CLOUSER v. GOLDEN GATE NATIONAL SENIOR CARE, LLC et al

Filing 49

MEMORANDUM OPINION AND ORDER - upon consideration of Defendants' amended motion to dismiss for failure to state a claim and Defendants' motion to compel arbitration (ECF No. 40 ), and upon consideration of the parties' briefing of Def endants' motions (ECF Nos. 42 , 43 , 48 ), and for the reasons set forth in the accompanying memorandum, it is hereby Ordered that Defendants' motions are GRANTED in part and DENIED in part as follows: Defendants' motion to compel the arbitration of the wrongful death claim (Count I) is DENIED. Defendants' motion to compel the arbitration of the survival action claim (Count II) is GRANTED. Defendants' motion to dismiss Plaintiff's claim for punitive damages as to the wrongful death claim (Count I) is GRANTED. Defendants' motion to dismiss Plaintiff's claim for punitive damages as to the survival action claim (Count II) is DENIED. It is further Ordered that a post-discovery status conference as to Plaintiff's wrongful death claim (Count I) is scheduled for 4/7/2016, at 10:00 a.m., and as more fully stated in said Memorandum Opinion and Order. Signed by Judge Kim R. Gibson on 3/23/2016. (dlg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
SYLVIA A. CLOUSER,
Plaintiff,
v.
GOLDEN GATE NATIONAL SENIOR
CARE, LLC, et al.,
Defendants.

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CIVIL ACTION NO. 3:15-33
JUDGE KIM R. GIBSON

MEMORANDUM OPINION AND ORDER
I.

Introduction
Before the Court in this matter are Defendants’ amended motion to dismiss for

failure to state a claim and Defendants’ motion to compel arbitration. (ECF No. 40.)
These matters have been fully briefed (see ECF Nos. 42, 43, 48) and are ripe for disposition.
For the reasons that follow, Defendants’ amended motion to dismiss for failure to state a
claim and Defendants’ motion to compel arbitration will be GRANTED in part and
DENIED in part.
II.

Jurisdiction and Venue
The Court has jurisdiction over the instant action pursuant to 28 U.S.C. § 1332 and

28 U.S.C. § 1441. Venue is proper pursuant to 28 U.S.C. § 1391.
III.

Background
Plaintiff initiated the instant action by filing a complaint in the Court of Common

Pleas of Blair County, Pennsylvania, on January 12, 2015. (See ECF No. 1-2.) Defendants
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removed the action to this Court on February 5, 2015. (ECF No. 1.) The Court notes that
this case appears to be one of a number of similarly situated actions arising in federal
courts in Pennsylvania. The following facts are alleged in the complaint, which the Court
will accept as true for the sole purpose of deciding the pending motions.
On or about April 8, 2011, Plaintiff’s decedent, John J. Clouser, was admitted as a
resident at the Golden Living Center-Hillview skilled nursing facility in Altoona,
Pennsylvania, for his mobility issues and advancing Alzheimer’s disease and dementia.
(ECF No. 1-2 ¶¶ 7-8.) Although Mr. Clouser did not have skin breakdown at the time of
his admission, he developed redness and irritation of the skin around his coccyx, groin,
scrotum, and buttocks from August 2011 through the time of his discharge on February
17, 2013. (Id. ¶¶ 8-9.) Documentation throughout 2012 indicated that Mr. Clouser had no
abnormal skin conditions, and no documentation was made concerning Mr. Clouser’s
incontinence. (Id. ¶¶ 10-12, 16-17.) Records from 2013 included false documentation as to
Mr. Clouser’s weekly skin checks, his activities of daily living, and his intake and outtake
logs. (Id. ¶¶ 13-15.)
On February 17, 2013, Mr. Clouser had red blood draining from his rectum, which
increased throughout the day, but his medical records did not include notations of skin
breakdown.

(Id. ¶¶ 18-20.)

Plaintiff, who was not informed of the gravity of Mr.

Clouser’s condition, requested that Mr. Clouser not be transferred to Altoona Hospital
until the following morning. (Id. ¶¶ 21-22.) Defendants’ February 18, 2013, discharge
records stated that Mr. Clouser weighed 256 pounds, had no pressure ulcers, and was
suffering from internal bleeding. (Id. ¶ 23.) Altoona Hospital’s admission notes from
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February 18, 2013, indicated that Mr. Clouser weighed 225 pounds, was septic, and was in
renal failure. (Id. ¶ 24.)
When Mr. Clouser was examined on February 19, 2013, he was diagnosed with a
perianal fistula and a decubitus ulcer extending from the buttocks toward the anus. (Id. ¶
25.) Because Mr. Clouser’s white blood count was 22.6, he was diagnosed with sepsis and
underwent a debridement of the decubitus ulcer and drainage of the perirectal abscess.
(Id. ¶¶ 26-27.) Although blood and urine cultures tested negative for infection, cultures
taken from the wound revealed the growth of Proteus Mirabilis, Escherichia Coli, and
Enterococcus Faecalis. (Id. ¶¶ 28-29.) On February 21, 2013, Mr. Clouser underwent a
laparoscopic sigmoid colostomy and debridement of the perianal wound, but he
remained septic. (Id. ¶¶ 31-32.) Mr. Clouser passed away that day. (Id. ¶ 32.)
Plaintiff alleges that Defendants’ conduct was willful, wanton, negligent, and
careless. (Id. ¶¶ 33-34.) In Count I of her complaint, Plaintiff asserts a wrongful death
action against Defendants. (Id. ¶¶ 35-39.) In Count II of her complaint, Plaintiff asserts a
survival action against Defendants. (Id. ¶¶ 40-42.) Defendants have filed an amended
motion to dismiss Plaintiff’s complaint for failure to state a claim and a motion to compel
arbitration. (ECF No. 40.)
IV.

