Fox, J. v. Jeanes Hospital

J-A12022-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JAMES FOX, INDIVIDUALLY AND ON : IN THE SUPERIOR COURT OF
BEHALF OF THE ESTATE OF JOANN : PENNSYLVANIA
EVANS :
:
Appellant :
:
:
v. :
: No. 1471 EDA 2017
:
JEANES HOSPITAL, TEMPLE :
UNIVERSITY HEALTH SYSTEM, INC., :
KINDRED HOSPITAL-PHILADELPHIA, :
SOMERTON CENTER NURSING :
HOME, JITHA RAI, M.D. AND PAUL :
KARLIN, D.O. :

Appeal from the Order Entered April 25, 2017
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): March Term, 2016 No. 160302193

BEFORE: BOWES, J., OTT, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OTT, J.: FILED JANUARY 11, 2019

James Fox (“Plaintiff James Fox” or “Son”), individually and on behalf of

the estate of his late mother, Joann Evans (“Decedent”), (collectively, “Fox”),

appeals from the following two orders entered in the Philadelphia County Court

of Common Pleas: (1) an April 19, 2017, order, in which the trial court granted

Somerton Center Nursing Home’s (“Somerton”) motion for reconsideration

regarding its original denial of Somerton’s petition/motion to compel

arbitration in this medical negligence action, and dismissed Somerton from
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the matter;1 and (2) an April 25, 2017, order, in which the court decreed that

Fox’s motion for reconsideration was marked as moot.2 Fox raises the

following issues on appeal: (1) the court erred in dismissing Somerton from

the lawsuit; (2) the court erred in refusing to sever Fox’s Wrongful Death Act3

claims from its Survival Act4 claims (made on behalf of the Decedent’s Estate),

thereby forcing both sets of causes of action to be bound for arbitration; and

(3) the court erred in finding the arbitration agreement was enforceable and

conscionable. Based on the following, we affirm in part and reverse in part.

The trial court set forth the facts and procedural history as follows:

On December 6, 2013, decedent JoAnn Evans suffered a
seizure-like incident and was admitted to Jeanes Hospital via their
emergency department. Decedent received treatment at Jeanes
Hospital until January 7, 2014 when she was transferred to
Kindred Hospital for post-acute care. Finally, on February 20,
2014 decedent was transferred to Somerton Center Nursing Home
(“Somerton”). Except for brief transfers to Aria Health Hospital,
Decedent Evans remained at Somerton until her death on March
30, 2014.

Upon decedent’s admission to Somerton, decedent’s son
Plaintiff James Fox was asked to sign a set of documents, including
____________________________________________

1 We note that while Fox appeals from the order granting Somerton’s motion
for reconsideration, it is essentially challenging the underlying order granting
Somerton’s petition to compel arbitration and dismissing Somerton from the
matter. Therefore, our analysis will be focused on that order.

2 Jeanes Hospital, Temple University Health System, Inc., Kindred Hospital-
Philadelphia, Jitha Rai, M.D., and Paul Karlin, D.O., are not parties to this
appeal.

3 See 42 Pa.C.S. § 8301.

4 See 42 Pa.C.S. § 8302.

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an Arbitration Agreement (“the Agreement”), entitled “Voluntary
Binding Arbitration Agreement.” The Agreement states at the top
that even if it is not signed, “the Patient will still be allowed to be
cared for in this Center.” Plaintiff Fox signed the Agreement on
behalf of his mother as her [p]ower of [a]ttorney and in his
individual capacity. In signing this agreement he assented to its
terms, affirmed that he had both read all four pages of the
Agreement, and had an opportunity to ask questions.

…

On June 8, 2016, following the death of his mother,
decedent JoAnn Evans, Plaintiff James Fox filed the instant
medical malpractice action against the doctors and facilities
involved in the care of decedent prior to her death. Specifically
as to Defendant Somerton, Plaintiff James Fox acting on behalf of
his mother brings an action for negligence and a survival action.
On his own behalf against Defendant Somerton, [Fox] brings a
claim for negligent infliction of emotional distress and an action
for wrongful death.

On September 23, 2016[,] Defendant Somerton filed a
[p]etition to [c]ompel [a]rbitration. In this Petition, Defendant
Somerton argued that the Arbitration Agreement was enforceable
because: (1) the Agreement was not unconscionable, and (2)
[Son]’s [s]tate of [m]ind was not a valid contractual defense so
as to invalidate the Agreement. In response, [Fox] alleged that
the Agreement was unenforceable because: (1) the Agreement
was coercively entered into, and (2) the Agreement is an
unconscionable adhesion contract. On November 18, 2016, after
supplemental briefing and oral argument on the matter this Court
denied [Somerton]’s [p]etition to [c]ompel [a]rbitration. On
December 6, 2016 [Somerton] timely filed a [m]otion for
[r]econsideration.

On January 3, 2017, in response to [Somerton]’s [m]otion
for [r]econsideration this Court ordered additional oral argument
in the matter and allowed for limited discovery related to the issue
of whether the Agreement was enforceable. Ultimately, on April
19, 2017 this Court granted [Somerton]’s [m]otion for
[r]econsideration thereby vacating the December 6 Order and
dismissing Defendant Somerton entirely from the case.

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Trial Court Opinion, 12/20/2017, at unnumbered 1-2. Fox filed a timely notice

of appeal.5

Fox raises the following issues for our review:

A. Did the [t]rial [c]ourt err in dismissing the lawsuit against
Defendant Somerton Nursing Home Center rather than
referring the arbitrable claims against Somerton to
arbitration, and retaining the wrongful death claim, and
ordering a stay of judicial proceedings in order for the parties
to arbitrate the claims against Somerton pursuant to [42]
Pa.C.S.A. § 7304?

B. Whether the trial court erred in its application of Taylor v.
Extendicare Health Facilities, Inc., 637 Pa. 163,147 A.3d
490, 509-10 (Pa. 2016), because [Son] is [the] beneficiary
and heir who can recover under the Wrongful Death Act, 42
Pa.C.S.A. § 8301(b), therefore, the wrongful death claim
should have been bifurcated from the purportedly arbitrable
survivor’s claim?

C. Whether the trial court erred in finding that the arbitration
agreement was enforceable and conscionable when the
Agreement was signed by Decedent’s son, who was neither
educated nor sophisticated, was under extreme duress and
reasonably believed that there was no alternative to entering
into the nursing home’s agreement in order to care for his
dying mother?

Fox’s Brief at 5-6.6

____________________________________________

5 On July 21, 2017, the trial court ordered Fox to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Fox filed a
concise statement on August 10, 2017. The trial court issued an opinion
pursuant to Pa.R.A.P. 1925(a) on December 20, 2017.

