Nursing Home Arbitration Agreement Found To Be Invalid and Unenforceable as Unconscionable

In the case of Blackshear v. Providence Operator, LLC, No. 250102454 (C.P. Phila. Co. May 28, 2026 Carpenter, J.), the trial court issued a Rule 1925 Opinion requesting the Superior Court to affirm the trial court’s decision overruling a Defendant’s Preliminary Objections in a professional liability action regarding a nursing home negligence case. The Defendants, through Preliminary Objections, sought to transfer this litigation to private litigation pursuant to an ADR agreement signed by the Plaintiff’s decedent when he was admitted to the nursing home.

The trial court ruled that the Arbitration Agreement allegedly signed by the Plaintiff’s decedent was invalid and unenforceable where clear and convincing evidence indicated that the resident lacked the capacity to understand and execute the agreement at the time it was signed.

Anyone wishing to review a copy of this decision may click this LINK.


Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (July 23, 2026).

Source of image:  Photo by Caleb Oquendo on www.pexels.com.

Trial Court Finds That Defendant Waived Arbitration Clause in Nursing Home Case by Litigating Case in Court

 

In the case of the Estate of Smalling v. 2990 Holm Operating, LLC, Jan. Term 2024, No. 240102492 (C.P. Phila. Co. Dec. 9, 2025 Cohen, J.), the trial court issued a Rule 1925 Opinion requesting the appellate court to uphold the trial court’s decision to deny a Defendant’s Motion to Compel an Arbitration in a nursing home case.

In this matter, the Plaintiffs allege that their family member decedent had passed away due to alleged negligence treatment received at the Defendant’s facility.

After the Plaintiffs had filed suit, the case proceeded with pleadings and discovery. Fourteen months after the lawsuit was filed, the Defendants filed a Petition to Compel Arbitration.

The court denied the Petition under the primary rationale that the Defendants had waived its right to compel arbitration by availing itself of the judicial process. The court noted that, here, there was a significant delay of over one year before the Defendant sought to compel arbitration. Given the delay and the active litigation in the lawsuit, including the filing of earlier Preliminary Objections by the Defendant, the trial court found a waiver of the right of the Defendant to request arbitration.

In so ruling, the trial court did not reach the Plaintiffs’ other arguments that the arbitration clause in the nursing home agreement was unenforceable under the doctrines of procedural and substantive unconscionability, and/or the argument that the person who had signed the arbitration agreement did not have the power to bind the decedent to the arbitration agreement.

Anyone wishing to review a copy of this decision may click this LINK.

Source of image:  Photo by Matthius Zomer on www.pexels.com.

Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (Feb. 12, 2026).

Superior Court Upholds Right to Jury Trial and Rejects Arbitration Clause Relative to Contract Plaintiff Entered Into on Defendant's Website

In the case of Duffy v. Tatum, No. 483 EDA 2025 (Pa. Super. March 3, 2026 Lazarus, P.J., Panella, P.J.E., and Sullivan, J.) (Op. by Panella, P.J.E.), the Pennsylvania Superior Court affirmed a trial court’s Order overruling a Defendant’s Preliminary Objections under which the Defendant asserted that a Plaintiff had waived the right to a jury trial by way of an agreement entered into via the Defendant's website.

According to the Opinion, the Plaintiff had proceeded to the Defendant’s website to book services provided by the Defendant moving company.

On that website, the customer was required to check off a box accepting the Defendant’s terms of services. The customer had the ability to click on an underlined phrase that would take the customer to the Defendant’s Terms of Service by way of a hyperlink. 

On that hyperlink, if the customer accessed it, one of the provisions that would be seen in the language on that page would be an ADR clause for the resolution of any disputes that arose between the parties by way of mediation followed by an arbitration, as opposed to by way of an opportunity for a jury trial in a court of law.

In this matter, the trial court found that the Defendant’s website did not provide a reasonably obvious notice of its Terms of Service to the Defendant’s customers prior to the customer’s purchasing the services offered by the company.  As such, the trial court ruled that the customer had never agreed to waive his constitutional right to a jury trial. As noted, on appeal, the Pennsylvania Superior Court affirmed the trial court’s decision in this regard.

The Superior Court framed the central issue before it as involving “an overarching question of whether a person should be deprived of their constitutional right to a jury trial when they ostensibly enter into an arbitration agreement through hyperlinked Terms of Service on a website that the person never clicked on, viewed, or read.” See Op. at p. 6.

In so ruling, the Pennsylvania Superior Court referred to its prior decisions on this issue in which the court had held that the Pennsylvania State Constitution provides its citizens with the greater protections afforded by the right to a jury trial.