Applicable Law
Defendants move to dismiss Plaintiff’s complaint pursuant to Federal Rule of Civil

Procedure 12(b)(6). The Federal Rules of Civil Procedure require that a complaint contain
“a short and plain statement of the claim showing that the pleader is entitled to relief.”

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FED. R. CIV. P. 8(a)(2). Rule 12(b)(6) allows a party to seek dismissal of a complaint or any
portion of a complaint for failure to state a claim upon which relief can be granted.
Although the federal pleading standard has been “in the forefront of jurisprudence in
recent years,” the standard of review for a Rule 12(b)(6) challenge is now well established.
Fowler v. UPMC Shadyside, 578 F.3d 203, 209 (3d Cir. 2009).
In determining the sufficiency of a complaint, a district court must conduct a twopart analysis. First, the court must separate the factual matters averred from the legal
conclusions asserted. See id. at 210. Second, the court must determine whether the factual
matters averred are sufficient to show that plaintiff has a “‘plausible claim for relief.’” Id.
at 211 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). The complaint need not include
“‘detailed factual allegations.’” Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir.
2008) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
Moreover, the court must construe the alleged facts, and draw all inferences
gleaned therefrom, in the light most favorable to the non-moving party. See id. at 228
(citing Worldcom, Inc. v. Graphnet, Inc., 343 F.3d 651, 653 (3d Cir. 2003)). However, “legal
conclusions” and “[t]hreadbare recitals of the elements of a cause of action . . . do not
suffice.” Iqbal, 556 U.S. at 678. Rather, the complaint must present sufficient “‘factual
content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.’” Sheridan v. NGK Metals Corp., 609 F.3d 239, 262 n.27 (3d Cir.
2010) (quoting Iqbal, 556 U.S. at 678).
Ultimately, whether a plaintiff has pleaded a “plausible claim for relief” is a
“context-specific” inquiry that requires the district court to “draw on its judicial
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experience and common sense.”

Iqbal, 556 U.S. at 679.

The relevant record under

consideration includes the complaint and any “document integral to or explicitly relied
upon in the complaint.” U.S. Express Lines, Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002)
(citing In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997)). If a
complaint is vulnerable to dismissal pursuant to Rule 12(b)(6), the district court must
permit a curative amendment, irrespective of whether a plaintiff seeks leave to amend,
unless such amendment would be inequitable or futile. Phillips, 515 F.3d at 236; see also
Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000).
V.

Discussion
Initially, the Court notes that on April 15, 2015, during the parties’ Federal Rule of

Civil Procedure 16 conference, counsel for Defendants requested a ninety-day discovery
period related to the arbitration issue. (ECF No. 27 at 2.) The Court noted that discovery
related to the arbitration issue and general discovery could be conducted simultaneously.
(Id.) The Court therefore stated that it would delay its ruling on Defendants’ motion to
dismiss until after the close of discovery. (Id.) Accordingly, although this matter comes
before the Court as a motion to dismiss, the Court may resolve the arbitration issue at this
time.
To resolve the arbitration issue, the Court must first determine whether the
alternative dispute resolution agreement (“ADR Agreement”) is valid. Trippe Mfg. Co. v.
Niles Audio Corp., 401 F.3d 529, 532 (3d Cir. 2005). If the ADR Agreement is enforceable,
then the Court must examine whether Plaintiff’s complaint falls within its scope. Id.

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A.

