An agreement between a Schuylkill County nursing home and one of its residents does not mean a negligence claim against the facility must be submitted to an arbitration process, the Superior Court has ruled.

In the tort lawsuit, the plaintiffs alleged that negligence in transporting the resident caused her death.

But Pinebrook Personal Care and Retirement Center said its resident agreement, which had been signed by the decedent, Mary Ryan, stated that “‘any dispute controversy arising out of or in connection with under or pursuant to this agreement shall be determined by arbitration under the then-existing rules of the American Arbitration Association, or a mutually acceptable equivalent.’”

The three-judge Superior Court panel, on a 2-1 vote, held that the plaintiffs’ actions for wrongful death and survivorship are not within the scope of an agreement about the provision of personal care services, living quarters and the fees to be charged.

Judge Sallie Updyke Mundy wrote for the majority. She was joined by Judge Anne E. Lazarus.

“The resident agreement does not account for liability of Pinebrook based on actions at the facility or off-premises at another facility,” Mundy wrote for the majority. “The mere fact that the resident agreement included a payment schedule for transporting residents to and from the doctor’s appointment cannot be extended to encompass all claims sounding in tort that may have arisen from such transportation. Had the parties intended such an outcome, the resident agreement could have expressly included it. In the absence of such a clause we will not extend the agreement beyond that which was intended by the parties.”

The majority also said in a footnote that its holding doesn’t preclude arbitration clauses from encompassing tort liability.

“Rather, we hold that where a contract in no way discusses liability for a cause of action, the arbitration clause in the unrelated contract between the parties cannot be read so broadly as to encompass any and all disputes that arise between the parties,” Mundy said.

Ryan, while being transported in a wheelchair at the office of her treating physician, had her feet dangling from the wheelchair because no footrests were on the chair and she was not able to lift her feet on her own, Mundy said in the opinion.

The plaintiffs’ complaint said that, as a result, “‘Ms. Ryan’s feet became entangled below the wheelchair as she was being pushed, causing her to be catapulted through the air from the wheelchair and landing on her head and face while striking the floor,’” according to the majority opinion.

According to the plaintiffs, Ryan had to be hospitalized and she ultimately died from her injuries, the majority opinion stated.

Writing in dissent, Judge Susan Peikes Gantman argued that because the agreement covered visits to a physician and included a rate schedule for transportation services, and “the complaint specified that [Pinebrook] arranged for the transportation, assigned an escort to assist decedent, and the escort was pushing decedent’s wheelchair at the time of accident,” the “alleged tortious conduct arose out of or in connection with the resident agreement.”

The arbitration clause also had no limiting language, Gantman said.

In a footnote, the majority suggested in dicta, expressly declining to rule on the issue, that the resident agreement might be a contract of adhesion because Ryan lacked a real opportunity to bargain.

Mary Ellen Setlock, the executrix of Ryan’s estate, brought a wrongful death and survivorship action, including for pain and suffering and for punitive damages, Mundy said. Setlock also signed the resident agreement along with Ryan.

Schuylkill County Court of Common Pleas Judge Cyrus Palmer Dolbin had rejected Pinebrook’s petition to compel arbitration.

The trial judge relied upon the Superior Court precedent in Midomo v. Presbyterian Housing Development, Mundy said.

But Mundy said that while she agreed that Midomo applied, she rejected what she called Midomo‘s “broad conclusion based on [the state Supreme Court's decision in] Flightways [v. Keystone Helicopter], that when an arbitration clause exists all claims are subject to arbitration regardless of whether sounded in tort or contract.”

Gantman said that the majority, even though it questioned Midomo, is extending Midomo as if it were the general rule, instead of the “exception to the general rule in favor of enforcing arbitration agreements.”

John R. Kantner, of Fanelli, Evans & Patel in Pottsville, Pa., is the attorney for the plaintiff.

Kantner said it was better to be in court, instead of arbitration, because there is no discovery in arbitration. In court, Kantner said they would be able to find out what training was in place to prepare the nurse’s aide for transporting Ryan in a wheelchair and what safety precautions were in place and whether those policies fell below professional standards.

There are too many instances in which arbitration is being thrust upon people, Kantner said.

While Pinebrook argued the arbitration clause was broad enough to “encompass anything and everything,” Kantner said the argument adopted by the panel was that “while the clause was a broad clause,” the “arbitration clause did not contemplate personal injury and specifically professional negligence.”

Donna Jo Fudge, of Fudge & McArthur in Philadelphia, is the attorney for the defendant. Fudge could not be reached for comment.

The decision in Setlock v. Pinebrook Personal Care and Retirement Center was issued October 23.

Amaris Elliott-Engel can be contacted at 215-557-2354 or aelliott-engel@alm.com. Follow her on Twitter @AmarisTLI.

(Copies of the 23-page opinion in Setlock v. Pinebrook Personal Care and Retirement Center, PICS No. 12-2020, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •