J-S56018-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

GLORIA J. GARCIA, AS ATTORNEY-IN-     IN THE SUPERIOR COURT OF
FACT FOR GLORIA MARIE ECKERT                PENNSYLVANIA

                      Appellee

                 v.

HCR MANORCARE, LLC; MANORCARE OF
SINKING SPRING PA, LLC D/B/A
MANORCARE HEALTH SERVICES -
SINKING SPRING; 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; HCRMC OPERATIONS, LLC; HCR
MANORCARE OPERATIONS II, LLC &
HEARTLAND EMPLOYMENT SERVICES;
KINDRED HEALTHCARE, INC.,
PERSONACARE OF READING, INC. D/B/A
KINDRED TRANSITIONAL CARE &
REHABILITATION - WYOMISSING;
KINDRED NURSING CENTERS EAST, LLC;
KINDRED HEALTHCARE OPERATING,
INC.

APPEAL OF: HCRMC OPERATIONS, LLC;
HCR MANORCARE OPERATIONS II, LLC &
HEARTLAND EMPLOYMENT SERVICES
HCR MANORCARE, INC.; HCR IV
HEALTHCARE, LLC.; HCR III
HEALTHCARE, LLC; HCR II HEALTHCARE,
LLC HCR MANORCARE, LLC; MANORCARE
OF SINKING SPRING PA, LLC D/B/A
MANORCARE HEALTH SERVICES -
SINKING SPRING; MANORCARE HEALTH
SERVICES, INC. A/K/A MANORCARE
HEALTH SERVICES, LLC; MANOR CARE
INC.

                      Appellant          No. 1743 MDA 2014
J-S56018-15




               Appeal from the Order Entered September 2, 2014
                 In the Court of Common Pleas of Berks County
                        Civil Division at No(s): 13-27281


BEFORE: SHOGAN, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY JENKINS, J.:                                  FILED JANUARY 12, 2016

        Appellants HCRMC Operations, LLC et al. (collectively “Appellants” or

“Manor     Care”)1   appeal     from   the     trial    court’s   order overruling   their

preliminary objections seeking to compel arbitration in this action filed by

Appellee, Gloria J. Garcia (“Garcia” or “Appellee”), as attorney-in-fact for her

mother, Gloria Marie Eckert (“Mother”).                Appellants based the preliminary

objections on the existence of an arbitration agreement drafted by Manor

Care and signed by Robert Eckert, Mother’s husband (“Husband”), upon

Mother’s admission to Appellants’ facility (“Agreement”).               For the reasons

that follow, we reverse and remand this case for referral to arbitration.

        In September 2012, Mother broke her hip in a fall. On September 22,

2012, after undergoing a hip replacement surgery, Mother was admitted into

one of Manor Care’s skilled nursing facilities in Sinking Spring, Pennsylvania

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  Appellants are: HCRMC Operations, LLC; HCR ManorCare Operations II,
LLC & Heartland Employment Services; HCR ManorCare, Inc.; HCR IV
Healthcare, LLC; HCR III Healthcare, LLC; HCR II Healthcare, LLC; HCR
ManorCare, LLC; ManorCare of Sinking Spring PA, LLC d/b/a ManorCare
Health Services – Sinking Spring; ManorCare Health Services, Inc. a/k/a
ManorCare Health Services, LLC; and Manor Care, Inc.



                                           -2-
J-S56018-15



for the purpose of rehabilitation.         On September 24, 2012, Husband, who

was Mother’s durable power of attorney (“DPOA”),2 signed the Agreement on

Mother’s behalf.      Mother left the Manor Care facility on October 2, 2012,

after only 10 days, and became a resident of Kindred Transitional Care &

Rehabilitation-Wyomissing,3 where she resided until November 7, 2012.

