J-A18026-15

2015 PA Super 189

H. RANDALL WISLER AND H. KEITH 

WISLER, CO-EXECUTORS OF THE 

ESTATE OF HERBERT C. WISLER, 

DECEASED

IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellees

v.

MANOR CARE OF LANCASTER PA, LLC 

D/B/A MANORCARE HEALTH SERVICESLANCASTER, HCR MANOR CARE, INC., 

MANORCARE HEALTH SERVICES, INC., 

MANOR CARE, INC., HCR HEALTHCARE, 

LLC, HCR HEALTHCARE II, LLC, HCR 

HEALTHCARE III, LLC, AND HCR 

HEALTHCARE IV, LLC

Appellants No. 1226 MDA 2014

Appeal from the Order entered June 27, 2014

In the Court of Common Pleas of Lancaster County

Civil Division at No: CI-12-09374

BEFORE: FORD ELLIOTT, P.J.E., STABILE, and MUSMANNO, JJ.

OPINION BY STABILE, J.: FILED SEPTEMBER 08, 2015

Appellants (collectively, ManorCare) appeal from an order sustaining in 

part and overruling in part their preliminary objections to the complaint of 

H. Randall and Keith Wisler (collectively, Executors), co-executors of the 

estate of Herbert C. Wisler (Decedent). ManorCare contends the trial court 

erred in refusing to compel arbitration of Executors’ claims arising out of 

Decedent’s stay at a ManorCare nursing home. The trial court found the 

arbitration agreement invalid, ruling that H. Randall Wisler, as power of 
J-A18026-15

- 2 -

attorney for Decedent, lacked the authority to enter into such an agreement. 

Upon review, we affirm.

[Decedent] was a resident at [ManorCare Lancaster] from March 

4, 2010 through April 28, 2010, and from August 13, 2010, 

through October 11, 2010. Thereafter, [Decedent] died on 

February 6, 2011. At the time of his [first] admission, 

[Decedent] required assistance with care for all of his activities 

of daily living. His medical history was significant for diabetes 

(type 2), chronic kidney disease, [p]acemaker, Orthostatis, 

coronary artery disease, multiple [cerebrovascular accidents, 

i.e., strokes], Hyperlipidemia, depression, prostate and colon 

cancer, swallowing dysfunction, acute congestive heart failure, 

anemia[,] and protein calorie malnutrition.

On March 4, 2010, the date of [D]ecedent’s first admission to 

[ManorCare Lancaster], H. Randall Wisler, the [D]ecedent’s son, 

co-executor, and co-plaintiff in this matter, signed [ManorCare 

Lancaster’s] admission papers. On March 30, 2010, H. Randall 

Wisler further signed an [A]rbitration [A]greement as part of the 

admission process. This [A]greement provided that any disputes 

arising out of or in any way relating to the agreement or to 

[Decedent’s] stay at [ManorCare Lancaster] “shall be submitted 

to binding arbitration.”

At the time of [D]ecedent’s second admission on August 13, 

2010, his son, H. Randall Wisler, again signed the admissions 

paperwork. Several days later, H. Randall Wisler was again 

asked to sign a second [A]rbitration [A]greement[1]on August 

16, 2010.

At all times relevant to the [D]ecedent’s admissions to 

ManorCare, H. Randall Wisler had a power of attorney for his 

father. H. Randall Wisler advised ManorCare that he possessed 

his father’s power of attorney. However, ManorCare did not 

____________________________________________

1 The first and second arbitration agreements are identical, except for the 

signature dates. For convenience, we will refer to the two agreements as if 

they were one. 
J-A18026-15

- 3 -

obtain a copy of the power of attorney, nor could H. Randall 

Wisler produce a copy at the time of his deposition.

[Executors] were appointed executors of [Decedent’s] estate on 

October 4, 2011, by the Register of Wills of Lancaster County. 

[Executors] filed a complaint on November 27, 2012, alleging 

that [ManorCare’s] professional negligence and reckless conduct 

caused their [D]ecedent severe injuries during his two 

admissions at [ManorCare Lancaster]. Those injuries included 

numerous falls, poor skin care, urinary tract infections, 

malnutrition, dehydration, poor hygiene, and severe pain.