Validity of the ADR Agreement

Defendants argue that the ADR Agreement is valid because Mr. Clouser executed
a General Power of Attorney on January 4, 2010, appointing his wife, Plaintiff, and his son
as his Attorneys in Fact. (ECF No. 42 at 3; see also ECF No. 40-3.) At the time of his
admission to Golden Living Center-Hillview on April 8, 2011, Mr. Clouser and Plaintiff
signed and executed an alternative dispute resolution agreement (“ADR Agreement”)
with Defendants. (ECF No. 42 at 4; see also ECF Nos. 40-4, 40-5.) Defendants assert that
the conspicuous terms of the ADR Agreement mandate that Plaintiff’s claims be
arbitrated. (ECF No. 42 at 4-7.) Defendants further argue that they are parties to the ADR
Agreement and are therefore entitled to enforce it. (Id. at 17-20.) They also contend that
Plaintiff and Mr. Clouser were both competent to sign the ADR Agreement and therefore
knowingly and voluntarily waived their rights to a jury trial. (Id. at 20-22.) In support of
their arguments, Defendants rely upon the depositions of Plaintiff and Kelly McCoy, the
Director of Admissions at Golden Living Center-Hillview. (Id. at 23-25.)
In response, Plaintiff argues that the ADR Agreement is invalid for three reasons.
(ECF No. 43 at 5-25.) First, Plaintiff asserts that Mr. Clouser was mentally incompetent
when he signed the ADR Agreement. (Id. at 5-9.) Specifically, Plaintiff contends that Mr.
Clouser was diagnosed with Alzheimer’s disease and dementia in December 2009. (Id. at
6.) On April 5, 2011, three days before his admission to Golden Living Center-Hillview,
Mr. Clouser was noted to suffer from advanced dementia. (Id. at 6-7.) Plaintiff states that
Mr. Clouser did not have the ability to understand or read the admission documents and
notes that she was not present when he signed the ADR Agreement and admission
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agreement. (Id. at 7.) Plaintiff further emphasizes that Ms. McCoy testified that she had
no memory of Mr. Clouser’s admission and therefore only provided testimony regarding
her general routines. (Id. at 8.)
Second, Plaintiff argues that she was not authorized to execute the ADR
Agreement. (Id. at 9-17.) Specifically, Plaintiff asserts that an agency relationship did not
exist between her and Mr. Clouser because Mr. Clouser did not unequivocally state that
Plaintiff had the authority to enter the ADR Agreement. (Id. at 9-10.) Regarding the
General Power of Attorney that Mr. Clouser executed, Plaintiff states that Defendants did
not rely upon it when Mr. Clouser signed the documents. (Id. at 10.) Plaintiff further
contends that the General Power of Attorney did not grant her authority to enter the ADR
Agreement or to consent to medical care because it governed only transactions relating to
real or personal property. (Id. at 11-14.) Plaintiff argues that she did not have apparent
authority when she signed the ADR Agreement because there is no evidence that Mr.
Clouser authorized her to act on his behalf and was mentally incapable of doing so. (Id. at
14-17.)
Third, Plaintiff argues that the ADR Agreement is unconscionable. (Id. at 17-25.)
Specifically, Plaintiff asserts that the ADR Agreement is procedurally unconscionable
because Defendants’ admissions personnel do not explain that the ADR Agreement: (1) is
not mandatory, (2) may be reviewed by an attorney, (3) is not a condition of becoming a
resident, and (4) may be revoked. (Id. at 18-19.) Plaintiff notes that Ms. McCoy does not
state that the ADR Agreement waives the resident’s right to a jury trial and that she did
not recall her meeting with Plaintiff. (Id. at 19-20.) She contends that the admissions
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process is designed to overwhelm and confuse the parties and that Ms. McCoy requires
residents to sign the documents without considering their competence. (Id. at 20-21.)
Plaintiff also argues that the ADR Agreement is substantively unconscionable because it
unreasonably favors Defendants. (Id. at 22.) Plaintiff states that Defendants disregard the
ADR Agreement by filing collection actions in state court. (Id. at 23-24.)
In their sur-reply, Defendants argue that the General Power of Attorney enabled
Plaintiff to pursue claims and litigation, which includes the power to prosecute, defend,
abandon, and arbitrate any legal proceedings. (ECF No. 48 at 1-2.) Defendants assert that
the General Power of Attorney was broad and permitted Plaintiff to handle all of Mr.
Clouser’s affairs. (Id. at 2-3.) Defendants also argue that Plaintiff was authorized to
execute the ADR Agreement because the General Power of Attorney existed at the time of
Mr. Clouser’s admission. (Id. at 3.) Defendants contend that the ADR Agreement was not
substantively or procedurally unconscionable because its conspicuous statements
provided that it was not a condition of admission to residence in the facility. (Id. at 4-5.)
Defendants note that Plaintiff admitted that she did not read the ADR Agreement before
signing it and argue that she is nonetheless bound by it. (Id. at 6.)
“Arbitration is a matter of contract, and in determining whether an agreement to
arbitrate is valid, courts apply the laws of the state where the contract was formed.”
Golden Gate Nat’l Senior Care, LLC v. Brooks, No. 14-MC-421, 2014 U.S. Dist. LEXIS 134280,
at *33 (M.D. Pa. Sept. 24, 2014). In Pennsylvania, where the principles applicable to the
interpretation of contracts are also applicable to agreements to arbitrate, “‘[n]othing is
better settled than that in order to constitute a contract there must be an offer on one side
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and an unconditional acceptance on the other.’” Id. (quoting Quiles v. Fin. Exch. Co., 879
A.2d 281, 285 (Pa. Super. Ct. 2005)). A valid contract therefore exists when: “(1) both
parties manifested an intention to be bound by the agreement; (2) the terms of the
agreement are sufficiently definite to be enforced; and (3) the agreement is supported by
consideration.” Id. at *34. Agreements to arbitrate are upheld only where the parties
“have agreed to arbitrate in a clear and unmistakable manner.” Id. A motion to compel
arbitration may be granted when there is “no genuine issue of fact concerning the
formation of the agreement to arbitrate.” Kirleis v. Dickie, McCamey & Chilcote, P.C., 560
F.3d 156, 159 (3d Cir. 2009) (internal quotations omitted). “In making this determination,
the party opposing arbitration is entitled to the benefit of all reasonable doubts and
inferences that may arise.” Id. (internal quotations omitted).
Upon review of the ADR Agreement, it is apparent that it is enforceable. At the
time of his admission to Golden Living Center-Hillview on April 8, 2011, Mr. Clouser and
Plaintiff signed and executed the ADR Agreement with Defendants. (ECF Nos. 40-4; 405.) The ADR Agreement mandates that any dispute arising out of Mr. Clouser’s stay at
the facility “shall be resolved exclusively by an ADR process that shall include mediation
and, where mediation is not successful, binding arbitration.” (ECF Nos. 40-4 at 1; 40-5 at
1.) The ADR Agreement further provides:
