J-A13007-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 ERNEST EWING CHRISTOPHER,               :   IN THE SUPERIOR COURT OF
 EXECUTOR FOR THE ESTATE OF              :        PENNSYLVANIA
 MILDRED F. SNYDER                       :
                                         :
                                         :
              v.                         :
                                         :
                                         :
 GOLDEN GATE NATIONAL SENIOR             :   No. 864 WDA 2017
 CARE, LLC; GGNSC UNIONTOWN, LP          :
 D/B/A GOLDEN LIVING CENTER              :
 UNIONTOWN; GGNSC UNIONTOWN              :
 GP, LLC; GGNSC HOLDINGS, LLC;           :
 GGNSC EQUITY HOLDINGS, LLC;             :
 GPH UNIONTOWN, LP; GGNSC                :
 ADMINISTRATIVE SERVICES, LLC;           :
 GGNSC CLINICAL SERVICES, LLC;           :
 GOLDEN GATE ANCILLARY, LLC; AND         :
 JOYCE HOCH, NHA                         :
                                         :
                   Appellants            :

                    Appeal from the Order May 23, 2017
  In the Court of Common Pleas of Fayette County Civil Division at No(s):
                            No. 559 of 2016 GD


BEFORE: OLSON, J., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY OLSON, J.:                        FILED JANUARY 04, 2019

     Appellants, Golden Gate National Senior Care, LLC, et al., appeal from

an order entered on May 23, 2017 in the Civil Division of the Court of Common

Pleas of Fayette County that overruled their preliminary objections which

sought to compel arbitration. We vacate and remand.

     Appellee, Ernest Ewing Christopher, executor of the estate of Mildred F.

Snyder, commenced this action by filing a complaint in the Court of Common
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Pleas of Fayette County on March 21, 2016. The complaint alleged survival

and wrongful death claims against Appellants arising from Mrs. Snyder’s

residency at the Golden Living Uniontown Facility (“the Facility”). Appellants

filed preliminary objections to the complaint on April 30, 2014 seeking, inter

alia, to compel Alternative Dispute Resolution (ADR) pursuant to an ADR

agreement signed by Mrs. Snyder’s husband, Donald Snyder, upon Mrs.

Snyder’s admission to the Facility in 2006. Following discovery, briefing and

argument, the trial court overruled Appellants’ preliminary objections on May

23, 2017.

      Appellants timely appealed from the May 23, 2017 order on June 14,

2017. On June 27, 2017, the trial court issued an order pursuant to Pa.R.A.P.

1925(b) directing Appellants to file and serve a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b).        Appellants timely

complied on July 3, 2017 and the trial court issued its Rule 1925 opinion on

August 17, 2017. In sum, the court found that there was no meeting of the

minds because the ADR agreement did not clearly identify the parties to the

contract; additionally, the court found that Mr. Snyder lacked authority to

execute the agreement; and, finally, the court deemed the agreement to be

void due to lack of consideration and unconscionability.

      Appellants raise the following claims in their brief:

      I.    Whether the order refusing to compel enforcement of the
            ADR Agreement is immediately appealable as of right?

      II.   Whether the ADR Agreement is void due to either
            inadequate consideration or unconscionability?

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       III.   Whether the Trial Court correctly found that Donald Snyder
              lacked authority to execute the ADR Agreement?

       IV.    Whether the ADR Agreement is unenforceable because it did
              not adequately identify the parties to the Agreement?

Appellants’ Brief at 4.1

       Before turning to the merits of this appeal, we consider the issue

involving the appealability of the instant interlocutory order since it pertains

to our authority to exercise jurisdiction of this dispute. See In re: Estate of

Cherwinski, 856 A.2d 165, 166 (Pa. Super. 2004) (“[Superior Court] may

raise the issue of appealability sua sponte because it affects our jurisdiction

over the case.”).

       “Under Pennsylvania law, an appeal may [] be taken from an

interlocutory order as of right (Pa.R.A.P. 311), from a final order (Pa.R.A.P.

341), from a collateral order (Pa.R.A.P. 313), or from any interlocutory order

by permission (Pa.R.A.P. 31[2], [Pa.R.A.P.] 1311, 42 Pa.C.S.A. § 702(b)).”

Cont'l Bank v. Andrew Bldg. Co., 648 A.2d 551, 553 (Pa. Super. 1994).