Trial Court 6/27/14, at 2-3 (internal record citations omitted). Executors 

bring their claims in their representative capacities as co-executors of 

Decedent’s estate under the Survival Act. See 42 Pa.C.S.A. § 8302. 

Executors did not bring claims in their individual capacities as Decedent’s 

sons under the Wrongful Death Act. See id. § 8301(b).

ManorCare filed preliminary objections to Executors’ complaint, 

including a request to compel arbitration. The parties engaged in discovery 

relating to the enforceability of the Arbitration Agreement. After receiving 

briefs, the trial court entered an order sustaining in part and overruling in 

part ManorCare’s preliminary objections. In relevant part, the trial court 

refused to compel arbitration, finding that H. Randall Wisler lacked authority 

to sign the Arbitration Agreements on Decedent’s behalf. The trial court 

declined to consider other reasons Executors advanced in favor of refusing to 

compel arbitration. This appeal followed.2

____________________________________________

2 Though the order sustaining in part and overruling in part the preliminary 

objections is interlocutory, we have appellate jurisdiction over the order vis-

(Footnote Continued Next Page)
J-A18026-15

- 4 -

On appeal, ManorCare raises the following question for review:

Whether the trial court erred in concluding that the Appellee, H. 

Randall Wisler, did not have the authority to bind his father, 

[Decedent], to [ManorCare’s] Arbitration Agreements where 

Appellees concede having a [p]ower of [a]ttorney, but have not 

produced the [p]ower of [a]ttorney document?

Appellants’ Brief at 5.

Before we reach the merits, we must address Executors’ claim that 

ManorCare waived appellate review by briefing deficiencies. Specifically, 

Executors claim ManorCare waived its argument by failing to comply with 

Pa.R.A.P. 2117(c),3 which requires an appellant to state where and how it 

(Footnote Continued) _______________________

à-vis the refusal to compel arbitration, under the Uniform Arbitration Act, 42 

Pa.C.S.A. § 7320, and Pa.R.A.P. 311(a)(8).

3 Rule 2117(c), verbatim, reads:

(c) Statement of place of raising or preservation of issues.

Where under the applicable law an issue is not reviewable on 

appeal unless raised or preserved below, the statement of the 

case shall also specify:

(1) The state of the proceedings in the court of first 

instance, and in any appellate court below, at which, and 

the manner in which, the questions sought to be reviewed 

were raised.

(2) The method of raising them (e.g. by a pleading, by a 

request to charge and exceptions, etc.).

(3) The way in which they were passed upon by the court.

(4) Such pertinent quotations of specific portions of the 

record, or summary thereof, with specific reference to the 

places in the record where the matter appears (e.g. ruling 

or exception thereto, etc.) as will show that the question 

(Footnote Continued Next Page)
J-A18026-15

- 5 -

preserved the issues on appeal, and Pa.R.A.P. 2119(e),4 which requires an 

appellant to provide cross-reference citations from its argument section to 

the statement of the case.

Executors’ waiver argument is somewhat puzzling, because we find 

that ManorCare’s brief clearly complies with the applicable briefing rules. 

ManorCare’s brief sufficiently sets forth its manner and method of issue 

preservation—with citations to the reproduced record. See Appellants’ Brief 

at 6-7. ManorCare’s statement of the case also succinctly frames the chief 

issue on appeal as whether H. Randall Wisler had power of attorney to bind 

(Footnote Continued) _______________________

was timely and properly raised below so as to preserve the 

question on appeal.

Where the portions of the record relied upon under this 

subdivision are voluminous, they shall be included in an 

appendix to the brief, which may, if more convenient, be 

separately presented.

Pa.R.A.P. 2117(c).

4 Rule 2119(e) provides:

(e) Statement of place of raising or preservation of issues.

