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Glover v. Darway Elder Care Rehabilitation Center

United States District Court, Middle District of Pennsylvania

February 4, 2014

YOSHIE GLOVER, by and through her son and Power of Attorney, RALPH GLOVER, Plaintiff
v.
DARWAY ELDER CARE REHABILITATION CENTER, et al., Defendants

Brann, Judge

REPORT AND RECOMMENDATION

Martin C. Carlson United States Magistrate Judge

I. INTRODUCTION

In this diversity lawsuit, Yoshie Glover, through her son and Power of Attorney, Ralph Glover (the “plaintiff”) has brought a medical malpractice action against Darway Elder Care Rehabilitation Center (“Darway”) and a number of other individual defendants affiliated with that provider, alleging that the care and treatment that she received while a resident of that facility was sub-standard and resulted in her sustaining serious physical injuries. Darway and a number of individual employees named in the complaint[1] (collectively, the “Darway defendants”) have moved to dismiss the action, arguing that the plaintiff brought this lawsuit after the two-year statute of limitations governing medical malpractice claims under Pennsylvania law had elapsed.[2] (Doc. 8) In addition, the Darway defendants move to compel arbitration of the plaintiff’s claims, pursuant to the terms of a voluntary arbitration agreement that the parties entered into on April 4, 2011, at the time that Ms. Glover entered Darway’s care.

The parties fully briefed the motion, with the defendant arguing vigorously that the allegations set forth in the complaint plainly and unequivocally make clear that the claims in this case were known to the plaintiff more than two years before she brought suit, and, therefore, the action should be deemed time-barred and dismissed. The plaintiff has responded chiefly by arguing that the defendant concurred in counsel’s express request to file the complaint by July 9, 2013, and, therefore, the statute of limitations should be deemed to have been waived or extended by agreement of the parties. The plaintiff also suggests that despite what she alleges in the complaint, she did not actually discover her injuries until after July 8, 2011. She also argues that the defendant’s counsel concealed information necessary to the plaintiff’s claims, and, therefore, the statute of limitations period should be deemed to have been equitably tolled.

In addition to the statute of limitations argument, the Darway defendants have also argued that the plaintiff’s claims are subject to arbitration pursuant to a duly executed voluntary arbitration agreement that the parties entered into at the time that Mrs. Glover entered Darway. The defendant thus asserts that under the Federal Arbitration Act, the Court should enforce this agreement, dismiss the lawsuit, and direct the parties to arbitrate the plaintiff’s claims.

Upon consideration, we believe the most appropriate and fairest course of action is to adopt Darway’s alternative request, and construe the motion to dismiss as a motion to compel arbitration in the first instance. Our review of the arbitration agreement in this case, and consideration of the parties’ arguments regarding its application, causes us to find both that the Federal Arbitration Act plainly applies to the parties’ arbitration agreement, and that the agreement is enforceable. Mindful of the strong federal policies that favor honoring valid arbitration agreements, we recommend that the district court grant Darway’s motion to compel arbitration, and stay the claims against the Darway defendants, thereby deferring consideration of whether the statute of limitations operates to bar those claims.[3]

II. BACKGROUND

Yoshie Glover was a resident at Darway, in Sullivan County, Pennsylvania, from April 4, 2011, until July 8, 2011. It appears undisputed that the Glover had a documented history of primary degenerative dementia - Alzheimer’s type with behaviors, hypertension, GERG, depression, hypercholesterolemia, history of colon cancer and post-traumatic stress disorder. (Compl., ¶ 33; and Doc. 8)

According to the plaintiff, due to the negligent care that Glover received between April 4, 2011, and June 4, 2011, while resident at Darway, she sustained a stage II wound on her right buttocks, and a sacral wound. (Compl., ¶ 68.) On June 16, 2011, it was determined that Glover had an infected gluteal/sacral wound. (Id., ¶ 51.) By June 18, 2011, Glover was no longer physically able to walk in the corridor at Darway. (Id., ¶ 53.) By July 6, 2011, Glover had pneumonia and a urinary tract infection. (Id., ¶ 60.) On July 8, 2011, “after discovering Mrs. Glover’s grave medical condition caused by the Defendants, the family removed Mrs. Glover from defendant Darway and returned her to Hornell Gardens in New York.” (Id., ¶ 65.)

