Clementson, E. v. Evangelical Manor

Superior Court of Pennsylvania

Clementson, E. v. Evangelical Manor

DecidedMarch 29, 2018

Docket299 EDA 2017

StatusUnpublished

This text of Clementson, E. v. Evangelical Manor (Clementson, E. v. Evangelical Manor) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Clementson, E. v. Evangelical Manor, (Pa. Ct. App. 2018).

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Opinion

J-A22011-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ELSIE CLEMENTSON IN THE SUPERIOR COURT OF PENNSYLVANIA

v.

EVANGELICAL MANOR D/B/A WESLEY ENHANCED LIVING PENNYPACK PARK

Appellant No. 299 EDA 2017

Appeal from the Order Entered December 19, 2016 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 160601775

BEFORE: BOWES, LAZARUS AND PLATT,* JJ.

MEMORANDUM BY BOWES, J.: FILED MARCH 29, 2018

Evangelical Manor d/b/a Wesley Enhanced Living Pennypack Park (the

“Facility”) appeals from the December 19, 2016 order denying its petition to

compel arbitration.1 After thorough review, we affirm.

Elsie Clementson filed this negligence action seeking damages for a

fractured tibia that she sustained in a fall while she was a resident at the

____________________________________________

1 The trial court's order is final and appealable pursuant to Pa.R.A.P. 311(a)(8), which permits an interlocutory appeal from any order made appealable by statute. See Midomo Co., Inc. v. Presbyterian Housing Co., 739 A.2d 180, 183-84 (Pa.Super. 1999). The Uniform Arbitration Act, 42 Pa.C.S. §§ 7301 et seq., provides that an appeal may be taken from "[a] court order denying an application to compel arbitration. . . ." 42 Pa.C.S. § 7320(a)(1).

* Retired Senior Judge specially assigned to the Superior Court. J-A22011-17

Facility. The Facility moved to compel arbitration pursuant to a clause in the

Admission Agreement, which was signed by Ms. Clementson’s daughter,

Joanne Reilly.2 Ms. Reilly did not act pursuant to a power-of-attorney.

The circumstances preceding and surrounding the execution of the

Admission Agreement are as follows. On February 16, 2012, Ms. Reilly

signed the Facility’s Responsible Person Agreement (“RPA”) “to facilitate the

provision of care to the Resident,” her mother, Elsie Clementson.

Responsible Person Agreement, at 1. The RPA provided that, “the

responsible person affirms that he or she has access to Resident’s income

and resources and the Resident’s income and resources are available to pay

for Resident’s care.” Id. at 1¶3. The Responsible Person agrees to pay for

the costs of the stay from Resident’s income and resources in accordance

with the Admission Agreement until the costs are paid by other sources, and

to apply for and submit the documentation required to obtain benefits. Id.

If Responsible Person fulfills his or her obligations under that Agreement,

“she shall not be held personally liable for the Resident’s charges.” Id. at 2.

If, however, Responsible Person does not fulfill the Agreement, “she shall be

liable” to the Facility for any losses it sustains due to Responsible Person’s

2 The record indicates that the form agreements were preprinted with the name “Joanne Riley,” but signed by “Joanne Reilly.” There was no indication on the signature page that Joanne Reilly signed in her capacity as the Responsible Person for her mother.

-2- J-A22011-17

breach. Id. In short, the RPA obligated the Responsible Person to fulfill the

duties of the Resident under the Admission Agreement, most of which were

financial in nature, and subjected the Responsible Person to liability for

failure to do so.

On February 21, 2012, Ms. Reilly was asked by the Facility to execute

the Facility’s Admission Agreement. The Agreement details the nature of the

services provided, the charges, billing, Medicare and Medicaid, and the

“Obligations of Responsible Person.” The latter provision states in pertinent

part:

The Resident has the right to identify a Responsible Person (usually the Agent in the Resident’s Power of Attorney or Guardian), who shall be entitled to receive notice in the event of transfer of discharge or material changes in the Resident’s condition, and changes to this Agreement. Resident elects to name JOANNE RILEY of PHILADELPHIA, PA [address], as the Responsible Person. The Resident’s selected Responsible Person shall sign this Agreement and the Responsible Person Agreement in recognition of this designation with the intent to be legally bound by all provisions in this Agreement and the Responsible Person Agreement.

Admission Agreement, ¶4.1 (emphasis added).

Paragraph 20 of the Admission Agreement is entitled “Community’s

Grievance Procedure,” and provides that if the Resident, Resident’s

Attorney-in-Fact, or Responsible Person believes that Resident is being

mistreated or her rights violated, they are to make the complaint known to

the Director of Nursing or Administrator. Such notice is a prerequisite to

-3- J-A22011-17

arbitration. It states further that any claim for personal injuries for

inadequate care or medical malpractice while in the Facility are to be

resolved “exclusively by arbitration.” Paragraph 20.3(b). The Agreement

explains that this means that the Resident is relinquishing her right to a jury

trial and will not be able to file a lawsuit. Rather, arbitration administered

by ADR Options, Inc. pursuant to its rules, at a site chosen by the Facility, is

the only option. The parties are to split costs and each bear their own legal

fees. The Agreement provides further that “Resident, or Resident’s spouse

or personal representative in the event of Resident’s incapacity, have the

right to rescind this arbitration clause” by notifying the Facility in writing, by

certified mail, within thirty days of signing. Id. at ¶20.3(h).

The Admission Agreement contains an integration clause providing

that the Admission Agreement, the Application Agreement,3 and the RPA are

the entire agreement and understanding between the parties. Id. at ¶23.4.

The Facility reserved, however, the right to modify unilaterally the terms of

the Agreement to conform to subsequent changes in the law, regulation, or

operations. Id. at ¶23.5.

At the time the aforementioned documents were executed, Ms. Reilly

was not Ms. Clementson’s attorney-in-fact. The parties to the RPA and the

Admission Agreement were Ms. Reilly and the Facility. Later, in 2014, Ms. ____________________________________________

3 The Application Agreement is not contained in the certified record.

-4- J-A22011-17

Clementson executed a durable power-of-attorney conferring attorney-in-

fact status upon her daughter. Based on the foregoing, the trial court

denied the petition to compel arbitration finding there was no express or

implied agency based on the RPA. The court also found that the power-of-

attorney executed in 2014, more than two years after the execution of the

Admission Agreement containing the arbitration clause, was not retroactive

as the powers designated therein were not explicitly retroactive.

Furthermore, Ms. Reilly did not have apparent authority to act as there was

no manifestation by the principal, Ms. Clementson, establishing such

authority. Finally, the trial court found no agency by estoppel, as there was

no evidence that Ms. Clementson was present when the paperwork was

signed, that the agreements were presented to her, or that she knew what

they contained. Absent proof that Ms. Clementson knew that her daughter

purportedly agreed to arbitrate, her failure to disavow her daughter’s

authority to agree to same did not create agency by estoppel.

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