Where under the applicable law an issue is not reviewable on 

appeal unless raised or preserved below, the argument must set 

forth, in immediate connection therewith or in a footnote 

thereto, either a specific cross reference to the page or pages of 

the statement of the case which set forth the information 

relating thereto required pursuant to Rule 2117(c) (statement of 

place of raising or preservation of issues), or substantially the 

same information.

Pa.R.A.P. 2119(e).
J-A18026-15

- 6 -

Decedent to arbitration. See id. at 8-9. Further, ManorCare’s argument 

section complies with Rule 2119(e), because it has cross-references to the 

statement of the case. See id. at 15-17, 26.

Additionally, waiver, and therefore dismissal of an appeal, for briefing 

defects is discretionary. See Pa.R.A.P. 2101. Even if ManorCare’s brief 

were non-compliant, we would not impose such a harsh remedy, especially 

given that none of Executors’ cited cases supports their waiver proposition. 

Commonwealth v. Wholaver, 903 A.2d 1178, 1183-84 (Pa. 2006), 

concerns mandatory waiver under Rule 1925, not prudential waiver for 

briefing deficiencies under Rule 2101. Compare id. (quotation omitted) 

(noting the “bright-line rule” that an appellant who fails to comply with Rule

1925 waives review), and Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in 

the Statement and/or not raised in accordance with the provisions of this 

paragraph (b)(4) are waived.”), with Pa.R.A.P. 2101 (providing that a 

deficient brief “may be suppressed” and an appeal “may be dismissed” for 

substantial defects) (emphases added). Executors’ two cited Commonwealth 

Court decisions are wholly unpersuasive, because they concern waiver for 

failure to raise issues before administrative agencies, and the accompanying 

discussions of Rule 2117 are dicta. See McGaffin v. Workers’ Comp. 

Appeal Bd. (Manatron, Inc.), 903 A.2d 94, 101-02 (Pa. Cmwlth. 2006) 

(dismissing petition for review under Rule 1551 because petitioner failed to 

raise issue before the Board); Jonathan Sheppard Stables v. Workers’ 

Comp. Appeal Bd. (Wyatt), 739 A.2d 1084, 1089-90 & n.6 (Pa. Cmwlth. 
J-A18026-15

- 7 -

1999) (refusing to consider some appellate issues under Rule 1551 because 

petitioner did not raise them before the Board). 

Finally, it is disingenuous for Executors to raise ManorCare’s alleged 

briefing defects given that their brief violates Rule 2117(b), which prohibits 

argument in the statement of the case.5 See Appellees’ Brief at 6-7 

(characterizing the Arbitration Agreement as “grossly one-sided—and fatally 

flawed”); id. at 14 (criticizing ManorCare for not following its standard 

admissions procedures in this case); id. at 17 (accusing ManorCare of 

“routinely depriv[ing] signatories of even a basic understanding of [its] 

Arbitration Agreement”); id. at 18 (“There are Many Problems with the 

Arbitration Agreement[.]”); id. at 24 n.14 (charging ManorCare with 

violating the covenant of good faith and fair dealing). It is difficult to 

distinguish Executors’ factual recitation from its argument. In sum, we reject 

Executors’ waiver argument. 

We proceed now to the merits of ManorCare’s argument. On appeal 

from an order refusing to compel arbitration, our standard of review is as 

follows:

____________________________________________

5 Executors contend that we must view all evidence in a light most favorable 

to them as the party opposing arbitration. See Appellees’ Brief at 5 n.2 

(citing Bellman v. i3Carbon, LLC, 563 F. App’x 608, 612 (10th Cir. 2014)). 

It is beyond peradventure that the United States Court of Appeals for the 

Tenth Circuit does not—and cannot—set forth the standard of review that 

applies in this Court. 
J-A18026-15

- 8 -

Our 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.

Walton v. Johnson, 66 A.3d 782, 787 (Pa. Super. 2013) 

(quoting Gaffer[ Ins. Co., Ltd. v. Discover Reins. Co.], 936 

A.2d [1109,] 1112 [(Pa. Super. 2007)]). “In doing so, we 

employ a two-part test to determine whether the trial court 

should have compelled arbitration.” Elwyn[ v. Deluca], 48 

A.3d [457,] 461 [(Pa. Super. 2012)] (quoting Smay v. E.R. 

