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Del Ciotto v. The Pennsylvania Hospital of University of Penn Health System

Superior Court of Pennsylvania

December 27, 2017

NICHOLAS DEL CIOTTO, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF ROCCO DEL CIOTTO Appellant
v.
THE PENNSYLVANIA HOSPITAL OF THE UNIVERSITY OF PENN HEALTH SYSTEM, UNIVERSITY OF PENN HEALTH SYSTEM, ROBERT CENTRONE, D.O., ELECTRONIC SECURITY SOLUTIONS, LLC AND JEFFREY MITCHELL, MARK TESTA, D.O., AND STEINGARD & TESTA MEDICAL ASSOCIATES, HCR MANORCARE, INC. AND HCR HEALTHCARE, LLC AND HEALTHCARE AND RETIREMENT CORPORATION OF AMERICA, INTERSTATE REALITY MANAGEMENT COMPANY, NORMA LOTTENGER NICHOLAS DEL CIOTTO, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF ROCCO DEL CIOTTO
v.
THE PENNSYLVANIA HOSPITAL OF THE UNIVERSITY OF PENN HEALTH SYSTEM, UNIVERSITY OF PENN HEALTH SYSTEM, ROBERT CENTRONE, D.O., ELECTRONIC SECURITY SOLUTIONS, LLC AND JEFFREY MITCHELL, MARK TESTA, D.O., AND STEINGARD & TESTA MEDICAL ASSOCIATES, HCR MANORCARE, INC. AND HCR HEALTHCARE, LLC AND HEALTHCARE AND RETIREMENT CORPORATION OF AMERICA, INTERSTATE REALITY MANAGEMENT COMPANY, NORMA LOTTENGER APPEAL OF: MARK TESTA, D.O., AND STEINGARD & TESTA MEDICAL ASSOCIATES

         Appeal from the Judgment Entered May 19, 2016 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): March Term, 2013 No. 00027 March Term, 2013 No. 0653

         Appeal from the Judgment Entered May 19, 2016 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): March Term, 2013 No. 00027 March Term, 2013 No. 000653

          BEFORE: DUBOW, J., SOLANO, J., and FORD ELLIOTT, P.J.E.

          OPINION

          SOLANO, J.

         At Docket No. 2023 EDA 2016, Plaintiff Nicholas Del Ciotto ("Del Ciotto"), individually and as administrator of the estate of Rocco Del Ciotto ("Decedent"), appeals from the judgment entered on the arbitration award in favor of Defendant Healthcare and Retirement Corporation of America, individually and doing business as HCR ManorCare, ManorCare, Inc., HCR ManorCare, Inc., ManorCare Health Services, LLC, and Wallingford Nursing and Rehabilitation Center-Wallingford PA, LLC, individually and doing business as Wallingford Nursing and Rehabilitation Center (collectively, "ManorCare"). At Docket No. 2024 EDA 2016, Defendants Mark Testa, D.O., and Steingard & Testa Medical Associates, P.C. (together, "Testa"), also appeal from that same judgment. Defendants Pennsylvania Hospital, The Pennsylvania Hospital of the University of Pennsylvania Health System, University of Pennsylvania Health System, and Trustees of the University of Pennsylvania (collectively, "Penn") have not appealed. [1] We vacate the judgment, vacate the order entering judgment on the arbitration award, vacate in part the arbitration award to the extent it resolved Del Ciotto's wrongful death claim, affirm in part and reverse in part the order sustaining ManorCare's preliminary objections, and remand for further proceedings that may include a trial, if necessary.

         Although the record exceeds 28, 000 pages, many of the facts forming the basis for the underlying claims are undisputed.[2] Decedent had two children, Nicholas and Susan; it appears that Susan is estranged from the family. On March 1, 2011, Decedent was a tenant in a first-floor apartment when a fire broke out in the apartment above him, which activated that apartment's sprinkler system. The resulting flood caused portions of the ceiling of Decedent's apartment to fall on top of him. Decedent, then eighty-eight years old, was rushed to Pennsylvania Hospital, where he was treated for his injuries by Dr. Testa, among other doctors. Decedent's prior medical history included a diagnosis of dementia.

