OF
    THE ESTATE OF DORA RAMEY,                  :        PENNSYLVANIA
    DECEASED                                   :
                                               :
                 v.                            :
                                               :
    1245 CHURCH ROAD OPERATIONS,               :
    LLC D/B/A HILLCREST CENTER,                :
    GENESIS PA HOLDINGS LLC., AND              :
    ALBERT EINSTEIN MEDICAL CENTER             :
                                               :
    APPEAL OF: 1245 CHURCH ROAD                :
    OPERATIONS, LLC D/B/A HILLCREST            :   No. 3539 EDA 2018
    CENTER AND GENESIS PA HOLDINGS
    LLC.

                Appeal from the Order Entered November 20, 2018
               in the Court of Common Pleas of Philadelphia County
                      Civil Division at No(s): No.: 1712 01820

BEFORE:       PANELLA, P.J., STRASSBURGER, J.* and COLINS, J.*

MEMORANDUM BY STRASSBURGER, J.:                            Filed: April 16, 2020

        1245 Church Road Operations, LLC, d/b/a Hillcrest Center (Hillcrest)

and Genesis PA Holdings LLC (Genesis) (collectively, Appellants) appeal from

the November 20, 2018 order overruling Appellants’ preliminary objections

in the nature of a petition to transfer the matter to mandatory arbitration.

We vacate the order and remand.

        The instant case stems from an action filed by Dora Ramey (Ramey)

against Appellants and Albert Einstein Medical Center (AEMC)1 involving

____________________________________________


1   AEMC is not a party to the instant appeal and did not file a brief.



*Retired Senior Judge assigned to the Superior Court.
J-A04021-20


claims of negligence and corporate negligence arising from injuries she

sustained between December 2016 and June 2017, while in the care of

Hillcrest and AEMC.

        Prior to her admittance at Hillcrest or AEMC, Ramey lived with her son,

Charles Davis (Davis), and attended an adult daycare center.2 While at the

daycare center in the spring of 2015, Ramey developed pressure sores.

Ramey was admitted to AEMC for diagnosis and treatment of the sores.

Following discharge, AEMC advised Davis that Ramey could not return to his

home and instead must be admitted to a nursing care facility.            AEMC

provided Davis with a list of nursing facilities near his home, and Davis

chose Hillcrest.

        Upon visiting Hillcrest to begin the admissions process, Davis was

presented with admission paperwork,3 which included a document entitled

“Voluntary Binding Arbitration Agreement” (Arbitration Agreement).         The

Arbitration Agreement requires the parties to submit to arbitration all

disputes arising out of Ramey’s stay at Hillcrest.     Immediately below the

title, in bold typeface and underlined, the document states: “If this

Agreement is not signed, the Patient will still be allowed to be cared

for in this Center.” Praecipe to Attach Exhibits to Preliminary Objections,
____________________________________________


2  Ramey passed away on August 2, 2018. On November 29, 2018, Davis
filed a praecipe to substitute Davis as administrator of Ramey’s estate.

3   Genesis drafted the admissions paperwork.



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4/2/2018, Exhibit B (Arbitration Agreement at 1).           Paragraph 3 is entitled

“Voluntary Agreement” and again states that “[s]igning this Agreement is

voluntary and not a condition of the Patient’s admission into this Center.

The Patient’s ability to be cared for in this Center will not be affected in any

way if this Agreement is not signed.” Id. Immediately following paragraph

3 is paragraph 4, which states that selection of Hillcrest as the patient’s care

facility is voluntary, and advises there are other care facilities available

nearby.     Id.      Finally, above the signature line, in bold typeface and

capitalized    letters,   the    document      states:   “THIS   AGREEMENT      IS

VOLUNTARY AND IS NOT A PRECONDITION TO RECEIVING SERVICES

AT [Hillcrest].” Id. at 4. It also states in three locations that signing this

agreement will result in the waiver of a right to trial by judge or jury,

clarifying that waiver means “giving up” in paragraph 5. Id. at 1, 4.

       Prior to Davis’s signing of the Arbitration Agreement, Ramey granted

Davis certain powers pursuant to a written general durable power of

attorney, dated August 27, 1996.           Davis presented this power of attorney

during his meeting at Hillcrest. Davis was permitted to take the documents

with him and fax them back once signed. Davis signed, as Ramey’s power

of attorney,4 the Arbitration Agreement, along with the other admission


____________________________________________


4 There is no dispute regarding Davis’s authority to sign the Arbitration
Agreement on behalf of Ramey.



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paperwork, and faxed the completed documents to Hillcrest.5        Ramey was

admitted to Hillcrest on April 7, 2015.

