J-A31011-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JAMES D. MINICH, AS ADMINISTRATOR                IN THE SUPERIOR COURT OF
FOR THE ESTATE OF MARY E. SHAFFER,                     PENNSYLVANIA
DECEASED

                            Appellee

                       v.

GOLDEN GATE NATIONAL SENIOR CARE,
LLC, GGNSC LANCASTER, LP D/B/A
GOLDEN LIVING CENTER-LANCASTER;
GGNSC LANCASTER GP, LLC; GGNSC
EQUITY HOLDINGS, II, LLC; GGNSC
ADMINISTRATIVE SERVICES, LLC;
GGNSC CLINICAL SERVICES, LLC;
GGNSC HOLDINGS, LLC; GOLDEN GATE
ANCILLARY, LLC; DENISE CURRY, RVP;
AND ROHAN BLACKWOOD, NHA

                            Appellants                No. 314 MDA 2015


                Appeal from the Order Entered February 4, 2015
               In the Court of Common Pleas of Lancaster County
                       Civil Division at No(s): CI-14-04449


BEFORE: PANELLA, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                       FILED DECEMBER 21, 2016

        Golden Gate National Senior Care, LLC, GGNSC Lancaster, LP, d/b/a

Golden Living Center-Lancaster, GGNSC Lancaster GP, LLC, GGNSC Equity

Holdings, II, LLC, GGNSC Administrative Services, LLC, GGNSC Clinical

Services, LLC, GGNSC Holdings, LLC, Golden Gate Ancillary, LLC, Denise


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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Curry, RVP, and Rohan Blackwood, NHA (collectively, “Golden Gate”) appeal

from the order of the Court of Common Pleas of Lancaster County, which

overruled the preliminary objections in the nature of a motion to compel

arbitration filed by Golden Gate in response to the wrongful death and

survival action filed by Appellee James D. Minich as Administrator of the

Estate of Mary E. Shaffer, Deceased.    Upon careful review, we vacate the

order and remand for further proceedings.

      The trial court set forth the factual and procedural background of this

case as follows:

      Minich alleges that [Golden Gate] owned, operated, licensed
      and/or managed Golden Living Center – Lancaster (the Facility)
      and [was] engaged in the business of providing skilled nursing
      care and assisted living/personal care services to the general
      public. Minich’s decedent, Mary E. Shaffer, was a resident of the
      Facility for a period of time ending on February 28, 2014. She
      died on March 31, 2014.

      Upon Shaffer’s admission to the Facility, she did not sign any
      paperwork relative to her admission. Rather, [Golden Gate]
      contend[s] that Shaffer’s son and power of attorney, James
      Minich, at some unknown point in time, “entered into a valid
      [Alternative Dispute Resolution] Agreement on Shaffer’s behalf
      upon her admission to the Facility.        This ADR Agreement
      provided that any disputes arising out of or in any way relating
      to the Agreement or to Shaffer’s stay at the Facility, which could
      constitute a legally cognizable cause of action in a court of law,
      “shall be resolved exclusively by an ADR process that shall
      include mediation and, where mediation is not successful,
      binding arbitration.” The [A]greement was not signed by any
      [Golden Gate] representative.

      On May 20, 2014, Minich, as Administrator of [Shaffer’s] Estate,
      filed a praecipe for writ of summons against [Golden Gate], and
      subsequently a complaint on July 30, 2014, asserting wrongful
      death and survival claims. Minich alleged that [Golden Gate’s]


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       professional negligence and reckless conduct caused his
       decedent’s severe injuries during her admission at the Facility.

                                           ...

       Golden Gate filed preliminary objections to the complaint seeking
       to compel this matter to arbitration[.] Following oral argument
       by counsel, an order was entered on February 4, 2015,
       overruling and dismissing the motion to compel arbitration.

Trial Court Opinion, 4/8/15, at 2-4 (citations to the record omitted).

       This timely appeal follows,1 in which Golden Gate raises the following

issues for our review:

       1. Did the trial court erroneously rule that the parties did not
       form an agreement to arbitrate because the arbitration
       agreement was not signed on behalf of the nursing home
       facility?

       2. [As r]eflected in the trial court’s [Pa.R.A.P.] 1925(a) opinion,
       but not in the order overruling the preliminary objections, did
       the trial court erroneously rule that any agreement to arbitrate
       would be unenforceable under Taylor v. Extendicare Health
       Facilities, Inc., [113 A.3d 317 (Pa. Super. 2015)], given that
       the arbitration agreement here is governed by the Federal
       Arbitration Act?