The Superior Court otherwise noted that the “copious use of contracts with restrictive arbitration agreements causes concern, particularly in the context of internet contracts like the one at issue here, where the parties are frequently of unequal bargaining power and one party may be unaware of the significant rights they are waiving simply by using a website to make a purchase or retain services.” See Op. at p. 8.

President Judge Emeritus Panella noted in his Opinion that, in recognition of this reality, Pennsylvania courts have taken a small step towards righting the wrongs of arbitration agreements with respect to wrongful death actions involving negligent nursing center facilities. The court otherwise noted that there is still a need for greater scrutiny regarding a person’s waiver of their constitutional right to a jury trial when it comes to these types of arbitration agreements in other scenarios as well. 

Judge Panella stated that “[t]his need is imperative when there is no genuine effort to inform a purchaser of the terms of the contract before they click on a link or box that purports to generate their agreement to a contract, as the case” was in this matter. See Op. at p. 9.

The court went on to note that it found that it is imperative that, in the context of civil litigation matters, that a person be fully informed of their constitutional right to a jury trial and of the effect of waiving that right. Accordingly, the court held that it is essential that any waiver of the right to a jury trial must be clearly described and evidenced such that the person waiving the right fully understands the right that they are giving up by agreeing to enter into the contract.

In light of its holding that the constitutional right to a jury trial in Pennsylvania should be afforded the greatest protection possibly by the courts of Pennsylvania, the court in this Duffy case enunciated a “strict burden of proof [that its] necessary to demonstrate a person’s unambiguous manifestation of assent to arbitration.” See Op. at p. 15.

More specifically, the court noted that this strict burden of proof necessary to demonstrate a person unambiguous assent to arbitration requires (1) an explicit statement on the registration website and application screens that a consumer is waiving their right to a jury trial when then the person agrees to the seller’s Terms of Service and the registration cannot be completed until the person is fully informed of that waiver, and (2) when the agreements are available for viewing after a user has clicked on a hyperlink, the waiver should be not hidden in the middle of the document, but rather, should appear prominently in bold, capitalized text. See Op. at p. 15.

The court additionally noted that the word “arbitration” must also be clearly defined within the arbitration agreement in addition to being prominently displayed in the language of the contract. See Op. at p. 16.

In the end, in this case, where the customer here never clicked on the Terms of Service and, therefore, never saw the Terms of Service, the court ruled the customer did not unambiguously assent or agree to give up his or her rights to a jury trial in favor of arbitration. 

The Superior Court also ruled that, where the website did not provide a reasonably obvious notice of its Terms of Service, there was no meeting of the minds on a contractual basis relative to the issue of arbitration for the resolution of any disputes. 

As such, the Pennsylvania Superior Court affirmed the lower court's decision and found that the trial court did not err in overruling the Defendant company’s Preliminary Objections on the issues presented.

Anyone wishing to review a copy of this decision may click this LINK.


Source: Article – “Pa. Superior Court Rules Company’s Terms Didn’t Waive Customer’s Right to Jury Trial” By Tristin Hoffman of The Legal Intelligencer (March 6, 2026).


I also send thanks to Attorney Thomas F. Foley, III of the Foley Law Firm in Scranton, Pennsylvania for making sure that I saw this decision as well.

Source of image:  Photo by Vojtech Okenka on www.pexels.com.

Pennsylvania Supreme Court Finds It Cannot Reach Question of Validity of Uber's Arbitration Clause

In the case of Chilutti v. Uber, No. 58 EAP 2024 (Pa. Jan. 21, 2026) (Op by Brobson, J.), the Pennsylvania Supreme Court addressed a request by Uber to refer a personal injury civil litigation matter to arbitration.

According to the Opinion, a woman who uses a wheelchair sued Uber Technologies, Inc. and others after an incident in which an Uber driver failed to provide her with a seat belt while transporting her in a wheelchair-accessible vehicle, causing her to fall and sustain injuries.

The Plaintiff filed a negligence cause of action in court. Uber responded by filing a Petition to Compel Arbitration, arguing that the Plaintiffs had agreed to arbitrate their claims when they enrolled in Uber’s service.

At the trial court level, the trial court granted Uber’s Petition and ordered the parties to proceed to Arbitration.

At the Superior Court level, the Superior Court, sitting en banc, reversed and held that there was valid agreement to arbitrate and remanded for further proceedings.

In this decision, the Pennsylvania Supreme court first reviewed whether an Order compelling Arbitration and staying trial proceedings is an immediately appealable collateral Order. The Supreme Court held that such an Order does not meet the requirements for a collateral Order because the issue can be reviewed after the entry of a final judgment and, as such, did not result in irreparable loss if the judicial review is postponed. 

