J-A25043-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 IRENE TRAVER, ADMINISTRATRIX OF :    IN THE SUPERIOR COURT OF
 THE ESTATE OF CLAYTON L. TRAVER, :         PENNSYLVANIA
 DECEASED                         :
                                  :
                                  :
             v.                   :
                                  :
                                  :
 RELIANT SENIOR CARE HOLDINGS,    :
 INC.; RELIANT LAKESIDE HOLDINGS, :
 LLC, D/B/A/, LAKESIDE HEALTH AND :
 REHABILITATION CENTER; RELIANT   :
 SENIOR CARE MANAGEMENT, LLC;     :
 RELIANT SENIOR CARE              :
 PENNSYLVANIA, LLC; RSC MASTER    :
 TENANT I, LLC; RSC CONSOLIDATED :
 HOLDINGS, LLC; HCR MANORCARE,    :
 LLC; MANORCARE OF KINGSTON PA, :
 LLC D/B/A MANORCARE HEALTH       :
 SERVICES - KINGSTON;             :
 MANORCARE HEALTH SERVICES,       :
 INC., A/K/A MANORCARE HEALTH     :
 SERVICES, LLC; HCR MANORCARE     :
 HEARTLAND, LLC; MANOR CARE,      :
 INC.; HCR MANORCARE, INC.; HCR   :
 IV HEALTHCARE, LLC.; HCR III     :
 HEALTHCARE, LLC; HCR II          :
 HEALTHCARE, LLC; HCR             :
 HEALTHCARE, LLC; HCRMC           :
 OPERATIONS, LLC; HCR MANORCARE :
 OPERATIONS II, LLC. HCR MANOR    :
 CARE SERVICES, LLC; HEARTLAND    :
 EMPLOYMENT SERVICES, LLC;        :
 GOLDEN GATE NATIONAL SENIOR      :
 CARE, LLC; GGNSC WILKES-BARRE    :
 II LP D/B/A GOLDEN LIVING CENTER :
 - SUMMIT; GGNSC HOLDINGS LLC;    :
 GGNSC EQUITY HOLDINGS, LLC;      :
 GGNSC ADMINISTRATIVE SERVICES    :
 LLC; GGNSC CLINICAL SERVICES,    :
 LLC; GOLDEN GATE ANCILLARY, LLC; :
 WYNETTE WOLFORD, NHA; RIVER      :
J-A25043-19


 RUN, LLC D/B/A RIVER RUN                   :
 REHABILITATION AND NURSING                 :
 CENTER; MOSHE SCEINER; NATHAN              :
 STERN                                      :
                                            :
                                            :
 APPEAL OF: GOLDEN GATE                     :
 NATIONAL SENIOR CARE, LLC;                 :
 GGNSC WILKES-BARRE II LP, D/B/A            :
 GOLDEN LIVING CENTER - SUMMIT;             :
 GGNSC HOLDINGS, LLC; GGNSC                 :
 EQUITY HOLDINGS, LLC; GGNSC                :
 ADMINISTRATIVE SERVICES, LLC;              :
 GGNSC CLINICAL SERVICES LLC;               :
 GOLDEN GATE ANCILLARY, LLC; AND            :       No. 452 MDA 2019
 WYNETTE WOLFORD, NHA

              Appeal from the Order Entered February 7, 2019
              in the Court of Common Pleas of Luzerne County
                     Civil Division at No(s): 2016-3983

BEFORE: STABILE, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:               FILED: FEBRUARY 6, 2020

      Golden Gate National Senior Care, LLC; GGNSC Wilkes-Barre II LP D/B/A

Golden Living Center – Summit (“the Golden Living Facility”); GGNSC

Holdings, LLC; GGNSC Equity Holdings, LLC; GGNSC Administrative Services,

LLC; GGNSC Clinical Services LLC; Golden Gate Ancillary, LLC; and Wynette

Wolford, NHA (collectively, “the Golden Living Defendants”), appeal from the

Order denying their Preliminary Objection, in the nature of a Motion to Compel

Arbitration, to the Complaint filed by Irene Traver (“Traver”), as Administratrix




                                      -2-
J-A25043-19


of the Estate of Clayton L. Traver, deceased (“the Estate”).1 We affirm.