Brief of Appellants, at 4.



____________________________________________


1
  As a general rule, an order denying preliminary objections is interlocutory
and, thus, not appealable as of right. There exists, however, a narrow
exception to this rule for cases in which the appeal is taken from an order
denying a petition to compel arbitration. Elwyn v. DeLuca, 48 A.3d 457,
460 n.4 (Pa. Super. 2012); Shadduck v. Christopher J. Kaclik, Inc., 713
A.2d 635, 636 (Pa. Super. 1998). See also 42 Pa.C.S.A. § 7320(a)(1)
(appeal may be taken from order denying application to compel arbitration);
Pa.R.A.P. 311(a)(8) (appeal may be taken as of right and without reference
to Pa.R.A.P. 341(c) from order “which is made appealable by statute or
general rule.”).



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      We begin by noting that “[o]ur review of a claim that the trial court

improperly denied [the] appellant’s 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.”    Gaffer Ins. Co., Ltd.

v. Discover Reinsurance Co., 936 A.2d 1109, 1112 (Pa. Super. 2007),

quoting Midomo Company, Inc. v. Presbyterian Housing Development

Company, 739 A.2d 180, 186 (Pa. Super. 1999).                   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).

      We note preliminarily that this Court’s decision in Taylor, upon which

the trial court relied in its Rule 1925(a) opinion, was recently reversed by

our Supreme Court. See Taylor v. Extendicare Health Facilities, Inc.,

147 A.3d 490, 509 (Pa. 2016) (Taylor II).          Accordingly, Golden Gate’s

second issue on appeal is moot and the only issue remaining for us to

address is the court’s finding that the parties did not form an agreement to

arbitrate because the agreement was not signed on behalf of Golden Gate.

Specifically, Golden Gate asserts that the court erroneously applied this

Court’s holding in Bair v. Manor Care of Elizabethtown, PA, LLC, 108

A.3d 94 (Pa. Super. 2015), and distinguishes the instant matter on its facts.

We agree, and conclude that the absence of a Golden Gate representative’s

signature is not dispositive under the facts of this case.

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      We begin by noting:

      Arbitration cannot be compelled in the absence of an express
      agreement to arbitrate. 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. When addressing that issue, courts generally apply
      ordinary state law contract principles, but in doing so, must give
      due regard to the federal policy favoring arbitration.

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

      In its February 4, 2015 order, the trial court cited to the January 15,

2015 Superior Court decision in Bair in support of its dismissal of Golden

Gate’s motion to compel arbitration.      In a parenthetical, the court stated

that Bair held that a “nursing home operator failed to manifest its consent

to arbitrate by not affixing [the] signature of its representative to [the]

arbitration   agreement[.]”     Trial   Court   Order,   2/4/15,    at   ¶    1    n.4.

Subsequently, in its Rule 1925(a) opinion, the court briefly noted as follows

with regard to its earlier reliance on Bair:

      In denying arbitration, this [c]ourt, in a footnote, cited to the
      January 15, 2015, Superior Court decision in [Bair], which held
      that where the nursing home operator failed to manifest its
      consent to arbitrate by not affixing the signature of its
      representative to the arbitration agreement, the agreement was
      invalid as there was no meeting of the minds.

Trial Court Opinion, 4/8/15, at 4.

      Although the court’s opinion mentioned Bair in passing, the court’s

substantive discussion focused entirely on this Court’s decision in Taylor,

which held that an arbitration agreement signed by decedent’s authorized

representative   was   not    binding   upon    non-signatory      wrongful       death


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beneficiaries, and that because the Federal Arbitration Act (“FAA”) did not

preempt state law mandating consolidation of wrongful death and survival

actions, trial courts were not required to bifurcate cases to compel

arbitration of survival claims.   Indeed, because the trial court was of the

opinion that Taylor was fully dispositive and compelled a trial in both

wrongful death and survival actions, it stated in its opinion that “[t]he

Superior Court need not even determine, in the first instance, the validity of

the arbitration agreement in this case[.]” Trial Court Opinion, 4/8/15, at 5.