         On March 28, 2011, Decedent was transferred from Pennsylvania Hospital to ManorCare's Wallingford Nursing and Rehabilitation Center. A few weeks later, on April 19, 2011, an arbitration agreement regarding Decedent's care at that Center was signed, and that agreement forms the basis for the parties' dispute. At the very top of the first page of the agreement, it states:

VOLUNTARY AGREEMENT: If you do not accept this Agreement, the Patient will still be allowed to live in, and receive services in, this Center.
ARBITRATION AGREEMENT ("AGREEMENT")
BY ACCEPTING THIS AGREEMENT, THE PARTIES ARE WAIVING THEIR RIGHT TO A TRIAL BEFORE A JUDGE AND/OR A JURY OF ANY DISPUTE BETWEEN THEM. PLEASE READ THIS AGREEMENT CAREFULLY AND IN ITS ENTIRETY BEFORE ACCEPTING ITS TERMS.

         This Agreement made on ___3/28/2011___ (date) by and between the Parties, Patient ___Rocco Delciotto ___and/or Patient's Legal Representative ___ (collectively referred to as "Patient"), and the Center Wallingford Nursing and Rehab, is an Agreement intended to require that Disputes be resolved by arbitration. The Patient's Legal Representative agrees that he is signing this Agreement as a Party, both in his representative and individual capacity.

Arbitration Agreement, 4/19/11, at 1, R. 319a (bold type in original). The date and the names of "Delciotto" and Wallingford were inserted in blanks on the page, but no name was inserted in the blank for the patient's legal representative.

The pertinent paragraphs of the agreement follow:
B. AGREEMENT TO ARBITRATE "DISPUTES": Any and all claims or controversies arising out of or in any way relating to this Agreement, this Admission Agreement or any of the Patient's stays at this Center, or any Center operated by any subsidiary of HCR-Manor Care, Inc., whether or not related to medical malpractice, including but not limited to disputes regarding the making, execution, validity, enforceability, voidability, unconscionability, severability, scope, interpretation, preemption, waiver, or any other defense to enforceability of this Agreement or the Admission 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, tort or breach of statutory duties (including, without limitation except as indicated, any claim based on Patients' Rights or a claim for unpaid Center charges), regardless of the basis for the duty or of the legal theories upon which the claim is asserted, shall be submitted to binding arbitration. Notwithstanding the above, nothing in this Agreement prevents the Patient from filing a grievance or complaint with the Center or appropriate governmental agency; from requesting an inspection of the Center from such agency; or from seeking review under any applicable federal, state or local law of any decision to involuntarily discharge or transfer the Patient from the Center.
. . .
9. Final with Limited Rights to Review (Appeal): The Panel's award binds the Parties. The Parties have a limited right of review for only the express reasons allowed by the FAA.[3]
. . .
F. OTHER PROVISIONS:
. . .
2. Opportunity to Review & Right to Consult with Attorney: The Patient (if competent) and the Patient's Legal Representative acknowledge that the Patient and Legal Representative have each received a copy of this Agreement, and have had an opportunity to read it (or have it read to him/her) and ask questions about it before accepting it. Please read this Agreement very carefully and ask any questions that you have before signing it. Feel free to consult with an attorney of your choice before signing this Agreement.
. . .
4. FAA: The Parties hereby agree and intend that this Agreement, the Admission Agreement and the Patient's stays at the Center substantially involve interstate commerce, and stipulate that the Federal Arbitration Act ("FAA") in effect as of November 1, 2008 and federal case law interpreting such version of the FAA shall apply to this Agreement, shall preempt any inconsistent State law and shall not be reverse preempted by the McCarran-Ferguson Act; United States Code Title 15, Chapter 20, or other law. Any amendment to such version of the FAA is hereby expressly waived.
5. Binding on Parties & Others: The Parties intend that this Agreement shall inure to the direct benefit of and bind the Center . . . and shall inure to the direct benefit of and bind the Patient (as defined herein), his/her successors, spouses, children, next of kin, guardians, administrators, legal representatives, responsible parties, assigns, agents, attorneys, health care proxies, health care surrogates, third Party beneficiaries, insurers, heirs, trustees, survivors and representatives, including the personal representatives or executors of his/her estate, any person whose claim is derived through or on behalf of the Patient or relates in any way to the Patient's stay(s) at this Center, or any person who previously assumed responsibility for providing Patient with necessary services such as food, shelter, clothing, or medicine, and any person who executed this Agreement or the Admission Agreement.