       On December 24, 2016, a Stage II pressure wound was discovered on

Ramey’s sacrum. She was transferred from Hillcrest to AEMC for treatment.

She subsequently returned to Hillcrest, where she remained until she was

transferred to Wesley Enhanced Living on June 22, 2017.

       On December 14, 2017, Ramey filed a praecipe for writs of summons

against Appellants and AEMC.            The writs of summons were issued and

served. On January 12, 2018, Ramey filed a complaint against Appellants

and AEMC, as indicated hereinabove.

       On March 29, 2018, Appellants filed preliminary objections, seeking to

transfer the matter to arbitration based upon the Arbitration Agreement.

Ramey filed an answer on April 18, 2018, arguing that the preliminary

objections should be overruled because the Arbitration Agreement was

unenforceable as a contract of adhesion.         See Memorandum in Support of

Answer to Preliminary Objections, 4/18/2018, at 3-6.

       In support of their objections, Appellants submitted an affidavit from

Gemma Frankhouser, Senior Admissions Director at Hillcrest, and a

____________________________________________


5The admissions paperwork, including the Arbitration Agreement, is signed
but not dated. The only document with a date is the “Representative
Designation” document, dated April 13, 2015, next to Davis’s signature.
Thus, it appears from the record that Davis faxed the paperwork back no
earlier than April 13, 2015.



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videotaped deposition of Davis. In her affidavit, Frankhouser stated that she

remembered Davis, but did not have a specific recollection of her admissions

conversation with him. Based on her review of Ramey’s file, she determined

that she discussed various forms with Davis, including the Arbitration

Agreement, and that both Davis and she signed these forms. Though her

specific recollection was lacking, she stated that her normal practice

regarding the Arbitration Agreement included (1) ensuring that the individual

signing had the authority to do so; (2) explaining the terms of the

Arbitration Agreement, including that it was not required for admission to

Hillcrest; (3) informing the signatory that he could review the Arbitration

Agreement with an attorney; and (4) answering any other questions a

signatory may have. Affidavit of Gemma Frankhouser, 5/21/2018, at 1-2.

      In his deposition, Davis stated that he hired an attorney to help him

with the admissions process of placing his mother in a nursing home.

Deposition of Davis, 7/20/2018, at 17.         According to Davis, his first

interactions with Hillcrest, via his attorney, were “terrible.” Id. at 14. When

Davis visited Hillcrest, though, his mother was approved for admission that

day. Id. at 16-17. On that day, he believed he met with two women who

presented him with various forms, including the Arbitration Agreement. Id.

at 44-45. He did not remember if anyone explained the forms to him, nor

did he recall filling out the forms.    Id. at 19-20, 35-36, 39-41, 43, 48.

According to Davis, he “was in a state of real confusion[,]” “mental


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discombobulation[,]” and “such a fog” that he did not remember, and would

not have cared, if anyone had explained the forms to him. Id. at 20, 46,

48.    He stated that he would have signed anything to get his mother

admitted to Hillcrest. Id. at 20-21, 44, 46, 48.

       Upon reviewing the forms during his deposition, Davis recalled that he

took the forms home, filled them out, signed them, and faxed them to

Hillcrest upon completion.        Id. at 19-20, 35-36, 39-41, 44-45.   He stated

that he did not read them before signing, and that he had no time to discuss

the admission process with anyone. Id. at 21, 38, 47.

       Davis also stated that he helped his mother with her financial affairs

and took care of his own affairs, including running a business where he rents

homes to tenants via standardized pre-written leases. Id. at 25-34, 49-51.

       The trial court heard oral argument on September 6, 2018.             On

November 20, 2018, the trial court overruled the preliminary objections.

Trial Court Order, 11/20/2018. This timely filed notice of appeal followed.6

       Appellants raise four questions for our consideration on appeal. 7      In

essence, all four questions raise a claim that the trial court erred in

____________________________________________


6 “An order overruling preliminary objections seeking to compel arbitration is
immediately appealable as an interlocutory appeal as of right pursuant to 42
Pa.C.S.[] § 7320(a) and Pa.R.A.P. 311(a)(8).”        Petersen v. Kindred
Healthcare, Inc., 155 A.3d 641, 644 n.1 (Pa. Super. 2017).

