J-A31002-14

2015 PA Super 9

M. SYLVIA BAIR, EXECUTRIX OF THE 

ESTATE OF MARTHA A. EDWARDS, 

DECEASED,

IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MANOR CARE OF ELIZABETHTOWN, PA, 

LLC D/B/A MANORCARE HEALTH 

SERVICES-ELIZABETHTOWN, 

MANORCARE HEALTH SERVICES, INC., 

MANOR CARE, INC., HCR MANORCARE, 

INC., HCR HEALTHCARE, LLC, HCR II 

HEALTHCARE, LLC, HCR III 

HEALTHCARE, LLC, HCR IV 

HEALTHCARE, LLC,

Appellants No. 435 MDA 2014

Appeal from the Order Entered January 31, 2014

In the Court of Common Pleas of Lancaster County

Civil Division at No(s): 12-17156

BEFORE: BOWES, OTT, and STABILE, JJ.

OPINION BY BOWES, J.: FILED JANUARY 15, 2015

Manor Care of Elizabethtown, PA, LLC d/b/a Manorcare Health Services 

– Elizabethtown and other Manor Care and HCR defendants (collectively 

“Manor Care”) appeal from the January 31, 2014 order overruling their 

preliminary objections pursuant to Pa.R.C.P. 1028(a)(6), and finding no 

agreement to arbitrate. After thorough review, we affirm. 

M. Sylvia Bair, Executrix of the Estate of Martha A. Edwards 

(“Decedent”), commenced this wrongful death and survival action against 
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Manor Care alleging that neglect and abuse of her mother during her stay in 

its facility from April 15, 2011 through July 8, 2011, ultimately caused her 

death on October 5, 2011. Manor Care filed preliminary objections to the 

complaint seeking to have the case referred to arbitration pursuant to the 

terms of an arbitration agreement executed by Ms. Bair on behalf of 

Decedent upon admission to the facility. The trial court permitted discovery 

on the issue of the enforceability of the arbitration agreement. 

Sylvia Bair was deposed and testified as follows. Ms. Bair arrived at 

Manor Care on April 15, 2011, and was presented with admissions 

paperwork for her mother, Martha Edwards. According to Ms. Bair, that 

person was not the Admissions Director Dale Young, but a female 

administrator. No one explained the nature of the arbitration agreement 

and Ms. Bair did not recall discussing the agreement with anyone at the 

facility. Bair Deposition, 6/3/13, at 33-34. Ms. Bair signed all the 

paperwork at that time. Id. at 35. Ms. Bair testified that she believed that 

the agreement had to be signed in order to facilitate her mother’s admission. 

Id. at 48. She possessed a power of attorney from her mother dated May 5, 

2000, and she signed the agreement on the line designated for the personal 

representative of the patient. No Manor Care representative completed or 

signed the form on behalf of the entity. 

During her deposition, Ms. Bair was also shown an executed arbitration 

agreement dated June 24, 2009. She identified the signature of the 
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patient’s legal representative as her signature, although she had no 

recollection of signing the form, but confirmed that her mother had been a 

patient in Manor Care at that time. In contrast to the 2011 agreement, the 

blanks on the form for the date and the names of the parties were 

completed and it was signed by all parties. 

Manor Care offered Dale Young, the facility’s Admissions Director at 

the time of Decedent’s admission, for deposition. While Mr. Young was the 

person who usually supervised the admissions process, he had no 

recollection of Ms. Bair and could not confirm that he presented the 

admission paperwork to her. His testimony was limited to what he routinely 

would advise new patients or their representatives about the arbitration 

agreement, and not based upon any specific recollection of a conversation 

with Ms. Bair. 

The trial court overruled Manor Care’s preliminary objections, thus 

permitting the litigation to proceed in the court of common pleas. Manor 

Care timely appealed and raises one issue for our review:

1. Whether the trial court erred as a matter of law in 

concluding that Manor Care did not accept the subject 

Arbitration Agreement based on the lack of a signature of 

the nursing home representative on the agreement itself? 

