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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 DAVID HERLAN                            :   IN THE SUPERIOR COURT OF
                                                   PENNSYLVANIA

               v.


 HCR MANORCARE, LLC, MANORCARE
 OF LANCASTER PA, LLC D/B/A
 MANORCARE HEALTH SERVICES -             :   No. 1590 MDA 2017
 LANCASTER, MANORCARE HEALTH
 SERVICES INC. A/K/A MANORCARE
 HEALTH SERVICES, 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; HEARTLAND
 EMPLOYMENT SERICES, LLC, AND
 HCR MANORCARE HEARTLAND, LLC

                    Appellants
             Appeal from the Order Dated September 19, 2017
     In the Court of Common Pleas of Lancaster County Civil Division at
                           No(s): CI -16-01811

BEFORE: LAZARUS, J., DUBOW, J., and NICHOLS, J.
MEMORANDUM BY DUBOW, J.:                             FILED JULY 16, 2019
     Appellants' appeal from the Order dated September 19, 2017, which
overruled Preliminary Objections seeking to enforce an arbitration agreement.

We affirm.


' Appellants consist of HCR ManorCare, LLC, ManorCare of Lancaster PA, LLC
d/b/a ManorCare Health Services - Lancaster, ManorCare Health Services, Inc.
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      Following an automobile accident in February 2014, Appellee entered
Appellants' rehabilitation facility in Lancaster, PA.     While a resident at the
facility, in April 2014, Appellee suffered a fracture of his right femur after
falling during an unassisted trip to the bathroom. Dissatisfied with his care at

the Lancaster facility, Appellee transferred to Appellants' facility located in
King of Prussia, PA. See Trial Ct. Op., 9/19/17, at 1-4; Trial Ct. Pa.R.A.P.
1925(a) Op., 11/21/17, at 2-5.
      In   March    2016,   Appellee   commenced        this   litigation,   asserting

negligence. See Complaint, 3/1/16. In response, Appellants filed Preliminary

Objections. Appellants averred that the parties had entered into a binding

agreement to arbitrate any dispute arising from the care Appellee received at

Appellants' facility. See Appellants' Preliminary Objections, 3/29/16, at III 5-
15, Exhibit B (Arbitration Agreement) (providing that any disputes arising out

of Appellee's care at the facility shall be submitted to arbitration).2 Thus,
according to Appellants, Appellee's "claims [should] proceed to arbitration."
Id. at §   15.     Appellee challenged Appellants' objections, asserting the
Arbitration Agreement was neither valid nor enforceable.             See Appellee's

Response, 4/18/16.


a/k/a ManorCare Health Services, 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; Heartland Employment Services, LLC, AND HCR
ManorCare Heartland, LLC.

2 Appellants also objected to Appellee's claim for punitive damages. The trial
court subsequently overruled this objection without prejudice.
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      The parties conducted discovery to develop a factual record on the issue

of arbitration. In his deposition, Appellee explained that his vision is severely

impaired, a complication arising from his diabetes.       Appellee Deposition,

2/7/17, at 27-28.     Thus, according to Appellee, he was unable to read
documents presented for his consideration. Id.

      Appellee also described the manner in which he completed paperwork

required for his admission to Appellant's facility. According to Appellee, two

days after he arrived, an administrator brought paperwork for Appellee to
complete. Id. at 33. Because of his visual impairment, Appellee relied on the

administrator to explain the content of the documents requiring his signature.

Id. at 34-38. Thus, for example, in order to assist Appellee, the administrator

placed an "X" where he needed to sign the documents. Id. at 36. According
to Appellee, the administrator never identified or explained that one of the
documents was the Arbitration Agreement. Id. at 38.
      To corroborate his testimony, Appellee relied on medical records
available to Appellants during his residency at the Lancaster facility. See
Appellee's Response, Exhibit D (documenting "decreased [visual] acuity");
Appellee's Supplemental Memorandum, 5/16/17, Exhibit G (documenting that

Appellee suffered from diabetes, cataract, and macular degeneration resulting

in "moderately impaired" vision, defined as "limited vision; not able to see
newspaper headlines but can identify objects").