Pursuant to Pa.R.A.P. 311(a)(8), “[a]n appeal may be taken as of right and

without reference to Pa.R.A.P. 341(c) from . . . [a]n order that is made final

or appealable by statute or general rule, even though the order does not

dispose of all claims and of all parties.” Pa.R.A.P. 311(a)(8). By statute, an

appeal may be taken from a court order denying an application to compel

arbitration made under 42 Pa.C.S.A. § 7304. See 42 Pa.C.S.A. § 7320(a)(1).

____________________________________________


1 We have re-ordered the issues raised in Appellants’ brief for ease of
disposition.

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       In this case, we consider a trial court order that overruled preliminary

objections seeking enforcement of an ADR agreement entered into between

Appellants and Mrs. Snyder. The gravamen of Appellants’ claim is that Mrs.

Snyder delegated her authority to sign an ADR agreement to her husband, Mr.

Snyder.

       On August 22, 2017, this Court entered a rule to show cause against

Appellants, directing them to explain why the trial court’s order was

appealable. Our show cause order cited to this Court’s previous opinion in

Armstrong World Industries, Inc. v. Travelers Indemnity Company,

115 A.3d 342 (Pa. Super. 2015) (Armstrong). In Armstrong, a panel of

this Court concluded that while a request to compel arbitration was

immediately appealable as of right, a request to compel other types of dispute

resolution was not.2

       After the issuance of our decision in Armstrong, our Supreme Court

decided Taylor v. Extendicare Health Facilities, Inc., 147 A.3d 490 (Pa.

2016). At issue in Taylor was the enforceability of an ADR provision that, like

the one presently before us, provided that the parties would first pursue

mediation and, if that failed, then pursue binding arbitration. See Taylor,

147 A.3d at 494. The trial court’s order overruling the Taylor defendants’

preliminary objections was appealed to this Court pursuant to 42 Pa.C.S.A.

____________________________________________


2The ADR provisions in the parties’ agreement in Armstrong ranged from
negotiation to binding arbitration.


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§ 7320(a)(1) and, ultimately, our Supreme Court enforced the ADR provision.

Appellants argue, and we agree, that our Supreme Court’s decision in Taylor

displaces our prior ruling in Armstrong.        Thus, we have jurisdiction to

consider this appeal.

      We initially observe that our review of a claim challenging a trial court’s

order overruling preliminary objections in the nature of a petition to enforce

an arbitration clause found in a contractual agreement “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) (citation omitted), appeal denied 170 A.3d 1063 (Pa. 2017). “As

contract interpretation is a question of law, our review of the trial court's

decision is de novo and our scope is plenary.” Id.

      Appellants’ second issue challenges the trial court's conclusion that the

ADR agreement in question is unenforceable because it is unconscionable.

This Court recently explained:

        Pennsylvania has a well-established public policy that favors
        arbitration, and this policy aligns with the federal approach
        expressed in the Federal Arbitration Act, 9 U.S.C. §§ 1–16
        (FAA). The fundamental purpose of the [FAA] is to relieve
        the parties from expensive litigation and to help ease the
        current congestion of court calendars. Its passage was a
        congressional declaration of a liberal federal policy favoring
        arbitration agreements.

      MacPherson v. Magee Meml Hosp. for Convalescence, 128
      A.3d 1209, 1219 (Pa. Super. 2015) (en banc), quoting Pisano v.
      Extendicare Homes, Inc., 77 A.3d 651, 661 (Pa. Super. 2013)


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     (citations, quotation marks, and footnote omitted).          When
     addressing the issue of whether there is a valid agreement to
     arbitrate, courts generally should apply ordinary state-law
     principles that govern the formation of contracts, but in doing so,
     must give due regard to the federal policy favoring arbitration.
     Gaffer, 936 A.2d at 1114.

Cardinal, 155 A.3d at 52-53.

     Here, the trial court offered two conclusory determinations in finding the

ADR clause sub judice to be unconscionable. First, the court found, without

elaboration, that the ADR clause was substantively unconscionable because

the benefits to Appellants were “grossly disproportionate” to any value

received by Mrs. Snyder. See Trial Court Opinion, 8/17/17, at 5. Second,

the court concluded that the ADR clause was procedurally unconscionable

since the circumstances of its execution left Mr. Snyder without meaningful

choice. After careful review, we conclude that these assessments are contrary

to Pennsylvania law and unsupported by the record.       We therefore cannot

agree that the Snyders met their burden of proving that the clause is

unenforceable. See Sally v. Option One Mort. Corp., 925 A.2d 115, 129

(Pa. 2007).