       On December 23, 2013, Appellee initiated the underlying litigation on

Mother’s behalf by filing a complaint that alleged Mother suffered injuries as

the result of medical professional negligence perpetrated by Manor Care and

the Kindred defendants at their respective nursing care facilities.              Manor

Care filed preliminary objections alleging, inter alia, that the claims against

Manor Care were subject to arbitration pursuant to the terms of the

Agreement.4        Following     initial   briefing,   discovery   that   included   the

depositions of Mother, Husband, and Lynette Seiler Wirth, the Nursing Home

Administrator at the Manor Care facility where Mother had stayed, and

____________________________________________


2
 Husband was Mother’s DPOA from September 5, 2006 through November
12, 2012, when Mother removed Husband and appointed Appellee, her
daughter, as her DPOA.
3
  The underlying litigation also included the following as additional named
defendants: Kindred Healthcare, Inc.; PersonaCare of Reading, Inc. d/b/a
Kindred Transitional Care & Rehabilitation – Wyomissing; Kindred Nursing
Centers East, LLC; and Kindred Healthcare Operating, Inc. (collectively “the
Kindred defendants”). The Kindred defendants did not appeal the trial
court’s order.
4
  The Kindred defendants filed similar preliminary objections on their own
behalf.



                                           -3-
J-S56018-15



subsequent post-discovery briefing, the trial court heard oral argument on

Manor Care’s preliminary objections. The trial court overruled Manor Care’s

preliminary objections by order dated September 2, 2014.             Manor Care

timely appealed.5

        Manor Care raises the following issues for our review:

        1. Did the trial court err by failing to take into account or apply
        the emphatic federal and state policies favoring arbitration and
        the presumption of arbitrability contained in the Federal
        Arbitration Act, 9 U.S.C. §§ 1-16 (“FAA”), the Pennsylvania
        Uniform Arbitration Act, 42 Pa.C.S.[] § 7301, et seq. (“PUAA”),
        and extensive case law interpreting those provisions?

        2. Did the trial court err by finding that the Voluntary Arbitration
        Agreement      was     both     substantively   and    procedurally
        unconscionable?

        3. Did the trial court err by finding that Robert Eckert was
        incompetent to sign the Voluntary Arbitration Agreement that he
        signed on behalf of Gloria Marie Eckert?

        4. Did the trial court err by finding that there was no knowing
        waiver of the right to a trial by jury?

Appellants’ Brief, p. 4.

        The Agreement in dispute in this matter reads as follows:

        VOLUNTARY ARBITRATION AGREEMENT (“AGREEMENT”)

        THE PARTIES ARE WAIVING THEIR RIGHT TO A TRIAL
        BEFORE A JUDGE OR JURY OF ANY DISPUTE BETWEEN
        THEM. PLEASE READ CAREFULLY BEFORE SIGNING. THE
        PATIENT WILL RECEIVE SERVICES IN THIS CENTER
        WHETHER OR NOT THIS AGREEMENT IS SIGNED.
        ARBITRATION IS DESCRIBED IN THE VOLUNTARY
____________________________________________


5
    Both Manor Care and the trial court complied with Pa.R.A.P. 1925.



                                           -4-
J-S56018-15


       ARBITRATION PROGRAM BROCHURE COPY, ATTACHED
       AND MADE PART OF THIS AGREEMENT.

       Made on __________ (date) by and between the Patient
       __________ or Patient’s Legal Representative __________[6]
       (collectively referred to as “Patient”) and the Center
       ___________.

       1. Agreement to Arbitrate “Disputes”: All claims arising out
       of or relating to this Agreement, the Admission Agreement or
       any and all past or future admissions of the Patient at this
       Center, or any sister Center operated by any subsidiary of HCR
       ManorCare, Inc. (“Sister Center”), including claims for
       malpractice, shall be submitted to arbitration. Nothing in this
       Agreement prevents the Patient from filing a complaint with the
       Center or appropriate governmental agency or from seeking
       review under any applicable law of any decision to involuntarily
       discharge or transfer the Patient.

       2. Demand for Arbitration: [S]hall be written, sent to the
       other Party by certified mail, return receipt requested.

       3. FAA: The Parties agree and intend that this Agreement, the
       Admission Agreement and the Patient’s stays at the Center
       substantially involve interstate commerce, and stipulate that the
       Federal Arbitration Act (“FAA”) and applicable federal case law
       apply to this Agreement, preempt any inconsistent State law and
       shall not be reverse preempted by the McCarran-Ferguson Act;
       United States Code Title 15, Chapter 20, or other law. Any
       amendment to such version of the FAA is hereby expressly
       waived.