6 Based on the nature of Fox’s claims, we have reorganized them for ease of
disposition.

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In Fox’s first argument, he complains the trial court erred in dismissing

Somerton from judicial proceedings rather than ordering a stay of the judicial

proceedings. See Fox’s Brief at 53. Relying on 42 Pa.C.S. § 73047 and Stern

v. Prudential Fin., Inc., 836 A.2d 953, 955 n.1 (Pa. Super. 2003), Fox

states:

____________________________________________

7 Section 7304 of the Pennsylvania Arbitration Act provides, in relevant part:

(a) Compelling arbitration. — On application to a court to
compel arbitration made by a party showing an agreement
described in section 7303 (relating to validity of agreement to
arbitrate) and a showing that an opposing party refused to
arbitrate, the court shall order the parties to proceed with
arbitration. If the opposing party denies the existence of an
agreement to arbitrate, the court shall proceed summarily to
determine the issue so raised and shall order the parties to
proceed with arbitration if it finds for the moving party.
Otherwise, the application shall be denied.

…

(d) Stay of judicial proceedings. — An action or proceeding,
allegedly involving an issue subject to arbitration, shall be stayed
if a court order to proceed with arbitration has been made or an
application for such an order has been made under this section.
If the issue allegedly subject to arbitration is severable, the stay
of the court action or proceeding may be made with respect to the
severable issue only. If the application for an order to proceed
with arbitration is made in such action or proceeding and is
granted, the court order to proceed with arbitration shall include
a stay of the action or proceeding.

42 Pa.C.S. § 7304(a), (d). See also 9 U.S.C § 3 (federal provision directing
that where a trial court concludes a matter should go to arbitration pursuant
an agreement, the court shall stay the action until such arbitration has been
completed).

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When referring a matter to arbitration, the trial judge is not to
dismiss the case but is to stay the civil action until the arbitration
is completed.

Here, the [t]rial [c]ourt’s April 19, 2017 [o]rder granted
Somteron’s [p]etition to [c]ompel [a]rbitration and dismissed
Somerton from the case entirely. According to [Section] 7304,
the [t]rial [c]ourt instead should have stayed this matter pending
any arbitration proceeding between these parties.

Fox’s Brief at 54 (citation omitted).

Because this issue touches upon appealability, we must determine

whether we have jurisdiction over this appeal. N.A.M. v. M.P.W., 168 A.3d

256, 260 (Pa. Super. 2017) (citation omitted). With respect to jurisdiction,

[t]his Court may address the merits of an appeal taken from “(a)
a final order or an order certified as a final order; (2) an
interlocutory order [appealable] as of right; (3) an interlocutory
order [appealable] by permission; or (4) a collateral order.”
Commerce Bank v. Kessler, 2012 PA Super 100, 46 A.3d 724,
728 (Pa. Super. 2012), quoting Stahl v. Redcay, 2006 PA Super
55, 897 A.2d 478, 485 (Pa. Super. 2006) (citations omitted); see
also Pa.R.A.P. 341(b). “As a general rule, only final orders are
appealable, and final orders are defined as orders disposing of all
claims and all parties.” Am. Indep. Ins. Co. v. E.S., 2002 PA
Super 289, 809 A.2d 388, 391 (Pa. Super. 2002); see also
Pa.R.A.P. 341(a) (“[A]n appeal may be taken as of right from any
final order of a government unit or trial court.”).

Haviland v. Kline & Specter, P.C., 182 A.3d 488, 492 (Pa. Super. 2018).

“As a general rule, an order denying a party’s preliminary
objections is interlocutory and, thus, not appealable as of right.
There exists, however, a narrow exception to this oft-stated rule
for cases in which the appeal is taken from an order denying a
petition to compel arbitration.” Shadduck v. Christopher J.
Kaclik, Inc., 713 A.2d 635, 636 (Pa. Super. 1998) (citations
omitted). See also 42 Pa.C.S. § 7320(a)(1) (stating appeal may
be taken from court order denying application to compel
arbitration); Pa.R.A.P. 311(a)(8) (stating appeal may be taken as

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of right and without reference to Pa.R.A.P. 341(c) from order
“which is made appealable by statute or general rule.”).[8]

Elwyn v. DeLuca, 48 A.3d 457, 460 n.4 (Pa. Super. 2012). See also Davis

v. Ctr. Mgmt. Grp., LLC, 192 A.3d 173, 180 (Pa. Super. 2018).

When a court grants a petition to compel arbitration, we note the

following: “Typically, a trial court’s order directing a dispute to arbitration will

not be deemed final, as it does not address the merits of the parties’ claims

but merely transfers their existing dispute to another forum in accordance

with the arbitration provision of the underlying contract.” Fastuca v. L.W.

Molnar & Assocs., 950 A.2d 980, 986 (Pa. Super. 2008), citing Schantz v.

Gary Barbera Dodgeland, 830 A.2d 1265, 1266-1267 (Pa. Super. 2003).

See also Maleski v. Mut. Fire, 633 A.2d 1143, 1145-1146 (Pa. 1993).

Turning to the present matter, we ordinarily would follow Fastuca and

Maleski, however, we are faced with two problems. First, in its April 19,

2017, order, the trial court granted Somerton’s petition to compel arbitration

(via granting its motion for reconsideration), yet dismissed Somerton from the

matter. See Order, 4/19/2017. Consequently, it appears Fox would face no

opposing party when the case proceeds to arbitration. As noted above,

Section 7304(d) requires a stay of judicial proceedings when an issue is

____________________________________________

8 See also 42 Pa.C.S. § 7320(a)(2) (stating appeal may be taken from a
court order granting an application to stay arbitration made under section
7304).

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referred to arbitration. See Schantz, 830 A.2d at 1266.9 Second, as will be

discussed in detail below, it was an error on the trial court’s part to dismiss

Somerton altogether because Fox’s wrongful death cause of action does not

go to arbitration. Accordingly, we conclude the trial court improperly

dismissed Somerton from the proceedings before it, after referring the matter

to arbitration. Therefore, we remand and direct the court, upon motion of a

party, to reinstate Somerton as an opposing party and stay the matter pending

the resolution of the arbitration proceeding.10 Furthermore, we will now

address the remaining arguments.

____________________________________________

9 In its Rule 1925(a) opinion, the trial court did not discuss its decision to
dismiss Somerton from the matter or the question of appealability.