Stuebner, Inc., 864 A.2d 1266, 1270 (Pa. Super. 2004)). First, 

we examine whether a valid agreement to arbitrate exists. 

Second, we must determine whether the dispute is within the 

scope of the agreement.

Pisano v. Extendicare Homes, Inc., 77 A.3d 651, 654-55 (Pa. Super. 

2013). Our scope of review is plenary. McNulty v. H&R Block, Inc., 843 

A.2d 1267, 1269 (Pa. Super. 2004), abrogated on other grounds by, AT&T 

Mobility, LLC v. Concepcion, 131 S. Ct. 1740 (2011).

This appeal concerns solely the validity of the Arbitration Agreement, 

i.e., the first part of the two-part test. ManorCare contends that H. Randall 

Wisler had the legal authority to sign the Arbitration Agreement on 

Decedent’s behalf. It also argues that the trial court erred in failing to 

recognize an unfavorable inference against Executors because they did not 

produce the written power of attorney. Finally, ManorCare argues that the 

Arbitration Agreement does not unlawfully deprive Decedent of his 

constitutional right to trial by jury.

Executors respond that ManorCare failed to establish that H. Randall 

Wisler had authority to execute the Arbitration Agreement for Decedent. 
J-A18026-15

- 9 -

They provide alternative arguments in favor of affirmance. Executors 

contend the Arbitration Agreement is unconscionable. They also argue it is 

unenforceable, because the Arbitration Agreement provides that it is 

governed by the code of the National Arbitration Forum (NAF), which no

longer performs such arbitrations.6

“[A] party ‘can be compelled to arbitrate under an agreement, even if 

he or she did not sign that agreement, if common-law principles of agency 

and contract support such an obligation on his or her part.’” Array 

Healthcare Facilities Solutions, Inc. v. Pesce, 2 Pa. D. & C.5th 547, 566 

(C.P. Phila. 2006) (quoting Bouriez v. Carnegie Mellon Univ., 359 F.3d 

292, 294 (3d Cir. 2004)), aff’d, 931 A.2d 60 (Pa. Super. 2007) (unpublished 

memorandum). 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. See Basile 

v. H&R Block, Inc., 761 A.2d 1115, 1120 (Pa. 2000). “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.” Walton, 66 A.3d at 786. Agency cannot be inferred from mere 

____________________________________________

6

In Stewart v. GGNSC-Canonsburg, LP, 9 A.3d 215, 222 (Pa. Super. 

2010), we invalidated a pre-dispute nursing home arbitration agreement 

because of the NAF’s unavailability. Our Supreme Court is currently 

considering whether to overrule or reaffirm Stewart. See Wert v. 

ManorCare of Carlisle, PA, LLC, 95 A.3d 268, 268-69 (Pa. 2014) (per 

curiam order granting allowance of appeal).
J-A18026-15

- 10 -

relationships or family ties, and we do not assume agency merely because 

one person acts on behalf of another. Id. at 787 (quoting Sidle v. 

Kaufman, 29 A.2d 77, 81 (Pa. 1942)). Rather, we look to facts to 

determine whether the principal expressly or impliedly intended to create an 

agency relationship. Id. To that end, family ties may be relevant when 

considered with other factors evincing agency. Sidel, 29 A.2d at 81. 

Finally, the party asserting the agency relationship bears the burden of 

proving it by a preponderance of the evidence. Walton, 66 A.3d at 786. 

“Express authority exists where the principal deliberately and 

specifically grants authority to the agent as to certain matters.” Walton, 66 

A.3d at 786 (citing Bolus v. United Penn Bank, 525 A.2d 1215 (Pa. Super. 

1987)). An agent with express authority also acquires implied authority, 

which “exists in situations where the agent’s actions are ‘proper, usual and 

necessary’ to carry out express agency.” Id. (quoting Passarelli v. 

Shields, 156 A.2d 343, 347 (Pa. Super. 1959)). A valid, durable power of 

attorney constitutes a grant of express authority per its terms. See 20 

Pa.C.S.A. § 5601(a). 