       4. Arbitration Panel: Three (3) arbitrators (the “Panel”) shall
       conduct the arbitration. Each Party will select one Arbitrator, the
       two selected Arbitrators will select a third. Each Arbitrator must
       be a retired State or Federal Judge or a Member of the State Bar
       where the Center is located with at least 10 years of experience
       as an attorney. The Panel will elect a Chief Arbitrator who will
       be responsible for establishing and resolving issues pertaining to
____________________________________________


6
  Mother’s name was handwritten on the line for “Patient”, and Husband’s
name was handwritten as “Patient’s Legal Representative”. Agreement, p.
1.



                                           -5-
J-S56018-15


     procedure, discovery, admissibility of evidence, or any other
     issue.

     5. Sole Decision Maker: Except as otherwise provided in 6
     below, the Panel is empowered to, and shall, resolve all disputes,
     including without limitation, any disputes about the making,
     validity, enforceability, scope, interpretation, voidability,
     unconscionability, preemption, severability and/or waiver of this
     Agreement or the Admission Agreement, as well as resolve the
     Parties’ underlying disputes, as it is the Parties’ intent to avoid
     involving the court system. The Panel shall not have jurisdiction
     to certify any person as a representative of a class of persons
     and, by doing so, adjudicate claims of persons not directly taking
     part in Arbitration.

     6. Procedural Rules and Substantive Law: The Panel shall
     apply the State Rules of Evidence and State Rules of Civil
     Procedure except where otherwise stated in this Agreement.
     Also, the Panel shall apply, and the arbitration award shall be
     consistent with, the State substantive law, including statutory
     damage caps, for the State in which the Center is located,
     except as otherwise stated in this Agreement or where
     preempted by the FAA. The Panel’s award must be unanimous
     and shall be served no later than 7 working days after the
     arbitration hearing. The award must state the Panels’ [sic]
     findings of fact and conclusions of law, shall be marked
     “confidential”, and must be signed by all three Arbitrators. If
     any damages are awarded, the award must delineate specific
     amounts for each type of damages awarded, i.e., economic, non-
     economic, etc. The failure of the Panel to issue a unanimous
     award creates an appealable issue, appealable to the appropriate
     court, in addition to those set forth in paragraph 7, below. In
     the event the appellate court finds a non-unanimous award
     invalid as against law or this Agreement, the award shall be
     vacated and the arbitration dismissed without prejudice. A
     subsequent arbitration, if any, of the same claim or claims shall
     remain subject to the terms of the Agreement.

     7. Final with Limited Rights to Review (Appeal): The
     Panel’s award binds the parties. The Parties have a limited right
     of appeal for only the express reasons allowed by the FAA or as
     provided in 6, above.

     8. Right to Change Your Mind: This Agreement may be
     cancelled by written notice sent by certified mail to the Center’s


                                    -6-
J-S56018-15


     Administrator within 30 calendar days of the Patient’s date of
     admission. If alleged acts underlying the dispute occur before
     the cancellation date, this Agreement shall be binding with
     respect to those alleged acts. If not cancelled, this Agreement
     shall be binding on the Patient for this and all of the Patient’s
     subsequent admissions to the Center or any Sister Center
     without need for further renewal.

     9. Binding on Parties & Others: The Parties intend that this
     Agreement shall benefit and bind the Center, its parent,
     affiliates, and subsidiary companies, and shall benefit and bind
     the Patient (as defined herein), his/her successors, spouses,
     children, next of kin, guardians, administrators, and legal
     representatives.

     10. Fees and Costs: The Panels’ [sic] fees and costs will be
     paid by the Center except in disputes over non-payment of
     Center charges wherein such fees and costs will be divided
     equally between the Parties. The Parties shall bear their own
     attorney fees and costs in relation to all preparation for and
     attendance at the arbitration hearing.

     11. Confidentiality: The arbitration proceedings shall remain
     confidential in all respects, including all filings, deposition
     transcripts, discovery documents, or other material exchanged
     between the Parties and the Panels’ [sic] award. In addition,
     following receipt of the Panels’ [sic] award, each Party agrees to
     return to the producing Party within 30 days the original and all
     copies of documents exchanged in discovery and at the
     arbitration Hearing.