10 In Stern, supra, the case Fox relies on, a panel of this Court stated:

We recognize that, in general, an order compelling arbitration is
considered interlocutory. See, e.g., Schantz v. Gary Barbera
Dodgeland, 2003 PA Super 295, PP4-5, 830 A.2d 1265 (Pa.
Super. 2003); Rosy v. Nat'l Grange Ins. Co., 2001 PA Super
102, 771 A.2d 60, 61-62 (Pa. Super. 2001). However, when
referring a matter to arbitration, the trial judge is not to dismiss
the case but is to stay the civil action until the arbitration is
completed. Schantz v. Gary Barbera Dodgeland, 2003 PA
Super 295 at PP6-7, 830 A.2d 1265. Because the trial judge did
not do so here and instead dismissed the civil action, and because
the arbitration involved is binding arbitration, the order is a final
order. See Brown v. D. & P. Willow Inc., 454 Pa. Super. 539,
686 A.2d 14, 15 n.1 (Pa. Super. 1996) (order directing fee dispute
to binding arbitration was appealable and not interlocutory
because it contained “sufficient trappings of finality” in that
appellant was required to have dispute heard by local bar
association, not court of record, and arbitrators’ decision was non-

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Next, Fox claims the trial court erred in its application of Taylor v.

Extendicare Homes, Inc., 147 A.3d 490 (Pa. Sept. 28, 2016), cert. denied,

137 S. Ct. 1375 (U.S. 2017) (“Taylor II”), because Son is a beneficiary and

an heir who can recover under the Wrongful Death Act, and therefore, the

wrongful death claim should have been bifurcated from the purported

arbitrable survivor’s claim.11 See Fox’s Brief at 23-30. Relying on Pisano v.

Extendicare Homes, Inc., 77 A.3d 651 (Pa. Super. 2013), appeal denied,

86 A.3d 233 (Pa. 2014), cert. denied, 134 S. Ct. 2890 (U.S. 2014), Fox

expounds on its argument as follows:

Here, [Fox] entered an agreement on behalf of his mother
as her personal representative. After his mother’s death, [Fox]
became entitled by [Section] 8301(b) as a rightful beneficiary to
bring a wrongful death action. The wrongful death claims here
____________________________________________

appealable). Therefore, we have jurisdiction over this matter, and
it is proper for us to remand to the trial court.

Stern, 836 A.2d at 955 n.1.

11 Section 8301, which governs wrongful death claims, states:

An action may be brought, under procedures prescribed by
general rules, to recover damages for the death of an individual
caused by the wrongful act or neglect or unlawful violence or
negligence of another if no recovery for the same damages
claimed in the wrongful death action was obtained by the injured
individual during his lifetime and any prior actions for the same
injuries are consolidated with the wrongful death claim so as to
avoid a duplicate recovery.

42 Pa.C.S. § 8301(a). Section 8302, which governs survival actions, provides:
“All causes of action or proceedings, real or personal, shall survive the death
of the plaintiff or of the defendant, or the death of one or more joint plaintiffs
or defendants.” 42 Pa.C.S. § 8302.

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are not being brought by him in his personal representative
capacity on behalf of [Decedent] or the Estate. Unlike wrongful
death claims brought by a personal representative pursuant to
[Section] 8301(d), [Son’s Section] 8301(b) claims are not
derivative of his mother’s rights. The fact that he signed the
Arbitration Agreement while acting as a personal representative
for his mother has no bearing on his own rights or claims. As this
Court in Pisano unequivocally stated: “[the signatory plaintiff]
does not have an agreement with [the nursing facility] to
arbitrate. [The nursing facility’s] agreement is between it and
Decedent alone.” Pisano, 77 A.3d at 661 (emphasis added).
“Regardless of [the nursing facility’s] intent, Pennsylvania’s
wrongful death statute … does not characterize [the signing
plaintiff] and other wrongful death claimants as third-party
beneficiaries.” Id.

Whatever Somerton’s intent was, it cannot characterize a
contract between itself and a patient as also applicable to or
enforceable on wrongful death claimants who bear their own
separate statute-derived claims. Therefore, [Fox] … cannot be
compelled to arbitrate the wrongful death claim.

Fox’s Brief at 29-30 (emphasis in original).

Our scope and standard of review are as follows.

[A]rbitration is a matter of contract and, as such, it is for the court
to determine whether an express agreement between the parties
to arbitrate exists. Because the construction and interpretation of
contracts is a question of law, the trial court’s conclusion as to
whether the parties have agreed to arbitrate is reviewable by this
Court. Our review is plenary, as it is with any review of questions
of law.

Midomo Co., Inc. v. Presbyterian Housing Dev. Co., 739 A.2d 180, 187

(Pa. Super. 1999).

A contract shall be interpreted in accordance with the parties’
intent. When a written contract is clear and unambiguous, the
parties’ intent is contained in the writing itself. A party will be
bound by this writing regardless of whether he or she read and
fully understood its terms. A court cannot alter these terms

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“under the guise of construction.” Unless otherwise specified, a
contract’s language shall be given its plain and ordinary meaning.

Wert v. Manorcare of Carlisle PA, LLC, 124 A.3d 1248, 1259 (Pa. 2015),

cert. denied, 136 S. Ct. 1201 (U.S. 2016).

Furthermore, while we recognize the trial court granted Somerton’s

petition to compel arbitration, we are guided by the following: “Our 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.” Davis v. Ctr. Mgmt.

Group, LLC, 192 A.3d 173 (Pa. Super. 2018), quoting Cardinal v. Kindred

Healthcare, Inc., 155 A.3d 46, 49-50 (Pa. Super. 2017), appeal denied, 170

A.3d 1063 (Pa. 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), appeal denied, 167 A.3d 702 (Pa. 2017).

With regard to the first element, Fox does not dispute that he entered

into an agreement on the behalf of the Decedent with Somerton. Therefore,

we need not examine whether a valid agreement to arbitrate exists. With

respect to the second element, we note that “[w]hether a claim is within the

scope of an arbitration provision is a matter of contract, and as with all

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questions of law, our review of the trial court’s conclusion is plenary.” Elwyn,

48 A.3d at 461. Furthermore,

[i]n general, only parties to an arbitration agreement are subject
to arbitration. See Cumberland-Perry Area Vocational-
Technical School v. Bogar & Bink, 261 Pa. Super. 350, 396
A.2d 433 (Pa. Super. 1978) (parties cannot be compelled to
arbitrate disputes absent agreement to arbitrate). However, a
nonparty, such as a third-party beneficiary, may fall within the
scope of an arbitration agreement if that is the parties’ intent. Cf.
Highmark Inc. v. Hospital Service Association of
Northeastern Pennsylvania, 2001 PA Super 278, 785 A.2d 93
(Pa. Super. 2001) (third-party beneficiary may enforce arbitration
clause even though it is not a signatory to the contract).

