J-A04041-19

2019 PA Super 122

* Retired Senior Judge assigned to the Superior Court.

CHALENA MCILWAIN, AS 

ADMINISTRATRIX OF THE ESTATE OF 

NORMAN JAMES FRANKS 

Appellant

v.

SABER HEALTHCARE GROUP, INC., 

LLC; SABER MANAGEMENT INC.; 

HEALTHCARE HOLDINGS, LLC;

AMBLER HEALTHCARE GROUP, LLC; 

KAREN PULINI (AS TO AMBLER 

EXTENDED CARE CENTER)

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2060 EDA 2018

Appeal from the Order Entered March 6, 2018

In the Court of Common Pleas of Montgomery County Civil Division at 

No(s): 2017-19910

BEFORE: LAZARUS, J., KUNSELMAN, J., and COLINS*, J.

OPINION BY COLINS, J.: FILED APRIL 22, 2019

Appellant, Chalena McIlwain (McIlwain), as Administratrix of the estate 

of Norman James Franks (Franks), appeals from the order entered on March 

6, 2018, sustaining the preliminary objections of Appellees, Saber Healthcare 

Group, Inc., LLC, Saber Management Inc., Healthcare Holdings, LLC, Ambler 

Healthcare Group, LLC, and Karen Pulini (collectively, Saber) as to survival 

claims brought by McIlwain concerning the death of Franks, her father. We 

reverse the trial court’s sustaining of Saber’s preliminary objections and 

remand for further proceedings in the trial court. 

Franks suffered from a diagnosis of schizophrenia and dementia. The 

Superior Court of California granted McIlwain letters of temporary 
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conservatorship of Franks’ person and estate on May 9, 2013. The temporary 

conservatorship was set to expire on July 31, 2013. On May 13, 2013, Franks 

entered Saber nursing home in Pennsylvania. McIlwain signed Franks’

admission papers in the space designated “Authorized Representative,” and 

the box next to “Conservator” was checked. See Saber Sur-Sur Reply, Ex. E. 

There is an asterisk next to “Conservator,” leading to a statement “copy of 

legal documents must be provided to Facility.” Id. The document was also 

signed by a “Facility Representative.” Id. Additionally, McIlwain signed a 

“Resident and Facility Arbitration Agreement,” which provided, in part, that 

the parties to the agreement would submit to arbitration if there was a 

dispute. Prelim. Objs. Ex. B. McIlwain signed the arbitration agreement in 

the same way she signed the admission paperwork. Id. The arbitration 

agreement stated, in capital letters and bold typeface “Not a Condition Of 

Admission” at the top of the document. Id. Due to Franks’ severe cognitive 

defects, he was incapable of making decisions on his own. See Saber SurSur-Reply Brief and Answer at 3; see also Saber Sur-Sur-Reply, Ex. G (noting 

Franks’ admission diagnosis of paranoid schizophrenia and advanced vascular 

dementia). 

On July 30, 2013, the Court of Common Pleas of Montgomery County, 

Orphans’ Court Division, appointed McIlwain as permanent guardian for 

Franks. On July 31, 2013, the letters of temporary conservatorship from the 

Superior Court of California expired. Franks was a resident at Saber from May 

13, 2013 until September 18, 2016. During his stay at Saber, Franks suffered 
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multiple falls and urinary tract infections. Franks died on October 24, 2016 

after falling and hitting his head while living at Saber. 

On August 7, 2017, McIlwain filed a complaint against Saber alleging 

negligence, wrongful death and survival claims. Saber filed preliminary 

objections arguing that the dispute was subject to binding arbitration and 

attached the arbitration agreement McIlwain signed on behalf of Franks. 

McIlwain filed a response alleging that Saber did not produce any evidence 

that McIlwain had the authority to sign that agreement. Saber filed a surreply attaching a copy of the letters of temporary conservatorship from the 

Superior Court of California. McIlwain filed a sur-reply arguing that there is 

no evidence the conservatorship was transferred to Pennsylvania pursuant to 

the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act 

(UAGPPJA)1 and therefore, the conservatorship was not valid in Pennsylvania. 