      The facility administrator, Ms. Malissa Rodriguez, also submitted to a
deposition. Despite suggesting that she sometimes reads a resident's medical

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chart prior to presenting admissions paperwork, Ms. Rodriguez stated that she

had not read Appellee's medical chart, did not know that he was visually
impaired, and was unaware that Appellee could not read.             Rodriguez

Deposition, 1/19/17, at 59-64. According to Ms. Rodriguez, it was her general

practice to explain each document required for admission to the facility. Id.

at 130-32.     However, regarding the Arbitration Agreement, Ms. Rodriguez
acknowledged that she did not read or explain specific provisions of the
agreement to Appellee. Id. at 75-84.
      Following additional briefing by the parties, the trial court overruled
Appellants' Preliminary Objections. Order, 9/19/17. According to the court,
Appellee established by clear and convincing evidence, that due to his
impaired vision, he was unable to read the Arbitration Agreement presented
for his signature.   Trial Ct. Op. at 5-6.   Further, the court found that the
admissions administrator had not read the Arbitration Agreement to Appellee.

Id. Based on these findings, the trial court concluded that Appellee did not
knowingly and voluntarily sign the agreement. Id. at 6.
      Appellants timely appealed3 and filed a court -ordered Pa.R.A.P. 1925(b)

Statement. The trial court filed a responsive opinion.

      Appellants raise the following issue on appeal:




3 We note that Appellants' interlocutory appeal is properly before us. See 42
Pa.C.S. § 7320(a)(1) (permitting an appeal from a court order denying an
application to compel arbitration); Pa.R.A.P. 311(a)(8) (authorizing appeals
by right where an order is made appealable by statute).
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      Whether the trial court erred in applying the "clear and
      convincing" evidence standard[] and refused to enforce the
      Arbitration Agreement[,] where the resident, two weeks removed
      from being the licensed driver in a motor vehicle accident, sought
      to advance the defense that two weeks later, when he signed the
      Agreement at issue, he had a visual incapacity that made him
      incapable of reading and understanding the Agreement[.]

Appellants' Br. at 4.

      Appellants challenge the trial court's denial of their Preliminary
Objections seeking to compel arbitration.             Our review "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
objections]." Gaffer Ins. Co., Ltd. v. Discover Reinsurance Co., 936 A.2d
1109, 1112 (Pa. Super. 2007) (citation omitted); see also C.G. v. .7.H., 172
A.3d 43, 47, 57 (Pa. Super. 2017) (noting our deference to a trial court's
factual findings where those findings are required to resolve preliminary
objections).

      "Pennsylvania     has   a   well -established   public   policy   that favors
arbitration[.]" MacPherson v. Magee Mem7 Hosp. for Convalescence,
128 A.3d 1209, 1219 (Pa. Super. 2015) (en banc) (citation omitted). With
this policy in mind, "we employ a two-part test to determine whether the trial

court should have compelled arbitration." Id. (citation omitted). First, there
must be a valid agreement between the parties to arbitrate. Id. Second, the
parties' dispute must fall within the scope of the agreement. Id.
      Here, Appellants dispute the trial court's factual findings, asserting that

there was not clear and convincing evidence to overcome the presumptive

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validity of the Arbitration Agreement. See Appellants' Br. at 19-25. There is
no dispute regarding the scope of the agreement. Thus, we need focus only

on the first part of the test-whether a valid agreement to arbitrate exists.
      An agreement to arbitrate is a contract. Bucks Orthopaedic Surgery
Assoc., P.C. v. Ruth, 925 A.2d 868, 872 (Pa. Super. 2005). "It is     .   .   .   well

settled that in order for an enforceable agreement to exist, there must be a
'meeting of the minds,' whereby both parties mutually assent to the same
thing, as evidenced by an offer and its acceptance."         Prieto Corp. v.
Gambone Constr. Co., 100 A.3d 602, 609 (Pa. Super. 2014); Quiles v. Fin.
Exch. Co., 879 A.2d 281, 285 (Pa. Super. 2005) ("There must be a meeting

of minds in order to constitute a contract.").