Smay v. E.R. Stuebner, Inc., 864 A.2d 1266, 1271 (Pa. Super. 2004). While

“the courts of this Commonwealth strongly favor the settlement of disputes

by arbitration,”12 “arbitration agreements are to be strictly construed and such

agreement[s] should not be extended by implication.”13

The historical application of arbitration to wrongful death and survival

act causes of action is complex, arduous, and fact-specific. Accordingly, we

will focus on the two cases largely relied upon by the trial court and Fox,

Pisano, supra, and Taylor II, supra, as we find them persuasive in this

matter. In Pisano, supra, a nursing facility appealed from the trial court’s

order denying its preliminary objections to the trial court’s jurisdiction over a

wrongful death suit by the plaintiff, the son and administrator of the estate of

____________________________________________

12Smith v. Cumberland Group, Ltd., 687 A.2d 1167, 1171 (Pa. Super.
1997).

13 Elwyn, 48 A.3d at 461.

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the decedent, based upon the existence of an alternative dispute resolution

(“ADR”) agreement between the nursing home and the decedent. See

Pisano, 77 A.3d at 653. The nursing home sought to compel arbitration based

on the ADR agreement, which the decedent’s daughter had signed on his

behalf upon his admission to the nursing home. The trial court in Pisano

overruled the nursing home’s preliminary objections, and determined that

while “a wrongful death action ‘lies in the tortious act which would support a

survival action,’ [the wrongful death claim] ‘is independent of the decedent’s

estate’s rights to an action against the tortfeasor.’” Id. at 654 (citation

omitted). The issue on appeal was whether the trial court committed “an error

of law by refusing to compel arbitration of [plaintiff’s] wrongful death action

where, under Pennsylvania law, a wrongful death plaintiff’s right of action is

derivative of, and therefore limited by, the decedent’s rights immediately

preceding death[.]” Id. at 653-654.

After analyzing the nature of wrongful death claims and the definition of

“derivative,” a panel of this Court concluded the plaintiff’s wrongful death

claim was not derivative of and defined by the decedent’s rights, stating:

[W]rongful death actions are derivative of decedents’ injuries but
are not derivative of decedents’ rights. This conclusion aligns with
the proper use of the term “derivative action” and is consistent
with the Supreme Court’s pronouncement in Kaczorowski [v.
Kalkosinsk, 184 A. 663 (Pa. 1936)], which explained:

We have announced the principle that the [wrongful death]
statutory action is derivative [of the survival action] because
it has as its basis the same tortious act which would have
supported the injured party’s own cause of action. Its

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derivation, however, is from the tortious act, and not from
the person of the deceased, so that it comes to the parties
named in the statute free from personal disabilities arising
from the relationship of the injured party and tort-feasor.

Kaczorowski, 184 A. at 664.

Pisano, 77 A.3d at 660. Furthermore, the Pisano Court determined the

plaintiff was not bound under the agreement to arbitrate the wrongful death

action,14 and held:

____________________________________________

14 Specifically, the Court acknowledged:

[The nursing home]’s agreement is between it and Decedent
alone. Regardless of [the nursing home]’s intent, Pennsylvania’s
wrongful death statute … does not characterize [the plaintiff] and
other wrongful death claimants as third-party beneficiaries. It is,
therefore, clear under relevant contract law that the trial court
herein properly refused to compel arbitration. As this Court stated
previously, “[T]he existence of an arbitration provision and a
liberal policy favoring arbitration does not require the rubber
stamping of all disputes as subject to arbitration.” McNulty v.
H&R Block, Inc., 2004 PA Super 45, 843 A.2d 1267, 1271 (Pa.
Super. 2004). This is especially true where, as here, holding
otherwise would operate against principles of Pennsylvania
contract law and the FAA. Gaffer [Insurance Company, Ltd. v.
Discover Reinsurance Company], 936 A.2d at 1113 (quoting
E.E.O.C. [v. Waffle House, Inc., 534 U.S. 279, 293 (2002)])
(“Notwithstanding this favorable federal policy towards arbitration
agreements, the Federal Arbitration Act ‘does not require parties
to arbitrate when they have not agreed to do so.’”).

Furthermore, … compelling arbitration upon individuals who
did not waive their right to a jury trial would infringe upon
wrongful death claimants’ constitutional rights. This right, as
preserved in the Seventh Amendment of the United States
Constitution, “is enshrined in the Pennsylvania Constitution,” and
“the constitutional right to a jury trial, as set forth in Pa. Const.
art. 1, § 6, does not differentiate between civil cases and criminal

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[The] Pennsylvania’s wrongful death statute creates an
independent action distinct from a survival claim that, although
derived from the same tortious conduct, is not derivative of the
rights of the decedent. We conclude, therefore, that the trial court
did not abuse its discretion in determining that Decedent’s
contractual agreement with [the nursing home] to arbitrate all
claims was not binding on the non-signatory wrongful death
claimants.

Id. at 663.

Following Pisano, in Taylor v. Extendicare Health Facilities, Inc.,

113 A.3d 317 (Pa. Super. 2015) (“Taylor I”), the underlying case involved

multiple negligence claims against numerous defendant health care facilities

for incidents that occurred and were alleged to have ultimately caused the

decedent’s death.15 Taylor, 113 A.3d at 319. A panel of this Court held that

despite the distinctions recognized in Pisano regarding wrongful death and

____________________________________________

cases.” Bruckshaw v. Frankford Hospital of City of
Philadelphia, 58 A.3d 102, 108-109 (Pa. 2012). Denying
wrongful death claimants this right where they did not waive it of
their own accord would amount to this Court placing contract law
above that of both the United States and Pennsylvania
Constitutions. Commonwealth v. Gamble, 62 Pa. 343, 349
(1869) (“But that the legislature must act in subordination to the
Constitution needs no argument to prove . . . .”).

Pisano, 77 A.3d at 661-662.

15The co-executors of the estate filed the lawsuit, which included wrongful
death and survival actions. Based on the opinion, it is unclear how the co-
executors were related to the decedent.

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survival claims, Pa.R.C.P. 213(e)16 and 42 Pa.C.S. § 8301(a) required

consolidation of wrongful death and survival actions for trial. Taylor, 113

A.3d at 325.

