J-A08039-18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
ELIZABETH A. GROSS, : IN THE SUPERIOR COURT OF
ADMINISTRATRIX FOR THE ESTATE OF : PENNSYLVANIA
EUGENE R. GROSS, SR., DECEASED, :
:
v. :
:
GENESIS HEALTHCARE, INC., 350 :
HAWS LANE OPERATIONS, LLC D/B/A :
HARSTON HALL, 650 EDISON AVENUE :
OPERATIONS, LLC D/B/A SOMERTON :
CENTER, GENESIS HEALTHCARE, LLC, :
CENTER MANAGEMENT GROUP, LLC, :
10400 ROOSEVELT OPERATING, LLC :
D/B/A ST. JOHN NEUMANN CENTER :
FOR REHABILITATION AND :
HEALTHCARE, 10400 ROOSEVELT LOT, :
LLC, 10400 ROOSEVELT REALTY, LLC, :
10400 ROOSEVELT VENTURES, LLC, :
CHARLES-EDOUARD GROS, MOSHE :
ROSENBERG AND CAROLYN BOEHM :
:
APPEAL OF: 10400 ROOSEVELT :
REALTY, LLC, 10400 ROOSEVELT LOT, :
LLC, 10400 ROOSEVELT VENTURES, :
LLC, CENTER MANAGEMENT GROUP, :
10400 ROOSEVELT OPERATING LLC :
D/B/A ST. JOHN NEUMANN CENTER :
FOR REHABILITATION AND :
HEALTHCARE, CHARLES-EDOUARD :
GROS, MOSHE ROSENBERG AND :
CAROLYN BOEHM : No. 2022 EDA 2017
Appeal from the Order Entered June 8, 2017
in the Court of Common Pleas of Philadelphia County
Civil Division at No(s): December Term, 2016 No. 00910
BEFORE: PANELLA, LAZARUS, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED MAY 30, 2018
*Retired Senior Judge assigned to the Superior Court.
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10400 Roosevelt Realty, LLC, 10400 Roosevelt Lot, LLC, 10400
Roosevelt Ventures, LLC, Center Management Group, 10400 Roosevelt
Operating LLC d/b/a St. John Neumann Center for Rehabilitation and
Healthcare, Charles-Edouard Gros, Moshe Rosenberg, and Carolyn Boehm
(collectively, the Facility) appeal from the June 8, 2017 order overruling the
Facility’s preliminary objections in the nature of a motion to compel
arbitration.1 We affirm.
Eugene R. Gross, Sr. (Decedent) passed away on June 3, 2016. This
action involves claims of negligence relating to care rendered to Decedent
during his stay as a patient at three different nursing homes, including his
stay at the Facility between March 16, 2015, and April 29, 2015.
On March 16, 2015, Decedent was admitted directly to the Facility’s
dementia unit. A week and a half after Decedent’s admission, on March 26,
2015, Elizabeth A. Gross (Gross), who is Decedent’s wife, signed two
interrelated agreements at the Facility’s request (collectively, the
Agreements). The first agreement relates to Decedent’s short-term
rehabilitative stay at the Facility (Admission Agreement). The Admission
Agreement purports to make the following parties to the agreement: the
Facility, Decedent (known in the agreement as “Resident”), and Gross as
1 “An order overruling preliminary objections seeking to compel arbitration is
immediately appealable as an interlocutory appeal as of right pursuant to 42
Pa.C.S.[] § 7320(a) and Pa.R.A.P. 311(a)(8).” Petersen v. Kindred
Healthcare, Inc., 155 A.3d 641, 644 n.1 (Pa. Super. 2017).
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Decedent’s “representative,” (known in the agreement as “Responsible
Person”). Admission Agreement, 3/26/2015, at 1. Decedent did not sign
the Admission Agreement.