THE PARTIES UNDERSTAND, ACKNOWLEDGE, AND AGREE
THAT THEY ARE SELECTING A METHOD OF RESOLVING
DISPUTES WITHOUT RESORTING TO LAWSUITS OR THE
COURTS, AND THAT BY ENTERING INTO THIS AGREEMENT,
THEY ARE GIVING UP THEIR CONSTITUTIONAL RIGHT TO
HAVE THEIR DISPUTE DECIDED IN A COURT OF LAW BY A
JUDGE OR JURY, THE OPPORTUNITY TO PRESENT THEIR
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CLAIMS AS A CLASS ACTION AND/OR TO APPEAL ANY
DECISION OR AWARD OF DAMAGES RESULTING FROM THE
ADR PROCESS EXCEPT AS PROVIDED HEREIN.
(ECF Nos. 40-4 at 1; 40-5 at 1 (emphasis in original).) The ADR Agreement states that “the
Parties’ resort to a court of law shall be limited to an action to enforce a binding
arbitration decision entered in accordance with this Agreement or to vacate such a
decision[.]” (ECF Nos. 40-4 at 1; 40-5 at 1.) Mr. Clouser and Plaintiff signed the ADR
Agreement. (See ECF Nos. 40-4 at 1, 5; 40-5 at 1, 5.)
The terms of the ADR Agreement are sufficiently definite to be enforced, and the
ADR Agreement is supported by consideration because the parties mutually agreed to be
bound to utilize alternative dispute resolution measures. See Blair v. Scott Specialty Gases,
283 F.3d 595, 603 (3d Cir. 2002) (“When both parties have agreed to be bound by
arbitration, adequate consideration exists and the arbitration agreement should be
enforced.”); see also Brooks, 2014 U.S. Dist. LEXIS 134280, at *3, 35 (concluding that the
arbitration agreement, which included language identical to the ADR Agreement in the
instant matter, was valid and enforceable).
The Court rejects Plaintiff’s argument that she was not authorized to execute the
ADR Agreement. On January 4, 2010, Mr. Clouser executed a General Power of Attorney,
appointing his wife, Plaintiff, and his son as his Attorneys in Fact. (ECF No. 40-3.) The
General Power of Attorney states that it shall be construed broadly. (ECF No. 40-3 at 4.)
It also enumerated full power to Plaintiff to act on Mr. Clouser’s behalf, to manage and
conduct all of Mr. Clouser’s affairs, to exercise all of Mr. Clouser’s legal rights and
powers, and to enter into binding contracts on Mr. Clouser’s behalf. (Id. at 2-3.) The plain
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terms of the General Power of Attorney, which was completed over one year before Mr.
Clouser was admitted at Golden Living Center-Hillview, authorized Plaintiff to execute
the ADR Agreement. See, e.g., Golden Gate Nat’l Senior Care, LLC v. Beavens, No. 15-CV-17,
2015 U.S. Dist. LEXIS 110673, at *2, 20 (E.D. Pa. Aug. 20, 2015) (finding that the arbitration
agreement, which is identical to the ADR Agreement in the instant matter, was valid
where the defendant executed it as power of attorney); Brooks, 2014 U.S. Dist. LEXIS
134280, at *37-38 (same). See also THI of Pa. at Mountainview, LLC v. McLaughlin, No. 14CV-1616, 2015 U.S. Dist. LEXIS 59557, at *10 (W.D. Pa. May 6, 2015) (explaining that the
nursing home resident’s authorized representative executed the arbitration agreement,
agreeing that she understood that she was waiving her right to a jury trial).
The Court similarly finds unavailing Plaintiff’s argument that Mr. Clouser was
mentally incompetent when he signed the ADR Agreement. See, e.g., Glover v. Darway
Elder Care Rehab. Ctr., No. 4:13-CV-1874, 2014 U.S. Dist. LEXIS 31380, at *5-6, 30 (M.D. Pa.
Feb. 4, 2014) (enforcing the arbitration agreement where the resident, who had a
documented history of primary degenerative dementia and Alzheimer’s disease, signed
an arbitration agreement through her representative); Estate of Hodges v. Green Meadows,
No. 12-CV-1698, 2013 U.S. Dist. LEXIS 46878, at *11, 14, 28 (E.D. Pa. Mar. 29, 2013) (finding
that the arbitration agreement was valid where the resident was suffering from dementia
and her daughter, who had power of attorney, signed the agreement).
Plaintiff argues that the ADR Agreement is unconscionable. “A court may find
that a contract is unconscionable, and, therefore, unenforceable, when one party to the
agreement shows an absence of meaningful choice together with contract terms which are
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unreasonably favorable to the other party.” Glover, 2014 U.S. Dist. LEXIS 31380, at *23
(internal quotations omitted). Under Pennsylvania law, both procedural and substantive
unconscionability must be established to void an arbitration provision. Harris v. Green
Tree Fin. Corp., 183 F.3d 173, 181 (3d Cir. 1999); see also Lucey v. FedEx Ground Package Sys.,
Inc., 305 F. App’x 875, 877 (3d Cir. 2009) (stating that an arbitration provision is
unenforceable on the grounds of unconscionability when the elements of procedural and
substantive unconscionability are established). The party seeking to avoid arbitration
bears the burden of establishing procedural and substantive unconscionability. Williams
v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989).
“Procedural unconscionability concerns the process by which the parties entered
into the contract.” Glover, 2014 U.S. Dist. LEXIS 31380, at *25. The Third Circuit has
explained that procedural unconscionability occurs when “there is no meaningful choice
on the part of the other party.” Lucey, 305 F. App’x at 877. Procedural unconscionability
is generally found where there is a contract of adhesion, which is a contract “prepared by
the party with excessive bargaining power who presents it to the other party for signature
on a take-it-or-leave-it basis.” Alexander v. Anthony Int’l, L.P., 341 F.3d 256, 265 (3d Cir.
2003); see also Hopkins v. New Day Fin., 643 F. Supp. 2d 704, 717 (E.D. Pa. 2009). Courts
may also examine the educational background of the challenging party. See Zimmer v.
CooperNeff Advisors, Inc., 523 F.3d 224, 228-29 (3d Cir. 2008).
The Third Circuit has explained that substantive unconscionability occurs when
“the contractual terms are unreasonably favorable to the drafter.” Lucey, 305 F. App’x at
877. Specifically, substantive unconscionability is found where the agreement contains
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contractual terms “that are unreasonably or grossly favorable to one side and to which the
disfavored party does not assent.” Harris, 183 F.3d at 181.
The ADR Agreement in the instant matter is neither procedurally nor
substantively unconscionable. The ADR Agreement provides:
The Resident understands that he or she has the right to seek advice of
legal counsel concerning this Agreement; that his or her signing of this
Agreement is not a condition of admission to or residence in the Facility;
that he or she may revoke this Agreement by sending written notice to
the Facility within thirty (30) days of signing it; and that this Agreement,
if not revoked within that time frame, shall remain in effect for all care
and services rendered to the Resident at or by the Facility regardless of
whether the Resident is subsequently discharged and readmitted to the
Facility without renewing, ratifying, or acknowledging this Agreement.
(ECF Nos. 40-4 at 3, 40-5 at 3.) Additionally, the following statement is included at the top
of the ADR Agreement:

