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Mary Ellen Setlock, Executrix of v. Pinebrook Personal Care and Retirement Center

October 23, 2012

MARY ELLEN SETLOCK, EXECUTRIX OF THE ESTATE OF MARY RYAN, DECEASED APPELLEE
v.
PINEBROOK PERSONAL CARE AND RETIREMENT CENTER APPELLANT



Appeal from the Order Entered August 2, 2011 In the Court of Common Pleas of Schuylkill County Civil Division at No(s): S-81-2011

The opinion of the court was delivered by: Mundy, J.

J-A12015-12

BEFORE: GANTMAN, J., LAZARUS, J., and MUNDY, J.

OPINION BY MUNDY, J.:

Appellant, Pinebrook Personal Care and Retirement Center (Pinebrook), appeals from the August 2, 2011 order denying Pinebrook's petition to compel arbitration in the wrongful death action filed by Appellee, Mary Ellen Setlock, Executrix of the Estate of Mary Ryan, deceased. Because we conclude the Resident Agreement at issue did not contemplate or encompass tort claims, we affirm the trial court's order dismissing Pinebrooks' petition to compel arbitration.

The relevant facts and procedural history, as gleaned from the certified record, are as follows. On January 13, 2011, Appellee filed a complaint instituting a wrongful death and right of survivorship action against Pinebrook, seeking punitive damages, as well as damages for pain and suffering. Appellee's Complaint, 1/13/11, at 3-5. Thereafter, Appellee filed amended complaints on February 28, 2011 and on March 18, 2011.

Appellee's March 18, 2011 amended complaint averred the following facts in support of her claim.

8. On or about November 3, 2010, Mary Ryan had an appointment with her treating physician, Dr. Carol Miller-Schaeffer of Pottsville Internists Associates.

8[.5]. [Pinebrook] arranged to have Ms. Ryan transported from the personal care facility to the doctor's office for purposes of this appointment.

9. [Pinebrook] assigned a transporter named "Agnes" to get Ms. Ryan to and from this appointment.

10. Mary Ryan was transported in a wheelchair obtained by, selected by, and maintained by [] Pinebrook.

11. [Pinebrook]'s transporter, "Agnes",

pushed Ms. Ryan's wheelchair as she was wheelchair bound into the exam room at Pottsville Internists Associates so that Ms. Ryan could be examined.

12. On said date, and at the conclusion of the medical examination, the transporter, "Agnes",

pushed Ms. Ryan's wheelchair so as to transport Ms. Ryan from the exam room through the medical offices.

13. A physician's assistant working at Pottsville Internists Associates, Deborah Coletta, heard "Agnes" tell Ms. Ryan, an elderly woman, to "lift her feet" as the wheelchair was being pushed through the medical offices.

14. The physician's assistant, Ms. Coletta, instructed "Agnes" to be careful as it was apparent that Ms. Ryan was not capable of lifting her feet as she was being pushed in the wheelchair.

15. [Pinebrook]'s employees, agents, servants, and ostensible agents, knew and were aware, that Ms. Ryan was not capable of lifting her feet during wheelchair transports.

16. On said date and time, the wheelchair was not equipped with footrests for Ms. Ryan to place her feet, despite the fact that footrests were available for this wheelchair and had in fact been provided with the wheelchair upon it's [sic] procurement by

[Pinebrook]. Therefore, Ms. Ryan's feet were left to dangle freely during the transport, necessitating "Agnes" to instruct Ms. Ryan to lift her feet.

16[.5]. As a result of Ms. Ryan's inability to lift her feet as she was being pushed in the wheelchair, 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.

17. Due to Ms. Ryan's weakened condition, a safety harness had been obtained by [] Pinebrook for use during her wheelchair transports. However, "Agnes" failed to utilize this safety harness, or any other similar device.

18. When asked why she failed to utilize the harness, "Agnes" stated that she should have put the safety harness on before moving Ms. Ryan.

19. As a result of Ms. Ryan being catapulted from the wheelchair to the floor striking her head and face, Ms. Ryan suffered severe injuries requiring her hospitalization and ultimately leading to her death.

20. Ms. Ryan passed away from her injuries on November 25, 2010.

Appellee's Amended Complaint, 3/18/11, at 2-3.

On March 23, 2011, Pinebrook filed preliminary objections. Before the trial court ruled on Pinebrook's preliminary objections, on July 12, 2011, Pinebrook filed a "Petition to Compel Arbitration pursuant to 42 Pa.C.S. § 7304(a)[.]" In said petition, Pinebrook asserted it "learned of a binding agreement between the parties to arbitrate the case at bar[,]" referencing a Resident Agreement signed by Appellee and decedent, Mary Ryan. Pinebrook's Petition to Compel Arbitration, 7/12/11, at ¶ 4-5. Pinebrook attached a copy of the Resident Agreement, signed August, 1, 2010, and specifically cited paragraph 27 as the controlling provision in the instant matter. Paragraph 27 reads as follows.

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 which determination shall be filed and be conclusive and binding upon the parties hereto and judgment thereon may be entered in any court having jurisdiction. The cost ...


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