J-A04021-20

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

CHARLES DAVIS, ADMINISTRATOR OF 

THE ESTATE OF DORA RAMEY, 

DECEASED

 v.

1245 CHURCH ROAD OPERATIONS, 

LLC D/B/A HILLCREST CENTER, 

GENESIS PA HOLDINGS LLC., AND 

ALBERT EINSTEIN MEDICAL CENTER

APPEAL OF: 1245 CHURCH ROAD 

OPERATIONS, LLC D/B/A HILLCREST 

CENTER AND GENESIS PA HOLDINGS 

LLC. 

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IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 

 No. 3539 EDA 2018

Appeal from the Order Entered November 20, 2018

in the Court of Common Pleas of Philadelphia County

Civil Division at No(s): No.: 1712 01820

BEFORE: PANELLA, P.J., STRASSBURGER, J.* and COLINS, J.*

MEMORANDUM BY STRASSBURGER, J.: Filed: April 16, 2020

1245 Church Road Operations, LLC, d/b/a Hillcrest Center (Hillcrest)

and Genesis PA Holdings LLC (Genesis) (collectively, Appellants) appeal from 

the November 20, 2018 order overruling Appellants’ preliminary objections 

in the nature of a petition to transfer the matter to mandatory arbitration. 

We vacate the order and remand.

The instant case stems from an action filed by Dora Ramey (Ramey)

against Appellants and Albert Einstein Medical Center (AEMC)1involving 

____________________________________________

1 AEMC is not a party to the instant appeal and did not file a brief.
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claims of negligence and corporate negligence arising from injuries she 

sustained between December 2016 and June 2017, while in the care of 

Hillcrest and AEMC.

Prior to her admittance at Hillcrest or AEMC, Ramey lived with her son, 

Charles Davis (Davis), and attended an adult daycare center.

2

 While at the 

daycare center in the spring of 2015, Ramey developed pressure sores. 

Ramey was admitted to AEMC for diagnosis and treatment of the sores. 

Following discharge, AEMC advised Davis that Ramey could not return to his 

home and instead must be admitted to a nursing care facility. AEMC 

provided Davis with a list of nursing facilities near his home, and Davis 

chose Hillcrest.

Upon visiting Hillcrest to begin the admissions process, Davis was 

presented with admission paperwork,3 which included a document entitled 

“Voluntary Binding Arbitration Agreement” (Arbitration Agreement). The 

Arbitration Agreement requires the parties to submit to arbitration all 

disputes arising out of Ramey’s stay at Hillcrest. Immediately below the 

title, in bold typeface and underlined, the document states: “If this 

Agreement is not signed, the Patient will still be allowed to be cared 

for in this Center.” Praecipe to Attach Exhibits to Preliminary Objections, 

____________________________________________

2 Ramey passed away on August 2, 2018. On November 29, 2018, Davis 

filed a praecipe to substitute Davis as administrator of Ramey’s estate.

3 Genesis drafted the admissions paperwork.
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4/2/2018, Exhibit B (Arbitration Agreement at 1). Paragraph 3 is entitled 

“Voluntary Agreement” and again states that “[s]igning this Agreement is 

voluntary and not a condition of the Patient’s admission into this Center. 

The Patient’s ability to be cared for in this Center will not be affected in any 

way if this Agreement is not signed.” Id. Immediately following paragraph 

3 is paragraph 4, which states that selection of Hillcrest as the patient’s care 

facility is voluntary, and advises there are other care facilities available 

nearby. Id. Finally, above the signature line, in bold typeface and 

capitalized letters, the document states: “THIS AGREEMENT IS 

VOLUNTARY AND IS NOT A PRECONDITION TO RECEIVING SERVICES 

AT [Hillcrest].” Id. at 4. It also states in three locations that signing this 

agreement will result in the waiver of a right to trial by judge or jury, 

clarifying that waiver means “giving up” in paragraph 5. Id. at 1, 4. 

Prior to Davis’s signing of the Arbitration Agreement, Ramey granted 

Davis certain powers pursuant to a written general durable power of 

attorney, dated August 27, 1996. Davis presented this power of attorney 

during his meeting at Hillcrest. Davis was permitted to take the documents 

with him and fax them back once signed. Davis signed, as Ramey’s power 

of attorney,4the Arbitration Agreement, along with the other admission 

____________________________________________

4 There is no dispute regarding Davis’s authority to sign the Arbitration 

Agreement on behalf of Ramey.
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paperwork, and faxed the completed documents to Hillcrest.5 Ramey was 

admitted to Hillcrest on April 7, 2015. 