A party who deals with an agent must “take notice of the nature and 

extent of the authority conferred. Parties are bound at their own peril to 

notice limitations upon the grant of authority before them, whether such 

limitations are prescribed by the grant’s own terms or by construction of 

law.” Fierst v. Cmwlth. Land Title Ins. Co., 451 A.2d 674, 677 (Pa. 

1982). “If a person dealing with an agent has notice that the agent’s 
J-A18026-15

- 11 -

authority is created or described in a writing which is intended for his 

inspection, he is affected by limitations upon the authority contained in the 

writing, unless misled by conduct of the principal.” Restatement (Second) of 

Agency § 167 (1958).

We hold the trial court did not err in finding that H. Randall Wisler 

lacked express authority to sign the Arbitration Agreement on Decedent’s 

behalf. As noted by the trial court, ManorCare had a duty to ascertain the 

nature and extent of the written power of attorney. See Trial Court Opinion, 

6/27/14, at 10-11 (internal citations omitted). The law required ManorCare 

to determine the extent of H. Randall Wisler’s purported authority as 

Decedent’s agent at the time of reliance. ManorCare failed to do so at its 

peril. 

Additionally, to the extent that the power of attorney granted 

H. Randall Wisler the ability to sign admissions paperwork for Decedent, 

nothing indicates that it also allowed him to waive litigation rights in favor of 

arbitration. As the trial court noted, the authority to consent to medical 

treatment and care on behalf of a principal does not necessarily entail the 

authority to consent to arbitration, agreement to which was not a 

precondition to be admitted to ManorCare Lancaster. See id. at 9 & n.1.

Northern Health Facilities v. Batz, 993 F.Supp.2d 485 (M.D. Pa. 

2014), cited by ManorCare, is distinguishable. In that case, the patient 

admitted to the nursing home was blind, he was present during the intake 

interview, and he told the intake nurse that his wife, who was also present, 
J-A18026-15

- 12 -

could sign the admissions paperwork on his behalf. Id. at 489-90. 

Moreover, these facts were undisputed during litigation. Id. Here, there is 

no clear, express grant of authority from Decedent to H. Randall Wisler. Nor 

do Executors stipulate to the facts supporting agency. Additionally, we have 

refused to rely on Batz’s ultimate holding, because the Batz court did not 

rely on Pennsylvania law. See Taylor v. Extendicare Health Facilities, 

Inc., 113 A.3d 317, 327 (Pa. Super. 2015).

We next consider whether H. Randall Wisler had apparent authority to 

sign 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.” 

Walton, 66 A.3d at 786 (citing Turner Hydraulics v. Susquehanna 

Constr. Co., 606 A.2d 532 (Pa. Super. 1992)). “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.” Id. at 787 

(quotation omitted).

The trial court did not abuse its discretion in concluding that 

ManorCare failed to prove H. Randall Wisler acted under apparent authority 

in signing the Arbitration Agreement. We adopt the trial court’s cogent 

analysis:

There is no evidence presented of any manifestation by the 

[D]ecedent to [ManorCare Lancaster] that his son was 

authorized to act on his behalf in signing the [A]rbitration 

[A]greements. Indeed, [ManorCare’s] argument focuses on the 

actions of the son, the purported agent, in attempting to 
J-A18026-15

- 13 -

establish apparent authority. [ManorCare’s] contention that, in 

deposition testimony three years after the fact, H. Randall Wisler 

“conceded that he had [the] authority” to sign the admissions 

paperwork and that he “noted various other examples of having 

acted on behalf of his father pursuant to his [power of attorney], 

such as being involved in previous hospital admissions, doing his 

banking, and paying his bills” is meritless. Again, authority 

emanates from the principal’s action[,] and not the agent’s. 

