J-S56018-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

GLORIA J. GARCIA, AS ATTORNEY-INFACT FOR GLORIA MARIE ECKERTIN THE SUPERIOR COURT OF

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
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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”)1appeal 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.
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for the purpose of rehabilitation. On September 24, 2012, Husband, who 

was Mother’s durable power of attorney (“DPOA”),2signed 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.
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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.
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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.
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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, noneconomic, 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 
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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 
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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 

 Representative1in 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.
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 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.
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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 
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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, 
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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:
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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.
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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-
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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 
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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.
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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 

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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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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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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, 

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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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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