On April 4, 2011, Mrs. Glover, through her representative, Audrey Glover, signed a Voluntary Arbitration Agreement with the Darway defendants in which the parties agreed that “ANY AND ALL PAST AND/OR FUTURE CLAIMS, DISPUTES AND CONTROVERSIES (HEREINAFTER COLLECTIVELY REFERRED TO AS “CLAIMS”) ARISING OUT OF, IN CONNECTION WITH, AND/OR RELATING IN ANY WAY TO THE ADMISSION AGREEMENT OR ANY SERVICE OR HEALTH CARE PROVIDED BY THE FACILITY TO RESIDENT SHALL BE RESOLVED EXCLUSIVELY BY BINDING ARBITRATION”. (Doc. 8, Ex. A, Voluntary Arbitration Agreement)

On May 24, 2012, counsel for the plaintiff wrote to the Darway administrator and made a demand for settlement, and included a discussion about Ms. Glover’s alleged care while at Darway, and photographs allegedly documenting injuries that she had sustained as of July 8, 2011. (Doc. 8, Ex. B) On September 28, 2012, the plaintiff’s counsel was advised that Ms. Glover had executed the voluntary arbitration agreement, but the parties nevertheless attempted to mediate the dispute. When this was unsuccessful, the dispute ripened into litigation.

However, this dispute developed something of a tangled procedural history before it was even initiated in this Court. The plaintiff alleges that “[o]n April 2, 2013, prior to the running of the applicable statute of limitations, plaintiff sent a written request to counsel for [Darway], requesting that the defendant identify all physicians and nurses whose signatures were contained in the plaintiff’s relevant medical records, ” but Darway refused. (Id., ¶¶ 1-2.)

This failure to obtain information about potential individual defendants apparently caused the plaintiff, on April 3, 2013, to file a praecipe for a writ of summons against defendants Darway, Brown, and John Does 1-30, in the Sullivan County Court of Common Pleas. On May 6, 2013, the plaintiff filed a praecipe to reinstate/reissue writ of summons stating that defendant Brown was unable to be served by the April 2, 2013, issue date. (Doc. 11, Ex. B)

Darway and Dr. Brown filed praecipes with the Court of Common Pleas, seeking to require the plaintiff to file a complaint. On June 5, 2013, the plaintiff’s lawyer sought informal pre-complaint discovery in an effort to learn the names of some of Ms. Glover’s caretakers and medical providers at Darway, and after some initial delay the Darway defendants provided the requested information on June 24, 2013.

Although the plaintiff had initiated proceedings in state court, and although plaintiff’s counsel represents that he had obtained an agreement to file his complaint on July 9, 2013, when this date arrived the plaintiff did not file a complaint in the Sullivan County Court of Common Pleas. Instead, the plaintiff filed the federal complaint that initiated the instant lawsuit. Thereafter, the defendants served on the plaintiff 10-day notices of their intent to obtain a default judgment based on the plaintiff’s failure to file the complaint in Sullivan County. Then, on August 2, 2013, the plaintiff filed a complaint in the Sullivan County Court of Common Pleas, setting forth claims that are identical to those contained in the complaint she filed in this Court on July 9, 2013. (Doc. 11, Ex. C, Compl. Docket No. 2013 CV 199)

On August 13, 2013, the Darway defendants filed the pending motion to dismiss, or alternatively to compel arbitration.

III. DISCUSSION

Although the Darway defendants begin their motion by seeking dismissal of this action pursuant to Rule 12(b)(6) on the grounds that the action was filed after the expiration of the two-year statute of limitations governing negligence claims under Pennsylvania law, we find it appropriate to consider in the first instance the defendants’ alternative request that the Court compel arbitration of the plaintiff’s claims. Considering this issue in the first instance comports both with what appears clearly to have been the parties’ agreement – namely, that disputes would be arbitrated – and is also faithful to the Court’s obligation under the Federal Arbitration Act, 9 U.S.C. §§ 1-16 (“FAA”), to give effect to valid arbitration clauses. Although the plaintiff insists that the FAA has no application to the voluntary arbitration agreement that ...


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