        Between 2013 and 2015, Clayton L. Traver (“Decedent”), Traver’s

husband, resided in several different nursing home facilities on multiple

occasions, including a residency at the Golden Living Facility from December

1, 2014, to December 19, 2014. Relevantly, when Decedent was admitted to

the Golden Living Facility, Traver signed an Admission Agreement and an

Arbitration Agreement on Decedent’s behalf.          Decedent died on March 20,

2015.

        As Adminstratrix of the Estate, Traver initiated the instant action on April

14, 2016, by filing a Praecipe for Writ of Summons. Traver filed Praecipes to

Reissue the Writ of Summons on May 12, 2016, and June 6, 2016.2




____________________________________________


1  The Golden Living Defendants’ Preliminary Objections contained various
other Motions, which the trial court granted in part, denied in part, and
overruled in part. However, the Motion to Enforce the Arbitration Agreement
is the sole issue relevant to this appeal. Although interlocutory, an appeal
may be taken as of right from an order denying a petition to compel
arbitration. Bair v. Manor Care of Elizabethtown, PA, LLC, 108 A.3d 94,
96 (Pa. Super. 2015); see also 42 Pa.C.S.A. § 7320(a)(1); Pa.R.A.P.
311(a)(8).

2 Traver later filed a Motion to Consolidate the instant action with a separate
action (which is not included in the certified record) that she had filed against
the owners and operators of the Lakeside Health and Rehabilitation Center.
The trial court granted Traver’s Motion to Consolidate on September 14, 2016.


                                           -3-
J-A25043-19


       Traver filed a Complaint3 on September 21, 2016, asserting claims of

ordinary and corporate negligence, custodial neglect, survival and wrongful

death. Regarding the Golden Living Defendants, Traver alleged that, in an

effort to maximize profits, the Golding Living Defendants intentionally reduced

staffing levels and increased the number of sick, elderly, and frail patients

requiring complex medical care. Traver claimed that this practice resulted in

a recklessly high resident-to-staff ratio, and a failure of staff to properly

manage and treat illnesses and injuries among the residents. Traver alleged

that, as a result of inadequate care, Decedent suffered from two unwitnessed

falls, skin tears, a fungal infection, pressure sores, sepsis, and a left inguinal

abscess.

       On October 11, 2016, the Golden Living Defendants filed Preliminary

Objections, including a Motion to Compel Arbitration. Specifically, the Golden

Living Defendants asserted that, upon Decedent’s admission to the Golden

Living Facility, Traver executed an Arbitration Agreement on Decedent’s

behalf. The Arbitration Agreement provides, in relevant part, as follows:



____________________________________________


3The Complaint named 31 total defendants. HCR ManorCare, LLC; ManorCare
of Kingston PA, D/B/A ManorCare Health Services – Kingston; ManorCare
Health Services, Inc., A/K/A ManorCare Health Services, LLC; HCR ManorCare,
Inc.; HCR IV Healthcare, LLC; HCR II Healthcare, LLC; HCR Healthcare, LLC;
HCRMC Operations, LLC; HCR ManorCare Operations II, LLC; Heartland
Employment Services, LLC; and HCR ManorCare Services, LLC, filed a
separate, related appeal, which is docketed at No. 432 MDA 2019. The
remaining listed defendants are not parties to the instant appeal.


                                           -4-
J-A25043-19


   ALTERNATIVE DISPUTE RESOLUTION [(“ADR”)] AGREEMENT

       THIS AGREEMENT IS NOT A CONDITION OF ADMISSION TO
             OR CONTINUED RESIDENCE IN THE FACILITY

                               ***
     II. Voluntary Agreement to Participate in ADR

     The Parties agree that any disputes covered by this Agreement
     (“Covered Disputes”) that may arise between them shall be
     resolved exclusively by an ADR process that shall include
     mediation and, where mediation is not successful, binding
     arbitration. The parties to this Agreement acknowledge and agree
     that upon execution by Resident, this Agreement becomes part of
     the Admission Agreement, and that the Admission Agreement
     evidences a transaction in interstate commerce governed by the
     Federal Arbitration Act. The relief available to the Parties under
     this Agreement shall not exceed that which otherwise would be
     available to them in a court action based on the same facts and
     legal theories under the applicable federal, state or local law.

