J-A27021-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

LINDA L. KILLIAN, ADMINISTRATOR 

FOR THE ESTATE OF ADRIENNE 

MARIE KILLIAN-MOSELEY, 

DECEASED

v.

SKYLINE HEALTH CARE, LLC, JS 

PENNSYLVANIA HEALTHCARE 

HOLDINGS, LLC, JOSEPH 

SCHWARTZ, FILLMORE CAPITAL 

PARTNERS, LLC, FILLMORE 

STRATEGIC INVESTORS, LLC; 

FILLMORE STRATEGIC 

MANAGEMENT, LLC; DRUMM 

MERGER CO., SUB, LLC, GGNSC 

HOLDINGS, LLC, GGNSC EQUITY 

HOLDINGS, LLC, GGNSC 

ADMINISTRATIVE SERVICES, LLC 

GGNSC CLINICAL SERVICES, LLC, 

GEARY PROPERTY HOLDINGS, LLC, 

GPH LANSDALE, L.P., GPH LANSDALE 

GP, LLC, GGNSC LANSDALE L.P., 

D/B/A GOLDEN LIVING CENTERLANSDALE, GGNSC LANSDALE GP, 

LLC, LANSDALE CARE AND 

REHABILITATION CENTER, LLC, LILY 

SAHADY, NHA, AND JASON BARRY 

CUMELLO, NHA

APPEAL OF: SKYLINE HEALTH CARE 

LLC, JS PENNSYLVANIA HEALTHCARE 

HOLDINGS, LLC, JOSEPH SCHWARTZ 

AND LANSDALE CARE AND 

REHABILITATION CENTER, LLC

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3584 EDA 2018

Appeal from the Order Entered November 16, 2018

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

No(s): 2017-21847
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BEFORE: BOWES, J., SHOGAN, J., and STRASSBURGER, J.*

MEMORANDUM BY SHOGAN, J.: Filed: April 15, 2020

Appellants, Skyline Health Care LLC, et al., appeal from the order 

overruling their preliminary objections in the nature of a petition to compel 

arbitration in this nursing home neglect and abuse action brought by Appellee, 

Linda L. Killian (“Administrator”), the administrator for the estate of Adrienne 

Marie Killian-Moseley (“Decedent”). Upon careful review, we reverse and 

remand for further proceedings.

The trial court summarized the extensive factual and procedural history 

of this matter as follows:

[D]ecedent lived at the facility, Golden Living Center —

Lansdale, later called Lansdale Care and Rehabilitation Center 

[(“the Facility”)], from May 2015 to July 1, 2017. (Second Am 

Compl. para. 1.) She died on July 4, 2017. (Second Am Compl. 

para. 2.) During [Decedent’s] residency at the facility, it changed 

hands among various Defendants, consequently the change in 

names, on or about February 1, 2017. (Second Am Compl. para. 

1.)

[Administrator], sister of [D]ecedent and appointed 

administratrix of [D]ecedent’s estate, claims that due to 

Defendants’ negligence and derelictions during the course of 

[Decedent’s] residency, [Decedent] “suffered preventable 

injuries, including falls, a head injury and concussion, right foot 

osteomyelitis, right foot MRSA infections, MRSA wound infections, 

several urinary tract infections, poor hygiene, severe pain, and 

ultimately death.” (Mem. Law Opp’n Prelim. Objs. Pl.’s Second 

Am Compl. Defs. Skyline Healthcare 2.) [Administrator] holds 

many parties and entities, Defendants in this case, responsible for 

these alleged wrongs.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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Defendants, grouped according to their representation by 

different counsel in this litigation, are as follows: (1) GGNSC

Holdings, LLC, GGNSC Equity Holdings, LLC, GGNSC 

Administrative Services, LLC, GGNSC Clinical Services, LLC, GPH 

Lansdale, L.P., GPH Lansdale GP, LLC, GGNSC Lansdale L.P., doing 

business as Golden Living Center — Lansdale, GGNSC Lansdale 

GP, LLC, Jason Barry Cumello, NHA, and Lilly Sahady, NHA 

(collectively, the “Golden Living” Defendants); (2) Fillmore Capital 

Partners, LLC, Fillmore Strategic Investors, LLC, Fillmore Strategic 

Management, LLC, Drumm Merger Co. Sub, LLC, and Geary 

Property Holdings, LLC (collectively, the “Fillmore” Defendants); 

