J-A31002-14


                               2015 PA Super 9

M. SYLVIA BAIR, EXECUTRIX OF THE                 IN THE SUPERIOR COURT OF
ESTATE OF MARTHA A. EDWARDS,                           PENNSYLVANIA
DECEASED,

                         Appellee

                    v.

MANOR CARE OF ELIZABETHTOWN, PA,
LLC D/B/A MANORCARE HEALTH
SERVICES-ELIZABETHTOWN,
MANORCARE HEALTH SERVICES, INC.,
MANOR CARE, INC., HCR MANORCARE,
INC., HCR HEALTHCARE, LLC, HCR II
HEALTHCARE, LLC, HCR III
HEALTHCARE, LLC, HCR IV
HEALTHCARE, LLC,

                         Appellants                  No. 435 MDA 2014


               Appeal from the Order Entered January 31, 2014
              In the Court of Common Pleas of Lancaster County
                       Civil Division at No(s): 12-17156


BEFORE: BOWES, OTT, and STABILE, JJ.

OPINION BY BOWES, J.:                             FILED JANUARY 15, 2015

     Manor Care of Elizabethtown, PA, LLC d/b/a Manorcare Health Services

– Elizabethtown and other Manor Care and HCR defendants (collectively

“Manor Care”) appeal from the January 31, 2014 order overruling their

preliminary objections pursuant to Pa.R.C.P. 1028(a)(6), and finding no

agreement to arbitrate. After thorough review, we affirm.

     M. Sylvia Bair, Executrix of the Estate of Martha A. Edwards

(“Decedent”), commenced this wrongful death and survival action against
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Manor Care alleging that neglect and abuse of her mother during her stay in

its facility from April 15, 2011 through July 8, 2011, ultimately caused her

death on October 5, 2011.     Manor Care filed preliminary objections to the

complaint seeking to have the case referred to arbitration pursuant to the

terms of an arbitration agreement executed by Ms. Bair on behalf of

Decedent upon admission to the facility. The trial court permitted discovery

on the issue of the enforceability of the arbitration agreement.

       Sylvia Bair was deposed and testified as follows. Ms. Bair arrived at

Manor Care on April 15, 2011, and was presented with admissions

paperwork for her mother, Martha Edwards.        According to Ms. Bair, that

person was not the Admissions Director Dale Young, but a female

administrator.   No one explained the nature of the arbitration agreement

and Ms. Bair did not recall discussing the agreement with anyone at the

facility.   Bair Deposition, 6/3/13, at 33-34.      Ms. Bair signed all the

paperwork at that time. Id. at 35. Ms. Bair testified that she believed that

the agreement had to be signed in order to facilitate her mother’s admission.

Id. at 48. She possessed a power of attorney from her mother dated May 5,

2000, and she signed the agreement on the line designated for the personal

representative of the patient. No Manor Care representative completed or

signed the form on behalf of the entity.

       During her deposition, Ms. Bair was also shown an executed arbitration

agreement dated June 24, 2009.         She identified the signature of the


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patient’s legal representative as her signature, although she had no

recollection of signing the form, but confirmed that her mother had been a

patient in Manor Care at that time. In contrast to the 2011 agreement, the

blanks on the form for the date and the names of the parties were

completed and it was signed by all parties.

      Manor Care offered Dale Young, the facility’s Admissions Director at

the time of Decedent’s admission, for deposition. While Mr. Young was the

person who usually supervised the         admissions process, he had no

recollection of Ms. Bair and could not confirm that he presented the

admission paperwork to her. His testimony was limited to what he routinely

would advise new patients or their representatives about the arbitration

agreement, and not based upon any specific recollection of a conversation

with Ms. Bair.

      The trial court overruled Manor Care’s preliminary objections, thus

permitting the litigation to proceed in the court of common pleas.     Manor

Care timely appealed and raises one issue for our review:

         1. Whether the trial court erred as a matter of law in
            concluding that Manor Care did not accept the subject
            Arbitration Agreement based on the lack of a signature of
            the nursing home representative on the agreement itself?

Appellant’s brief at 4.