“THIS AGREEMENT IS NOT A CONDITION OF

ADMISSION TO OR CONTINUED RESIDENCE IN THE FACILITY.” (ECF Nos. 40-4
at 1, 40-5 at 1 (emphasis in original).)
Plaintiff’s argument that Ms. McCoy did not explain these terms to her and that
she did not read the ADR Agreement is unpersuasive. See, e.g., Patel v. Am. Safety Indem.
Co., No. 15-CV-927, 2016 U.S. Dist. LEXIS 16166, at *19 n.3 (W.D. Pa. Feb. 10, 2016)
(explaining that the plaintiff was “expected to have read the contract as any failure to read
the contract is an unavailing excuse”); Caparra v. Maggiano’s Inc., No. 14-CV-5722, 2015
U.S. Dist. LEXIS 116409, at *15 (E.D. Pa. Sept. 1, 2015) (“Under Pennsylvania law,
‘[c]ontracting parties are normally bound by their agreements, without regard to whether
the terms thereof were read and fully understood and irrespective of whether the

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agreements embodied reasonable or good bargains.’”) (quoting Simeone v. Simeone, 581
A.2d 162, 165 (Pa. 1990)).
Similarly, the Court rejects Plaintiff’s argument that the ADR Agreement is
procedurally unconscionable because Defendants design their admissions process to
overwhelm and confuse the parties. Plaintiff testified that she met with Ms. McCoy for
fifteen to twenty minutes regarding a dozen admissions documents. (ECF No. 42-3 at 1617.) Plaintiff further stated that she understood that she had the legal authority to sign on
Mr. Clouser’s behalf and that she was cognitively sound when she signed the ADR
Agreement. (Id. at 42-43.)
Plaintiff has failed to establish that the ADR Agreement is procedurally
unconscionable.