On December 24, 2016, a Stage II pressure wound was discovered on 

Ramey’s sacrum. She was transferred from Hillcrest to AEMC for treatment. 

She subsequently returned to Hillcrest, where she remained until she was 

transferred to Wesley Enhanced Living on June 22, 2017. 

On December 14, 2017, Ramey filed a praecipe for writs of summons

against Appellants and AEMC. The writs of summons were issued and 

served. On January 12, 2018, Ramey filed a complaint against Appellants

and AEMC, as indicated hereinabove. 

On March 29, 2018, Appellants filed preliminary objections, seeking to 

transfer the matter to arbitration based upon the Arbitration Agreement. 

Ramey filed an answer on April 18, 2018, arguing that the preliminary 

objections should be overruled because the Arbitration Agreement was 

unenforceable as a contract of adhesion. See Memorandum in Support of 

Answer to Preliminary Objections, 4/18/2018, at 3-6. 

In support of their objections, Appellants submitted an affidavit from 

Gemma Frankhouser, Senior Admissions Director at Hillcrest, and a

____________________________________________

5 The admissions paperwork, including the Arbitration Agreement, is signed 

but not dated. The only document with a date is the “Representative 

Designation” document, dated April 13, 2015, next to Davis’s signature. 

Thus, it appears from the record that Davis faxed the paperwork back no 

earlier than April 13, 2015. 
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videotaped deposition of Davis. In her affidavit, Frankhouser stated that she

remembered Davis, but did not have a specific recollection of her admissions 

conversation with him. Based on her review of Ramey’s file, she determined 

that she discussed various forms with Davis, including the Arbitration 

Agreement, and that both Davis and she signed these forms. Though her 

specific recollection was lacking, she stated that her normal practice 

regarding the Arbitration Agreement included (1) ensuring that the individual 

signing had the authority to do so; (2) explaining the terms of the

Arbitration Agreement, including that it was not required for admission to 

Hillcrest; (3) informing the signatory that he could review the Arbitration 

Agreement with an attorney; and (4) answering any other questions a 

signatory may have. Affidavit of Gemma Frankhouser, 5/21/2018, at 1-2.

In his deposition, Davis stated that he hired an attorney to help him 

with the admissions process of placing his mother in a nursing home. 

Deposition of Davis, 7/20/2018, at 17. According to Davis, his first 

interactions with Hillcrest, via his attorney, were “terrible.” Id. at 14. When 

Davis visited Hillcrest, though, his mother was approved for admission that 

day. Id. at 16-17. On that day, he believed he met with two women who 

presented him with various forms, including the Arbitration Agreement. Id.

at 44-45. He did not remember if anyone explained the forms to him, nor 

did he recall filling out the forms. Id. at 19-20, 35-36, 39-41, 43, 48. 

According to Davis, he “was in a state of real confusion[,]” “mental 
J-A04021-20

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discombobulation[,]” and “such a fog” that he did not remember, and would 

not have cared, if anyone had explained the forms to him. Id. at 20, 46, 

48. He stated that he would have signed anything to get his mother 

admitted to Hillcrest. Id. at 20-21, 44, 46, 48. 

Upon reviewing the forms during his deposition, Davis recalled that he

took the forms home, filled them out, signed them, and faxed them to 

Hillcrest upon completion. Id. at 19-20, 35-36, 39-41, 44-45. He stated 

that he did not read them before signing, and that he had no time to discuss 

the admission process with anyone. Id. at 21, 38, 47. 

Davis also stated that he helped his mother with her financial affairs 

and took care of his own affairs, including running a business where he rents 

homes to tenants via standardized pre-written leases. Id. at 25-34, 49-51.

The trial court heard oral argument on September 6, 2018. On 

November 20, 2018, the trial court overruled the preliminary objections. 

Trial Court Order, 11/20/2018. This timely filed notice of appeal followed.6 

Appellants raise four questions for our consideration on appeal.7In 

essence, all four questions raise a claim that the trial court erred in 

____________________________________________

6 “An order overruling preliminary objections seeking to compel arbitration is 

immediately appealable as an interlocutory appeal as of right pursuant to 42 

Pa.C.S.[] § 7320(a) and Pa.R.A.P. 311(a)(8).” Petersen v. Kindred 

Healthcare, Inc., 155 A.3d 641, 644 n.1 (Pa. Super. 2017). 