However, subsequently, the Pennsylvania Supreme Court reversed the

decision in Taylor I, holding that Rule 213(e) conflicts with the Federal

Arbitration Act (“FAA”)17 and therefore, is preempted. Taylor II, 147 A.3d at

510 (“The Supreme Court has made clear that bifurcation and piecemeal

litigation is the tribute that must be paid to Congressional intent.”).18 The

Supreme Court in Taylor II also opined:

The only exception to a state’s obligation to enforce an arbitration
agreement is provided by the savings clause, which permits the
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16 Rule 213(e) provides: “(e) A cause of action for the wrongful death of a
decedent and a cause of action for the injuries of the decedent which survives
his or her death may be enforced in one action, but if independent actions are
commenced they shall be consolidated for trial.” Pa.R.C.P. 213(e).

17 See 9 U.S.C. § 1 et seq. The FAA provides that arbitration agreements
“shall be valid, irrevocable, and enforceable, save upon such grounds as exist
at law or in equity for the revocation of any contract.” 9 U.S.C. § 2.

18 The Supreme Court also stated:

We recognize that Rule 213(e) is a procedural mechanism to
control case flow, and does not substantively target arbitration.
However, the Supreme Court directed … that state courts may not
rely upon principles of general law when reviewing an arbitration
agreement if that law undermines the enforcement of arbitration
agreements. We cannot require a procedure that defeats an
otherwise valid arbitration agreement, contrary to the FAA, even
if it is desirable for the arbitration-neutral goal of judicial
efficiency.

Taylor II, 147 A.3d at 510.

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application of generally applicable state contract law defenses
such as fraud, duress, or unconscionability, to determine whether
a valid contract exists. Pursuant to the savings clause, the
compulsory joinder mandate of Rule 213(e) could bar the trial
court from bifurcating the Taylors’ arbitrable survival action from
its pending litigation in state court only if it qualifies as a generally
applicable contract defense.

Taylor II, 147 A.3d at 509 (citations and footnote omitted). As such, the

Supreme Court remanded the matter to the trial court, providing “the parties

will have the opportunity to litigate whether there is a valid and enforceable

arbitration contract in accord with generally applicable contract defenses and

the FAA’s savings clause.” Id. at 513.

Turning to the present matter, the trial court found the following:

[T]he present case presents two distinct causes of action,
decedent JoAnn Evans’s survival action and Plaintiff James Fox’s
wrongful death action, which are not required to proceed together.
It is not disputed that decedent’s survival action is within the
scope of the Agreement. Thus, decedent’s survival claim must go
to arbitration pursuant to the Agreement because as discussed
above[,] the Agreement is enforceable because it is not
unconscionable. The only remaining issue then is whether
[Fox]’s wrongful death claim is subject to the terms of the
Agreement.

Interpretation of an arbitration agreement is governed by
principles of contract law. It is well settled in Pennsylvania that a
contract that is clear on its face should be interpreted according
to the language of the agreement. In this case, the Agreement
begins by stating that the Agreement is between the Patient, the
Patient’s representative, and Defendant Somerton. This is
reiterated in paragraph 15, which states that the agreement is
binding on both the Patient and the Patient’s representative.
Finally, below the signature line the Agreement states that the
Patient’s representative is signing the Agreement both individually
and as an agent of the Patient. Thus[,] in this case, where the
agreement plainly states that it is binding on both decedent and
on Plaintiff James Fox as decedent’s representative, the

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unambiguous language of the Agreement must be given effect so
as to capture the wrongful death action within the scope of the
Agreement.

In spite of the plain language of the Agreement, [Fox]
argues that case precedent compels the opposite result. See
Taylor, 147 A.3d at 493; Pisano, 77 A.3d at 660; White v.
Genesis Healthcare, No. 736 (Ct. Comm. Pls. July 27, 2016);
Lipshutz v. St. Monica Manor, 2013 WL 7020480 at *4 (Ct.
Comm. Pls. 2013). [Fox], though, misconstrues the relevant case
law. Most recently, this issue was examined by the Pennsylvania
Supreme Court in Taylor, which stands for the proposition that
wrongful death and survival claims can be bifurcated as discussed
above. 147 A.3d at 510. Taylor though is inapplicable here,
where the Agreement specifically states that Plaintiff James Fox
was signing in both his individual and representative capacity.
Therefore, even though Taylor would allow for [Fox]’s individual
wrongful death claim to be bifurcated from decedent’s survival
claim, it is not necessary to bifurcate the claims because the
Agreement per its own terms applies to both actions. See Taylor,
147 A.3d at 510; Lesko, 15 A.3d at 341-42; Wert, 124 A.3d at
1260.

Prior to Taylor, the Superior Court examined a similar
agreement in Pisano. 77 A.3d at 660. In Pisano, the Superior
Court held that non-signatory wrongful death claimants cannot be
bound by the terms of an arbitration agreement. Id. Subsequent
case law has affirmed the limited holding of Pisano. See, e.g.,
Taylor, 147 A.3d at 499 (affirming that Pisano stands for the
proposition that an arbitration agreement cannot be enforced
against a non-signatory wrongful death beneficiary); White, 2016
WL 4410001 (stating that Pisano stands for the proposition that
a “non–signatory claimant cannot be compelled to arbitration”).
Thus, Pisano does not apply in this case because the claimant is
a signatory to the Agreement. See 77 A.3d at 660; see also
Taylor, 147 A.3d at 499.

Plaintiff also urges this Court to consider White v.
Genesis Healthcare. See 2016 WL 4410001. In White, the
Honorable Judge New of the Philadelphia Court of Common Pleas
found that an arbitration agreement did not apply to compel both
a wrongful death and survival action to arbitration where the
representative signatory signed only in her representative
capacity. Id. That is simply not the case here where the

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J-A12022-18

Agreement makes clear that Plaintiff James Fox was signing as
both an individual and as decedent's representative. See Burkett
[v. St. Francis Country], 133 A.3d at 31 n.13 (stating in a non-
precedential opinion that the enforceability of arbitration
agreements should be interpreted according to the specific
language of each agreement).

Trial Court Opinion, 12/20/2017, at unnumbered 11-13 (some citations

omitted). To summarize, the trial court determined that despite the fact that

Fox’s Wrongful Death Act and Survival Act claims were distinct, both Pisano

and Taylor II were not applicable to these claims, and therefore, the

agreement bound both Decedent and Son, as Decedent’s representative, to

arbitration because: (1) Son was a signatory to the Agreement; (2) the

agreement began by stating it was between the patient, the patient’s

representative, and Somerton; (3) it was reiterated in the fifteenth paragraph

that the agreement is binding on both the patient and the patient’s

representative; and (4) below the signature line, the agreement stated the

patient’s representative is signing both individually and as an agent of the

patient.

We are compelled to disagree based on a review of the record and

because we find Taylor II controlling. The Agreement provides, in pertinent

part:

VOLUNTARY BINDING ARBITRATION AGREEMENT
(“Agreement”)

If this Agreement is not signed, the Patient will still be
allowed to be cared for in this Center.