         Arbitration Agreement at 1-3, R. 319a-21a (bold type and italics in original).

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

BY SIGNING BELOW, THE PARTIES CONFIRM THAT EACH OF THEM HAS READ ALL FOUR (4) PAGES OF THIS AGREEMENT AND UNDERSTANDS THAT EACH HAS WAIVED THE RIGHT TO A TRIAL BEFORE A JUDGE OR JURY AND THAT EACH OF THEM CONSENTS TO ALL OF THE TERMS OF THIS VOLUNTARY AGREEMENT.
PATIENT: PATIENT'S LEGAL REPRESENTATIVE:




Printed Name (Date)___ Printed Name (Date)___




Signature of Patient ___Signature of Patient's Legal Representative1 in his/her Representative capacity___
Signature of Patient's Legal Representative in his/her Individual capacity___
CENTER REPRESENTATIVE




Signature of Center Representative___
1 Patient's Legal Representative should sign on both lines above containing the phrase "Patient's Legal Representative."

         Arbitration Agreement at 4, R. 322a (bold type and underlining in original). The Agreement contains a signature in the block for the "Center Representative." In the "patient" signature block, "Rocco Del Ciotto 4-19-11" is printed on the line for "Printed Name" and "Rocco Del Ciotto" is handwritten in cursive on the line for "Signature of Patient." In the signature block for "Patient's Legal Representative, " "N. Del Ciotto 4-19-11" is printed on the line for "Printed Name" and "N. Del Ciotto" is written in cursive above the line for "Signature of Patient's Legal Representative[] in his/her Representative capacity." The line above "Signature of Patient's Legal Representative in his/her Individual capacity" was left blank. Id.

         During Decedent's first few months at ManorCare, he was diagnosed with various ailments. On September 16, 2011, Decedent was transferred to Crozer Medical Center, where he was treated for sepsis and released on September 23, 2011. Crozer again treated Decedent for sepsis on November 12, 2011, and Decedent returned to ManorCare on November 21, 2011. On January 4, 2012, Decedent was admitted to Taylor Hospital and treated for multiple ailments. On February 4, 2012, Decedent died from, among other causes, sepsis.

         In 2013, Del Ciotto filed a civil action in the Court of Common Pleas of Philadelphia County (Mar. T. 2013, No. 27), in which he sought damages under the Pennsylvania Wrongful Death Act, 42 Pa. C.S. § 8301, and the Survival Act, id. § 8302, [4] from numerous defendants associated with the apartment fire and Decedent's medical treatment, including ManorCare. After a series of preliminary objections, nine amended complaints, joinders, dismissals, and settlement of the claims against the defendants allegedly associated with the fire, the sole remaining medical treatment defendant was Testa, which filed a cross-claim against ManorCare, and Penn.

         At about the same time as he filed his first suit, Del Ciotto also filed a second action under the Wrongful Death and Survival Acts in the Court of Common Pleas of Philadelphia County (Mar. T. 2013, No. 653), in which he sought damages from various defendants for medical and nursing home malpractice. Eventually, after much litigation, including thirteen amended complaints, the remaining defendants included ManorCare and Penn, which filed a cross-claim against ManorCare.[5] On June 26, 2013, the court ordered both lawsuits consolidated "for all purposes." Order, 6/26/13.

         The parties conducted discovery, and ManorCare served Del Ciotto with a request for documents, including "All arbitration/mediation agreements executed by Rocco Del Ciotto or his representative(s) relating to his admission to any long-term facilities, healthcare facilities or hospitals within the last ten (10) years." Arb.-Related Req. for Prod. of Docs., 10/10/13, at ¶ 4, R. 519a.[6] In response, Del Ciotto answered, "None, other than the Wallingford Arbitration Agreement at issue in this case." Del Ciotto's Resp. to ManorCare's Arb.-Related Req. for Prod. of Docs., R. 531a.[7] ManorCare similarly requested all powers of attorney signed by Decedent, to which Del Ciotto responded, "none." Id.