      Both Appellants and the trial court have complied with the mandates of
Pa.R.A.P. 1925.



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overruling Appellants’ preliminary objections and refusing to enforce the

Arbitration Agreement. Appellants’ Brief at 4-5.

     “[O]ur review of a claim that the trial court improperly denied

preliminary objections in the nature of a petition to compel arbitration is

limited to determining whether the trial court’s findings are supported by

substantial evidence and whether the trial court abused its discretion in

denying the petition.” Cardinal v. Kindred Healthcare, Inc., 155 A.3d 46,

49–50 (Pa. Super. 2017). “We employ a two-part test to determine whether

the trial court should have compelled arbitration: 1) whether a valid

agreement to arbitrate exists, and 2) whether the dispute is within the scope

of the agreement.” Washburn v. Northern Health Facilities, Inc., 121

A.3d 1008, 1012 (Pa. Super. 2015) (citation omitted).

     “When     addressing     the   issue    of    whether     there   is   a

valid agreement to arbitrate, courts generally should apply ordinary state-

law principles that govern the formation of contracts, but in doing so, must

give due regard to the federal policy favoring arbitration.”   Cardinal, 155

A.3d at 53 (citation omitted). “The only exception to a state’s obligation to



7 While Appellants raised four questions in their statement of questions
section of their brief, they divided their argument section into only two
parts, in violation of Pa.R.A.P. 2119(a). However, because Appellants’
questions can be consolidated into one claim that the trial court erred in
overruling the preliminary objections and failing to enforce the Arbitration
Agreement, and the argument section addresses that claim, we do not find
waiver for failure to comply with the Rules of Appellate Procedure.



                                    -7-
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enforce an arbitration agreement is provided by the savings clause, which

permits the application of generally applicable state contract law defenses

such as fraud, duress, or unconscionability, to determine whether a valid

contract exists.” Taylor v. Extendicare Health Facilities, Inc., 147 A.3d

490, 509 (Pa. 2016). “Concerning the defense of unconscionability, we have

explained that ‘[u]nconscionability has generally been recognized to include

an absence of meaningful choice on the part of one of the parties

[(procedural unconscionability),] together with contract terms which are

unreasonably      favorable      to    the   other     party    [(substantive

unconscionability)].’” Kohlman v. Grane Healthcare Co., ___ A.3d ___,

2020 WL 611085, at *5 n.8 (Pa. Super. 2020) (quoting Cardinal, 155 A.3d

at 53 (citation omitted)).

      In its Pa.R.A.P. 1925(a) opinion, the trial court explained that it

overruled Appellants’ objections because it found the Arbitration Agreement

procedurally and substantively unconscionable, and therefore unenforceable,

based on the manner in which the document was presented, the limitation

on damages, and       because    the   document was a standardized form

“concerning a legal matter outside the ken of the ordinary consumer.” Trial

Court Opinion, 5/2/2019, at 7-11. Specifically, the trial court considered the

evidence presented as follows.

      Davis’[s] description of his thought processes when signing the
      documents demonstrates that his bargaining power suffered
      from lack of experience and sophistication relative to that of the
      drafter, [] Genesis []; Davis signed numerous documents he did

                                       -8-
J-A04021-20


     not understand because he believed they were the key to
     obtaining care for his mother.       [AEMC] had discharged his
     mother with the express instruction that she not go home and
     that Davis admit her immediately to a nursing home.
     Accordingly, his need to find a placement was urgent. He chose
     Hillcrest from a list provided by [AEMC] because it was closest to
     his home. The [trial c]ourt credit[ed] his testimony that he
     believed that if he did not sign all the documents, his mother
     would not receive care.

     Davis’[s] account of his interaction with Hillcrest is largely
     uncontradicted. Frankhouser does not recall meeting with or
     instructing Davis about the [Arbitration] Agreement, but asserts
     that upon reviewing her records, she “determined” that she must
     have done so, in accordance with her customary practice. This
     conclusory assertion is unaccompanied by any corroborative
     evidence of documents typically generated in a transaction that
     is   undeniably     important    to    both   parties,    such   as
     contemporaneous notes, memoranda, correspondence, email,
     computer data or calendar entries[.] She fails to even attach or
     identify copies of any material in Ramey’s file that is the basis of
     her “determination.” For this reason, [the trial c]ourt [was]
     unpersuaded that Frankhouser’s account of her encounter with
     Davis is accurate. Instead, the [trial c]ourt credits Davis’[s]
     recollection, which is direct, specific and emotional. The [trial
     c]ourt finds that the [Arbitration] Agreement is procedurally
     unconscionable because it was presented to Davis in a woefully
     deficient manner.