     “Unconscionability has generally been recognized to include an
     absence of meaningful choice on the part of one of the parties
     together with contract terms which are unreasonably favorable to
     the other party.” MacPherson, 128 A.3d at 1221, quoting
     Williams v. Walker–Thomas Furniture Company, 350 F.2d
     445, 449 (D.C. Cir. 1965)[.]

     An unconscionability analysis requires a two-fold determination:
     (1) that the contractual terms are unreasonably favorable to the
     drafter (“substantive unconscionability”), and (2) that there is no
     meaningful choice on the part of the other party regarding the
     acceptance of the provisions (“procedural unconscionability”).

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      MacPherson, 128 A.3d at 1221 (citations omitted). Courts have
      refused to hold contracts unconscionable simply because of a
      disparity of bargaining power between the two parties. Witmer
      v. Exxon Corp., 434 A.2d 1222, 1228 (Pa. 1981); see also K &
      C, Inc. v. Westinghouse Electric Corp., 263 A.2d 390 (Pa.
      1970).

Cardinal, 155 A.3d at 53-54 (parallel citations omitted).

      Our review of the parties’ agreement leads us to conclude that, because

the provision sub judice contains terms similar to the agreements examined

in our prior cases such as Cardinal and MacPherson, the ADR clause here is

neither procedurally nor substantively unconscionable, and that the trial court

wrongly refused to enforce it.      Cf. MacPherson, 128 A.3d at 1221-1222

(arbitration   agreement     was     neither   procedurally     nor   substantively

unconscionable where it provided: “(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”) (internal quotations omitted);

Cardinal, 155 A.3d at 53-54 (same).        Moreover, the trial court’s finding that

Mr. Snyder lack meaningful choice in signing the agreement is contrary to the

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record. Mr. Snyder was not coerced into signing the agreement. In fact, he

admitted that he voluntarily signed the agreement and was not pressured to

do so.   Also, both he and his wife understood that signing the agreement

meant Mrs. Snyder waived her right to a jury trial. In light of these factors,

we reject the trial court’s conclusion that the ADR clause here was

unconscionable.

      As for the trial court’s finding that the ADR agreement is void for lack of

consideration, we disagree. In rendering this conclusion, the trial court found

that Mrs. Snyder “received no benefit whatsoever for her agreement for ADR.”

Trial Court Opinion, 8/17/17 at 5.      Thus, the trial court determined that

consideration for the ADR agreement was lacking. In citing to this conclusion

reached by the trial court, Appellee acknowledges that the ADR agreement at

issue provides that the “speed, efficiency, and cost-effectiveness of the ADR

process . . . constitute good and sufficient consideration for the acceptance

and enforcement of this Agreement.”          Appellee’s Brief at 36.   However,

Appellee’s argument is that the stated purpose of this clause, i.e., speed,

efficiency and cost-effectiveness, would be undermined if the survival claim

was handled pursuant to the ADR agreement and the wrongful death claim

proceeded in the Court of Common Pleas. Thus, Appellee agrees with the trial

court that there is no benefit to Appellee to apply the ADR agreement. This

argument must fail. As our Supreme Court noted in Taylor, “the prospect of

inefficient,   piecemeal litigation   proceeding in separate     forums is no


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impediment to the arbitration of arbitrable claims. Indeed, where a plaintiff

has multiple disputes with separate defendants arising from the same

incident, and only one of those claims is subject to an arbitration agreement,

the [United States Supreme] Court requires, as a matter of law, adjudication

in separate forums.” Taylor, 147 A.3d at 507. Thus, any alleged lack of

benefit to Appellee to proceed with the survival claim under the ADR

agreement does not void the agreement.

         Turning to Appellants’ third issue, we are also unable to agree with the

trial court’s conclusion that Mr. Snyder lacked authority to sign the agreement

on behalf of his wife. The following principles govern our examination of this

issue.