     12. Non-waiver of this Agreement: A waiver of the right to
     arbitrate a specific Dispute or series of Disputes, as described
     above, does not relieve any Party from the obligation to arbitrate
     other Disputes, whether asserted as independent claims or as
     permissive or mandatory counterclaims, unless each such claim
     is also individually waived. With multiple Patient admissions, the
     presentation of an arbitration agreement at a later admission to
     the Center or a Sister Center shall not constitute a waiver by the
     Center of a prior signed arbitration agreement.

     13. Severability: Except as provided in 6, any provision
     contained in this Agreement is severable, and if a provision is
     found to be unenforceable under State or Federal law, the
     remaining provisions of this Agreement shall remain in force and
     effect. This Agreement represents the Parties’ entire agreement

                                   -7-
J-S56018-15


       regarding Disputes, supersedes any other agreement relating to
       disputes, and may only be changed in writing signed by all the
       Parties. This Agreement shall remain in full force and effect
       notwithstanding the termination, cancellation or natural
       expiration of the Admission Agreement.

       14. Health Care Decision: The Parties hereby stipulate that
       the decision to have the Patient move into this Center and the
       decision to agree to this Agreement are each a health care
       decision. The Parties stipulate that there are other health care
       facilities in this community currently available to meet the
       Patient’s needs.

       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.



       PATIENT:                    PATIENT’S LEGAL REPRESENTATIVE:

       _______________________                 __________________________

       Printed Name (Date)                     Printed Name         (Date)

       _______________________                 __________________________

       Signature of Patient[7]                 Signature of Patient’s Legal

                                           Representative1 in his/her

                                           Representative Capacity




       CENTER REPRESENTATIVE                   __________________________
____________________________________________


7
 Mother’s name was handwritten on the “Printed Name” line, but not signed
on the “Signature of Patient” line. Agreement, p. 2.



                                           -8-
J-S56018-15


                                                Signature of Patient’s Legal

       ________________________                Representative in his/her

       Signature of Center                     Individual Capacity

       Representative

       ________________________
       1
         Patient’s Legal Representative should sign on both lines above
       containing the phrase “Patient’s Legal Representative.”[8]

Arbitration Agreement, Reproduced Record, pp. 1-2 (R.R., pp. 463a-464a)

(all emphases in original).

       “While an order denying preliminary objections is generally not

appealable, there exists ... a narrow exception to this oft-stated rule for

cases in which the appeal is taken from an order denying a petition to

compel arbitration.” Midomo Co., Inc. v. Presbyterian Hous. Dev. Co.,

739 A.2d 180, 184 (Pa.Super.1999) (internal quotations and brackets

omitted). A separate petition to compel arbitration is not required, however.

Stewart v. GGNSC-Canonsburg, L.P., 9 A.3d 215, 218 (Pa.Super.2010).

A party may appeal from an order denying a preliminary objection in the

form of a petition to compel arbitration. Id.

       “Our review of a claim that the trial court improperly denied

appellants’ preliminary objections in the nature of a petition to compel

arbitration is limited to determining whether the trial court’s findings are
____________________________________________


8
  Husband’s name was handwritten on the “Printed Name” line for Patient’s
Legal Representative. Agreement, p. 2. Husband signed both lines provided
for Patient’s Legal Representative. Id.



                                           -9-
J-S56018-15



supported by substantial evidence and whether the trial court abused its

discretion in denying the petition.” Midomo, 739 A.2d at 186.

      When one party to an agreement seeks to prevent another from
      proceeding to arbitration, judicial inquiry is limited to
      determining (1) whether a valid agreement to arbitrate exists
      between the parties and, if so, (2) whether the dispute involved
      is within the scope of the arbitration provision. An agreement to
      arbitrate a dispute is an agreement to submit oneself as well as
      one’s dispute to the arbitrators’ jurisdiction.

      Furthermore, arbitration is a matter of contract and, as such, it
      is for the court to determine whether an express agreement
      between the parties to arbitrate exists.             Because the
      construction and interpretation of contracts is a question of law,
      the trial court’s conclusion as to whether the parties have agreed
      to arbitrate is reviewable by this Court. Our review is plenary,
      as it is with any review of questions of law.