Inter alia, the Admission Agreement details the nature of the services
provided and the resident’s financial obligations. Relevant to this appeal,
the Admission Agreement also contains an arbitration clause (Arbitration
Clause), which requires the parties to submit to arbitration all disputes
relating to the Admission Agreement, with the exception of guardianship
proceedings and disputes involving amounts in controversy less than
$8,000. Admission Agreement, 3/26/2015, at 6-11. Finally, the Admission
Agreement has a clause relating to the “Obligations of the Responsible
Person.” Id. at 2. This clause provides that
Resident has a right to identify a Responsible Person (usually the
Agent in the Resident’s Power of Attorney or Guardian), who
shall be entitled to receive notice in the event of transfer or
discharge or material changes in the Resident’s condition, and
changes to this Agreement. Resident elects to name [Gross] of
[Address], as the Responsible Person. The Resident’s selected
Responsible Person shall sign this Agreement and the
Responsible Person Agreement in recognition of this designation
with the intent to be legally bound by all provisions in this
Agreement except as modified by the Responsible Person
Agreement.
Id.
Gross also signed a second agreement (Responsible Person
Agreement), the purpose of which is “to facilitate the provision of care to
[Decedent].” Responsible Person Agreement, 3/26/2015, at 1. The parties
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to the Responsible Person Agreement are Gross and the Facility. Id.
Decedent did not sign this agreement. Essentially, the Responsible Person
Agreement obligates the Responsible Person to fulfill the duties of the
Resident under the Admission Agreement, most of which are financial in
nature, and subjects the Responsible Person to liability for failure to do so.
On December 12, 2016, Gross, in her capacity as administratrix of
Decedent’s estate, filed a complaint against the two sets of entities that own
and operate the nursing homes.2 After reinstatement of the complaint, the
Facility filed preliminary objections on January 30, 2017, seeking, inter alia,
to enforce the Arbitration Clause in the Admission Agreement. Gross filed an
answer asserting, inter alia, that the Arbitration Clause was invalid because
Decedent did not sign the Admission Agreement and Gross lacked authority
to bind Decedent to arbitration. The trial court ordered discovery relating to
the existence of a valid agreement to arbitrate pursuant to Pa.R.Civ.P.
1028(c). Following argument and the submission of briefs, the trial court
overruled the preliminary objections on June 8, 2017.
The Facility timely filed a notice of appeal. The trial court did not order
the Facility to file a concise statement of errors complained of on appeal, and
2
The other set of defendants, Genesis Healthcare, Inc., 350 Haws Lane
Operations, LLC d/b/a Harston Hall, 650 Edison Avenue Operations, LLC
d/b/a Somerton Center, and Genesis Healthcare, LLC (collectively, Genesis)
filed their own set of preliminary objections, which the trial court overruled.
Genesis appealed at 2251 EDA 2017, but the appeal was discontinued upon
the praecipe for discontinuance filed by Genesis on February 18, 2018.
Genesis has not participated in the instant appeal.
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none was filed. The trial court filed an opinion pursuant to Pa.R.A.P.
1925(a) directing us towards its June 8, 2017 memorandum in support of its
order overruling the preliminary objections.
The Facility asks this Court to resolve the following question on appeal.3
1. Did the trial court err and abuse its discretion by overruling [the
Facility’s] preliminary objections in the form of a motion to
compel arbitration, as (1) there is a binding and valid agreement
to arbitrate signed by Decedent’s wife with his authority and as
his agent, and (2) the claims of Decedent and his estate fall
within the scope of the arbitration provision?
The Facility’s Brief at 4 (trial court’s answers and unnecessary articles
omitted; some capitalization altered).
“[O]ur review of a claim that the trial court improperly denied
preliminary objections in the nature of a petition to compel arbitration is
limited to determining whether the trial court’s findings are supported by
substantial evidence and whether the trial court abused its discretion in
denying the petition.” Petersen, 155 A.3d at 644. “We employ a two-part
test to determine whether the trial court should have compelled arbitration:
[(1)] whether a valid agreement to arbitrate exists, and [(2)] whether the
dispute is within the scope of the agreement.” Washburn v. Northern
Health Facilities, Inc., 121 A.3d 1008, 1012 (Pa. Super. 2015).
3 The Facility also asks this Court to decide whether the Arbitration Clause in
the Admission Agreement is unconscionable or a contract of adhesion. The
Facility’s Brief at 4. Because we hold that there is no enforceable agreement
to arbitrate between the Facility and Decedent, we need not reach the
second issue the Facility presents.