                                     ***

     [The limitation on damages outlined in paragraph 11 of the
     Arbitration Agreement] indisputably favors Hillcrest[.] … Nothing
     in the boldface notices in the [Arbitration] Agreement about the
     signatory’s waiver of a right to a trial by judge or jury alerts the
     reader to the additional substantive and important limitation in
     paragraph 11 on a signatory’s rights to a full remedy. The [trial]
     court finds this [] dispositive and finds that the [Arbitration]
     Agreement is substantively unconscionable.

Trial Court Opinion, 5/2/2019, at 8-10.




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      Appellants argue that the trial court erred in finding the Arbitration

Agreement unenforceable. According to Appellants, the evidence established

that “the steps taken by [Hillcrest] to obtain [] Davis’s signature were fair

and offered him a definitive choice.” Appellants’ Brief at 32-33. Appellants

further argue that Davis’s choice to sign the Arbitration Agreement without

reading it does not mean that he was not offered the opportunity to do so,

and his taking the documents home and then faxing them, completed and

signed, to Hillcrest, negates any claim that Hillcrest pressured him into

signing the Arbitration Agreement. Id. at 33.

      We first review the trial court’s finding of procedural unconscionability.

In finding procedural unconscionability, the trial court credited Davis’s

statements that he believed his mother would not be admitted without

signing the documents and that he was in a fog as he proceeded through the

admissions process.     Despite Davis’s erroneous assumption, the record

reveals that the Arbitration Agreement states three times, twice in distinct

typeface, that the agreement to arbitrate is voluntary and that receiving

care at Hillcrest is not contingent upon signing. It was revocable within 30

days of signing, and states that the signatory has a right to have the

agreement reviewed by an attorney.       Notably, Davis hired an attorney to

help him with the paperwork for admitting his mother to Hillcrest, and

employed that attorney to speak with Hillcrest about admission prior to his

visiting.   While it could be presumed that Davis had some familiarity with


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contract terminology pursuant to his rental business, he also was an

individual who was comfortable seeking legal advice when he deemed it

necessary.    As explained by Davis, he “manage[s] things to a point that

where [if he] need[s] some legal advice, [he] go[es] to a lawyer or someone

that has more knowledge than [he.]” Deposition, 7/20/2018, at 17-18.

      In the instant case, Davis took the admissions paperwork home with

him, completed it, and faxed it back six days after Ramey was admitted to

Hillcrest.   Thus, he had the opportunity to have his attorney review the

documents if he so chose. Notably, in filling out the admissions paperwork,

Davis did not rubber-stamp each document. When given the option to check

yes or no, he answered no to specific items, declining to give permission to

Hillcrest to open Ramey’s personal mail, do her personal laundry, or handle

her personal funds.    See Admission Agreement; Resident Fund Accounts.

Thus, it is apparent from the record that he reviewed at least the Admission

Agreement and the Resident Fund Accounts document.           Accordingly, we

conclude that his assertion that he did not have time to discuss the

admission paperwork with anyone, or review it himself, is refuted by the

record and not supported by substantial evidence.

      Furthermore, our review of the record indicates that this is not a case

of non-disclosure on the part of Appellants, but rather a case where Davis

did not put forth any effort to read or understand the Arbitration Agreement.

Davis’s failure to notice the Arbitration Agreement’s clear statements that it


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did not need to be signed for Ramey to receive care, was due to his choice

to sign it without reading it.        His willful failure to read the Arbitration

Agreement does not render it procedurally unconscionable.

      “The law of Pennsylvania is clear. One who is about to sign a
      contract has a duty to read that contract first.” As this Court has
      stated:

            It is well established that, in the absence of fraud,
            the failure to read a contract before signing it is “an
            unavailing excuse or defense and cannot justify an
            avoidance, modification or nullification of the
            contract”; it is considered “supine negligence.”

Hinkal v. Pardoe, 133 A.3d 738, 743 (Pa. Super. 2016) (citations omitted).

Accordingly, we conclude that the trial court’s finding that Davis did not have

a meaningful choice in entering into the Arbitration Agreement was not

supported by substantial evidence, and therefore the trial court abused its

discretion in overruling the preliminary objections on the basis of procedural

unconscionability.    Cardinal, 155 A.3d at 49–50.             See also Wert v.