Saber filed a sur-sur-reply alleging that the conservatorship was valid, in part 

because of the Full Faith and Credit clause of the United States Constitution.2 

On March 6, 2018, the trial court filed the order in question, sustaining 

Saber’s preliminary objections as to the survival claims. The trial court found 

that McIlwain had the authority to bind Franks to the arbitration agreement, 

and, therefore, bifurcated the survival claims and sent them to arbitration. 

The trial court overruled Saber’s remaining preliminary objections pertaining 

____________________________________________

1 20 Pa.C.S. §§ 5901-5992.

2 U.S. Const. Art. IV, § 1.
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to the wrongful death and negligence claims. As to the wrongful death claims, 

the trial court determined that McIlwain did not agree to arbitrate her own 

claims against Saber. See TCO at 9-10. The arbitration agreement covered 

claims “between the parties” and McIlwain was not a party to the agreement. 

Id. 

McIlwain filed a motion with the trial court to amend the March 6, 2018 

interlocutory order to include the language set forth in 42 Pa.C.S. § 702(b) to 

allow for an immediate appeal. The trial court did not enter a ruling on the 

motion, and the motion was deemed denied on May 5, 2018. See Pa.R.A.P. 

1311(b). In response, McIlwain filed a petition for review with this Court on 

June 1, 2018.3 On July 23, 2018, this Court granted the petition for review. 

The Order directed that the matter should proceed before the Superior Court 

as an appeal, at 2060 EDA 2018, from the trial court’s order dated March 6, 

2018.4 

On appeal, McIlwain raises the following question for review: 

1. Did the trial court err in finding that Chalena McIlwain had 

sufficient legal authority in Pennsylvania to enter into an 

arbitration agreement on behalf of her father, Norman James 

Franks? 

Appellant’s Brief at 3-4. 

____________________________________________

3 McIlwain filed another petition for review on June 6, 2018, given the docket 

number 75 EDM 2018. This petition appears to be duplicative of McIlwain’s 

earlier petition and it was, therefore, denied on July 19, 2018. 

4 We note that our Order states “March 8, 2018” but that is a typographical 

error. 
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Our review of a challenge to a trial court’s decision to grant preliminary

objections is guided by the following standard: “[w]e will reverse a trial 

court’s decision to sustain preliminary objections only if the trial court has 

committed an error of law or an abuse of discretion.” American Express 

Bank, FSB v. Martin, 200 A.3d 87, 93 (Pa. Super. 2018). “When considering 

preliminary objections, all material facts set forth in the challenged pleadings 

are admitted as true, as well as all inferences reasonably deducible 

therefrom.” Feingold v. Hendrzak, 15 A.3d 937, 941 (Pa. Super. 2011)

(citation omitted). 

At the outset, Saber contends that because McIlwain was appointed 

temporary conservator of Franks’ person and estate in California a few days 

before signing the arbitration agreement, she had the authority to sign this 

agreement in Pennsylvania on behalf of Franks. The California letters of 

temporary conservatorship provided the following: 

The Temporary Conservator has been granted the following 

powers under Probate Code Sections 2590, which powers are 

necessary for the protection of the Conservatee and his estate: 

The power to contract for the guardianship or conservatorship and 

to perform outstanding contracts and thereby bind the estate...the 

power to...arbitrate, or otherwise adjust claims, debts, or demands 

upon the guardianship or conservatorship.

See Saber Sur-Reply, Ex. E. We look to the statutes governing guardianships 

and conservatorships to determine if the California temporary conservatorship 

gave McIlwain the authority to sign the arbitration agreement in Pennsylvania. 
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In 2007, the National Conference of Commissioners on Uniform State 

Laws drafted the Uniform Adult Guardianship and Protective Proceedings 

Jurisdiction Act (Uniform Act) to specifically address jurisdiction and related 

issues in adult guardianship and protective proceedings, including problems 

relating to transferring a guardianship from one state to another and 

recognition of an out-of-state guardianship/conservatorship order. See

Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (2007)

at 1-2.