The ADR Agreement is not a contract of adhesion, and it was not

presented to Plaintiff “on a take-it-or-leave-it basis.” Alexander, 341 F.3d at 265. Plaintiff
has also failed to demonstrate that she did not have a “meaningful choice” when she
elected to sign the ADR Agreement. Lucey, 305 F. App’x at 877. Indeed, the plain and
conspicuous terms of the ADR Agreement that are set forth above reveal that Plaintiff was
under no obligation to sign it. The Court therefore concludes that the ADR Agreement is
not procedurally unconscionable. See, e.g., Beavens, 2015 U.S. Dist. LEXIS 110673, at *17-19
(concluding that the arbitration agreement, which included language identical to the ADR
Agreement in the instant matter, “was not a take-it-or-leave-it deal” and explaining that
the document was short, contained no fine print, and could easily be understood by a
person with no legal training); Glover, 2014 U.S. Dist. LEXIS 31380, at *27-28 (finding that
the arbitration agreement was not procedurally unconscionable because it stated that it
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was not a requirement for admission); Estate of Hodges, 2013 U.S. Dist. LEXIS 46878, at *23,
27-28 (concluding that the arbitration agreement, which stated that “[a]dmission to the
Community is not contingent upon signing this Agreement,” was not unconscionable
where the admissions process required the plaintiff to sign eighty-seven documents and
rejecting the plaintiff’s argument that she “was in a weak, almost desperate, position and
the admission documents were presented to her with little explanation in a take-it-orleave-it fashion”).
Plaintiff has also failed to establish that the ADR Agreement is substantively
unconscionable. The ADR Agreement provides that the parties will cooperate with one
another in selecting a mediator and that they will share equally in the costs of mediation.
(ECF Nos. 40-4 at 2, 40-5 at 2.) Regarding costs and fees, the ADR Agreement states that
“[w]here Resident initiates arbitration against Facility, the only fee required to be paid by
Resident is $250, which is approximately equivalent to a court filing fee; all other fees and
costs . . . shall be paid by Facility.” (ECF Nos. 40-4 at 3, 40-5 at 3.) The ADR Agreement
further provides that “[w]here Facility initiates arbitration, Facility will pay all fees and
costs associated with the arbitration other than Resident’s attorney fees, if any.” (ECF
Nos. 40-4 at 3, 40-5 at 3.) The parties are required to bear their own costs and attorneys’
fees. (ECF Nos. 40-4 at 3, 40-5 at 3.) Plaintiff has offered no legal support for her
argument that the ADR Agreement is substantively unconscionable. Because the terms of
the ADR Agreement are neither grossly one-sided nor manifestly unfair, the Court
concludes that the ADR Agreement is not substantively unconscionable. See, e.g., Beavens,
2015 U.S. Dist. LEXIS 110673, at *17-19 (concluding that the arbitration agreement, which
15

included language identical to the ADR Agreement in the instant matter, was not
substantively unconscionable because it limited the plaintiff’s arbitration costs to $250);
Glover, 2014 U.S. Dist. LEXIS 31380, at *29-30 (finding that the arbitration agreement was
not substantively unconscionable because the parties were to bear the costs of arbitration
equally).

Accordingly, the Court concludes that the ADR Agreement is valid and

enforceable.
B.

Scope of the ADR Agreement

Defendants argue that Plaintiff’s claims fall within the scope of the ADR
Agreement because it applies to any and all disputes arising out of Mr. Clouser’s stay at
Golden Living Center-Hillview. (ECF No. 42 at 4-5, 17-20.) In response, Plaintiff argues
that her claims are not within the scope of the ADR Agreement because arbitration
agreements are not binding upon wrongful death heirs. (ECF No. 43 at 25-27.) Plaintiff
asserts that because she and her children are not third-party beneficiaries, she cannot be
compelled to arbitrate. (Id. at 28.) Plaintiff further contends that her wrongful death and
survival actions cannot be bifurcated because Pennsylvania’s Wrongful Death statute
requires that the actions be heard together. (Id. at 30-31.)
The ADR Agreement includes within its scope “any and all disputes arising out of
or in any way related to this Agreement or to the Resident’s stay at the Facility or the
Admissions Agreement between the Parties that would constitute a legally cognizable
cause of action[.]” (ECF Nos. 40-4 at 2, 40-5 at 2.) This provision includes, but is not
limited to, claims in law or equity arising from “a violation of a right claimed to exist
under federal, state, or local law or contractual agreement between the Parties; tort;
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breach of contract; consumer protection; fraud; misrepresentation; negligence; gross
negligence; malpractice; and any alleged departure from any applicable federal, state, or
local medical, health care, consumer, or safety standards.” (ECF Nos. 40-4 at 2, 40-5 at 2.)
As discussed above, Plaintiff’s claims against Defendants include a wrongful
death action and a survival action. Under Pennsylvania law, “wrongful death actions are
derivative of decedents’ injuries but are not derivative of decedents’ rights.” Pisano v.
Extendicare Homes, Inc., 77 A.3d 651, 660 (Pa. Super. Ct. 2013), appeal denied, 86 A.3d 233
(2014), and cert denied, 134 S. Ct. 2890 (2014). “Accordingly, state and federal courts have
consistently declined to compel arbitration of wrongful death claims in these types of
cases, because the beneficiaries’ rights cannot be surrendered by an agreement signed
only by the decedent.” GGNSC Uniontown, LP v. Bauer, 2015 U.S. Dist. LEXIS 170727, at
*3-4 (W.D. Pa. Dec. 22, 2015) (citing Erie Operating, LLC v. Foster, No. 14-CV-72, 2015 U.S.
Dist. LEXIS 137550, at *4-5 (W.D. Pa. Oct. 8, 2015); GGNSC Erie Western Reserve, LP v.
Stubits, No. 15-CV-61, 2015 U.S. Dist. LEXIS 171812, at *13-14 (W.D. Pa. Aug. 7, 2015);
Pisano, 77 A.3d at 660-61).
In contrast, recovery in survival actions “‘stems from the rights of action possessed
by the decedent at the time of death.’” Pisano, 77 A.3d at 659-60 (quoting Moyer v.
Rubright, 651 A.2d 1139, 1141 (Pa. Super. Ct. 1994)). Survival claims thus generally fall
within the scope of valid arbitration agreements signed by decedents. See id. at 654; see
also GGNSC Altoona Hillview LP v. Martz, No. 3:15-CV-32, 2016 U.S. Dist. LEXIS 15043, at
*11 (W.D. Pa. Feb. 8, 2016).