      Initially, the burden is on the party seeking to compel arbitration to
demonstrate that a valid agreement to arbitrate existed between the parties.

Bair v. Manor Care of Elizabethtown, PA, LLC, 108 A.3d 94, 96 (Pa. Super.
2015); 42 Pa. C.S. § 7304(a). Here, Appellants demonstrated that Appellee

signed the Arbitration Agreement upon his admission to the Lancaster facility.

This undisputed fact creates a presumption that Appellee understood and
agreed to its terms. Cardinal v. Kindred Healthcare, Inc., 155 A.3d 46,
50 (Pa. Super. 2017) ("[A] signed document gives rise to the presumption
that it accurately expresses the state of mind of the signing party.").            To




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overcome this presumption, Appellee was required to present clear and
convincing evidence that he did not knowingly agree to arbitrate. /d.4

      The clear and convincing burden of proof requires "evidence that is so

clear, direct, weighty, and convincing as to enable the [fact finder] to come to

a clear conviction, without hesitancy, of the truth of the precise facts in issue."

Rohm and Haas Co. v. Continental Cas. Co., 781 A.2d 1172, 1179 (Pa.
2001) (citation and internal quotation marks omitted); Cardinal, 155 A.3d at
50.

      Here, the trial court made two critical findings. According to the court,
due to his impaired vision, Appellee was unable to read the Arbitration
Agreement presented for his signature. Trial Ct. Op. at 5; Trial Ct. Pa.R.A.P.

1925(a) Op. at 7-9. Further, the court found, despite undisputed evidence of

his impaired vision, Ms. Rodriguez took no action to apprise Appellee of the

agreement's terms. Trial Ct. Op. at 6; Trial Ct. Pa.R.A.P. 1925(a) Op. at 9.

Substantial evidence supports these findings. See supra. Therefore, we shall

not disturb them. Gaffer Ins. Co., Ltd., 936 A.2d at 1112.
      Challenging the convincing force of this evidence, Appellants highlight

that Appellee was lawfully operating a motor vehicle at the time of his


4 Appellants cite Cardinal in support of their argument to this Court. See
Appellants' Br. at 19-21. At issue in that case was a challenger's mental
capacity to execute an agreement to arbitrate. Cardinal, 155 A.3d at 50-52.
There is no issue regarding Appellee's mental capacity here. Nevertheless,
the rebuttable presumption defined in Cardinal is useful to evaluate whether
Appellee's physical limitation undermined the validity of the Arbitration
Agreement.
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accident.   Appellants' Br. at 4, 22.    However, the trial court afforded this
countervailing evidence little significance, noting that "[w]hile this fact

establishes that [Appellee] had been recently driving, the record is unclear as

to his visual acuity at the time of his vehicular accident[.]" Trial Ct. Pa.R.A.P.

1925(a) Op. at 8. Moreover, Appellee's license to drive does not establish
that he could read the Arbitration Agreement. Thus, we defer to the court's
finding. C.G., 172 A.3d at 57.
      These findings set forth clear and convincing evidence that Appellant did

not knowingly and voluntarily agree to arbitrate his dispute with Appellants.
Cardinal, 155 A.3d at 50. Thus, there was no "meeting of the minds," and
the Arbitration Agreement is not enforceable. Prieto Corp., 100 A.3d at 609;

Quiles, 879 A.2d at 285. Accordingly, we discern no abuse of discretion in
the trial court's denial of Appellants' Preliminary Objections. Gaffer Ins. Co.,

Ltd., 936 A.2d at 1112.
      Order affirmed.



Judgment Entered.




J seph D. Seletyn,
Prothonotary


Date: 07/16/2019



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