and (3) Skyline Health Care, LLC, JS Pennsylvania Healthcare 

Holdings, LLC, Joseph Schwartz, and Lansdale Care and 

Rehabilitation Center, LLC ([collectively, “Appellants”]). The 

“Golden Living” Defendants are the former owners/operators of 

the [Facility] as of the time [D]ecedent first entered it. The 

“Fillmore” Defendants are companies headquartered outside [of] 

Pennsylvania that are alleged by [Administrator] to have had 

some role in owning and/or operating the [F]acility and/or the 

corporate Golden Living Defendants while they controlled it 

locally. [Appellants] are corporations and an individual alleged to 

have taken over ownership and operation of the [F]acility in or 

around February 2017 when the prior owners transferred their 

interests to [Appellants]. [Appellants] are the ones currently 

before the honorable Superior Court seeking to compel 

[Administrator’s] claims against them to arbitration.

[Administrator] instituted this suit in September 2017 by 

writ of summons, attempted and/or achieved service on all 

Defendants, and filed an initial complaint in December of that 

year. The three separately-represented groups of Defendants 

each preliminarily objected to the complaint, and [Administrator] 

filed an amended complaint pursuant to Pa.R.C.P. 1028(c)(1) (“A 

party may file an amended pleading as of course within twenty 

days after service of a copy of preliminary objections. If a party 

has filed an amended pleading as of course, the preliminary 

objections to the original pleading shall be deemed moot.”), as 

well as certificates of merit under Pa.R.C.P. 1042.3 for each 

Defendant. Each group of Defendants again preliminarily 

objected, and [Administrator] filed a second amended complaint.

At this point, the Golden Living Defendants stipulated with 

[Administrator] to arbitrate their disputes pursuant to an 

arbitration agreement [(“the Agreement”)] between the decedent 
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and “Golden Living Center” (Golden Living Defs.’ Prelim. Objs. Pl.’s 

Am. Compl. Ex. B) dating from at or near the time [D]ecedent 

entered the [F]acility in May 2015; this stipulation was approved 

and filed as an order of the [c]ourt. In accordance with 

Pennsylvania’s Uniform Arbitration Act (UAA), 42 Pa.C.S. § 

7304(d), the stipulation and order stayed [Administrator’s] claims 

in [c]ourt against the Golden Living Defendants pending 

completion of the arbitration.

The other two groups of Defendants again preliminarily 

objected to the second amended complaint. [Administrator] filed 

timely responses opposing each set of preliminary objections. 

This [c]ourt overruled each set of preliminary objections in orders 

entered November 16, 2018.

The Fillmore Defendants’ preliminary objections had sought 

to dismiss [Appellee’s] claims, as against the Fillmore Defendants, 

all out-of-state parties, based on “lack of jurisdiction over ... 

the[ir] person[s],” Pa.R.C.P. 1028(a)(1). For the next few months 

after the filing of these objections and the response, the Fillmore 

Defendants and [Administrator] went back and forth filing replies, 

sur-replies, and notices of supplemental authority on the 

jurisdictional issue. After the [c]ourt overruled the jurisdictional 

objections, the Fillmore Defendants filed a motion asking the 

[c]ourt to amend its order to state, under Pa.R.A.P. 311(b)(2), 

“that a substantial issue of ... jurisdiction is presented,” to allow 

for an interlocutory appeal as of right to the Superior Court under 

that rule. This [c]ourt denied the motion, and the Fillmore 

Defendants filed a petition for review in the Superior Court, which 

that Court also denied. Killian v. Skyline Health Care, LLC, No. 