     THE PARTIES UNDERSTAND, ACKNOWLEDGE, AND AGREE
     THAT THEY ARE SELECTING A METHOD OF RESOLVING
     DISPUTES WITHOUT RESORTING TO LAWSUITS OR THE
     COURTS, AND THAT BY ENTERING INTO THIS AGREEMENT,
     THEY ARE GIVING UP THEIR CONSTITUTIONAL RIGHT TO
     HAVE THEIR DISPUTES DECIDED IN A COURT OF LAW BY A
     JUDGE OR JURY, THE OPPORTUNITY TO PRESENT THEIR
     CLAIMS AS A CLASS ACTION AND/OR TO APPEAL ANY
     DECISION OR AWARD OF DAMAGES RESULTING FROM THE
     ADR PROCESS EXCEPT AS PROVIDED HEREIN.

                                     ***

     III. Covered Disputes

     … Covered disputes include but are not limited to all claims in law
     or equity arising from one Party’s failure to satisfy a financial
     obligation to the other Party; a violation of a right claimed to exist
     under federal, state, or local law or contractual agreement
     between the Parties; tort; breach of contract; consumer
     protection;    fraud;    misrepresentation;      negligence;    gross
     negligence; malpractice; and any alleged departure from any



                                     -5-
J-A25043-19


       applicable federal, state, or local medical, health care, consumer,
       or safety standards. …

Preliminary Objections, 10/11/16, Exhibit B (Arbitration Agreement) (bold in

original).

       Traver filed a Response, and a Memorandum in support thereof, on

October 31, 2016. Traver alleged, inter alia, that the Arbitration Agreement

was unenforceable because Traver lacked legal authority to execute a binding

agreement on Decedent’s behalf.

       Following    discovery     and    briefing   concerning   the   circumstances

surrounding the execution of the Arbitration Agreement, the trial court entered

an Order on February 7, 2019, denying the Golden Living Defendants’ Motion

to Compel Arbitration. The Golden Living Defendants filed a timely Notice of

Appeal.4, 5

       The Golden Living Defendants now raise the following issue for our

review:

       In finding that the parties did not agree to arbitrate, did the trial
       court err in failing to consider evidence of express, implied, and
       apparent authority of [] Traver to execute the [A]rbitration
       [A]greement for [Decedent], when the unrefuted record evidence
       demonstrated that [Decedent] expressed his consent for [] Traver
       to act on his behalf?



____________________________________________


4 The end of the 30-day appeal period was March 9, 2019, a Saturday. See
1 Pa.C.S.A. § 1908.

5 The trial court did not order the Golden Living Defendants to file a concise
statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b).

                                           -6-
J-A25043-19


Brief for Appellants at 6.

       The Golden Living Defendants urge us to consider this appeal in the

context of federal and state policies favoring arbitration. Id. at 14-15. The

Golden Living Defendants claim that, despite the lack of a valid power of

attorney, Traver had legal authority to execute the Arbitration Agreement on

behalf of Decedent.        Id. at 15.      The Golden Living Defendants point to

testimony by the Golden Living Facility’s admissions director, Paulette Delevan

(“Delevan”), that her routine practice would have required Decedent to give

his permission for Traver to sign the admissions paperwork. Id. at 17-18.

According to the Golden Living Defendants, such conduct establishes that

Traver had express, implied, and apparent authority, as well as authority by

estoppel, to act as Decedent’s agent. Id. at 18.6, 7

       We are mindful of the following standard of review:

              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. Since


____________________________________________


6The Golden Living Defendants fail to provide separate argument regarding
each of these issues.

7 The Golden Living Defendants also provide argument concerning contract
formation principles (i.e., Traver’s failure to read the Arbitration Agreement,
and unconscionability). See Brief for Appellants at 19-22. However, this
argument is not included in the Statement of Questions Involved, or fairly
suggested thereby. See Pa.R.A.P. 2116(a) (providing that “[n]o question will
be considered unless it is stated in the statement of questions involved or is
fairly suggested thereby.”).

                                           -7-
J-A25043-19


      contract interpretation is a question of law, our review of the trial
      court’s decision is de novo and our scope is plenary.

Bair, 108 A.3d at 96 (internal citations and quotation marks omitted).

      Even if a party did not sign an arbitration agreement, he may be

compelled to arbitrate under such agreement, based on common law

principles of agency and contract. Wisler v. Manor Care of Lancaster, LLC,

124 A.3d 317, 323 (Pa. Super. 2015). Here, the Golden Living Defendants,

as the parties asserting agency, bear the burden of establishing an agency

relationship between Decedent and Traver. See id.

      “Agency is a relationship whereby the principal manifests assent that

another person (the agent) will act on the principal’s behalf subject to the

principal’s control, and the agent agrees to do so.” Id.

      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. 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.