Accordingly, the Supreme Court vacated the Superior Court’s decision and remanded the case back to the trial court with instructions on how to proceed.

In light of this decision, the Pennsylvania Supreme Court did not address the issue of the validity of the Uber Arbitration Agreement or the merits of whether Arbitration could be compelled in cases involving Uber.

Anyone wishing to review a copy of this decision may click this LINK.


Source: Justia Daily Opinion Summaries, www.justia.com (Jan. 22, 2026).4

Source of image:  Photo by Tingey on www.unsplash.com.

Court Finds Nursing Home Arbitration Agreement to be Unconscionable and, Therefore, Unenforceable

In the case of Harrington v. Kramer, No. 2024-CV-774 (C.P. Luz. Co. Jan. 14, 2025 Gelb, J.), Judge Lesa Gelb of the Luzerne County Court of Common Pleas found that the terms of a nursing home Arbitration Agreement was unconscionable and, therefore, unenforceable.

The court also denied Preliminary Objections filed by the Defendants against the punitive damages claims. The court noted that these punitive damages issues could be revisited during the Motion for Summary Judgment stage.

According to the Opinion, the Plaintiff filed claims for vicarious and direct corporate liability against nursing home Defendants in which the Plaintiff’s decedent resided. The Plaintiffs alleged that the decedent sustained injuries while staying at the Defendant’s premises from which the decedent eventually passed away.

A central issue in the case relative to the arguments addressed in this decision were whether the Plaintiff decedent had sufficient cognitive function and understanding to properly agree to the admission paperwork, which included an Arbitration Agreement. 

There was evidence that the decedent was on medications on her arrival to the nursing home and also that she was forgetful and had a short attention span. The court noted that the nursing home’s admission paperwork at that time was over seventy-five (75) pages in length and the Arbitration Agreement was the second to last document in the packet.

It was additionally alleged that the nursing home did not have any written policies about what the Director of Admissions should do in order to prepare for initial meetings with incoming residents, in part, in terms of determining if a person is competent to sign an arbitration agreement.

Judge Lesa Gelb
Luzerne County

Judge Gelb provided a thorough review of Pennsylvania law regarding the validity and enforceability of arbitration agreements in this context. The court noted that, although Pennsylvania and federal law impose a strong public policy in favor of enforcing arbitration agreements, the enforcement of such an agreement to arbitrate can be denied by a court where the party opposing arbitration proves a contract defense that invalidates the agreement to arbitrate. One such defense to an allegation that a valid arbitration agreement has been entered into is the defense of unconscionability.

The court noted that, to invalidate enforcement of a contract based upon unconscionability, the party challenging the contract must show both an absence of a meaningful choice, referred to as procedural unconscionability and contract terms that are unreasonably favorable to the other party, which is known as substantiative unconscionability. The court noted that these tests are assessed under a sliding-scale approach, with a lesser degree of substantiative unconscionability required where the procedural unconscionability is very high.

Applying the law to the facts of this case, the court found that the Arbitration Agreement at issue was unconscionable and, therefore, unenforceable. The court found that the Arbitration Agreement at issue was equally and procedurally substantively unconscionable.

The court noted that it found that the Plaintiff decedent did not have the legal capacity to sign the Arbitration Agreement based upon the medications that she was prescribed, the notes from the nursing staff as to the decedent’s cognition, and the other circumstances surrounding the agreement. The court also found the agreement itself to be substantively unconscionable because it imposed additional costs on the decedent and her representatives that they would not have in a court of law. The court also found that the Arbitration Agreement favored the nursing home in that it permitted the nursing home to pursue the decedent and/or her representatives for non-payment outside of arbitration.

Due to the above issues, the court held that the Arbitration Agreement was not binding.

Anyone wishing to review a copy of this decision may click this LINK.


I send thanks to Attorney Thomas F. Foley, III of the Foley Law Firm in Scranton for bringing this case to my attention.

In Case of First Impression PA Superior Court Rules That A Parent Cannot Waive Child's Right To Jury Trial

In the case of Santiago v. Philly Trampoline Park, LLC, No. 2615 EDA 2021 (Pa. Super. March 21, 2023 Bowes, J., King, J., and Pellegrini, J.) (Op. by Bowes, J.), the Superior Court addressed an issue of first impression in Pennsylvania in these consolidated appeals, that being whether a parent’s role as natural guardian entitles the parent to bind a minor child to an arbitration agreement and waive that child’s right to seek redress for injuries in a court of law.  