5

 In the prefatory note, the Uniform Act states, 

[b]ecause the United States has 50 plus guardianship systems, 

problems of determining jurisdiction are frequent. . . . There is a 

need for an effective mechanism for resolving multi-jurisdictional 

disputes. Article 2 of the [Uniform Act] is intended to provide such 

a mechanism. . . . [F]ew states have streamlined procedures for 

transferring a proceeding to another state or for accepting such a 

transfer. . . . Article 3 of the [Uniform Act] is designed to provide 

an expedited process for making such transfers, thereby avoiding 

the need to relitigate incapacity and whether the guardian or 

conservator appointed in the first state was an appropriate 

selection. . . . Sometimes, guardianship or protective proceedings 

must be initiated in a second state because of the refusal of 

financial institutions, care facilities, and courts to recognize a 

guardianship or protective order issued in another state. Article 

4 of the [Uniform Act] creates a registration procedure. Following 

registration of the guardianship or protective order in the second 

state, the guardian may exercise in the second state all powers 

authorized in the original state’s order of appointment . . . . 

____________________________________________

5https://www.uniformlaws.org/HigherLogic/System/DownloadDocumentFile.

ashx?DocumentFileKey=dc4d38fd-7d13-4d14-053c7160a2c1a9c3&forceDialog=0 (last visited March 29, 2019). 
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Id. As of March 2019, 49 of the US states and territories have enacted a 

version of the Uniform Act, including both Pennsylvania and California.

6

 

Pennsylvania enacted its version in 2012 known as the UAGPPJA. 20 

Pa.C.S. § 5901. “The Act applies only to court jurisdiction and related topics 

for adults for whom the appointment of a guardian or conservator or other 

protective order is being sought or has been issued.”

7

 Id. California enacted 

its version of the Uniform Act, the California Conservatorship Jurisdiction Act

(California Act), in 2016. Ca. Probate Code §§ 1980-2033. Likewise, the 

California Act “applies only to court jurisdiction and related topics for adults 

for whom the appointment of a [conservator] is being sought or has been 

issued.”

8

 Ca. Probate Code § 1980. 

The UAGPPJA provides two ways that an out-of-state 

guardianship/conservatorship can be recognized in Pennsylvania. Section 

5922 provides for a transfer of the jurisdiction of the guardianship from 

____________________________________________

6https://my.uniformlaws.org/committees/communityhome?CommunityKey=0f25ccb8-43ce-4df5-a856-e6585698197 (last visited 

March 18, 2019).

7 Conservator is defined in the UAGPPJA as a “person appointed by the court 

to administer the property of an adult.” A guardian is defined as “a person 

appointed by the court to make decisions regarding the person of an adult.” 

20 Pa.C.S. § 5902 (emphasis added). 

8

In California a conservatorship pertains to adults, and guardianships pertain 

to minors. See Ca. Probate Code §§ 1500-1502.
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another state into Pennsylvania.

9 Section 5931 provides for an out-of-state 

guardian/conservator to register its guardianship/conservatorship order in 

Pennsylvania.10 In this case, McIlwain did not follow either procedure.11

____________________________________________

9

 “To confirm transfer of a guardianship or conservatorship transferred to 

this Commonwealth . . . the guardian or conservator must petition the court 

in this Commonwealth to accept the guardianship or conservatorship. The 

petition must include a certified copy of the other state’s provisional order of 

transfer.” 20 Pa.C.S. § 5922(a). 

10

 If a guardian has been appointed in another state and a petition 

for the appointment of a guardian is not pending in this 

Commonwealth, the guardian appointed in the other state, after 

giving notice to the appointing court of an intent to register, may 

register the guardianship order in this Commonwealth by filing as 

a foreign judgment in a court, in any appropriate judicial district 

of this Commonwealth, certified copies of the order and letters of 

office. . . . Upon registration of a guardianship or protective order 

from another state, the guardian or conservator may exercise in 

this Commonwealth all powers authorized in the order of 

appointment except as prohibited under the laws of this 

Commonwealth, including maintaining actions and proceedings in 

this Commonwealth and, if the guardian or conservator is not a 

resident of this Commonwealth, subject to any conditions imposed 

upon nonresident parties.