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J-A12022-18

This Agreement by and between the Patient and/or the Patient’s
Representative (hereinafter collectively referred to as “Patient”)
and the Center (“Center” as indicated on page 4), is an Agreement
intended to resolve by binding arbitration any dispute (as
described below) related to any admission at the Center.

THIS AGREEMENT WAIVES THE RIGHT TO A TRIAL BY
JUDGE OR JURY. PLEASE READ CAREFULLY.

…

2. Disputes to be Arbitrated. Any and all claims or
controversies arising out of or in any way relating to this
Agreement or the Patient’s stay at the Center, including all prior
stays at the Center, including disputes regarding interpretation
and/or enforceability of this Agreement, whether arising out of
state or federal law, whether existing now or arising in the future,
whether for statutory, compensatory or punitive damages and
whether sounding in breach of contract, negligence, tort or breach
of statutory duties (including, without limitation, claims based on
personal injury or death), regardless of the basis for any duty or
of the legal theories upon which the claim is asserted, shall be
submitted to binding arbitration. However, where the amount in
controversy does not exceed the amount provided by state law for
the jurisdiction of the small claims court, at the Patient’s or
Center’s option, such dispute may be heard in such small claims
court. However, an appeal from an award by the small claims
court, by either the Patient or the Center, shall be arbitrated in
accordance with the terms of this Agreement.

…

15. Binding on Parties and Others. It is the parties’ intention
that this Agreement shall inure to the direct benefit of and bind
the Center, its parent, affiliates, subsidiary companies, owners,
officers, directors, medical directors, employees, successors,
assigns and agents and shall inure to the direct benefit of and bind
the Patient, his/her successors, spouses, children, assigns,
agents, third party beneficiaries, heirs, trustees and
representatives, including the personal representative or executor
of his/her estate, and any person whose claim is derived through
or on behalf of the Patient.

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J-A12022-18

Arbitration Agreement at 1-3 (emphasis in original); see also R.R. 190-192.

The signature block at the end of the Agreement is set forth as follows:

THE PARTIES CONFIRM THAT EACH OF THEM HAS READ ALL 4
PAGES OF THIS AGREEMENT, HAS HAD AN OPPORTUNITY TO ASK
QUESTIONS ABOUT THIS AGREEMENT, VOLUNTARILY INTENDS
TO BE LEGALLY BOUND AND UNDERSTANDS THAT BY SIGNING
BELOW, EACH OF THEM HAS WAIVED THE RIGHT TO A TRIAL BY
JUDGE OR JURY, EACH OF THEM CONSENTS TO ALL TERMS OF
THIS AGREEMENT AND EACH OF THEM UNDERSTANDS THAT THIS
AGREEMENT IS VOLUNTARY AND IS NOT A PRECONDITION TO
RECEIVING SERVICES AT THE CENTER.

PATIENT: OR PATIENT’S
REPRESENTATIVE:
____________________
(Printed Name) (Date) __________________
(Printed Name) (Date)

____________________
Signature of Patient’s
Representative in his/her
individual capacity and in
his/her capacity as power of
attorney, legal guardian or
agent authorized to bind
Patient to this Agreement.

Arbitration Agreement at 4 (emphasis in original); see also R.R. 193a. In the

“patient” signature block, “Joanne Evans 2/20/14” is printed on the line. In

the “patient’s representative” signature block, “Jim Fox Feb. 20, 2014” is

printed on the top line and written in cursive on the second line. Id.

We do not find that by signing both lines of the Agreement, Son

contracted away his own rights to a jury trial for any personal claim that he

possessed. The Agreement states it is between “the Patient and/or the

Patient’s Representative (hereinafter collectively referred to as ‘Patient’)” and

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J-A12022-18

Somerton. Arbitration Agreement at 1 (emphasis in original); see also R.R.

190a. The signature line is the first time in the Agreement that refers to a

“patient’s representative” in his “individual capacity.” See Arbitration

Agreement at 4 (signature page); see also R.R. 193a. Prior to that point, the

language in the Agreement utilized the “patient’s representative” as a power

of attorney, guardian, and/or agent, which is permitted in circumstances

where a patient is admitted to a nursing facility. Moreover, the legal options

covered by the Agreement, as set forth in Paragraph 2, are all derivative from

the Patient, as provided in Paragraph 15 (“any person whose claim is derived

through or on behalf of the Patient”). Arbitration Agreement at 1, 3; see also

R.R. 190a, 192a. Significantly, the Agreement does not provide language

notifying a “patient’s representative” that wrongful death claims are not

derived from the patient’s own causes of actions. In fact, under Pisano,

supra, wrongful death claims are not derivative of a decedent’s rights.

Pisano, 77 A.3d at 660.19 The Agreement never addresses the implications

____________________________________________

19 The distinction between the wrongful death and survival actions is
explained in Pisano as follows:

The survival action has its genesis in the decedent’s injury, not his
death. The recovery of damages stems from the rights of action
possessed by the decedent at the time of death . . . . In contrast,
wrongful death is not the deceased’s cause of action. An action
for wrongful death may be brought only by specified relatives of
the decedent to recover damages in their own behalf, and not as
beneficiaries of the estate . . . . This action is designed only to

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J-A12022-18

of a “patient’s representative” signing in his individual capacity. Accordingly,

without more specific provisions in the Agreement clarifying a “patient’s

representative’s” individual obligation, it is a nullity to conclude that by signing

on the “patient’s representative” signature lines, one is agreeing to be bound

to the document in his own capacity.20, 21 Accordingly, when Fox signed the

Agreement, he did not modify or disrupt his own right, or the rights of other

family members and/or beneficiaries, to bring a wrongful death claim before

the trial court. See 42 Pa.C.S. § 8301. Therefore, the trial court abused its

discretion in granting Somerton’s petition to compel arbitration of Fox’s

____________________________________________

deal with the economic effect of the decedent’s death upon the
specified family members.

Pisano, 77 A.3d at 658-659, quoting Moyer v. Rubright, 651 A.2d 1139,
1141 (Pa. Super. 1994).

20 We note that there may be an exception to this determination if the matter
involved a parent/guardian and minor child being admitted to a nursing
facility. However, that limited exception is not applicable to the facts of the
present appeal.

21 We acknowledge that in Del Ciotto v. Pa. Hosp. of the Univ. of Penn
Health Sys., 177 A.3d 335, 356-357 (Pa. Super. 2017), a panel of this Court
found the plaintiff-representative did not intend to individually bind himself to
arbitration in a nursing care facility negligence action because he did not sign
on the patient representative’s “individual capacity” line. Here, as noted
above, Son signed both lines. Nevertheless, we find the definition of Patient
language in the contract does not mean Son signed in any other capacity than
power of attorney.