Midomo, 739 A.2d at 186-87 (internal citations, quotations, and footnotes

omitted); Gaffer Ins. Co., Ltd. v. Discover Reinsurance Co., 936 A.2d

1109, 1112-13 (Pa.Super.2007) (viewing question of whether, under the

terms of an agreement, the parties are required to submit their dispute to

arbitration as strictly one of contract interpretation).

      In this matter, the trial court denied Appellants’ request to compel

arbitration in the form of preliminary objections because the court found the

contract in question was an unconscionable contract of adhesion, and further

that Husband was not competent to enter the Agreement.          See 1925(a)

Opinion, pp. 7-13. The trial court’s opinion consists of a review of multiple

Agreement terms, together with the court’s critical editorial comments based

on those Agreement terms, which comments are not necessarily based on



                                      - 10 -
J-S56018-15



the record or any cited law. Id. The trial court ultimately determined that,

based on the terms of the Agreement and the circumstances under which it

was executed, the Agreement was unconscionable and thus no valid

agreement to arbitrate existed. Id.

   1. Both Federal policy and State policy support arbitration.

      Initially, Appellants claim the trial court erred in refusing to enforce the

Agreement based on erroneous policy arguments. See Appellants’ Brief, pp.

19-24.   We agree that the trial court failed to recognize and apply to the

Agreement the liberal policy favoring arbitration contained in both the

Federal Arbitration Act, 9 U.S.C. §§ 1-16 (“FAA”), and Pennsylvania law.

Discussing this exact claim, this Court recently observed:

         Pennsylvania has a well-established public policy that
         favors arbitration, and this policy aligns with the federal
         approach expressed in the [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.

      Pisano [v. Extendicare Homes, Inc.], 77 A.3d [651,] 661
      [(Pa.Super.2013)] (citations, quotation marks, and footnote
      omitted); see also Taylor v. Extendicare Health Facilities,
      Inc., 113 A.3d 317, 324 (Pa.Super.2015) (“Pennsylvania has a
      well-established public policy that favors arbitration, and this
      policy aligns with the federal approach expressed in the FAA”);
      petition for allowance of appeal granted on other grounds, 161
      WAL 2015, 2015 WL 5569766 (Pa. September 23, 2015). This
      policy applies equally to all arbitration agreements, including
      those involving nursing homes. See Marmet Health Care
      Center, Inc. v. Brown, [__ U.S. __,] 132 S.Ct. 1201, 1203–
      1204 (2012) (holding that the FAA preempts state law that
      categorically prohibits arbitration of particular types of claims,


                                     - 11 -
J-S56018-15


      which is “contrary to the terms and coverage of the FAA”);
      accord Pisano, 77 A.3d at 661 n. 7 (same). Thus, “when
      addressing the specific 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 [].

MacPherson v. Magee Mem’l Hosp. for Convalescence, ___ A.3d ___,

2015 WL 7571937 **7-8 (Pa.Super. Nov. 25, 2015). After discussing these

policy concerns, the Court in MacPherson concluded:

      [T]he trial court’s opinion includes cursory findings, a lack of
      substantive analysis, and a failure to discuss applicable law. As
      such, the decision below fails to recognize and apply the
      standards of the FAA and its liberal policy favoring arbitration.

MacPherson, 2015 WL 7571937 at *8.

      Likewise, the trial court’s opinion in the instant matter fails to discuss

applicable law and instead relies on incredulous cursory findings based on

conjecture, rhetorical questions, and hypotheticals. As in MacPherson, the

trial court has failed to recognize and apply the standards of the FAA and its

liberal policy favoring arbitration.

2. The Agreement            is   neither    substantively       nor    procedurally
unconscionable.

      In   their   second    issue,    Appellants   challenge    the   trial   court’s

determination that the Agreement was unenforceable as an unconscionable

contract of adhesion. See Appellants’ Brief, pp. 24-32. After reviewing and

commenting on multiple Agreement terms, the trial court ruled as follows:




                                        - 12 -
J-S56018-15


             For all the above reasons[9], this court found that the
       Agreement in the instant case is unconscionable and voidable.
       Neither [Mother] nor Husband was competent on the day of her
       admission. [Mother] was in so much pain that [Appellants]
       agreed with her that she was unable to sign admission
       documents. [Appellants] rushed to conclude the paperwork by
       having [Husband] sign even though he was not competent to
       even realize he was [Mother’s] power of attorney.