Both Appellants and the trial court have complied with the mandates of 

Pa.R.A.P. 1925.
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overruling Appellants’ preliminary objections and refusing to enforce the 

Arbitration Agreement. Appellants’ Brief at 4-5. 

“[O]ur review of a claim that the trial court improperly denied 

preliminary objections in the nature of a petition to compel arbitration is 

limited to determining whether the trial court’s findings are supported by 

substantial evidence and whether the trial court abused its discretion in 

denying the petition.” Cardinal v. Kindred Healthcare, Inc., 155 A.3d 46, 

49–50 (Pa. Super. 2017). “We employ a two-part test to determine whether 

the trial court should have compelled arbitration: 1) whether a valid 

agreement to arbitrate exists, and 2) whether the dispute is within the scope 

of the agreement.” Washburn v. Northern Health Facilities, Inc., 121 

A.3d 1008, 1012 (Pa. Super. 2015) (citation omitted). 

“When addressing the issue of whether there is a 

valid agreement to arbitrate, courts generally should apply ordinary statelaw principles that govern the formation of contracts, but in doing so, must 

give due regard to the federal policy favoring arbitration.” Cardinal, 155 

A.3d at 53 (citation omitted). “The only exception to a state’s obligation to 

 

7 While Appellants raised four questions in their statement of questions 

section of their brief, they divided their argument section into only two 

parts, in violation of Pa.R.A.P. 2119(a). However, because Appellants’ 

questions can be consolidated into one claim that the trial court erred in 

overruling the preliminary objections and failing to enforce the Arbitration 

Agreement, and the argument section addresses that claim, we do not find 

waiver for failure to comply with the Rules of Appellate Procedure.
J-A04021-20

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enforce an arbitration agreement is provided by the savings clause, which 

permits the application of generally applicable state contract law defenses 

such as fraud, duress, or unconscionability, to determine whether a valid 

contract exists.” Taylor v. Extendicare Health Facilities, Inc., 147 A.3d 

490, 509 (Pa. 2016). “Concerning the defense of unconscionability, we have 

explained that ‘[u]nconscionability has generally been recognized to include 

an absence of meaningful choice on the part of one of the parties

[(procedural unconscionability),] together with contract terms which are 

unreasonably favorable to the other party [(substantive 

unconscionability)].’” Kohlman v. Grane Healthcare Co., ___ A.3d ___,

2020 WL 611085, at *5 n.8 (Pa. Super. 2020) (quoting Cardinal, 155 A.3d 

at 53 (citation omitted)).

In its Pa.R.A.P. 1925(a) opinion, the trial court explained that it 

overruled Appellants’ objections because it found the Arbitration Agreement

procedurally and substantively unconscionable, and therefore unenforceable, 

based on the manner in which the document was presented, the limitation 

on damages, and because the document was a standardized form 

“concerning a legal matter outside the ken of the ordinary consumer.” Trial 

Court Opinion, 5/2/2019, at 7-11. Specifically, the trial court considered the 

evidence presented as follows.

Davis’[s] description of his thought processes when signing the 

documents demonstrates that his bargaining power suffered 

from lack of experience and sophistication relative to that of the 

drafter, [] Genesis []; Davis signed numerous documents he did 
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not understand because he believed they were the key to 

obtaining care for his mother. [AEMC] had discharged his 

mother with the express instruction that she not go home and 

that Davis admit her immediately to a nursing home. 

Accordingly, his need to find a placement was urgent. He chose 

Hillcrest from a list provided by [AEMC] because it was closest to 

his home. The [trial c]ourt credit[ed] his testimony that he 

believed that if he did not sign all the documents, his mother 

would not receive care.

Davis’[s] account of his interaction with Hillcrest is largely 

uncontradicted. Frankhouser does not recall meeting with or 

instructing Davis about the [Arbitration] Agreement, but asserts 

that upon reviewing her records, she “determined” that she must 

have done so, in accordance with her customary practice. This 

conclusory assertion is unaccompanied by any corroborative 

evidence of documents typically generated in a transaction that 

is undeniably important to both parties, such as 

contemporaneous notes, memoranda, correspondence, email, 

computer data or calendar entries[.] She fails to even attach or 

identify copies of any material in Ramey’s file that is the basis of 

her “determination.” For this reason, [the trial c]ourt [was] 

unpersuaded that Frankhouser’s account of her encounter with 

Davis is accurate. Instead, the [trial c]ourt credits Davis’[s] 

recollection, which is direct, specific and emotional. The [trial 

c]ourt finds that the [Arbitration] Agreement is procedurally

unconscionable because it was presented to Davis in a woefully 

deficient manner. 