143 EDM 2018 (Pa. Super. Ct. Feb. 25, 2019).

[Appellants] whose objections had raised, as stated, [the 

Agreement], but also had pursued several other attacks on the 

second amended complaint in the nature of demurrers, filed this 

appeal directly to the Superior Court from the order overruling the 

objections, invoking the jurisdictional authority of 42 Pa.C.S. § 

7320(a)(1) (“An appeal maybe taken from: (1) A court order 

denying an application to compel arbitration made under section 

7304 (relating to proceedings to compel or stay arbitration).”), 

and Pa.R.A.P. 311(a)(8) (“An appeal may be taken as of right and 

without reference to Pa.R.A.P. 341(c) from: ... [a]n order that is 

made final or appealable by statute or general rule, even though 

the order does not dispose of all claims and of all parties.”). ... 
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In this interlocutory appeal, only the question of whether this 

[c]ourt properly denied the preliminary objection going to 

arbitration is at issue; any other issues the preliminary objections 

raised are not. ...

[Appellants’] notice of appeal also cited Pa.R.A.P. 1701(a), 

“Except as otherwise prescribed by these rules, after an appeal is 

taken ... the trial court ... may no longer proceed further in the 

matter.” However, under an explicit exception to this rule,

Where only a particular item, claim[,] or assessment 

adjudged in the matter is involved in an appeal ... the 

appeal ... shall operate to prevent the trial court ... 

from proceeding further with only such item, claim[,] 

or assessment, unless otherwise ordered by the trial 

court ... or by the appellate court or a judge thereof 

as necessary to preserve the rights of the appellant.

Pa.R.A.P. 1701(c); cf. 42 Pa.C.S. § 7304(d) (“An action or 

proceeding, allegedly involving an issue subject to arbitration, 

shall be stayed if a court order to proceed with arbitration has 

been made or an application for such an order has been made 

under this section. If the issue allegedly subject to arbitration is 

severable, the stay of the court action or proceeding may be made 

with respect to the severable issue only.” (emphasis added)).

Thus[, Appellants’] appeal did not itself stay this action from 

proceeding among other parties. Indeed, the Fillmore Defendants 

proceeded to comply with this [c]ourt’s order overruling their 

preliminary objections by filing an answer to the second amended 

complaint. However, [Appellants] also filed a motion for a stay as 

to all claims and parties, and this [c]ourt granted that motion as 

unopposed on January 14, 2019. This stay presumably would not 

apply to the Golden Living Defendants’ arbitration [which 

Administrator] stipulated to earlier, though the order adopting the 

stipulation had already stayed proceedings in this [c]ourt with 

regard to those Defendants, pending completion of the arbitration.

Trial Court Opinion, 6/7/19, at 1-6 (emphasis in original). The trial court did 

not direct Appellants to file a Pa.R.A.P. 1925(b) statement. The trial court 

complied with Pa.R.A.P. 1925(a).
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Appellants present the following issues for our review:

1. Whether the trial court erred by overruling [Appellants’] 

preliminary objections and failing to order binding arbitration of 

the claims brought on behalf of the Estate in accordance with the 

terms of [the Agreement], as there is a valid agreement to 

arbitrate executed by the Resident, and the [Administrator’s] 

claims arise fall squarely within the Agreement’s scope?

2. Whether the trial court erred by finding that [Appellants] 

presented insufficient factual or legal justification to enforce [the 

Agreement], as the evidence established the direct transfer of 

ownership to successor owners [Appellants], who were the 

Facility’s “affiliates,” “successors” and/or “assigns,” the 

Agreement applied to any and all disputes relating to the 

Resident’s stay at this facility, the parties intended that the 

Agreement remained in effect unless revoked, and there was a 

[sic] “obvious and close nexus” between [Appellants] and both the 

parties and the Agreement?

3. Whether, although not reached by the trial court, 

[Administrator] failed to sustain her burden of establishing 

meritorious contractual defenses to the validity or enforceability 

of [the Agreement], and [the Agreement] is valid and enforceable 

on the part of [Appellants]?

Appellants’ Brief at 5-6.

Before addressing Appellants’ claims, we first must determine whether 

their appeal is properly before this Court. Generally, only final orders are 

appealable. Pa.R.A.P. 341. Final orders are defined as orders that dispose of 

all claims and all parties. Id. Ordinarily, an order of the trial court overruling 

a party’s preliminary objections is interlocutory and not appealable as of right. 