             The Agreement is procedurally unconscionable because it
       was presented to Husband who basically signed the paperwork,
       including the Agreement, without full knowledge of its binding
       terms and conditions. It was not [Mother] who executed the
       Agreement; Husband simply signed as a formality because he
       was told that he could do so as a spouse.

             There was also a great disparity in the bargaining positions
       between the parties. Even if Husband understood what he was
       doing – that he was doing it because he had a power of attorney,
       and what the entire agreement said and meant, he still could not
       negotiate this agreement in any way. He had to take the
       Agreement as is.

             The Agreement is substantively unconscionable because it
       violates public policy.    In the case sub judice, [Mother’s]
       voluntary waiver of a right to a jury trial is not a knowing waiver.
       Neither she nor Husband understood what they might be waiving
       – she, because of the pain and he because of his incompetency.
       There is no evidence that [Mother] even knew that Husband
       waived a jury trial or even a court proceeding. Neither [Mother]
       nor Husband is an attorney or a businessperson experienced in
       the law. This court cannot conclude that [Mother] or Husband
       understood their rights. Therefore, this court concluded that
       Husband lacked informed consent when he agreed to waive the
       resolution of all future disputes in a court of law in favor of
       private arbitration, even if he had legal authority to bind his
       wife.



____________________________________________


9
   See 1925(a) Opinion, pp. 8-11, for extended discussion of reasons
discussed in this block quote.



                                          - 13 -
J-S56018-15



1925(a) Opinion, pp. 12-13 (emphasis in original).             This conclusion is

unsupported by the record.

      The party challenging a contract bears the burden of proving

unconscionability.    Salley v. Option One Mortg. Corp., 925 A.2d 115

(Pa.2007).     “‘Unconscionability’ is a defensive contractual remedy which

serves to relieve a party from an unfair contract or from an unfair portion of

a contract.”    Germantown Mfg. Co. v. Rawlinson, 491 A.2d 138, 145

(Pa.Super.1985). In Pennsylvania, “[u]nconscionability 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.” Witmer v. Exxon Corp., 434 A.2d 1222, 1228 (Pa.1981);

see   also     McNulty   v.   H&R    Block,   Inc.,    843    A.2d   1267,     1273

(Pa.Super.2004) (“[a] determination of unconscionability requires a two-fold

determination: 1) that the contractual terms are unreasonably favorable to

the drafter, and 2) that there is no meaningful choice on the part of the

other party regarding the acceptance of the provisions.”). Otherwise stated,

contractual unconscionability is shown by the illustration of both procedural

and   substantive    unconscionability,   although    not   necessarily   in   equal

proportion.

      [Procedural] unconscionability involves contractual terms which
      are not typically expected by the party who is being asked to
      “assent” to them. An unexpected clause often appears in the
      boilerplate of a printed form and, if read at all, is often not
      understood. By signing such a form, a party is bound only to
      those terms which such party would reasonably expect such a
      printed form to contain. If the form contains a material, risk-

                                     - 14 -
J-S56018-15


       shifting clause which the signer would not reasonably expect to
       encounter in such a transaction, courts have held that the clause
       may be excised as it is unconscionable.

Germantown Mfg., 491 A.2d at 146.                       “Substantive unconscionability”

refers to contractual terms that are “unreasonably favorable to the

drafter[.]”      Huegel v. Mifflin Const. Co., Inc., 796 A.2d 350, 357

(Pa.Super.2002).         However,    courts       have       refused    to   hold    contracts

unconscionable simply because of a disparity in bargaining power. Witmer,

434 A.2d at 1228.

       “An adhesion contract is a ‘standard-form contract prepared by one

party, to be signed by the party in a weaker position, usu[ally] a consumer,

who    adheres     to   the   contract     with     little   choice    about   the    terms.’”

Chepkevich v. Hidden Valley Resort, L.P., 2 A.3d 1174, 1190 (Pa.2010)

(quoting      Black’s   Law   Dictionary    (8th      Ed.    2004),    p.    342).     “[T]he

determination that an adhesion contract is at issue, by definition fulfills the

second prong of the unconscionability test.”                 McNulty, 843 A.2d at 1273

n.6.

