Nursing home arbitration agreements are here to stay. Their validity and constitutionality have been challenged, litigated, and subject to many appellate decisions. The bottom line is that there may be instances when the courts may invalidate them, as I have written about in numerous blogs, but the concept of allowing nursing homes to force arbitration on their patients and waive the constitutional right to trial by jury is the law of this Commonwealth. In fact, the United States Supreme Court has recently given their stamp of approval to the overall concept of arbitration in settings beyond nursing homes.
Since the concept is now the law of this Commonwealth, when we will begin getting opinions on nuts and bolt issues such as can nursing homes waive their right to arbitration? Under what circumstances are they waived? If they waive the right can they get a second bite of the apple and reinstate their right to arbitrate?
The case of Misel v. Saber Healthcare Group, LLC (C.P. Lawrence May 10, 2018) tackles the issue of waiver and reinstatement of the right to arbitrate.
Plaintiffs filed suit against Edison Manor alleging negligence in the care of the deceased Cheryl M. Kuhn. Prior to her admission Ms. Kuhn signed an arbitration agreement.
When responding to the Complaint the nursing home filed their Preliminary Objections to the complaint (the equivalent of a motion to dismiss). Ordinarily all Preliminary Objections must be raised at once or they are waived. None of the Preliminary Objections related to the arbitration agreement. So the nursing home waived their right to enforce the agreement. But wait – not so fast!
At the time of filing the Preliminary Objections, the nursing home argued, the law of the Commonwealth was that arbitration agreements like the one Ms. Kuhn signed were not effective. Filing a Preliminary Objection on this issue would have been frivolous. At some point after the Court ruled on the Preliminary Objections, the law changed such that the arbitration agreement Ms. Kuhn signed would be deemed proper and effective. Consequently, the nursing home filed a Motion to Compel Arbitration.
Could the nursing home now get a second bite of the apple? The answer from the court is yes.
The court concluded that a motion to compel arbitration was not subject to rules for preliminary objections and not subject to the concept of “raise it or waive it.” A motion to compel arbitration is governed by The Pennsylvania Uniform Arbitration Act, which permitted the filing of a petition to compel arbitration in this instance.
Interestingly, the Court did not rule on the basic issue of whether the nursing home was untimely in their Motion to Compel Arbitration. Did the nursing home waive their right to compel arbitration on the basis of timeliness? The court ruled that this issue was one for the arbitrator to decide.
We should be ready for more of these opinions that delve into intricate procedural issues involving arbitration agreements. Now that arbitration agreements have been given the judicial stamp of approval, procedural battles may be an effective weapon to nullify them.
By Sam Abloeser