      This appeal, though interlocutory, is appealable as of right pursuant to

Pa.R.A.P. 311(a)(8), which provides that an interlocutory appeal may be

taken as of right from “an order which is made appealable by statute or

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general rule.” The Pennsylvania Uniform Arbitration Act, 42 Pa.C.S. § 7320

et seq., provides that an appeal taken from an order denying a petition or

application to compel arbitration is appealable. 42 Pa.C.S. §§ 7320(a)(1),

7342.

        In reviewing a claim that the trial court improperly denied preliminary

objections in the nature of a petition to compel arbitration, we are “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." Gaffer Ins. Co. v. Discover Reinsurance Co., 936 A.2d 1109,

1112 (Pa.Super. 2007). Since contract interpretation is a question of law,

“our review of the trial court's decision is de novo and our scope is plenary.”

Bucks Orthopaedic Surgery Associates, P.C. v. Ruth, 925 A.2d 868,

871 (Pa.Super. 2007).

        Arbitration cannot be compelled in the absence of an express

agreement to arbitrate.     E.E.O.C. v. Waffle House, Inc., 534 U.S. 279

(2002); Emlenton Area Municipal Authority v. Miles, 548 A.2d 623, 625

(Pa.Super. 1988). The touchstone of any valid contract is mutual assent and

consideration. The issue of whether parties agreed to arbitrate is generally

one for the court, not the arbitrators. Gaffer, supra; Ross Development

Co. v. Advanced Building Dev., Inc., 803 A.2d 194 (Pa.Super. 2002).

When addressing that issue, courts generally apply ordinary state law

contract principles, “but in doing so, must give due regard to the federal


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policy favoring arbitration.”    Gaffer, supra at 1114 n.7.             If the court

determines there is a valid agreement, it must then determine if the dispute

in question is within the scope of the agreement. We are mindful that the

burden was on Manor Care to demonstrate that a valid agreement to

arbitrate existed between the parties, and that the dispute was within the

scope of the agreement. 42 Pa.C.S. § 7304(a).

      The “Voluntary Arbitration Agreement” at issue is a form with blanks

on the first page for the insertion of the names of the contracting parties and

the date. None of these blanks was completed. In addition, the agreement

provides that, “arbitration is described in the voluntary arbitration program

brochure,” a copy of which is “attached and made part of this agreement.”

Voluntary Arbitration Agreement, at 1. The brochure was not attached.

      Above the signature lines, the agreement provides, in bold capital

letters,

      THE  PARTIES    CONFIRM  THAT  EACH   OF  THEM
      UNDERSTANDS THAT EACH HAS WAIVED THE RIGHT TO
      TRIAL BEFORE A JUDGE OR JURY AND THAT EACH
      CONSENTS TO ALL OF THE TERMS OF THIS VOLUNTARY
      AGREEMENT. PATIENT ACKNOWLEDGES THE RIGHT TO
      REVIEW THIS AGREEMENT WITH AN ATTORNEY OR
      FAMILY BEFORE SIGNING.

      There   are   signature   lines   for   the   Patient,   the   Patient’s   Legal

Representative in both his/her representative capacity and in his/her

individual capacity, and for the Center Representative.         Ms. Bair signed as




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the Patient’s legal representative, but only in her representative capacity;

the signature line for the Center Representative is blank.

      It is Manor Care’s position that the lack of a signature by a facility

representative does not render the agreement unenforceable.           It cites

Hopkins v. New Day Fin., 643 F.Supp.2d 704, 720 (E.D. Pa. 2009), for the

proposition that the writing need not be signed by either party, and certainly

not the party attempting to enforce it.    Manor Care relies upon decisions

from other jurisdictions in support of its position that an agreement is

enforceable if it is executed by the party to be held to its terms. Manor Care

maintains that its presentation of the form agreement to Ms. Bair constituted

an offer to arbitrate; by signing the agreement, Ms. Bair accepted the offer.

Thus, Manor Care submits that it manifested its intent to submit to

arbitration any and all disputes that might arise.   In addition, Manor Care

asserts that the fully executed arbitration agreement from Decedent’s prior

admission in 2009 did not support the trial court’s inference that Manor Care

did not intend to be bound by the unsigned 2011 agreement.

