Charles F. Forer, Charles F. Forer Alternative Resolution Services

ADR

Editor's note: This article describes a hypothetical situation.

This was an easy case. How could Bob's bedraggled client get pushed into arbitration?

Bob's client, Albert, had honored his dear mother by getting her admitted into a nursing home after the hospital had treated and discharged her. The hospital gave specific instructions: "Do not take mom home. Take her immediately to a nursing home for further care."

Albert followed the hospital's instructions lovingly and dutifully. Not surprisingly, Albert did not carefully review the documents that the nursing home shoved in front of him at the time of admission. There were a lot of documents. They contained a lot of legalese. Who had time to read them in these urgent circumstances? Plus, Albert assumed his mother would not receive the care she so desperately needed unless he signed the documents. Did it make sense to scrutinize the documents when his mom's health was at stake?

Back to Bob whom Albert retained to sue the nursing home for negligence. As Bob said in the state-court complaint: Albert's mother's condition worsened, and she sustained numerous serious injuries while she was at the nursing home, due solely to the negligent care she received.

Bob was not surprised that the nursing home filed a preliminary objection seeking to dismiss the complaint. But as Bob earlier had told Albert: "This one's a winner for sure. No judge will force you to arbitrate where you did everything a child should do for a parent."

Bob's brief in response to the nursing home's preliminary objection backed up his advice to Albert with a narrative, based entirely on Albert's deposition testimony, that screamed out for pity. Some "factoids" in Bob's brief:

• In the rush to ensure his mother was promptly admitted to the nursing home, Albert did not have time to read, and did not read, any admission documents, including the arbitration agreement. (He took them home, but only because the nursing home insisted. He did not take the time at home to read the documents. He had more important things on his mind.)

• Albert believed the nursing home would deny care and treatment to his mother unless he signed and returned the documents.

• Albert was "in a state of confusion" when he met with the nursing home personnel at the time of admission. As a result of his "discombobulation"—yes, Albert at his deposition used this word to describe his mental state!—he could not recall, and would not have cared, if the nursing home personnel had explained the forms to him.

• Albert would have "signed anything" to get his mother admitted to the nursing home.

Bob argued that the arbitration agreement was "procedurally unconscionable" because, he contended, the nursing home presented it to Albert in "a woefully deficient manner." As Bob stated in the final paragraph of this brief:

"Procedural unconscionability" includes an absence of any meaningful choice on the part of one of the parties. How could Albert (or anyone for that matter), under these stressful circumstances, have taken the time to read, consider and understand the nuances of an arbitration agreement? Albert did what anyone would have done in these urgent circumstances, especially a loving son seeking proper care for his ailing and declining mother. He signed what was shoved in front of him, so he could get his mother treated pronto.

Although Bob's brief had some gripping portions, the trial court did not buy it. "This case," the court tersely announced, "must be arbitrated." Not exactly spellbinding language. But, at least according to Davis v. 1245 Church Road Operations No. 3539 EDA 2018, 2020 Pa. Super. Unpubl. LEXIS 1298 (April 16, 2020), a recent decision of the Pennsylvania Superior Court, the trial court got it right when it concluded that Albert's negligence claims must be arbitrated. Although "nonprecedential," the Davis decision provides a valuable roadmap for parties seeking to ensure the enforceability of arbitration agreements.

Some of the defendant-nursing home's successful keep-this-baby-in-arbitration strategies that the Davis court relied on:

• Like the nursing home that admitted Albert's mother, the nursing home in Davis used a title that sounded a little bit like an oxymoron—"Voluntary Binding Arbitration Agreement." But the use of "voluntary," the Davis court said, showed that the arbitration agreement was not shoved down anyone's throat. Especially because the agreement said, directly below its title: "If this agreement is not signed, the patient will still be allowed to be cared for in this nursing home."
• Above the signature line that Albert had signed hastily and nervously, the arbitration agreement in Davis reiterated, in bold and capital letters: "This agreement is voluntary and is not a precondition to receiving services at this nursing home." Underscoring "voluntary," the arbitration agreement mentioned, no less than three times, that receiving care at the nursing home was "not contingent upon signing." No ordinary consumer would miss those conspicuous references. Right?
• The arbitration agreement in Davis stated that the signer, by executing the document, was waiving the right to trial by judge or jury. Covering all the bases, the nursing home in Davis even defined "waiving": "Waiving" means "giving up." Helpful, no?
• The nursing home in Davis made sure that the execution of the document would not appear "rushed" or "hasty." How? By insisting that the signer take the document home and return the signed document later, by mail, fax or email. Taking it home gives the signer more time to consider the document. Albert did not use that time to read or review the document. But Albert is in the minority. Most folks in a similar situation will take the time carefully to review the ins and outs of the arbitration agreement. Right?
• The arbitration agreement in Davis was "revocable" within thirty days of signing. Don't worry. The agreement defined "revocable."
• The arbitration agreement in Davis specifically stated that the signatory has a right to have an attorney review the document. Any ordinary consumer will take advantage of that right, no?

Bob may sneer that these six factors are mere "optics." As a keen observer of human behavior, Bob snorts that Albert and everyone else in "discombobulated" shoes will never take the time or effort scrupulously and meticulously to review an arbitration agreement. Bob may be right as a matter of conduct. But it does not matter. The court in Davis pointed out that opportunity is everything:

The plaintiff's willful failure to read the arbitration agreement does not render it procedurally unconscionable. The law of Pennsylvania is clear. One who is about to sign a contract has a duty to read the contract first. As this court has stated: It is well established that, in the absence of fraud, the failure to read a contract before signing it is an unavailing excuse or defense and cannot justify an avoidance, modification or nullification of the contract; it is considered supine negligence.

See Davis v. 1245 Church Road Operations, 2020 Pa. Super. Unpubl. LEXIS 1298, at *13. The court did not define "supine." No matter. Bob knows exactly what it means.

The "moral," Bob later conceded to Albert: folks who carefully draft arbitration agreements with an eye to "voluntariness" have a leg up when it comes time to enforcing the agreements.  And folks who "say all the right things" have a slam-dunk certainty of enforcing the agreement, even in the face of sympathetic circumstances. Bob—you think?

Charles F. Forer of Charles F. Forer Alternative Dispute Resolution Services independently provides arbitration, mediation and all other neutral services. He is the current co-chair of the Philadelphia Bar Association's alternative dispute resolution committee. He is a former chair of the association's fee disputes committee. He is a frequent lecturer and writer on the use of ADR in a variety of settings. You can reach him at 610-999-5764 and c[email protected].