17

There is, however, a split among Pennsylvania state and federal courts as to
whether a survival claim can be compelled to arbitration in a case where, as in the case at
hand, there is a related wrongful death claim that cannot be compelled to arbitration. See
Bauer, 2015 U.S. Dist. LEXIS 170727, at *4-5 (comparing Taylor v. Extendicare Health
Facilities, Inc., 113 A.3d 317, 321-28 (Pa. Super. Ct. 2015), appeal granted, 122 A.3d 1036 (Pa.
2015) (holding that because the issues were identical in the two actions, pursuant to
Pennsylvania Rule of Civil Procedure 213(e), the survival claim should not be separated
from the wrongful death claim and compelled to arbitration because of the possibility of
“inconsistent liability and duplicative damage determinations”), with Foster, 2015 U.S.
Dist. LEXIS 137550, at *4 (acknowledging a “split of authority as to whether the [Federal
Arbitration Act] preempts Pa.R.C.P. 213(e)” and compelling arbitration of the survival
claim and not the wrongful death claim); and Beavens, 2015 U.S. Dist. LEXIS 110673, at *3031 (concluding that federal courts are not bound by Taylor and expressly finding that “the
FAA preempts the application of Rule 213 to [such a case]”)).
The Court is not bound by the Superior Court’s decision in Taylor mandating the
consolidation of survival and wrongful death claims. Instead, the Court will follow the
well-settled law of the federal courts within the Third Circuit bifurcating survival and
wrongful death claims when the parties have entered a valid and enforceable arbitration
agreement. See, e.g., Bauer, 2015 U.S. Dist. LEXIS 170727, at *5 (explaining that if issue
preclusion did not apply, “this Court would have to dismiss . . . the wrongful death claim,
and would likely follow other federal courts in compelling the survival claim to
arbitration”); Foster, 2015 U.S. Dist. LEXIS 137550, at *5 (explaining that “related claims
18

must sometimes be resolved piecemeal in different forums to accomplish the goals of the
FAA”) (citing Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 19-20 (1983));
Hartman v. Sabor Healthcare Grp., No. 3:14-CV-2167, 2015 U.S. Dist. LEXIS 125615, at *25-26
(M.D. Pa. Sept. 21, 2015) (explaining that if the decedent was found to have executed the
arbitration agreement, the court would retain the wrongful death claim and dismiss the
survival action claims in favor of arbitration); Beavens, 2015 U.S. Dist. LEXIS 110673, at *28,
30 (explaining that “[t]he fact that [the plaintiff] cannot be compelled to arbitrate the
wrongful death claim cannot stop arbitration of the survival action” and finding that the
Superior Court’s interpretation of the FAA in Taylor was incorrect); Erie Operating, LLC v.
Foster, No. 14-CV-72, 2015 U.S. Dist. LEXIS 138312, at *11-12 (W.D. Pa. Aug. 13, 2015)
(finding that the complaint to compel arbitration of the defendant’s wrongful death claims
should be dismissed because “piecemeal litigation is required ‘irrespective of any
concomitant decline in judicial efficiency’”) (quoting Nationwide Mut. Fire Ins. Co. v. George
V. Hamilton, Inc., 571 F.3d 299, 309 (3d Cir. 2009)); Stubits, 2015 U.S. Dist. LEXIS 171812, at
*14 (declining to follow Taylor and severing the survival and wrongful death claims);
Northern Health Facilities v. Batz, 993 F. Supp. 2d 485, 497 (M.D. Pa. 2014) (compelling
arbitration of the survival action claims and determining that the wrongful death claims
could not be arbitrated).
Accordingly, the Court will grant Defendants’ motion to compel the arbitration of
Plaintiff’s survival action claim. The Court will deny Defendants’ motion to compel the
arbitration of Plaintiff’s wrongful death claim and will retain the claim for further
proceedings in this Court.
19

C.