         Meanwhile, in response to Del Ciotto's twelfth amended complaint, ManorCare filed a petition to compel arbitration, alleging, among other things:

3. On or about April 19, 2011, Mr. Del Ciotto and his son, Nicholas Del Ciotto, the Plaintiff and Administrator of his father's Estate, signed an Arbitration Agreement. A true and correct copy of the Arbitration Agreement is attached hereto and marked as Exhibit "B". Nicholas Del Ciotto is the sole Plaintiff and beneficiary in this matter.

ManorCare's Pet. to Compel Arb., 3/21/14, at ¶ 3, R. 355a. The petition attached various exhibits, including documents that purportedly established the existence of a power of attorney permitting Del Ciotto to act on Decedent's behalf. Id. at ¶ 10, R. 356a. ManorCare averred:

10. Based on the records attached, the undisputed evidence is that the resident's son, Nicholas Del Ciotto, the Plaintiff herein, held Power of Attorney on his father's behalf. (See, Exhibit "C", a March 29, 2011 Wallingford Social Services Progress Note that indicates that Nicholas Del Ciotto had a POA; Exhibit "D" for a true and correct copy of a January 30, 2012 Consent for blood transfusion at Taylor Hospital that was signed by "Nick Del Ciotto son/POA" (emphasis added); and Exhibit "E", containing a true and correct copy of a January 31, 2012 Taylor Hospital Operative Report, which indicates that a long discussion was had with Mr. Del Ciotto's family, "particularly actually his son Nick who is his power of attorney [...]" (emphasis added), Exhibit "E" also includes a Discharge Planning sheet, which has written, "son is POA") (emphasis added).

Id. (emphases and alterations in original). ManorCare's petition did not request a hearing. It attached two suggested orders: the first would grant the petition, and the second was in the form of a rule to show cause that would provide for a hearing at the court's discretion. Rule to Show Cause Order, R. 352a.

         On April 14, 2014, Del Ciotto responded with two filings - an opposition to the petition to compel arbitration and a thirteenth amended complaint. In the opposition to the petition to compel arbitration, Del Ciotto averred the following in response to Paragraphs 3 and 10:

3. Admitted only that Nick Del Ciotto signed the Arbitration Agreement and signed his father's name, as . . . Rocco Del Ciotto was too physically and cognitively compromised to read, understand or sign the writing.
. . .
10. Denied. It is specifically denied that there was a written Power of Attorney given by Rocco Del Ciotto to his son Nick Del Ciotto. Further, Defendants' references to a suggestion[] of same in the medical record are impermissible hearsay and incompetent evidence, with some references relating to irrelevant subsequent time periods, inapplicable to the time of the Arbitration Agreement. Moreover, Defendants have not explained why, if there was, in fact, a written Power of Attorney, they have not, pursuant to the Rules of Civil Procedure, attached a copy of the alleged contractual writing upon which they are relying. Strict proof is demanded.

Del Ciotto's Resp. and Opp'n to Pet. to Compel Arb., 4/14/14, at ¶¶ 3, 10, R. 415a-16a. The response was signed by one of Del Ciotto's counsel, Blake Berenbaum, and it appended two signed verifications, one by another of Del Ciotto's lawyers, Jacob Snyder, and the other by Del Ciotto himself.[8]

         In a brief in support of his response, Del Ciotto similarly conceded that he had signed Decedent's name, but he contended that because Decedent was not competent to sign and Del Ciotto did not have a power of attorney, the arbitration agreement was invalid. Mem. of Law in Support of Del Ciotto's Resp. and Opp'n to Pet. to Compel Arb., 4/14/14, at 5, 7-12, R. 422a, 424a-29a. Del Ciotto also contended that the arbitration agreement was not signed voluntarily because ManorCare pressures families to sign. Id. at 5-6, R. 422a-23a. Del Ciotto asserted that the various documents referenced by ManorCare were flawed and that the arbitration agreement was unenforceable because it was a contract of adhesion. Id. at 18-21, R. 435a-38a. Finally, Del Ciotto asserted that even if the arbitration agreement was valid, arbitration should proceed only for the survival action and not for the wrongful death claim because Del Ciotto did not sign in his individual capacity. Id. at 21-22, R. 438a-39a. Del Ciotto made no argument about whether the scope of any power of attorney precluded him from signing a document on Decedent's behalf or about whether the arbitration agreement was limited to acts or omissions after the date it was signed, April 19, 2011.