Manorcare of Carlisle PA, LLC, 124 A.3d 1248, 1260 (Pa. 2015) (Opinion

Announcing the Judgment of the Court) (“[A] similarly situated non-drafting

party could not use her failure to read as a means of disavowing an

otherwise valid arbitration agreement.”).

      We    next     consider   the    trial    court’s   finding   of   substantive

unconscionability, mindful of the following.

      In MacPherson      [v.    Magee     Memorial    Hosp.     for
      Convalescence, 128 A.3d 1209 (Pa. Super. 2015) (en banc),]
      this Court examined [an] arbitration agreement and concluded
      that   it   was   neither   procedurally  nor   substantively

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     unconscionable. In reaching that conclusion, we noted the
     following terms contained in the agreement: (1) the parties shall
     pay [] their own fees and costs, similar to civil litigation practice
     in common pleas court; (2) a conspicuous, large, bolded
     notification that the parties, by signing, are waiving the right to
     a trial before a judge or jury; (3) a notification at the top of the
     agreement, in bold typeface and underlined, that it is voluntary,
     and if the patient refuses to sign it, “the Patient will still be
     allowed to live in, and receive services” at the facility; (4) a
     provision that the facility will pay the arbitrators fees and costs;
     (5) a statement that there are no caps or limits on
     damages other than those already imposed by state law;
     and (6) a provision allowing the patient to rescind within thirty
     days.

Cardinal, 155 A.3d at 53 (emphasis added).

     In the instant case, the Arbitration Agreement contains substantially

similar terms as the ones outlined in MacPherson, save for paragraph 11,

which sets forth the following limitation on damages.

     11. Limitation on Damages. The Arbitrator or Arbitration Panel is
     authorized to award compensatory and punitive damages to the
     extent permitted by the substantive state law for the state in
     which [Hillcrest] is located. However, any award (including
     compensatory and punitive damages, fees and other costs),
     regardless of the nature of the dispute, shall not exceed the
     lesser of: (a) 3 times the amount of the prevailing party’s
     compensatory damages or (b) any applicable caps on damages
     under the state law where [Hillcrest] exists.       All disputes
     regarding availability of compensatory and punitive damages
     under applicable state law shall be decided by the Arbitrator or
     Arbitration Panel.    If any terms of this Section titled
     “Limitation on Damages” is determined to be invalid or
     unenforceable for any reason, then the parties’ intent is
     that only such terms be severed, and this Agreement’s
     remaining terms shall be enforced.

Arbitration Agreement at 2 (emphasis added). The trial court found that this

limitation on damages clause made the Arbitration Agreement substantively


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unconscionable. Trial Court Opinion, 5/2/2019, at 10. What the trial court

ignored, though, is that Genesis included a severability clause at the end of

paragraph 11, as well as a general severability clause in paragraph 17.

Arbitration Agreement at 2-3.

      Where the “arbitration provision is separate and distinct from the

damage limitation portion of the agreement, both location-wise and

functionally[, such that] the damage limitation may be stricken from the

agreement without affecting the parties’ agreement to arbitrate[,]” and the

agreement “contains an explicit severability clause[,]” this Court has held

that a limitation on damages clause may be severed, allowing the rest of the

agreement to remain enforceable.        Fellerman v. PECO Energy Co., 159

A.3d 22, 29 (Pa. Super. 2017).         In the instant case, the limitation on

damages clause is separate and distinct from the provisions governing

arbitration, and the portion of paragraph 11 limiting damages “may be

stricken from the agreement without affecting the parties’ agreement to

arbitrate.”   Id.   Additionally, Genesis included explicit severability clauses

within paragraphs 11 and 17.         Accordingly, the trial court erred in not

severing this portion of the agreement and permitting the remainder of the

agreement to remain enforceable. Id.

      Based on the foregoing, we conclude that the trial court’s finding of

unconscionability, rendering the otherwise valid Arbitration Agreement

unenforceable,      was     not    supported     by    substantial    evidence.


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See Cardinal, 155 A.3d at 54 (finding that where the agreement made clear

that the parties were giving up their right to trial the agreement was not

unconscionable).    Accordingly, we vacate the order overruling Appellants’

preliminary objections and remand to the trial court.

     Order vacated. Case remanded. Jurisdiction relinquished.

     Judge Colins joins in this memorandum.

     President Judge Panella files a dissenting statement.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/16/20




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