In the consolidated appeal, the Superior Court also addressed whether one spouse's signature on a waiver form could bind the other spouse to be limited to only pursuing a recovery at arbitration.

The appellate court affirmed the lower court rulings that answered this question in the negative and concluded that the claims presented were indeed permitted to head to a jury trial as opposed to arbitration.

Overall, the Pennsylvania Superior Court, after reviewing the law of agency and contract law, concluded that the trial courts had properly ruled that no agreements at issue served to bind the children or the non-signing spouses to resolve their negligence claims in arbitration rather than by way of a personal injury lawsuit in the courts.

More specifically, the Pennsylvania Superior Court agreed with the trial court findings that the trampoline facility had failed to meet its burden to show that the signatory spouses were the agents of the non-signing spouses.

The court additionally held that the parent-child relationship did not empower the signatory parents to waive their minor children’s rights to have their claims resolved in a personal injury lawsuit in a court of law as opposed to arbitration.

As such, the lower court's Orders were affirmed.

Anyone wishing to review a copy of this decision may click this LINK.


Source: “Pennsylvania Civil Law Case Alerts,” Fastcase.com as provided by Pennsylvania Bar Association.

Source of image:  Photo by Ben Moses on www.unsplash.com.

Arbitration Provision In Nursing Home Agreement Found To Be Unconscionable and Unenforceable

In the case of Kohlman v. Grane Health Care Company, No. 103 WDA 2021 (Pa. Super. July 5, 2022 Kunselman, J., King, J., and Collins, J.) (Op. by Collins, J.), the court affirmed a trial court’s overruling Preliminary Objections asserted by various Defendants that sought to compel arbitration of the claims asserted against them by the Plaintiffs.

This case arose out of medical malpractice claims related to treatment secured by the Plaintiff at a skilled nursing home.

The court noted that, in connection with her admission to the nursing home, the Plaintiff's decedent had signed a number of documents including an arbitration agreement.

After the Plaintiffs filed suit in the Court of Common Pleas, the Defendants filed Preliminary Objections seeking to compel arbitration. The trial court overruled the Defendant’s Preliminary Objections and this appeal resulted.

The appellate court agreed with the trial court that the terms of the arbitration agreement were unconscionable.

The court affirmed despite noting that both Pennsylvania and federal law impose a strong public policy in favor of enforcing arbitration agreements. 

The court also acknowledged that the enforcement of an arbitration agreement may be denied only where the party opposing arbitration proves that a contract defense that applies equally to non-arbitration contracts serves to invalidate the agreement to arbitrate.  In this matter, the contract defense of unconscionability of the contract terms was raised.

The Superior Court noted that, to invalidate or bar enforcement of a contract based on unconscionability, the party challenging the contract must show both an absence of meaningful choice, also referred to as procedural unconscionability, and that the contract terms that are unreasonably favorable to the other party, known as substantive unconscionability. 

The Superior Court additionally noted that procedural and substantive unconscionability are assessed under a sliding/scale approach, with a lesser degree of substantive unconscionability required where the procedural unconscionability is very high.

In this Kohlman case, the appellate court agreed with the trial court findings that the arbitration agreement was procedurally unconscionable because the decedent was in pain and was medicated at the time she signed the arbitration agreement, the decedent was alone when she was asked to sign the arbitration agreement, the decedent had no opportunity to read the arbitration agreement and was not given a copy to review prior to her signing the same, and where the provisions of the agreement were not otherwise fully read or explained to the decedent. The court therefore ruled that the process by which the decedent’s signature was obtained on the arbitration agreement denied the decedent a meaningful choice and, therefore, the arbitration agreement was found to be procedurally unconscionable.

The appellate court also agreed with the trial court finding that, on the issue of substantive unconscionability, the provision in the agreement requiring that the decedent pay one half of the cost of any arbitration, including one half of the arbitrator’s fees, was substantively unconscionable because it imposed additional expenses for bringing a claim that the decedent would not have to bear in a court action. The appellate court agreed that this term of the agreement unreasonably favored the nursing home and, therefore, was sufficient to satisfy the requirement of showing substantive unconscionability, particularly where, as here, the record, according to the appellate court, established that the decedent was not given full information regarding her choices or any opportunity to inform herself of what she was signing.

Anyone wishing to review a copy of this decision may click this LINK.


Source: “Article “Nursing Home Can’t Enforce ‘Unconscionable’ Arbitration Clause and Wrongful Death Suit, P.A. Appeals Court Rules,” by Aleeza Furman. Pennsylvania Law Weekly (July 6, 2022).