Washburn v. N. Health Facilities, Inc., 121 A.3d 1008, 1012 (Pa. Super.

2015) (citations and quotation marks omitted).

      Decedent was admitted to the Golden Living Facility in December 2014.

In her deposition, Traver testified that Decedent was admitted to the Golden

Living Facility following a hospitalization. N.T. (Traver Deposition), 11/1/18,




                                      -8-
J-A25043-19


at 33.8 Traver stated that Decedent was transported from the hospital by an

ambulance. Id. According to Traver, she was at home when she learned that

Decedent would be transported to the Golden Living Facility, and she joined

him later that day. Id. at 33-34.

       Traver testified that someone from the nursing home gave her papers

to sign, but she could not remember whether that occurred on the same day

that Decedent had arrived at the Golden Living Facility.             Id. at 42-44.

According to Traver, she and Decedent previously had talked about executing

a power of attorney, but had never done so. Id. at 54.

       Traver also testified that the nursing home employee did not discuss the

documents with her, and that she did not read the documents because she

“didn’t know [she] was supposed to.”             Id. at 46-47.   But see id. at 51

(wherein Traver indicated that she did not remember much about signing the

paperwork).      When presented with a copy of the Arbitration Agreement,

Traver indicated that she had no recollection of the document, and she did not

think she had received a copy of the Agreement. See id. at 54-56; see also

id. at 57 (wherein Traver explained that she typically retains signed

documents).




____________________________________________


8 The transcript of Traver’s deposition is attached as Exhibit A to the Golden
Living Defendants’ Supplemental Brief in Support of their Preliminary
Objections.

                                           -9-
J-A25043-19


       Paulette Delevan (“Delevan”), the admissions director at the Golden

Living Facility at the time of Decedent’s residence, testified in her deposition

that she had no memory of Traver or Decedent, and did not remember

reviewing paperwork with either one of them.       N.T. (Delevan Deposition),

11/1/18, at 8, 14.9 According to Delevan, new residents are required to sign

admissions paperwork immediately upon their arrival at the Golden Living

Facility. Id. at 19. Delevan stated that, in instances where a new resident

did not have a power of attorney document, her ordinary procedure was to

“ask [her] counterpart at the hospital who would be the responsible party for

the individual coming into the nursing home, who did they work with … and

who signed the documents for them in the hospital.”             Id. at 15-16.

Additionally, Delevan testified that in such an instance, she would ask the

resident if they would agree to have a family member sign the paperwork on

their behalf. Id. at 26.

       We first examine whether Traver had express or implied authority to

bind Decedent to the terms of the Arbitration Agreement. “Express authority

exists where the principal deliberately and specifically grants authority to the

agent as to certain matters. An agent with express authority also acquires

implied authority, which exists in situations where the agent’s actions are



____________________________________________


9 The transcript of Delevan’s deposition is attached as Exhibit B to the Golden
Living Defendants’ Supplemental Brief in Support of their Preliminary
Objections.

                                          - 10 -
J-A25043-19


proper, usual and necessary to carry out express agency.” Wisler, 124 A.3d

at 323-24. Additionally, “[t]he creation of an agency relationship requires no

specific formalities.”   Walton v. Johnson, 66 A.3d 782, 787 (Pa. Super.

2013) (citation omitted). “It is well settled that neither a husband nor wife

has the power to act as agent for the other merely due to the marriage

relationship.” Washburn, 121 A.3d at 1014; see also Wisler, 124 A.3d at

323 (explaining that a familial relationship does not, by itself, create an

agency relationship). Instead, we conduct a fact-specific inquiry to determine

whether the principal intended to establish an agency relationship.       See

Wisler, 124 A.3d at 323. “[W]e do not assume agency by a mere showing

that one person does an act for another.” Walton, 66 A.3d at 787 (citation

omitted).

      As the trial court aptly stated in its Opinion, “it is undisputed that []

Traver did not have a power of attorney for [Decedent] at the time she

executed the Agreements, nor was she his legal guardian. In addition, there

was no testimony indicating that [] Traver executed the Arbitration

Agreement[] at [Decedent’s] direction or with his express consent.”       Trial

Court Opinion, 5/1/19, at 2; see also Washburn, 121 A.3d at 1014-15

(concluding that wife was not husband’s agent, despite her having previously

signed and filed joint tax returns and healthcare forms on her husband’s

behalf, because there was no evidence that husband had authorized her to do

so); see generally Wisler, 124 A.3d at 324 (because the nursing home had


                                    - 11 -
J-A25043-19


the duty to ascertain the nature and extent of the written power of attorney,

the patient’s son, who had a power of attorney but was unable to produce it,

did not have express authority to bind the patient to arbitration). Thus, the

Golden Living Defendants’ arguments concerning express and implied agency

are without merit.