Callan v. Oxford Land Development Inc., 858 A.2d 1229, 1232 (Pa. Super. 

2004). There is, however, a narrow exception to this rule for cases in which 
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the appeal is taken from an order denying a petition to compel arbitration.1 

Id.; Pa.R.A.P. 311(a)(8); 42 Pa.C.S. § 7320(a). Here, the trial court’s order 

denied Appellants’ request to compel arbitration. As such, we conclude that 

the order is immediately appealable, and we will proceed to address 

Appellants’ claims. 

In their first and second issues, Appellants argue that the trial court 

erred in overruling their preliminary objections and failing to order arbitration. 

Appellants’ Brief at 22-52. Appellants contend that there was a valid 

arbitration agreement and that Administrator’s claims fall within the scope of 

the Agreement. Id. at 22-28. Appellants allege that they presented sufficient 

justification to enforce the Agreement. Id. at 28-52. Specifically, Appellants 

claim that the parties intended for the Agreement to apply to the facility and 

its affiliates, and successors and assigns, and the evidence established 

Appellants were successor owners. Id. at 30-40. Appellants assert that the 

intention for the Agreement to remain in effect through any transfer in 

ownership is manifested in the language that it governs all claims for 

negligence or malpractice arising out of Decedent’s residence at the Facility. 

Id. at 40-43. Further, Appellants claim that, although they are nonsignatories to the Agreement, they may enforce the Agreement because there 

____________________________________________

1 A party may appeal directly from the order denying a preliminary objection 

invoking an arbitration agreement; a separate petition to compel arbitration 

is not required. Stewart v. GGNSC-Canonsburg, L.P., 9 A.3d 215, 218 (Pa. 

Super. 2010).
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is an obvious and close nexus between Appellants and the parties. Id. at 43-

51.

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

appellants’ preliminary objection 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). “Where a party to a civil action seeks to compel arbitration, 

a two-part test is employed.” Callan 858 A.2d at 1233.

First, the trial court must establish if a valid agreement to arbitrate 

exists between the parties. Second, if the trial court determines 

such an agreement exists, it must then ascertain if the dispute 

involved is within the scope of the arbitration provision. If a valid 

arbitration agreement exists between the parties, and the 

plaintiff’s claim is within the scope of the agreement, the 

controversy must be submitted to arbitration.

Id. (citations omitted). The existence of an agreement and whether a dispute 

is within the scope of the agreement are questions of law, and an appellate 

court’s review is plenary. Keystone Tech. Group, Inc. v. Kerr Group, Inc., 

824 A.2d 1223, 1227 (Pa. Super. 2003). 

In interpreting an arbitration agreement, we are mindful that arbitration 

agreements must be strictly construed. Callan, 858 A.2d at 1233. In 

addition, “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.” Levy v. Lenenberg, 795 A.2d 419, 422-423 (Pa. Super. 2002) 
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(quoting Midomo Co., Inc. v. Presbyterian House. Dev. Co., 739 A.2d 

180, 187 (Pa. Super. 1999)). If the opposing party denies the existence of 

an agreement to arbitrate, the court shall proceed summarily to determine 

the issue and shall order the parties to proceed with arbitration if it finds for 

the moving party. 42 Pa.C.S. § 7304(a). Otherwise, the application for 

arbitration shall be denied. Id.

In determining whether parties have agreed to arbitrate, we consider 

the following:

(1) arbitration agreements are to be strictly construed and not 

extended by implication; and (2) when parties have agreed to 

arbitrate in a clear and unmistakable manner, every reasonable 

effort should be made to favor the agreement unless it may be 

said with positive assurance that the arbitration clause involved is 

not susceptible to an interpretation that covers the asserted 

dispute.

Highmark Inc., 785 A.2d at 98 (quoting Midomo Co. v. Presbyterian 

Housing Development Co., 739 A.2d 180, 190 (Pa. Super. 1999)). “When 

construing agreements involving clear and unambiguous terms, this Court 

need only examine the writing itself to give effect to the parties’ 

understanding. This Court must construe the contract only as written and 

may not modify the plain meaning under the guise of interpretation.” 