Appellant’s brief at 4. 

This appeal, though interlocutory, is appealable as of right pursuant to 

Pa.R.A.P. 311(a)(8), which provides that an interlocutory appeal may be 

taken as of right from “an order which is made appealable by statute or 
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general rule.” The Pennsylvania Uniform Arbitration Act, 42 Pa.C.S. § 7320 

et seq., provides that an appeal taken from an order denying a petition or 

application to compel arbitration is appealable. 42 Pa.C.S. §§ 7320(a)(1), 

7342.

In reviewing a claim that the trial court improperly denied preliminary 

objections in the nature of a petition to compel arbitration, we are “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." Gaffer Ins. Co. v. Discover Reinsurance Co., 936 A.2d 1109, 

1112 (Pa.Super. 2007). Since contract interpretation is a question of law, 

“our review of the trial court's decision is de novo and our scope is plenary.” 

Bucks Orthopaedic Surgery Associates, P.C. v. Ruth, 925 A.2d 868, 

871 (Pa.Super. 2007). 

Arbitration cannot be compelled in the absence of an express 

agreement to arbitrate. E.E.O.C. v. Waffle House, Inc., 534 U.S. 279 

(2002); Emlenton Area Municipal Authority v. Miles, 548 A.2d 623, 625 

(Pa.Super. 1988). The touchstone of any valid contract is mutual assent and 

consideration. The issue of whether parties agreed to arbitrate is generally 

one for the court, not the arbitrators. Gaffer, supra; Ross Development 

Co. v. Advanced Building Dev., Inc., 803 A.2d 194 (Pa.Super. 2002). 

When addressing that issue, courts generally apply ordinary state law 

contract principles, “but in doing so, must give due regard to the federal 
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policy favoring arbitration.” Gaffer, supra at 1114 n.7. If the court 

determines there is a valid agreement, it must then determine if the dispute 

in question is within the scope of the agreement. We are mindful that the 

burden was on Manor Care to demonstrate that a valid agreement to 

arbitrate existed between the parties, and that the dispute was within the 

scope of the agreement. 42 Pa.C.S. § 7304(a). 

The “Voluntary Arbitration Agreement” at issue is a form with blanks 

on the first page for the insertion of the names of the contracting parties and 

the date. None of these blanks was completed. In addition, the agreement 

provides that, “arbitration is described in the voluntary arbitration program 

brochure,” a copy of which is “attached and made part of this agreement.” 

Voluntary Arbitration Agreement, at 1. The brochure was not attached. 

Above the signature lines, the agreement provides, in bold capital 

letters, 

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.

There are signature lines for the Patient, the Patient’s Legal 

Representative in both his/her representative capacity and in his/her 

individual capacity, and for the Center Representative. Ms. Bair signed as 
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the Patient’s legal representative, but only in her representative capacity; 

the signature line for the Center Representative is blank. 

It is Manor Care’s position that the lack of a signature by a facility 

representative does not render the agreement unenforceable. It cites 

Hopkins v. New Day Fin., 643 F.Supp.2d 704, 720 (E.D. Pa. 2009), for the 

proposition that the writing need not be signed by either party, and certainly 

not the party attempting to enforce it. Manor Care relies upon decisions 

from other jurisdictions in support of its position that an agreement is 

enforceable if it is executed by the party to be held to its terms. Manor Care 

maintains that its presentation of the form agreement to Ms. Bair constituted 

an offer to arbitrate; by signing the agreement, Ms. Bair accepted the offer. 

Thus, Manor Care submits that it manifested its intent to submit to 

arbitration any and all disputes that might arise. In addition, Manor Care 

asserts that the fully executed arbitration agreement from Decedent’s prior 

admission in 2009 did not support the trial court’s inference that Manor Care 

did not intend to be bound by the unsigned 2011 agreement. 