20 Pa.C.S. § 5931, 5933(a). 

11 Registration appears to apply when the subject of a 

guardianship/conservatorship stays in the home state, but the 

guardian/conservator needs to act on behalf of the 

guardianship/conservatorship in another state. See Uniform Act, p.33. 

Transfer appears to apply in the case where a guardian/conservator wishes to 

transfer the jurisdiction of the guardianship/conservatorship to a different 

state. See Uniform Act, p.28. Because McIlwain did not attempt to register 

or transfer the temporary conservatorship prior to her signing of the 

arbitration agreement, we do not need to resolve the proper mechanism that 

should have been followed in this case. 
J-A04041-19

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While Saber produced a copy of the letters of temporary conservatorship 

from California, Saber has not alleged, nor is there any basis to conclude 

based on the proceedings below that McIlwain petitioned the court in California 

to transfer the conservatorship. In fact, McIlwain states, in her brief, 

“[d]efendants produced no evidence, nor is Plaintiff aware of the existence of 

any such evidence, that any petition was filed to accept the California 

proceedings or that it was properly registered in Pennsylvania pursuant to § 

5933.” Appellant’s brief at 15. The authority of the temporary 

conservatorship issued in California emanated from the Superior Court of 

California. As McIlwain did not follow either of the procedures outlined in the 

UAGPPJA, the temporary conservatorship granted in California did not give 

McIlwain the authority to sign the arbitration agreement on behalf of Franks. 

The Full Faith and Credit clause of the United States Constitution is not 

offended, because the underlying judgment of incapacity is not disturbed upon 

following the procedures provided in the UAGPPJA. See 20 Pa.C.S. § 5922(g); 

see also § 5933(a). 

Next, we determine whether, nonetheless, there exists an agency 

relationship between McIlwain and Franks that would provide an independent 

authority for McIlwain to have executed the arbitration agreement on behalf 

of Franks. “It is black letter law that in order to form an enforceable contract, 

there must be an offer, acceptance, consideration, or mutual meeting of the 

minds.” Walton v. Johnson, 66 A.3d 782, 786 n.3 (Pa. Super. 2013)
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(citation omitted). “As contract interpretation is a question of law, our review 

of the trial court’s decision is de novo and our scope is plenary.” Cardinal v. 

Kindred Healthcare, Inc., 155 A.3d 46, 50 (Pa. Super. 2017) (citation 

omitted). 

“Agency is the relationship which results from the consent of one person 

that another may act on his behalf.” Lincoln Avenue Industrial Park v. 

Norley, 677 A.2d 1219, 1222 (Pa. Super. 1996) (citation omitted). “The 

creation of an agency relationship requires no special formalities.” Walton, 

66 A.3d at 787 (citation omitted). “The existence of an agency relationship is 

a question of fact.” Id. “The party asserting the existence of an agency 

relationship bears the burden of proving it by a fair preponderance of the 

evidence.” Id. 

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. Express authority 

exists where the principal deliberately and specifically grants 

authority to the agent as to certain matters. Implied authority 

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

and necessary” to carry out express agency. Apparent authority 

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. Authority by estoppel 

occurs when the principal fails to take reasonable steps to 

disavow the third party of their belief that the purported agent 

was authorized to act on behalf of the principal. 

Walton, 66 A.3d at 786 (citations omitted) (emphasis added). 