         An agency relationship may be created by any of the following:
         (1) express authority, (2) implied authority, (3) apparent
         authority, and/or (4) authority by estoppel. Express authority
         exists where the principal deliberately and specifically grants
         authority to the agent as to certain matters. See Bolus v. United
         Penn Bank, 525 A.2d 1215 (Pa. Super. 1987). Implied authority
         exists in situations where the agent's actions are “proper, usual
         and necessary” to carry out express agency. See Passarelli v.
         Shields, 156 A.2d 343 (Pa. Super. 1959). Apparent agency exists
         where the principal, by word or conduct, causes people with whom
         the alleged agent deals to believe that the principal has granted
         the agent authority to act.          See Turner Hydraulics v.
         Susquehanna Construction Co., 606 A.2d 532 (Pa. Super.
         1992). Authority by estoppel occurs when the principal fails to
         take reasonable steps to disavow the third party of their belief
         that the purported agent was authorized to act on behalf of the
         principal. See Turnway Corp. v. Soffer, 336 A.2d 871 (Pa.
         1975).

Walton v. Johnson, 66 A.3d 782, 787 (Pa. Super. 2013) (parallel citations

omitted).

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      We have described the formation of agency relationships in the following

manner:

      The basic elements of agency are the manifestation by the
      principal that the agent shall act for him, the agent's acceptance
      of the undertaking and the understanding of the parties that the
      principal is to be in control of the undertaking. Lapio v. Robbins,
      729 A.2d 1229, 1234 (Pa. Super. 1999) (citation omitted). The
      creation of an agency relationship requires no special formalities.
      Lincoln Avenue Indus. Park v. Norley, 677 A.2d 1219, 1222
      (Pa. Super. 1996). The existence of an agency relationship is a
      question of fact. Volunteer Fire Co. v. Hilltop Oil Co., 602 A.2d
      1348, 1351 (Pa. Super. 1992). The party asserting the existence
      of an agency relationship bears the burden of proving it by a fair
      preponderance of the evidence. Id. “In establishing agency, one
      need not furnish direct proof of specific authority, provided it can
      be inferred from the facts that at least an implied intention to
      create the relationship of principal and agent existed.”
      Commonwealth v. Maker, 716 A.2d 619, 623 (Pa. Super.
      1998), [affirmed 761 A.2d 1167 (Pa. 2000) (per curiam)].
      However, we do not assume agency by a mere showing that one
      person does an act for another. Ferry v. Fisher, 709 A.2d 399,
      405 n.5 (Pa. Super. 1998).

Walton, 66 A.3d at 787, quoting B & L Asphalt Industries, Inc. v. Fusco,

753 A.2d 264, 269 (Pa. Super. 2000).

      The record confirms that Mr. Snyder executed the arbitration agreement

with express authority.     After Appellants’ representative presented and

explained the agreement to both Mr. and Mrs. Snyder, Mrs. Snyder, who

understood the nature of the document at issue, expressly instructed her

husband, Mr. Snyder, to sign the arbitration agreement. The record before us

leaves little doubt that Mr. Snyder enjoyed express authority to sign the

arbitration contract.




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      Lastly, we cannot agree that the contract did not adequately identify the

parties. Citing our decision in Bair v. Manor Care Elizabethtown, PA, LLC,

108 A.3d 94 (Pa. Super. 2015), the trial court concluded that the absence of

Mildred Snyder’s name on the first page of the agreement meant that there

was no meeting of the minds concerning the agreement.            Bair is easily

distinguished, however.      In that case, the facility did not execute the

agreement, which implied that there was no meeting of the minds and that

the form agreement failed to adequately identify the parties.          Here, in

contrast, Mrs. Snyder is identified as the resident at the end of the agreement,

just above her husband’s signature, and the document was signed by an

authorized representative of the Facility. Thus, the agreement in this case

properly identified the parties to be bound by the agreement.

      For each of the foregoing reasons, we are compelled to conclude that

the ADR agreement executed by the parties is valid and enforceable. Thus,

the trial court should have directed the parties to proceed in accordance with

the ADR agreement as applicable under Pennsylvania law.            Specifically,

Appellee’s survival claims are subject to the ADR provision while the wrongful

death claims may proceed before the Court of Common Pleas. See Pisano,

77 A.3d at 661-662 (survival claims of decedent signatories are subject to

compulsory arbitration but non-signatory wrongful death claimants cannot be

compelled to arbitrate claims under Pennsylvania’s Wrongful Death Act). The

trial court’s contrary ruling was in error.


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     Order vacated. Case remand with instructions. Jurisdiction relinquished.

     Judge Dubow joins this Memorandum.

     Judge Musmanno notes dissent.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/4/2019




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