       Initially, at the top of the first page, in bold, capitalized typeface and

underlined, the Agreement states that it is voluntary, and that the patient

will receive services in the center regardless of whether the Agreement is

signed. Agreement, p. 1. The Agreement also contains, directly above the

signature lines on the second page, another conspicuous, large, bolded

notification that by signing, the parties agree to waive their right to a trial

before a judge or jury. See id. at 2. The Agreement states that Manor Care

                                           - 15 -
J-S56018-15



will pay the arbitrators’ fees and costs, and that there are no award caps or

damage limitations beyond those already imposed by law. Id. at ¶ 6. The

Agreement provides a 30-day period during which the parties have an

opportunity to review and rescind acceptance.        Id. at ¶ 8.   Further, the

Agreement includes a standard confidentiality provision. Id. at ¶ 11. Our

review of these and the other provisions of the Agreement compel the

conclusion that the Agreement is neither procedurally nor substantively

unconscionable under Pennsylvania law.10           See MacPherson, 2015 WL

7571937, at **9-10 (holding substantially similar arbitration agreement not

unconscionable).




____________________________________________


10
   The trial court summed up its conclusion that the Agreement was
unconscionable by stating:

       Husband is not a sophisticated businessman or a health services
       worker.    He is eighty-seven years old and has memory
       problems. Husband did not even read the Agreement. No
       evidence was produced that showed Husband had the acumen to
       negotiate with [Appellants] on an equal footing even if he read
       and understood the Agreement.

1925(a) Opinion, p. 11. We find that Husband’s age, education level, and
business acumen at the time he entered into the Agreement on Mother’s
behalf were not of Appellants’ creation, were beyond Appellants’ control, and
are immaterial to the enforceability of the terms of the Agreement. In short,
Husband’s age, education level, and business acumen do not render the
Agreement procedurally unconscionable.




                                          - 16 -
J-S56018-15


3. No competent evidence indicates Husband was incompetent at the
time he signed the Agreement on Mother’s behalf.

       Third, Appellants argue the trial court erred as a matter of law in

finding, sua sponte, that Husband lacked capacity to sign the Agreement.

See Appellants’ Brief, pp. 35-38. Appellants are correct.

             Under Pennsylvania law, a signed document gives rise to
       the presumption that it accurately expresses the state of mind of
       the signing party.    The presumption is rebutted where the
       challenger presents clear and convincing evidence of mental
       incompetence.    Mental incompetence is established through
       evidence that the person is unable to understand the nature and
       consequences of the transaction.      A presumption of mental
       incapacity does not arise merely because the disposition of the
       property seems unreasonable.

Forman      v.   Pub.    Sch.    Employes’         Ret.   Bd.,   778   A.2d   778,   780

(Pa.Commw.Ct.2001) (internal citations omitted).11               “It is well settled that

mere weakness of intellect resulting from sickness or old age is not legal

grounds to set aside an executed contract if sufficient intelligence remains to

comprehend the nature and character of the transaction, and no evidence of

fraud, mutual mistake or undue influence is present.”               Taylor v. Avi, 415

A.2d 894, 897 (Pa.Super.1979). Testimony of the party arguing incapacity

alone, even where credible, is insufficient as a matter of law to establish a

claim of mental incompetence. See Forman, 778 A.2d at 780.


____________________________________________


11
   “Although decisions of the Commonwealth Court are not binding on this
Court, we may rely on them if we are persuaded by their reasoning.”
Charlie v. Erie Ins. Exch., 100 A.3d 244, 253 n.9 (Pa.Super.2014)
(citation omitted).



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       Here, Husband was Mother’s DPOA at the time he signed the

Agreement on her behalf. Mother testified that she removed Husband as her

DPOA three months after he signed the Agreement because he was forgetful

and unstable.       At his deposition one year and ten months after the

Agreement was signed, Husband stated the incorrect address of his

residence.    Husband did not testify, however, that he was incompetent at

the time he entered into the Agreement.            In fact, the only testimony

regarding Husband’s mental capacity at the time Husband signed the

Agreement came from Lynette Seiler Wirth, Manor Care’s Nursing Home

Administrator.       Ms. Wirth testified that, at the time he signed the

Agreement, Husband was very alert and asked multiple questions about the

Agreement.       Ms. Wirth further testified that, after she went over the

Agreement with Husband, he accepted some contractual provisions on his

wife’s behalf and declined others.12 Based on this evidence, the trial court

concluded sua sponte that Husband was incompetent when he entered into

the Agreement. See 1925(a) Opinion, pp. 7.