     We next consider whether Traver had apparent authority to act on

Decedent’s behalf in signing the Arbitration Agreement.

     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. An agent
     cannot simply[,] by his own words, invest himself with apparent
     authority. Such authority emanates from the action of the
     principal and not the agent.

Wisler, 124 A.3d at 324 (internal citations and quotation marks omitted).

Further, apparent agency “emanates from the action of the principal and not

the agent.” Id. (emphasis added).

     The trial court concluded, and we agree, that “the record is devoid of

the type of evidence on which the [c]ourt could conclude that [Decedent’s]

conduct, as the purported principal, could establish an agency relationship

with [Traver] based upon apparent authority….” Trial Court Opinion, 5/1/19,

at 3. There had been no prior dealings between Decedent and the Golden

Living Defendants at the time of his admission, and it is unclear from the

record whether Decedent was aware that Traver had signed the admissions

documents, including the Arbitration Agreement, on his behalf. See Wisler,

124 A.3d at 324-25 (declining to enforce an arbitration agreement signed by



                                    - 12 -
J-A25043-19



patient’s son at the time of admission, even where son had a power of

attorney, because the defendants had failed to obtain a copy of the power of

attorney or confirm with the patient whether his son’s authority extended to

signing such agreement); Washburn, 121 A.3d at 1015 (concluding that,

despite wife’s practice of signing joint tax returns and healthcare forms on her

husband’s behalf, the nursing home was unaware of such arrangement at the

time of signing, and had no basis to infer that wife was authorized to act as

her husband’s agent). Additionally, despite testifying to her routine practice,

Delevan had no specific recollection of her interactions with Decedent and

Traver, and could therefore offer no additional insight into the alleged agency

relationship.   See Wisler, 124 A.3d at 325 (noting that the admissions

coordinator of father’s nursing home could not remember his admission to the

facility).

       Finally, we consider the Golden Living Defendants’ assertion that Traver

is estopped from denying her authority to sign the Arbitration Agreement.

“Authority by estoppel occurs when the principal fails to take reasonable steps

to disavow the third party of his or her belief that the purported agent was

authorized to act on behalf of the principal.”      Wisler, 124 A.3d at 325

(citation, quotation marks and brackets omitted). Additionally, the third party

must justifiably rely on its belief that an agency relationship existed. Walton,

66 A.3d at 788.

       Here, the Golden Living Defendants offered no evidence that Decedent

was aware of the Arbitration Agreement, or had authorized Traver to sign the

                                     - 13 -
J-A25043-19



Agreement on his behalf. See Wisler, 124 A.3d at 32; see also Trial Court

Opinion, 5/1/19, at 2. The Golden Living Defendants assert that Decedent

never disavowed Traver’s actions. Brief for Appellants at 18. However, we

find it much more significant that the record fails to establish that Decedent

either had an opportunity to review the Arbitration Agreement later, or that

he was even aware of its existence. See Wisler, 124 A.3d at 325 (declining

to enforce an arbitration agreement, which had been signed by the patient’s

son, because the nursing home failed to establish that the patient knew about

the agreement or had authorized his son to sign it; there was no evidence of

the patient’s conduct when the agreements were executed; and the

agreement was not presented to the patient later for ratification); Washburn,

121 A.3d at 1015-16 (explaining that arbitration agreement was “not part of

the contractual quid pro quo for admission to the [nursing home] facility and

its attendant benefits,” where the arbitration agreement was separate from

the admissions agreement, and admission was not conditioned on agreeing to

arbitration). Thus, the Golden Living Defendants’ claim concerning agency by

estoppel also fails.

      Based upon the foregoing, we conclude that the Golden Living

Defendants have failed to establish that Traver had legal authority to execute

the Arbitration Agreement on Decedent’s behalf.     Accordingly, as the trial

court’s findings are supported by substantial evidence, and we otherwise

discern no abuse of the court’s discretion, we affirm the Order denying the




                                    - 14 -
J-A25043-19



Golden Living Defendants’ Preliminary Objection in the nature of a Motion to

Compel Arbitration.

     Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 02/06/2020




                                   - 15 -