***

[The limitation on damages outlined in paragraph 11 of the 

Arbitration Agreement] indisputably favors Hillcrest[.] ... Nothing 

in the boldface notices in the [Arbitration] Agreement about the 

signatory’s waiver of a right to a trial by judge or jury alerts the 

reader to the additional substantive and important limitation in 

paragraph 11 on a signatory’s rights to a full remedy. The [trial] 

court finds this [] dispositive and finds that the [Arbitration] 

Agreement is substantively unconscionable.

Trial Court Opinion, 5/2/2019, at 8-10.
J-A04021-20

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Appellants argue that the trial court erred in finding the Arbitration 

Agreement unenforceable. According to Appellants, the evidence established 

that “the steps taken by [Hillcrest] to obtain [] Davis’s signature were fair 

and offered him a definitive choice.” Appellants’ Brief at 32-33. Appellants 

further argue that Davis’s choice to sign the Arbitration Agreement without 

reading it does not mean that he was not offered the opportunity to do so, 

and his taking the documents home and then faxing them, completed and

signed, to Hillcrest, negates any claim that Hillcrest pressured him into 

signing the Arbitration Agreement. Id. at 33.

We first review the trial court’s finding of procedural unconscionability. 

In finding procedural unconscionability, the trial court credited Davis’s

statements that he believed his mother would not be admitted without 

signing the documents and that he was in a fog as he proceeded through the 

admissions process. Despite Davis’s erroneous assumption, the record 

reveals that the Arbitration Agreement states three times, twice in distinct 

typeface, that the agreement to arbitrate is voluntary and that receiving 

care at Hillcrest is not contingent upon signing. It was revocable within 30 

days of signing, and states that the signatory has a right to have the 

agreement reviewed by an attorney. Notably, Davis hired an attorney to 

help him with the paperwork for admitting his mother to Hillcrest, and 

employed that attorney to speak with Hillcrest about admission prior to his 

visiting. While it could be presumed that Davis had some familiarity with 
J-A04021-20

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contract terminology pursuant to his rental business, he also was an 

individual who was comfortable seeking legal advice when he deemed it 

necessary. As explained by Davis, he “manage[s] things to a point that 

where [if he] need[s] some legal advice, [he] go[es] to a lawyer or someone 

that has more knowledge than [he.]” Deposition, 7/20/2018, at 17-18. 

In the instant case, Davis took the admissions paperwork home with 

him, completed it, and faxed it back six days after Ramey was admitted to 

Hillcrest. Thus, he had the opportunity to have his attorney review the 

documents if he so chose. Notably, in filling out the admissions paperwork, 

Davis did not rubber-stamp each document. When given the option to check 

yes or no, he answered no to specific items, declining to give permission to 

Hillcrest to open Ramey’s personal mail, do her personal laundry, or handle 

her personal funds. See Admission Agreement; Resident Fund Accounts. 

Thus, it is apparent from the record that he reviewed at least the Admission 

Agreement and the Resident Fund Accounts document. Accordingly, we 

conclude that his assertion that he did not have time to discuss the 

admission paperwork with anyone, or review it himself, is refuted by the 

record and not supported by substantial evidence.

Furthermore, our review of the record indicates that this is not a case 

of non-disclosure on the part of Appellants, but rather a case where Davis 

did not put forth any effort to read or understand the Arbitration Agreement. 

Davis’s failure to notice the Arbitration Agreement’s clear statements that it 
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did not need to be signed for Ramey to receive care, was due to his choice 

to sign it without reading it. His 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 that 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.” 

Hinkal v. Pardoe, 133 A.3d 738, 743 (Pa. Super. 2016) (citations omitted). 

Accordingly, we conclude that the trial court’s finding that Davis did not have 

a meaningful choice in entering into the Arbitration Agreement was not 

supported by substantial evidence, and therefore the trial court abused its 

discretion in overruling the preliminary objections on the basis of procedural 

unconscionability. Cardinal, 155 A.3d at 49–50. See also Wert v. 