Thus, even if H. Randall Wisler did inform staff at [ManorCare 

Lancaster] that he had a power of attorney for his father and 

that he had the authority to sign documents on his father’s 

behalf, no[ ]one obtained a copy of the power of attorney or 

confirmed with Decedent whether [H. Randall] Wisler, in fact, 

had such authority and if it extended to signing a waiver of his 

constitutional right to a jury trial. [ManorCare] can point to no 

word or action by the purported principal that led [it] to believe 

that [Decedent] had granted [H. Randall Wisler] the authority to 

sign any papers on his behalf.

Here, the [D]ecedent was not present during the admission 

process, and [ManorCare Lancaster’s] admissions coordinator, 

Shawn Kroeck, has no recollection of the [D]ecedent’s admission 

and, thus, can offer no testimony of any alleged agency 

relationship created between the [D]ecedent and his son, H. 

Randall Wisler, upon which Mr. Kroeck relied when presenting 

the admissions paperwork and the arbitration agreements at 

issue.

Trial Court Opinion, 6/27/14, at 10-11 (internal citations omitted) (emphasis 

added).

We also reject as unavailing ManorCare’s argument in favor of 

authority by estoppel. “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.” 

Walton, 66 A.3d at 786 (citing Turnway Corp. v. Soffer, 336 A.2d 871 

(Pa. 1975)). Again, we adopt the trial court’s analysis:
J-A18026-15

- 14 -

There is no authority by estoppel[,] because [ManorCare] offered 

no evidence the [D]ecedent was negligent in failing to take 

reasonable steps to disavow [ManorCare Lancaster] of its belief 

that H. Randall Wisler was authorized to act on his behalf. 

[ManorCare] offered no evidence showing the [D]ecedent knew 

of the [A]rbitration [A]greement[], authorized his son to sign the 

[A]greement[], or otherwise agreed to arbitrate any disputes 

with [ManorCare Lancaster]. 

The [D]ecedent was not even present during the admission 

process; thus, [ManorCare] offered no evidence whatsoever of 

the [D]ecedent’s conduct when the agreements were executed. 

Nor did [ManorCare] offer any evidence of the [D]ecedent’s 

condition at [ManorCare Lancaster] after the [A]greements were 

signed by his son. [ManorCare Lancaster] neither presented the 

[A]rbitration [A]greement[] to the [D]ecedent at a later time for 

his ratification[,] nor did it provide him with copies of the 

[A]greements signed by his son.

Trial Court Opinion, 6/27/14, at 11-12.

ManorCare argues that H. Randall Wisler admitted his authority as 

agent at his deposition, and that “admission” is dispositive. See Appellants’ 

Brief at 16 (citing Pa.R.E. 803(25)). This argument begs the question, 

because ManorCare assumes that H. Randall Wisler’s testimony is controlling 

as an admission. We fail to see how Pa.R.E. 803(25) applies here.7 

____________________________________________

7 Rule 803(25) provides:

The following are not excluded by the rule against hearsay, 

regardless of whether the declarant is available as a witness:

* * *

(25) An Opposing Party’s Statement. The statement is 

offered against an opposing party and:

(A) was made by the party in an individual or 

representative capacity;

(Footnote Continued Next Page)
J-A18026-15

- 15 -

Executors do not argue that that H. Randall Wisler’s testimony is 

inadmissible hearsay. ManorCare fails to address how the actions of 

H. Randall Wisler—the purported agent—bind Decedent—the purported 

principal. “An agent cannot simply, by his or her own words, invest himself 

or herself with apparent authority; but rather, such authority emanates from 

the principal’s action and not the agent’s.” V-Tech Servs., Inc. v. Street, 

72 A.3d 270, 279 (Pa. Super. 2013) (citing Turnway Corp. v. Soffer, 336 

A.2d 871 (Pa. 1975)) (emphasis added).

We reject ManorCare’s intentional spoliation and adverse-inference 

arguments as non-sequiturs.8 ManorCare does not argue for a permissive 

adverse inference. Rather it contends the trial court should have 

concluded—from the absence of evidence—that ManorCare met its burden 

(Footnote Continued) _______________________

(B) is one the party manifested that it adopted or believed 

to be true;

(C) was made by a person whom the party authorized to 

make a statement on the subject;

(D) was made by the party’s agent or employee on a 

matter within the scope of that relationship and while it 

existed; or

(E) was made by the party’s coconspirator during and in 

furtherance of the conspiracy.