Ms. Bair counters that the form does not indicate who the parties are 

or that the parties agreed on the “material and necessary details of their 

bargain.” Lackner v. Glosser, 892 A.2d 21, 30 (Pa.Super. 2006). The fact 

that the form was “facially devoid of essential terms[,]” not just the 

signature, renders it unenforceable. She continues the parties are 

unidentified; the definition line of the party only references “Center.” It is 
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undated. Ms. Bair argues that there are no indicia of mutual assent. She 

maintains that the alleged agreement expressly requires both parties to 

confirm that they are waiving their right to a jury trial and consenting to the 

terms of the agreement by affixing their signatures. The fact that there is a 

signature line for “Center Representative” and that it is blank further 

indicates that there was no mutual assent. See Baier v. Darden 

Restaurants, 420 S.W.3d 733, 739 (Mo. Ct. App. 2014). 

The trial court determined that there was no agreement in 2011. It 

arrived at that conclusion after viewing the signed arbitration agreement in 

2009 as evidence from which one could reasonably infer that Manor Care did 

not intend to be legally bound by the unsigned agreement in 2011. Manor 

Care challenges the reasonableness of that inference and asserts that this 

prior dealings evidence suggests instead that Ms. Bair intended to enter into 

an agreement to arbitrate. 

The issue is not whether the arbitration agreement was signed by the 

party sought to be bound, but whether there was a meeting of the minds, 

that is, whether the parties agreed in a clear and unmistakable manner to 

arbitrate their disputes. The trial court concluded that the parties did not 

agree, and we concur. Even if we were to view the presentation of the form 

as an offer, as Manor Care suggests, it lacked essential terms such as the 

names of the contracting parties, the date of the agreement, and the 

brochure describing the arbitration process, which was expressly made part 
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of the agreement. “[A]n offer to contract must be intentional and 

sufficiently definite in its terms, and no offer will be found to exist where its 

essential terms are unclear.” Lackner, supra at 31 (quoting Beaver 

Valley Alloy Foundry, Co. v. Therma-Fab, Inc., 814 A.2d 217, 222 

(Pa.Super. 2002)). 

We note, too, that while the absence of signatures is not fatal unless 

required by law or by the intent of the parties, the agreement herein 

expressly required the signatures of both parties. The bold-print language 

above the signature lines established that “the parties” confirmed that they 

waived the right to a trial and consented to arbitration by signing the 

agreement on the designated lines. In light of the fact that Manor Care 

supplied the form document and terms therein, it is presumed to have 

known the effect of its terms and conditions. By failing to affix its signature, 

Manor Care did not consent to arbitrate. Herein, the party seeking to 

enforce the arbitration agreement is the party who did not sign the 

document. Absent mutual assent, there was no enforceable agreement to 

arbitrate. 

Finally, Manor Care takes issue with the inference drawn by the trial 

court from the parties’ prior course of dealing. It argues that the proper 

inference from the 2009 executed arbitration agreement was that Ms. Bair 

intended to enter into an agreement to arbitrate disputes, not that the 

signature of the Manor Care representative was required for an enforceable 
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agreement.1 Manor Care’s argument misses the mark. Absent herein was 

mutual assent of the parties to the alleged contract. It was not Ms. Bair’s 

consent that was the problem; it was Manor Care’s failure to fill in essential 

terms such as the names of the parties and sign the agreement that fell 

short in manifesting its consent to arbitrate. The 2009 signed arbitration 

agreement was prior course of dealing evidence from which the trial court 

reasonably inferred that Manor Care typically consented to arbitration by 

completing the blanks and signing the agreement, which it did not do in 

2011. For these reasons, we find no abuse of discretion on the part of the 

trial court in overruling the preliminary objections and refusing to compel 

arbitration. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/15/2015

____________________________________________

1

 Manor Care does not argue on appeal that language in the executed 2009 

arbitration agreement providing that “this Agreement shall be binding on the 

Patient for this and all of the Patient’s other admissions to the Center 

without any need for further renewal” compels arbitration herein. 

Arbitration Agreement, 6/24/09, at ¶ E.