      However, subsequent to the trial court’s decision, our Supreme Court

granted allowance of appeal in Taylor. On September 28, 2016, the Court

issued its decision in the matter, reversing this Court and holding that the

FAA does, in fact, preempt state law requiring the consolidation of wrongful

death and survival actions.       Accordingly, under Taylor II, while non-

signatory wrongful death beneficiaries still may not be bound by an

agreement to arbitrate, “the FAA binds state courts to compel arbitration of

claims subject to an arbitration agreement.”    Taylor II, 147 A.3d at 509,

citing 9 U.S.C. § 2.      Thus, where a valid agreement to arbitrate exists,

survival actions must now be bifurcated from wrongful death claims and

proceed to arbitration.

      As a result of the high court’s decision in Taylor II, the basis for the

trial court’s disposition of this matter is no longer the law of the

Commonwealth.     Accordingly, it is necessary to look to the validity of the

underlying arbitration agreement to determine whether Minich’s survival

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action is subject to arbitration. As noted supra, the trial court relied on its

reading of Bair and concluded that an arbitration agreement may be found

to be invalid solely because it lacks a signature on behalf of the nursing

facility. Our reading of Bair does not lead us to the same conclusion.

      In Bair, the plaintiff, who was the personal representative of her

mother’s estate, brought a wrongful death and survival action against Manor

Care, a nursing facility, alleging abuse and neglect that ultimately resulted in

her mother’s death. Manor Care filed preliminary objections in the form of a

motion to compel arbitration pursuant to the terms of an arbitration

agreement signed by Bair as her mother’s attorney-in-fact. After permitting

discovery as to the issue of the agreement’s enforceability, the trial court

overruled Manor Care’s preliminary objections and allowed the case to

proceed in common pleas court.

      On appeal, this Court affirmed.       In doing so, the Court stated that

“[t]he 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.”    Id. at 97.      Based upon the totality of the

circumstances present in Bair, the Court found that no meeting of the minds

had occurred, noting the following:

      Even if we were to view the presentation of the form [arbitration
      agreement] 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


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J-A31011-15


     arbitration process, which was expressly made a part of the
     agreement.
                                  ...

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

Id. at 98-99 (emphasis added).

     As Golden Gate correctly points out in its brief, the facts of the matter

sub judice are, in important respects, distinguishable from Bair. Unlike in

Bair, the instant arbitration agreement did not expressly require the

signatures of both parties. In fact, the agreement provided by Golden Gate

explicitly stated that “[t]he agreement shall be binding upon the Facility

when signed by or on behalf of the Resident regardless of whether this

Agreement has been signed by a Facility representative.”          Alternative

Dispute Resolution Agreement, at ¶ VIII (emphasis added). Additionally, in

Bair, blank spaces on the first page of the agreement, intended for the

insertion of the names of the contracting parties, were left blank. Here, the

blank spaces were duly filled in with the names of the facility and the

resident. Finally, in Bair, a brochure describing the arbitration process was

expressly incorporated into the agreement by reference, but was not actually

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attached to the agreement. Here, no such missing term is at issue. In light

of these significant differences, the trial court’s sole emphasis on the lack of

a signature by a representative of Golden Gate renders its reliance on Bair

misplaced.

      Despite our disagreement with the trial court’s reading of Bair and its

reliance thereon, the record before us is insufficient to determine whether a

valid agreement to arbitrate exists.    The trial court, believing Bair to be

dispositive, declined to rule on the discovery requested by Minich in his

response to Golden Gate’s preliminary objections. However, Pa.R.C.P. 1028

provides that “[i]f an issue of fact is raised [by preliminary objections], the

court shall consider evidence by deposition or otherwise.”            Pa.R.C.P.

1028(c)(2) (emphasis added).      Additionally, the Note to subdivision (c)(2)

states that “[p]reliminary objections raising an issue under subdivision (a) . .

. (6) [(relating to agreements for alternative dispute resolution)] . . . cannot

be determined from facts of record.” Id., note. Here, questions of law and

fact regarding the validity of the agreement remain outstanding and

unaddressed by the trial court. Accordingly, we are constrained to remand

this matter to the trial court for discovery on the issue of whether an

enforceable   arbitration   agreement    exists.     See   Holt   Hauling     &

Warehousing Sys., Inc. v. Aronow Roofing Co., 454 A.2d 1131, 1133

(Pa. Super. 1983) (where preliminary objections raise issue of fact, court

may not reach determination based upon its view of controverted facts, but




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must resolve dispute by receiving evidence thereon through interrogatories,

depositions or evidentiary hearing).

      Order vacated. Case remanded for proceedings in accordance with the

dictates of this memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/21/2016




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