      Ms. Bair counters that the form does not indicate who the parties are

or that the parties agreed on the “material and necessary details of their

bargain.” Lackner v. Glosser, 892 A.2d 21, 30 (Pa.Super. 2006). The fact

that the form was “facially devoid of essential terms[,]” not just the

signature, renders it unenforceable.        She continues the parties are

unidentified; the definition line of the party only references “Center.” It is


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undated. Ms. Bair argues that there are no indicia of mutual assent. She

maintains that the alleged agreement expressly requires both parties to

confirm that they are waiving their right to a jury trial and consenting to the

terms of the agreement by affixing their signatures. The fact that there is a

signature line for “Center Representative” and that it is blank further

indicates that there was no mutual assent.           See Baier v. Darden

Restaurants, 420 S.W.3d 733, 739 (Mo. Ct. App. 2014).

      The trial court determined that there was no agreement in 2011. It

arrived at that conclusion after viewing the signed arbitration agreement in

2009 as evidence from which one could reasonably infer that Manor Care did

not intend to be legally bound by the unsigned agreement in 2011. Manor

Care challenges the reasonableness of that inference and asserts that this

prior dealings evidence suggests instead that Ms. Bair intended to enter into

an agreement to arbitrate.

      The issue is not whether the arbitration agreement was signed by the

party sought to be bound, but whether there was a meeting of the minds,

that is, whether the parties agreed in a clear and unmistakable manner to

arbitrate their disputes.   The trial court concluded that the parties did not

agree, and we concur. Even if we were to view the presentation of the form

as an offer, as Manor Care suggests, it lacked essential terms such as the

names of the contracting parties, the date of the agreement, and the

brochure describing the arbitration process, which was expressly made part


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of the agreement.       “[A]n offer to contract must be intentional and

sufficiently definite in its terms, and no offer will be found to exist where its

essential terms are unclear.”      Lackner, supra at 31 (quoting Beaver

Valley Alloy Foundry, Co. v. Therma-Fab, Inc., 814 A.2d 217, 222

(Pa.Super. 2002)).

      We note, too, that while the absence of signatures is not fatal unless

required by law or by the intent of the parties, the agreement herein

expressly required the signatures of both parties. The bold-print language

above the signature lines established that “the parties” confirmed that they

waived the right to a trial and consented to arbitration by signing the

agreement on the designated lines.       In light of the fact that Manor Care

supplied the form document and terms therein, it is presumed to have

known the effect of its terms and conditions. By failing to affix its signature,

Manor Care did not consent to arbitrate.        Herein, the party seeking to

enforce the arbitration agreement is the party who did not sign the

document. Absent mutual assent, there was no enforceable agreement to

arbitrate.

      Finally, Manor Care takes issue with the inference drawn by the trial

court from the parties’ prior course of dealing.     It argues that the proper

inference from the 2009 executed arbitration agreement was that Ms. Bair

intended to enter into an agreement to arbitrate disputes, not that the

signature of the Manor Care representative was required for an enforceable


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agreement.1 Manor Care’s argument misses the mark. Absent herein was

mutual assent of the parties to the alleged contract. It was not Ms. Bair’s

consent that was the problem; it was Manor Care’s failure to fill in essential

terms such as the names of the parties and sign the agreement that fell

short in manifesting its consent to arbitrate.   The 2009 signed arbitration

agreement was prior course of dealing evidence from which the trial court

reasonably inferred that Manor Care typically consented to arbitration by

completing the blanks and signing the agreement, which it did not do in

2011. For these reasons, we find no abuse of discretion on the part of the

trial court in overruling the preliminary objections and refusing to compel

arbitration.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/15/2015


____________________________________________


1
  Manor Care does not argue on appeal that language in the executed 2009
arbitration agreement providing that “this Agreement shall be binding on the
Patient for this and all of the Patient’s other admissions to the Center
without any need for further renewal” compels arbitration herein.
Arbitration Agreement, 6/24/09, at ¶ E.



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