       Simply stated, the record does not support the trial court’s conclusion.

Mother’s testimony, standing alone, is insufficient to establish her claim of

Husband’s incompetence. See Forman, 778 A.2d at 780. Further, neither


____________________________________________


12
  For example, Husband declined to sign and participate in the Resident’s
Personal Trust Fund Agreement, which Ms. Wirth explained and proposed
contemporaneously with the Agreement.



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J-S56018-15



Mother’s    testimony   regarding    her   assessment   of   Husband’s   mental

capabilities three months after he signed the Agreement, nor Husband’s

performance at his deposition nearly two years after the signing of the

Agreement, suffice to illustrate Husband’s lack of capacity at the time he

entered into the Agreement.         See Taylor, 415 A.2d at 897 (“(W)here

mental capacity is at issue, the real question is the condition of the person at

the very time he executed the instrument . . .”).       Ms. Wirth’s testimony

certainly did not establish by clear and convincing evidence that Husband

was incompetent to enter the Agreement. To the contrary, that Ms. Wirth

indicated Husband was alert and asked questions about the Agreement

serves to illustrate his capacity to understand that he was entering a

contract on Mother’s behalf. Accordingly, the trial court erred by sua sponte

concluding Husband was incompetent to enter into the Agreement.

4. Husband knowingly waived the right to a jury trial on Mother’s
behalf.

      Finally, Appellants claim that the trial court erred in concluding

Husband did not knowingly waive Mother’s right to a jury trial when he

signed the Agreement without reading it. See Appellants’ Brief, pp. 33-35.

We agree.

      The Agreement adequately informed Husband he was waiving Mother’s

right to a jury trial. The following warning appears at the very top of the

Agreement in conspicuous, bold, all-uppercase printing:

      THE PARTIES ARE WAIVING THEIR RIGHT TO A TRIAL
      BEFORE A JUDGE OR JURY OF ANY DISPUTE BETWEEN

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J-S56018-15


       THEM. PLEASE READ CAREFULLY BEFORE SIGNING. THE
       PATIENT WILL RECEIVE SERVICES IN THIS CENTER
       WHETHER OR NOT THIS AGREEMENT IS SIGNED.
       ARBITRATION IS DESCRIBED IN THE VOLUNTARY
       ARBITRATION PROGRAM BROCHURE COPY, ATTACHED
       AND MADE PART OF THIS AGREEMENT.

See Agreement, p. 1. Again, immediately preceding the signature lines, the

Agreement states, once more in bold, all-uppercase printing:

       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.

Id. at 2.

       Even if Husband, as the trial court suggests, did not read the

Agreement because he “simply took [the administrator’s] word about what

he was supposed to sign . . . and had just agreed to sign whatever

document had been placed before him[,]”13 such an argument would not

afford Appellee relief. 1925(a) Opinion, p. 4 (internal quotations and citation

omitted). This Court has repeatedly instructed that “[i]t is well established

that, in the absence of fraud, the failure to read a contract before signing it

is ‘an unavailing excuse or defense and cannot justify an avoidance,


____________________________________________


13
  We note that Husband signed the Agreement two days after Manor Care
admitted Mother. Accordingly, he could not have believed her admission
was contingent on his signing the Agreement.



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J-S56018-15



modification or nullification of the contract’; it is considered ‘supine

negligence.’”     In   re   Estate   of   Boardman,   80   A.3d   820,   823

(Pa.Super.2013) (citing Germantown Sav. Bank v. Talacki, 657 A.2d

1285, 1289 (Pa.Super.1995)).

      Further, the Agreement provided Mother and Husband with a period

during which they could review and revoke acceptance of the Agreement if

they changed their minds.     See Arbitration Agreement ¶ 8.   They did not

avail themselves of this opportunity.

      In light of the liberal policy favoring arbitration agreements, and for

the reasons stated above, we reverse and remand this case for proceedings

consistent with this memorandum.

      Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/12/2016




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