Pa.R.E. 803(25).

8 Executors incorrectly contend ManorCare failed to raise this argument 

before the trial court. ManorCare did so in it supplemental brief in support 

of its preliminary objections.
J-A18026-15

- 16 -

of proof. See Appellants’ Brief at 22 (arguing that the trial court should 

have concluded that the power of attorney would have authorized H. Randall 

Wisler to execute the Arbitration Agreement). Additionally, ManorCare 

incorrectly characterizes its proposed adverse inference as mandatory. See

id. at 10, 22. 

Adverse inferences are merely permissive. “The failure to produce 

evidence raises a permissible inference, not a mandatory inference or a 

presumption.” 1 PACKEL & POULIN ON PENNSYLVANIA EVIDENCE § 427 (4th ed. 

2014). As our Supreme Court long ago stated:

Where evidence which would properly be part of a case is within 

the control of the party whose interest it would naturally be to 

produce it, and, without satisfactory explanation, he fails to do 

so, the jury may draw an inference that it would be unfavorable 

to him. It is an inference of fact, not a presumption of law. 

Hall v. Vanderpool, 26 A. 1069, 1071 (Pa. 1893); see also Pa. Sugg. 

Stand. Jury Instr. (Civ.) §§ 5.30, 5.60 (stating that the jury may take 

inference against a party who failed to produce, or intentionally withheld, 

relevant evidence); BINDER ON PENNSYLVANIA EVIDENCE § 3.18 (8th ed. 2014) 

(“The adverse presumption (inference) resulting from . . . spoliation of 

evidence shifts neither the burden of production, nor the burden of 

persuasion, on the issue of liability to be resolved by the trier of fact.”). In 

other words, adverse inferences are not evidence. See Kennett Square 

Specialties v. Workers’ Comp. Appeal Bd. (Cruz), 31 A.3d 325, 328-29 

(Pa. Cmwlth. 2011) (“The reason that an adverse inference cannot serve as 

substantial evidence to support a finding of fact is because an adverse 
J-A18026-15

- 17 -

inference does not constitute evidence, period.”), aff'd, 99 A.3d 397 (Pa. 

2014). Here, ManorCare would have a court conclude—from the absence of 

evidence—that it met its burden of proving that H. Randall Wisler had the 

authority to sign the Arbitration Agreement for Decedent. Understandably, 

we decline to find trial court error on this basis.

ManorCare further contends that not taking an adverse inference sets 

a dangerous precedent by encouraging litigants not to cooperate in 

discovery,9or to destroy valid powers of attorney to escape contractual 

obligations. We disagree. If a third party relies on an agent’s authority, it 

must ascertain the scope of that authority at the time of reliance. See

Fierst, 451 A.2d at 677; Restatement (Second) of Agency § 167 (1958). 

The third party that fails to do so acts at its own peril. In other words, our 

decision should encourage parties seeking an agreement to arbitrate to 

ascertain the source of an agent’s authority before allowing the agent to sign 

an arbitration agreement on the principal’s behalf. 

____________________________________________

9 ManorCare never filed a motion to compel production of the power of 

attorney and, consequently, never sought discovery sanctions. Cf. Pa.R.C.P. 

No. 4019(a)(1)(vii). Although it apparently requested H. Randall Wisler to 

bring with him a copy of the power of attorney to his deposition under Rule 

4007.1(d)(1), it did not explore in detail what happened to the power of 

attorney. See Defendants’ Supplemental Memorandum of Law in Support of 

Preliminary Objections of Defendants to Plaintiffs’ Complaint, 6/13/13, 

Exhibit B, Deposition of H. Randall Wisler, 5/23/13, at 14-17.
J-A18026-15

- 18 -

We hold the trial court did not err in refusing to compel arbitration. 

Therefore, we need not consider alternative grounds in favor of affirmance. 

The order overruling ManorCare’s request to compel arbitration is affirmed.

Order affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/8/2015