We find no agency relationship existed between Franks and McIlwain

giving McIlwain the authority to sign the arbitration agreement on behalf of 
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Franks. “The basic elements of agency are the manifestation by the principal 

that the agent shall act for him, the agent’s acceptance of the undertaking 

and the understanding of the parties that the principal is to be in control of 

the undertaking.” Walton, 66 A.3d at 787 (citation omitted). It is clear that 

there was no express, implied, or apparent authority, nor authority by 

estoppel to establish an agency relationship between McIlwain and Franks in 

relation to signing the arbitration agreement. Authority for an agency 

relationship emanates from the words and actions of the principal, here, 

Franks. Saber has not alleged Franks was present when McIlwain signed the 

arbitration agreement or gave express consent to McIlwain to sign the 

agreement on his behalf. In fact, Saber states that due to Franks’ severe 

cognitive defects, he was incapable of making decisions on his own. See

Saber Sur-Sur-Reply Brief and Answer at 3; see also Saber Sur-Sur-Reply, 

Ex. G (noting Franks’ admission diagnosis of paranoid schizophrenia and 

advanced vascular dementia).

Saber alleges that McIlwain, by her words and conduct, held herself out 

as Franks’ agent and Saber was justified in relying on her words and conduct. 

Specifically, Saber alleges that because McIlwain signed the admission 

agreement, consent for physician care, and authorization and 

acknowledgement of receipt on behalf of Franks, she had apparent authority 

to sign the arbitration agreement. However, an agent cannot simply, by her 

own words, invest herself with apparent authority. Turnway Corp. v. Soffer, 
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336 A.2d 871, 876 (Pa. 1975); see also V-Tech Services, Inc. v. Street, 

72 A.3d 270, 279 (Pa. Super. 2013). Such authority emanates from the action 

of the principal and not the agent. Turnway, 336 A.2d at 876; V-Tech 

Services, 72 A.3d at 279. As it is clear that Saber did not rely on the words 

or conduct of Franks, no apparent authority exists. Additionally, we do not 

assume agency by a mere showing that one person does an act for another. 

Walton, 66 A.3d at 787. “Agency cannot be inferred from mere relationships 

or family ties.” Wisler v. Manor Care of Lancaster PA, LLC, 124 A.3d 317, 

323 (Pa. Super. 2015) (citation omitted).

Saber did not allege it was misled by any words or conduct of Franks. 

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

of the authority conferred.” Wisler, 124 A.3d at 324 (finding that son with 

valid power of attorney did not have authority to sign arbitration agreement 

on behalf of resident where nursing home did not ascertain the nature and 

extent of son’s purported authority). “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.” 

Id. “If a person dealing with an agent has notice that the agent’s 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.” Id. Saber had the duty to confirm the 

extent of McIlwain’s purported authority to sign the arbitration agreement as 
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Franks’ agent at the time of reliance. Saber neglected to do so at its own 

peril. 

“The FAA . . . does not require parties to arbitrate when they have not 

agreed to do so.” E.E.O.C. v. Waffle House, Inc., 534 U.S. 279, 293 (2002) 

(citation omitted). “Despite national and state policies favoring arbitration, a 

party cannot be compelled to arbitrate in the absence of a valid agreement to 

do so under either Pennsylvania law or the [FAA].” Washburn v. Northern 

Health Facilities, Inc., 121 A.3d 1008, 1015-6 (Pa. Super. 2015) (citation 

omitted). “The [FAA] requires courts to place arbitration agreements on equal 

footing with all other contracts.” Kindred Nursing Centers Limited 

Partnership v. Clark, 137 S. Ct. 1421, 1424 (2017) (citation omitted). 

“[T]he existence of an arbitration provision and a liberal policy favoring 

arbitration does not require the rubber stamping of all disputes as subject to 

arbitration.” Pisano v. Extendicare Homes, Inc., 77 A.3d 651, 661 (Pa. 

Super. 2013) (citation omitted). “This is especially true where holding 

otherwise would operate against principles of Pennsylvania contract law and 

the FAA.” Id. 

We find that the trial court erred as a matter of law in determining that 

McIlwain had the authority to sign the arbitration agreement on behalf of 

Franks. Absent an agency relationship, we hold that McIlwain did not have 

authority to sign the arbitration agreement on behalf of Franks. We reverse 

the trial court’s order bifurcating the survival claims, and remand for further 
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proceedings consistent with this opinion. The survival claims are to proceed 

in the trial court concurrent with the wrongful death and negligence claims. 

Order reversed. Case remanded. 

Jurisdiction Relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/22/19