Humberston v. Chevron U.S.A., Inc., 75 A.3d 504, 509-510 (Pa. Super. 

2013). There exists a well-established rule of construction and interpretation 

stating that words and phrases not defined in the contract “be given their plain 

and ordinary meaning whenever possible.” Toombs NJ Inc. v. The Aetna 
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Casualty & Surety Company, 591 A.2d 304, 307 (Pa. Super. 1991). As we 

have stated, “[W]ords of common usage ... are to be construed in their 

natural, plain and ordinary sense ... and we may inform our understanding of

these terms by considering their dictionary definitions.” Municipality of Mt. 

Lebanon v. Reliance Ins. Co., 778 A.2d 1228, 1232 (Pa. Super. 2001) 

(quoting Madison Const. Co. K Harleysville Mut. Ins. Co., 735 A.2d 100, 

106 (Pa. 1999)).

In addressing whether Appellants were entitled to compel arbitration, 

the trial court concluded the following:

In attempting to carry their burden to establish an 

entitlement to compel arbitration, [Appellants] relied exclusively 

on the arbitration agreement [D]ecedent made with “Golden 

Living Center” when she entered the facility in May 2015. 

([Appellants’] Prelim. Objs. Pl.’s Second Am. Compl. para. 3 & Ex. 

B.) But [Appellants], who had no interests or rights pertaining to 

the [F]acility until February 2017, when it changed hands under 

circumstances not explained or disclosed to the [c]ourt in 

[Appellants’] preliminary objections, presented insufficient factual 

or legal justification to require the [c]ourt to enforce [the 

Agreement] against [Administrator] on [Appellants’] behalf.

Trial Court Opinion, 6/7/19, at 8.

In reaching this determination, the trial court offered the following 

discussion:

[Appellants’] preliminary objections cite no specific 

provision of [the Agreement], or any contract [Appellants] had 

with the Golden Living Defendants or any other party, giving 

[Appellants] a right to compel arbitration under [the Agreement]. 

Though the preliminary objections fail to cite the provision, [the 

Agreement], a preprinted form with the parties’ names (Golden 

Living Center’s and [D]ecedent’s) handwritten in on blank spaces 

as “Facility” ... and “Resident” ... respectively, states that, “The 
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term ‘Facility’ as used in this Agreement shall refer to the living 

center, its employees, agents, officers, directors, affiliates[,] and 

any parent or subsidiary of Facility[,] and its medical director 

acting in his or her capacity as medical director.” ... The 

[A]greement is silent as to corporate successors to ownership or 

operation of the “Facility.”

* * *

In seeking to compel [Administrator] to arbitration with 

them[, Appellants] rely entirely on their purported status as 

successors to the Golden Living Defendants as operators of the 

nursing facility--though without commenting on how [Appellants] 

might under this theory be liable for any alleged derelictions the 

Golden Living Defendants committed before [Appellants] became 

involved with the [Facility]. More importantly, [Appellants] 

presented no competent evidence of their status as successors to 

the rights and liabilities of the “Golden Living Center.” 

[Appellants’] preliminary objections advancing the argument 

[Appellants] were entitled to enforce the arbitration contract 

presented no contract with the Golden Living parties to show 

what, if any, the rights and liabilities transmitted with the change 

over in the facility might have been. Only [Administrator’s] 

response offered proof of the change in ownership among 

[Appellants] and Golden Living Defendants, consisting merely of 

letters back and forth between the Department of Health and the 

old and new owners ... without of course demonstrating any basis 

in these documents for [Appellants] to enforce [the Agreement] 

against [Administrator].

Trial Court Opinion, 6/7/19, at 8-9, 10-11 (citations omitted). We are 

constrained to disagree. Particularly, we cannot agree with the trial court’s 

statement that “[t]he [A]greement is silent as to corporate successors to 

ownership or operation of the ‘Facility.’” Id. at 8-9.

We note that the Agreement does not define the term “successor.” 

However, as previously stated, "words of common usage ... are to be construed 

in their natural, plain, and ordinary sense, and [a reviewing court] may inform 
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[its] understanding of these terms by considering their dictionary definitions.” 