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J-A12022-18

wrongful death claims. As such, Fox is entitled to a trial on the wrongful death

cause of action.22

Lastly, Fox contends the trial court erred in finding the arbitration

agreement was enforceable and conscionable. See Fox’s Brief at 39. Fox

argues the Agreement is a “contract of adhesion because it significantly favors

Somerton to the detriment of its elderly and infirm patients and their families

who are similarly forced to sign this Agreement.” Id. at 39-40. Second, Fox

asserts the Agreement is substantively unconscionable because “it was highly

favorable to Somerton to the detriment of [Decedent] and [Son].” Id. at 48.

Fox also points to certain provisions in the Agreement, which it claims are

unconscionable. Id. at 50-53.

“Unconscionability has generally been recognized to include an
absence of meaningful choice on the part of one of the parties
together with contract terms which are unreasonably favorable to
the other party.” MacPherson [v. Magee Meml. Hosp. for
Convalescence], 128 A.3d [1209, 1221 (Pa. Super. 2015)],
quoting Williams v. Walker—Thomas Furniture Company,
350 F.2d 445, 449, 121 U.S. App. D.C. 315 (D.C. Cir. 1965). The
party challenging the agreement bears the burden of proof.
Salley v. Option One Mortg. Corp., 592 Pa. 323, 925 A.2d 115,
129 (Pa. 2007).

____________________________________________

22 Moreover, Fox contends that Son “signed the Arbitration Agreement strictly
as his mother’s personal representative under her Power of Attorney, not in
his individual capacity, and therefore, he did not waive his own rights or
claims.” Fox’s Brief at 30. In its Rule 1925(a) opinion, the trial court noted
Fox “did not advance this argument previously before the Court,” but
nonetheless addressed the merits of the argument and determined Fox
misconstrued the legal precedent with respect to the issue. See Trial Court
Opinion, 12/20/2017, at unnumbered 11-14. Based on our above-provided
analysis, we need not address this claim further. See also Pa.R.A.P. 302(a).

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J-A12022-18

An unconscionability analysis requires a two-fold determination:
(1) that the contractual terms are unreasonably favorable to the
drafter (“substantive unconscionability”), and (2) that there is no
meaningful choice on the part of the other party regarding the
acceptance of the provisions (“procedural unconscionability”).
MacPherson, 128 A.3d at 1221 (citations omitted). Courts have
refused to hold contracts unconscionable simply because of a
disparity of bargaining power between the two parties. Witmer
v. Exxon Corp., 495 Pa. 540, 434 A.2d 1222, 1228 (Pa. 1981);
see also K & C, Inc. v. Westinghouse Electric Corp., 437 Pa.
303, 263 A.2d 390 (Pa. 1970).

Cardinal, 155 A.3d at 53.

Here, the trial court found the following:

i. The Agreement is Not Substantively Unconscionable

As to the first requirement, that the terms of the contract
unreasonably favor the drafter, Plaintiff James Fox has asserted
that this is so because the Agreement was drafted by Somerton
to serve its exclusive purposes and was designed to specifically
limit [Fox]’s rights, damages, and remedies. [Fox], though, in
making this argument misconstrues the essential consideration of
this requirement – reasonableness. See Salley, 925 A.2d at 333,
350 (noting that reasonableness is the touchstone of this
requirement). In this regard, the relevant consideration is not
whether the Agreement favors the drafter at all, but rather
whether the Agreement unreasonably favors the drafter. See id.
(finding an agreement unreasonably favored the drafter where it
required the signatory to pay arbitration fees in order [to] initiate
a claim); Cardinal, 155 A.3d at 54 (finding an agreement did not
unreasonably favor the drafter where it made clear the
consequences of signing and stated that signing was not a
condition to receive care in the nursing facility); MacPherson v.
Magee Meml[.] Hosp. for Convalescence, 128 A.3d 1209,
1221 (Pa. Super. 2015) (finding that an agreement did not
unreasonably favor the drafter where it made clear the
consequences of signing and did not impose greater fees on the
signatory than they would incur in general civil litigation).

In this instant case, the Agreement does not unreasonably
favor the drafter, Somerton, for two reasons. First, the
Agreement makes expressly clear on its face that assenting to the

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J-A12022-18

Agreement is voluntary. See Cardinal, 155 A.3d at 54;
MacPherson, 128 A.3d at 1221. In fact the Agreement uses the
term “voluntary” in reference to the Agreement in its title and then
again at least three other times in the text of the Agreement. At
the same time, the Agreement did not condition decedent’s care
on [Fox] signing the agreement, further underscoring the
voluntary nature of the Agreement. See Cardinal, 155 A.3d at
54 (finding that an agreement was not unconscionable and
reasoning in part that this was so because the agreement stated
in bold print at the top that signing the arbitration agreement was
not a condition of receiving care); MacPherson, 128 A.3d at 1221
(finding an agreement was not unconscionable and reasoning that
this was so because the agreement stated that the patient would
still receive care even if the arbitration agreement was not
signed).

Second, even though the Agreement states that Plaintiff
James Fox waived certain rights, it also bestows some advantages
on [Fox]. Specifically, clause seven of the Agreement gave [Fox]
thirty days to revoke assent to the Agreement and clause eight
allowed [Fox] to have the Agreement reviewed by an attorney.
See Cardinal, 155 A.3d at 54 (reasoning that similar provisions
in an arbitration agreement made the agreement not
unconscionable). Here, even though the Agreement did
undoubtedly favor Somerton, the Agreement also made
allowances for [Fox] that evened the playing field between the
parties. Therefore, in so much as the agreement was voluntary
and as it made certain allowances for [Fox] the Agreement is not
so one sided that it can be said to unreasonably favor Defendant
Somerton. See id.

ii. The Agreement is Not Procedurally Unconscionable

An agreement is procedurally unconscionable where one party
lacks meaningful choice in the acceptance of the agreement.
Salley, 925 A.2d at 331. Here, [Fox] argues that he lacked
meaningful choice because the nature of the Agreement was not
disclosed to him at the time of its signing, the Agreement was
presented in a “take it or leave it” fashion, Defendant Somerton
had superior bargaining power, and [Fox] has limited reasoning
ability and a limited educational background. Each of these
arguments is addressed in turn below.