         In his thirteenth amended complaint, Del Ciotto alleged as part of the wrongful death count that he is "the only child of Rocco Del Ciotto" and "solely claims all damages under the Wrongful Death Act." Del Ciotto's Thirteenth Am. Compl. at ¶ 84, R. 251a (emphasis in original).

         On May 1, 2014, ManorCare filed preliminary objections to the thirteenth amended complaint, in which it included a Paragraph 3 and a Paragraph 10 that were identical to Paragraphs 3 and 10 of ManorCare's petition to compel arbitration. ManorCare's Prelim. Objs. to Del Ciotto's Thirteenth Am. Compl., 5/1/14, at ¶¶ 3, 10, R. 297a-98a. ManorCare also attached various exhibits that allegedly referenced Del Ciotto's power of attorney. See id.

         On May 2, 2014, the trial court issued a rule to show cause instructing Del Ciotto to produce any power of attorney signed by Decedent. The rule was returnable on June 9, 2014. The docket reflects no relevant activity around June 9, 2014, and reveals that no pleadings were filed between May 30, 2014, and June 17, 2014. However, on April 25, 2014, shortly before the court issued its rule, Del Ciotto responded to a prior request by ManorCare for copies of all powers of attorney by stating that none exist. See Ex. B to Plaintiff's Sur-Reply to Petition to Compel Arbitration, 4/25/14.[9]

         On May 22, 2014, Del Ciotto filed a response to ManorCare's preliminary objections, in which Del Ciotto averred the following in response to the paragraphs that included Paragraph 3:

2-4. Denied. The Complaint and alleged Arbitration Agreement are writings which speak[] for themselves. Further, on March 21, 2014 Moving Defendants filed a Petition to Compel Arbitration, to which Plaintiffs filed a Response on April 14, 2014, after which Moving Defendants filed a Reply on April 23, 2014, followed by Plaintiff's Sur-Reply filed on April 25, 2014, and on May 2, 2014 this Court entered a Order on scheduling a hearing on Defendants' Petition to Compel Arbitration to take place on June 9, 2014. Therefore, Defendants' Preliminary Objections regarding Arbitration are redundant as the Court is presently addressing this issue.

Del Ciotto's Resp. and Opp'n to ManorCare's Prelim Objs., 5/22/14, at ¶ 2-4 (unpaginated). Thus, in response to identical Paragraphs 3 in ManorCare's petition to compel arbitration and preliminary objections, Del Ciotto proffered two substantively different responses: an admission in its reply to the petition on April 14, 2014, followed by an undetailed "Denied" in his response to the preliminary objections on May 22, 2014. Del Ciotto had not requested, and the court had not granted, permission for him to withdraw his April 14, 2014 admission, and Del Ciotto's denial did not try to reconcile that answer with his admission. Del Ciotto's response to the preliminary objections was verified by Snyder, but the certified record does not contain a verification by Del Ciotto himself.

         Del Ciotto's response to paragraphs of the preliminary objections containing Paragraph 10 was substantially similar to his response to Paragraphs 2-4. See Del Ciotto's Resp. and Opp'n to ManorCare's Prelim Objs., 5/22/14, ¶ 9-16. Del Ciotto's brief in support of his opposition to the preliminary objections did not directly address the various documents ManorCare had attached under Paragraph 10, although it referenced Del Ciotto's prior filings challenging the documents' admissibility or evidentiary value. Del Ciotto's Mem. of Law in Supp. of its Resp. and Opp'n to ManorCare's Prelim Objs., 5/22/14, at 6.

         In further filings, ManorCare and Del Ciotto contested whether discovery was necessary to resolve the questions regarding the arbitration petition. They filed supplemental briefs attaching documents and deposition testimony in support of their respective positions on the existence of a power of attorney. Among other things, ManorCare attached deposition testimony that Decedent had two children, Nicholas and Susan. Ex. C to ManorCare's Suppl. Mem. of Law in Supp. of ManorCare's Pet. to Compel Arb., 7/11/14, R. 550a. Other than ...


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