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Karen A. Melikian, et al. v. Szr Haverford

November 7, 2012

KAREN A. MELIKIAN, ET AL.
PLAINTIFFS,
v.
SZR HAVERFORD, AL, LLC, D/B/A SUNRISE SENIOR LIVING OF HAVERFORD; SUNRISE HAVERFORD ASSISTED ASSISTED LIVING LIVING LLC, D/B/A SUNRISE SENIOR LIVING OF HAVERFORD; SUNRISE SENIOR LIVING MANAGEMENT, INC. D/B/A: SUNRISE SENIOR LIVING OF HAVERFORD DEFENDANTS.



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

MEMORANDUM ON PARTIAL MOTION TO DISMISS AMENDED COMPLAINT

I. Introduction

The action arises out of an incident at an assisted living residence in which Plaintiff Roxie Melikian allegedly fractured her pelvic bone during a total power outage. Plaintiff Roxie Melikian, together with her children, who are also her agents through a power of attorney, Karen Melikian, Michele Lockwood and Robert Melikian (collectively, "Plaintiffs"), bring this action. Defendants in this case are SZR Haverford AL, LLC, d/b/a/ Sunrise Senior Living of Haverford; Sunrise Haverford Assisted Living, LLC, d/b/a/ Sunrise Senior Living of Haverford; and Sunrise Senior Living Management, d/b/a Sunrise Senior Living of Haverford (collectively, "Sunrise of Haverford" or "Defendants"). *fn1 In their amended complaint, *fn2 Plaintiffs allege the following three claims against all Defendants: Negligence (Count I), Breach of the Residency Agreement (Count II), and violation of the Unfair Trade Practices and Consumer Protection Law, 73 Pa. Stat. Ann. § 201-2(4)(xiv) (Count III). On July 26, 2012, Defendants filed a Motion to Dismiss Counts II and III pursuant to Federal Rule of Civil Procedure 12(b)(6) (ECF No. 12).

For the reasons discussed below, the Defendants' Motion is DENIED.

II. Factual Background

Plaintiffs allege the following facts, which this Court accepts as true for the purpose of deciding this motion. On December 23, 2008, Karen Melikian, on behalf of Roxie Melikian, signed a "Residency Agreement" with Defendants, which states in relevant part that residents will receive basic assistance, including monitoring and observing of the resident, an emergency response system, and a staff member available at all times. Compl. ¶¶ 14, 19. After Roxie Melikian moved into the Sunrise at Haverford living facility, the Plaintiffs reached an oral agreement with C.C. Nelson, the facility's Caregiver Manager, that modified the terms of the residency agreement. Id. ¶ 22-25. Under this oral agreement, Plaintiffs agreed to assume responsibility for several of Defendants' contractual obligations (i.e., showering and bathing Rosie Melikian, cleaning her suite, and performing trash removal and laundry) in exchange for the Defendants monitoring and observing Roxie Melikian every thirty minutes from the time she retired in the evening until 7 am each morning.

At 10:55 pm on the night of January 13, 2010, there was a power outage at Sunrise of Haverford that resulted in no electricity or heating in the entire building, including Roxie Melikian's suite. Id. ¶ 32. Sunrise of Haverford had no emergency lighting, back-up power source, or emergency generator. Id. ¶¶ 27-28. Due to the cold, Roxie Melikian awoke; as the temperature continued to drop, she became "increasingly uncomfortable and alarmed." Id. ¶¶ 35-36. Shortly after midnight, when no Sunrise of Haverford staff had arrived to check on her, Roxie Melikian got out of bed to get some blankets. Id. ¶ 38. She then fell to the floor, fracturing her pelvic bone as a result. Id. ¶¶ 38, 40. Roxie Melikian cried for help, but no one from Defendants' staff came to her assistance. Id. ¶¶ 39. More than thirty minutes after the fall, Roxie Melikian's sister, who lived in the adjacent suite, heard her cries and notified Defendants' staff. Id. ¶¶ 39, 41. At 12:40 am, Defendants' staff entered Roxie Melikian's suite and called an ambulance. Id. ¶ 42. Due to her injury, Roxie Melikian is no longer ambulatory, must use a wheelchair, and needs a private duty care aide for 12 hours each day, seven days a week. Id. ¶¶ 46-47.

III. The Parties' Contentions

Defendants move to dismiss Plaintiffs' claims for breach of the residency agreement (Count II) and violation of Pennsylvania's Unfair Trade Practices and Consumer Protection Law (Count III).

A. Count II

In support of their Motion to Dismiss Plaintiffs' breach of the residency agreement claim (Count II), Defendants argue, first, that the factual allegations are insufficient to demonstrate the existence of an oral modification to the written contract. As noted by the Defendants, the written contract provided that modifications to the agreement must be "set forth in writing and signed by the Sunrise Senior Vice President of Operations for the Region and the Resident" ("Senior Vice President"). Def's Mot. to Dismiss ¶ 26. Defendants argue, therefore, that since the alleged modification was made orally with an employee other than the Senior Vice President, it had no binding effect on the terms and conditions of the written contract. When stripped of the oral agreement, Defendants contend that Plaintiffs' allegations fail to allege facts with the necessary specificity to show a breach with the general terms of the written residency agreement.

Plaintiffs respond by arguing that the alleged facts are sufficient to demonstrate an intent by both parties to waive the written contract's requirement that all modifications be made in writing and signed by the Senior Vice President. Alternatively, Plaintiffs argue that they have set forth sufficient facts to demonstrate a breach with the more general terms of the written agreement.

B. Count III

Defendants move to dismiss Count III as legally insufficient under the Pennsylvania Unfair Trade Practices and Consumer Protection Law ("UTPCPL") because the alleged facts do not demonstrate the existence of a warranty as required under the provision of the law, 73 Pa. Stat. Ann. ยง 201-2(4)(xiv), upon which Plaintiffs seek relief. Plaintiffs respond that the terms of the written residency agreement that promise basic assistance and monitoring, an emergency response ...


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