Municipality of Mt. Lebanon, 778 A.2d at 1232. Accordingly, because 

“successor” is a word of common usage, consideration of its dictionary 

definitions is appropriate. 

Particular to our review of the Agreement, we observe that MerriamWebster defines the term “successor” as “one that follows.” Merriam-Webster, 

http://www.merriamwebster.com/dictionary/successor. In addition, Black’s 

Law Dictionary defines “successor” as “1. A person who succeeds to the office, 

rights, responsibilities, or place of another; one who replaces or follows a 

predecessor. 2. A corporation that, through amalgamation, consolidation, or 

other assumption of interests, is vested with the rights and duties of an earlier 

corporation.” Black’s Law Dictionary, 1569 (9th ed. 2009). Applying these 

definitions of the term “successor” to the evidence of record, this Court is left 

to conclude Appellants are the successors to Golden Living Defendants, 

thereby qualifying as parties to the Agreement.

Moreover, our review of the record reflects that on May 24, 2015, 

Decedent entered into the Agreement with Golden Living Defendants. 

Appellants’ Preliminary Objections, Exhibit B, Agreement. Section I of the 

Agreement possesses the heading, “The Parties to This Agreement,” and 

contains the following sentence: “It is the intent of the Parties that this 

Agreement shall inure to the benefit of, bind, and survive them, their

successors, and assigns.” Id. at 1 (emphasis added). The record further 
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establishes that Golden Living Defendants were the owners of the Facility from 

the time Decedent was admitted on May 25, 2015, through February 1, 2017. 

Amended Complaint, 2/26/18, at 4 ¶ 1. The record also reveals that a change 

in ownership occurred at the Facility on February 1, 2017, at which point 

Appellants assumed ownership. Id. Additional evidence of this undisputed 

fact, in the form of a letter from the Pennsylvania Department of Health dated 

January 25, 2017, indicates that there was a change of ownership. The letter 

provides as follows:

We have reviewed the Change of Ownership forms for [Golden

Living Defendants] and have found them to be acceptable. The 

Department hereby acknowledges the change in ownership from 

[Golden Living Defendants] to [Appellants]. In conjunction we will 

acknowledge the facility’s name changes upon notification of the 

completed transaction followed by the issuance of a new license 

to the facility.

At the completion of the transaction, please notify the Department 

in writing with a letter of Confirmation of Sale from the buyer to 

the seller. This correspondence must be signed by the Chief 

Executive Officer of both [Golden Living Defendants] and 

[Appellants], and indicate the date of the transaction so that the 

facility’s new license can be issued to reflect the change.

Response to Preliminary Objections, 3/28/18, Exhibit C, at 1. This fact is 

supported and confirmed by additional letters to the Pennsylvania Department 

of Health from Golden Living Defendants and from Appellants. Response to 

Preliminary Objections, 3/28/18, Exhibit C, at 2-3.

This evidence of record establishes that Golden Living Defendants, the 

signatory of the Agreement, were the owners of the Facility at the time the 

Agreement was executed. The record further establishes that on February 1, 
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2017, Appellants succeeded Golden Living Defendants as owners of the 

Facility. Hence, Appellants are successors under the Agreement.

By virtue of the language in the Agreement specifying that the 

Agreement “shall inure to the benefit of the parties’ successors,” we conclude 

that the trial court erred in determining that there was insufficient evidence 

to show Appellants were entitled to seek enforcement of the Agreement. 

Furthermore, having concluded that the trial court erred in its review in this 

matter, we are constrained to reverse the trial court’s order overruling 

Appellants’ preliminary objections. Consequently, having determined that 

Appellants qualify as successors, we must remand this matter to the trial court 

for completion of its review of the two-part test set forth in Callan, 858 A.2d 

at 1233. Accordingly, Administrator is entitled to review of contractual 

defenses to the validity of the Agreement. Further, if the trial court 

determines the Agreement is valid, it must ascertain if Administrator’s dispute 

with Appellants falls within the scope of the Agreement.

Order reversed. Case remanded for further proceedings consistent with 

this Memorandum. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/15/20