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J-A12022-18

[Fox]’s first argument that the nature of the agreement was
not disclosed to him at the time of its signing is simply not
supported by the facts in this case. The agreement itself plainly
states that signing the agreement waives [Fox]’s right to a jury
trial. So here, even if [Fox]’s contention that the paperwork was
not orally explained to him is true, that does not mean the nature
of the Agreement was never disclosed to [Fox] because in this
case the Agreement plainly states on its face the consequences of
signing. See Cardinal, 155 A.3d at 54; MacPherson, 128 A.3d
at 1221. It should also be noted that [Fox], by his own admission,
never read the paperwork he was given and never asked any
questions about the documents, despite ample opportunity to do
so. See Hinkal v. Pardoe, 133 A.3d 738, 743 (Pa. Super. 2016)
(stating that failure to read a written agreement does not render
it unenforceable); Patriot Commercial Leasing Co. v. Kremer
Restaurant Enterprises, LLC, 915 A.2d 647, 651 (Pa. Super.
2006) (stating that a party to a contract cannot avoid the contract
merely because they did not read the contract). In his own
deposition, [Fox] states that a representative of Defendant
Somerton sat with him for ten to twenty minutes while he
reviewed the admissions paperwork. During this time he states
that he did not ask any questions despite the fact that a
representative – whom [Fox] even describes as “very nice” – was
made available to [Fox] for as long as he needed to review the
paperwork. Taking the factual record on the whole, this is not a
case of non-disclosure as [Fox] argues that it is, rather this is a
case where [Fox] did not undertake even the slightest effort to
read or understand the paperwork he was presented with. 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); MacPherson, 128 A.3d at
1221 (same)[.]

Second, [Fox] argues that the Agreement was presented to
him in a “take it or leave it fashion,” but this argument is
unfounded given the factual record. The Agreement itself states
multiple times that it is a voluntary agreement. In fact, the title
of the document is “Voluntary Arbitration Agreement.” As such,
[Fox] did not have to “take it or leave it” as he argues, but instead
was given a choice as to whether or not to sign. Moreover, and
even more detrimental to [Fox]’s argument, is the fact that the
agreement states in multiple places that decedent’s care was not
conditioned on signing the Agreement. In obvious language, the
agreement states in bold, underlined print at the top of the

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J-A12022-18

document, “[i]f this Agreement is not signed, the Patient will still
be allowed to be cared for in this Center.” This information is
reiterated again in paragraph three and then finally above the
signature block. Therefore, given that the Agreement states in
multiple places that signing it is voluntary and that signing the
agreement is not a prerequisite for care, this agreement was not
presented in a “take it or leave it” fashion, but rather [Fox] had a
choice in whether to sign and that choice was made known to him
in multiple places on the document. See Cardinal, 155 A.3d at
54; MacPherson[,] 128 A.3d at 1221.

Third, [Fox] argues that Defendant [Somerton] had superior
bargaining power. Here, it is certainly true that Defendant
Somerton, as drafter of the Agreement, was in a better bargaining
position than [Fox]. At the same time, though, the Agreement
makes several allowances that make the Agreement more fair to
[Fox]. As stated above, the Agreement was entirely voluntary.
Similarly, the Agreement gave [Fox] a thirty day window during
which [Fox] could revoke his assent to the Agreement. Further,
paragraph eight of the Agreement allows for the Agreement to be
reviewed by an attorney prior to signing. So, even though,
Defendant Somerton likely was in a better bargaining position
than [Fox], [Fox] still enjoyed some procedural safeguards that
gave [Fox] certain rights and shored up the strength of [Fox]’s
position. See Cardinal, 155 A.3d at 54; MacPherson. 128 A.3d
at 1221.

Finally, [Fox] has also argued that [Son] has a limited
educational background and reasoning ability. Even if this is in
fact true, [Fox] did not meet their burden of proof. At oral
argument, [Fox]’s counsel stated that Mr. Fox was “a challenged
individual,” but provided no affidavits or other sources of factual
proof to support this contention. N.T. 3/1/17 at 18, 19-20.
Instead, [Fox]’s counsel urged this Court to consider [Son]’s
deposition on the whole noting “if you read the deposition, I think
you can see what kind of human being he is.” Id. at 19. While
certain parts of [Son]’s deposition, particularly the fact that he
has never lived independently, tend to demonstrate that [Son]
may have some challenges there is simply not enough on the
record to state conclusively that [Son] is so challenged as to be
unable to reason or understand the Agreement. Id. at 18-22.

Trial Court Opinion, 12/20/2017, at unnumbered 5-9.

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J-A12022-18

Upon review of the record, the parties’ briefs, the relevant case law, we

find the trial court acted properly in determining that the Agreement should

not be invalidated on the basis of procedural or substantive unconscionability.

Fox’s arguments that the Agreement was presented in a “take it or leave it

fashion” and Somerton had superior bargaining power are unfounded. The

court’s analysis accurately addresses these concerns, and we affirm on that

basis while highlighting the following. Of most importance, at the top of the

Agreement, in bold typeface and underlined, the Agreement states that it is

voluntary, it waived the right to a trial by judge or jury, and that if “it is not

signed, the patient will still be allowed to be cared for in” the facility.

Arbitration Agreement at 1; see also R.R. 190a.23 Second, the Agreement

provided the patient with the following: (1) a 30-day window during which he

or she could revoke his or her assent to the Agreement; and (2) the right to

have the document reviewed by an attorney if he or she chooses. Arbitration

Agreement at 1, ¶ 8; see also R.R. 191a. Lastly, the Agreement provides

that the parties pay their own fees and costs, which is similar to civil litigation

practice in common pleas court, but Somerton will pay the arbitrators’ fees

and costs, with the exception of disputes regarding nonpayment. Arbitration

Agreement at 3, ¶ 16; see also R.R. 192a; MacPherson. 128 A.3d at 1221-

____________________________________________

23 This language is also stated in other places of the document. Arbitration
Agreement at 1, ¶¶ 3, 5; Arbitration Agreement at 4; see also R.R. 191a,
193a.

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J-A12022-18

1222. Accordingly, we conclude the trial court did not err in finding that the

Agreement was enforceable and conscionable. Therefore, Fox’s final

argument fails.

In summary, we find the following: (1) the trial court erred in dismissing

Somerton from the case and in failing to stay the proceedings before it while

referring the matter to arbitration; (2) the court abused its discretion in

compelling arbitration of Fox’s wrongful death claim; and (3) the court did not

err in finding the Agreement was neither procedurally nor substantively

unconscionable, and therefore, it was enforceable as to all claims other than

Son’s wrongful death action.

April 19, 2017, order affirmed in part and reversed in part. April 25,

2017, order affirmed. Case remanded for action consistent with this decision.

Jurisdiction relinquished.

President Judge Emeritus Ford Elliott joins this memorandum.

Judge Bowes files a dissenting memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/11/19

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