Punitive Damages

Defendants request that Plaintiff’s claims for punitive damages be stricken because
she has failed to allege facts supporting the claims. (ECF No. 40 at 10-11.) Specifically,
Defendants assert that Plaintiff merely alleges that Defendants’ conduct was willful,
wanton, and reckless but fails to set forth sufficient facts to demonstrate outrageous
conduct that warrants the imposition of punitive damages. (Id. at 11.)
As discussed above, the Court will retain Plaintiff’s wrongful death claim. “It is
well settled that punitive damages are not recoverable in wrongful death actions under
Pennsylvania law.” Ortiz v. Porte Reve Transp., Inc., No. 1:15-CV-958, 2015 U.S. Dist.
LEXIS 87050, at *12 (M.D. Pa. July 6, 2015). See also Shropshire v. Shaneyfelt, No. 12-CV1657, 2013 U.S. Dist. LEXIS 62425, at *5-6 (W.D. Pa. May 1, 2013) (“Pennsylvania law does
not recognize the right to assert a claim for exemplary or punitive damages under the
Wrongful Death Act, 42 Pa.C.S.A. § 8301[.]”); Burke v. Glanton, No. 12-CV-851, 2012 U.S.
Dist. LEXIS 172647, at *5 (W.D. Pa. Dec. 5, 2012) (“Pennsylvania does not permit punitive
damages in wrongful death actions.”). Accordingly, the Court will dismiss Plaintiff’s
claim for punitive damages as to her wrongful death claim.
Because the Court will compel Plaintiff’s survival claim to arbitration, it need not
decide whether Plaintiff’s claim for punitive damages as to her survival claim should be
dismissed. See Roman v. Chesapeake Appalachia, L.L.C., No. 3:11-CV-1614, 2012 U.S. Dist.
LEXIS 79678, at *15 (M.D. Pa. June 7, 2012) (finding that it was unnecessary to address the
defendant’s argument regarding punitive damages because the court compelled
arbitration); Vosburg v. Chesapeake Appalachia, LLC, No. 3:11-CV-1615, 2011 U.S. Dist. LEXIS
20

155364, at *12-13 (M.D. Pa. Nov. 16, 2011) (compelling arbitration without addressing the
defendant’s argument regarding punitive damages); Willis v. Rubiera-Zim, 705 F. Supp.
205, 208-09 (D.N.J. 1988) (declining to address the defendant’s argument regarding
punitive damages because “‘[i]n light of the federal policy favoring arbitration . . . our
task is to resolve all doubt in favor of the arbitrator’s authority to award a particular
remedy’”) (quoting Willoughby Roofing & Supply Co. v. Kajima Int’l, Inc., 776 F.2d 269 (11th
Cir. 1985)). See also Great Western Mortg. Corp. v. Peacock, 110 F.3d 222, 230-31 (3d Cir.
1997) (“Since the purpose of the FAA is to ensure that agreements to arbitrate are
enforced, a court compelling arbitration should preserve the remaining disputed issues
for the arbitrator to decide.”).
VI.

Conclusion
For the reasons set forth above, Defendants’ amended motion to dismiss for failure

to state a claim and Defendants’ motion to compel arbitration will be granted in part and
denied in part.
An appropriate order follows.

21

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
SYLVIA A. CLOUSER,

)
)

Plaintiff,

CIVIL ACTION NO. 3:15-33

)
)

JUDGE KIM R. GIBSON

)

v.

)

GOLDEN GATE NATIONAL SENIOR
CARE, LLC, et al.,

)
)
)

Defendants.

)

ORDER
AND NOW, this 23rd day of March, 2016, upon consideration of Defendants'

amended motion to dismiss for failure to state a claim and Defendants' motion to compel
arbitration (ECF No. 40), and upon consideration of the parties' briefing of Defendants'
motions (ECF Nos. 42, 43, 48), and for the reasons set forth in the accompanying
memorandum, IT IS HEREBY ORDERED that Defendants' motions are GRANTED in
part and DENIED in part as follows:

(1) Defendants' motion to compel the arbitration of the wrongful death claim
(Count I) is DENIED.
(2) Defendants' motion to compel the arbitration of the survival action claim
(Count II) is GRANTED.
(3) Defendants' motion to dismiss Plaintiff's claim for punitive damages as to the
wrongful death claim (Count I) is GRANTED.
(4) Defendants' motion to dismiss Plaintiff's claim for punitive damages as to the
survival action claim (Count II) is DENIED.

IT IS FURTHER ORDERED that a post-discovery status conference as to Plaintiff's
wrongful death claim (Count I) is scheduled for April 7, 2016, at 10:00 a.m.

BY THE COURT:

KIM R. GIBSON
UNITED ST ATES DISTRICT JUDGE