Manorcare of Carlisle PA, LLC, 124 A.3d 1248, 1260 (Pa. 2015) (Opinion 

Announcing the Judgment of the Court) (“[A] similarly situated non-drafting 

party could not use her failure to read as a means of disavowing an 

otherwise valid arbitration agreement.”). 

We next consider the trial court’s finding of substantive 

unconscionability, mindful of the following.

In MacPherson [v. Magee Memorial Hosp. for 

Convalescence, 128 A.3d 1209 (Pa. Super. 2015) (en banc),]

this Court examined [an] arbitration agreement and concluded 

that it was neither procedurally nor substantively 
J-A04021-20

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unconscionable. In reaching that conclusion, we noted the 

following terms contained in the agreement: (1) the parties shall 

pay [] their own fees and costs, similar to civil litigation practice 

in common pleas court; (2) a conspicuous, large, bolded 

notification that the parties, by signing, are waiving the right to 

a trial before a judge or jury; (3) a notification at the top of the 

agreement, in bold typeface and underlined, that it is voluntary, 

and if the patient refuses to sign it, “the Patient will still be 

allowed to live in, and receive services” at the facility; (4) a 

provision that the facility will pay the arbitrators fees and costs; 

(5) a statement that there are no caps or limits on 

damages other than those already imposed by state law; 

and (6) a provision allowing the patient to rescind within thirty 

days.

Cardinal, 155 A.3d at 53 (emphasis added). 

In the instant case, the Arbitration Agreement contains substantially 

similar terms as the ones outlined in MacPherson, save for paragraph 11, 

which sets forth the following limitation on damages.

11. Limitation on Damages. The Arbitrator or Arbitration Panel is 

authorized to award compensatory and punitive damages to the 

extent permitted by the substantive state law for the state in 

which [Hillcrest] is located. However, any award (including 

compensatory and punitive damages, fees and other costs), 

regardless of the nature of the dispute, shall not exceed the 

lesser of: (a) 3 times the amount of the prevailing party’s 

compensatory damages or (b) any applicable caps on damages 

under the state law where [Hillcrest] exists. All disputes 

regarding availability of compensatory and punitive damages 

under applicable state law shall be decided by the Arbitrator or 

Arbitration Panel. If any terms of this Section titled 

“Limitation on Damages” is determined to be invalid or

unenforceable for any reason, then the parties’ intent is 

that only such terms be severed, and this Agreement’s 

remaining terms shall be enforced.

Arbitration Agreement at 2 (emphasis added). The trial court found that this 

limitation on damages clause made the Arbitration Agreement substantively 
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unconscionable. Trial Court Opinion, 5/2/2019, at 10. What the trial court 

ignored, though, is that Genesis included a severability clause at the end of 

paragraph 11, as well as a general severability clause in paragraph 17. 

Arbitration Agreement at 2-3. 

Where the “arbitration provision is separate and distinct from the 

damage limitation portion of the agreement, both location-wise and 

functionally[, such that] the damage limitation may be stricken from the 

agreement without affecting the parties’ agreement to arbitrate[,]” and the 

agreement “contains an explicit severability clause[,]” this Court has held 

that a limitation on damages clause may be severed, allowing the rest of the 

agreement to remain enforceable. Fellerman v. PECO Energy Co., 159 

A.3d 22, 29 (Pa. Super. 2017). In the instant case, the limitation on 

damages clause is separate and distinct from the provisions governing 

arbitration, and the portion of paragraph 11 limiting damages “may be 

stricken from the agreement without affecting the parties’ agreement to 

arbitrate.” Id. Additionally, Genesis included explicit severability clauses

within paragraphs 11 and 17. Accordingly, the trial court erred in not 

severing this portion of the agreement and permitting the remainder of the 

agreement to remain enforceable. Id.

Based on the foregoing, we conclude that the trial court’s finding of 

unconscionability, rendering the otherwise valid Arbitration Agreement 

unenforceable, was not supported by substantial evidence. 
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See Cardinal, 155 A.3d at 54 (finding that where the agreement made clear 

that the parties were giving up their right to trial the agreement was not 

unconscionable). Accordingly, we vacate the order overruling Appellants’ 

preliminary objections and remand to the trial court.

Order vacated. Case remanded. Jurisdiction relinquished.

Judge Colins joins in this memorandum.

President Judge Panella files a dissenting statement.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/16/20