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The dispute in the instant case focuses on the validity of the
Arbitration Clause in the Admission Agreement – i.e., the first part of the
two-part test. Our case law makes clear that “[a]rbitration is a matter of
contract, and parties to a contract cannot be compelled to arbitrate a given
issue absent an agreement between them to arbitrate that issue.” Civan v.
Windermere Farms, Inc., 180 A.3d 489, 494 (Pa. Super. 2018). Whether
an agreement to arbitrate exists is a question of law. Provenzano v. Ohio
Valley Gen. Hosp., 121 A.3d 1085, 1095 (Pa. Super. 2015). Thus, our
standard of review over this issue is de novo and our scope is plenary.
Petersen, 155 A.3d at 644.
Decedent did not sign the Admission Agreement. Therefore, in order
for the Arbitration Clause to be binding on Decedent’s estate, an agency
relationship between Gross and Decedent must have existed at the time
Gross signed the Admission Agreement. “Agency is a relationship whereby
the principal manifests assent that another person (the agent) will act on the
principal’s behalf subject to the principal’s control, and the agent agrees to
do so.” Wisler v. Manor Care of Lancaster PA, LLC, 124 A.3d 317, 323
(Pa. Super. 2015).
[A]n 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,
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usual and necessary” to carry out express agency.
Apparent agency exists where the principal, by word
or conduct, causes people with whom the alleged
agent deals to believe that the principal has granted
the agent authority to act. 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.
The party asserting the existence of an agency relationship bears
the burden of proving it by a fair preponderance of the evidence.
Petersen, 155 A.3d at 645 (citations omitted).
The Facility first contends that Gross had Decedent’s express, implied,
and apparent authority to enter into the Admission Agreement and bind
Decedent to the Arbitration Clause. The Facility’s Brief at 32-48. To support
its contention, the Facility focuses on Gross’s marital relationship to
Decedent and Decedent’s dementia. Id. at 33-34, 38-39, 47-48. The
Facility acknowledges that Decedent was not qualified to execute the
Admission Agreement due to his dementia. Id. at 34. The gist of the
Facility’s argument is that because Decedent could not sign the Admission
Agreement, “clearly someone – his wife – had the authority to execute this
contract on his behalf.” Id.
The Facility’s bald statement has no basis in law. Agency is not
assumed merely because one person does an act for another. Walton v.
Johnson, 66 A.3d 782, 787 (Pa. Super. 2013) (holding that Walton was not
bound by an arbitration agreement her mother signed on her behalf while
Walton was comatose, as the facility did not establish that Walton authorized
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her mother to act as her agent). Moreover, “[i]t is well settled that neither a
husband nor wife has the power to act as agent for the other merely due to
the marriage relationship.” Washburn, 121 A.3d at 1014. This does not
change merely because Decedent was incapacitated. 4 See id. (holding that
nursing home failed to establish authority of wife to bind husband, who had
dementia, to arbitrate claims arising from husband’s stay at nursing home).
The Facility’s other arguments regarding express, implied, and
apparent authority fail as well. The Facility contends that Decedent’s grant
of power of attorney to Gross in February 2016 confirms that Decedent
approved of Gross’s acting on Decedent’s behalf at the time of his admission
to the nursing home in March 2015. The Facility’s Brief at 36-37, 42-43, 48.
However, the Facility does not point us to any terms of the February 2016
power of attorney that demonstrate that Decedent intended the power of
attorney to apply retroactively to ratify past actions by Gross on Decedent’s
behalf. See Twp. of N. Fayette v. Guyaux, 992 A.2d 904, 906 (Pa. Super.
2010) (rejecting Guyaux’s argument that a power of attorney executed after
4
If the Facility wished to bind Decedent to a legal agreement and Decedent
did not have the capacity to enter into an agreement, the Facility needed to
either (1) use reasonable diligence to ensure that Decedent had granted
authority to an agent, Bolus v. United Penn Bank, 525 A.2d 1215, 1222
(Pa. Super. 1987), and have that agent execute an agreement on
Decedent’s behalf; or (2) seek to have Decedent declared an incapacitated
person and a guardian appointed pursuant to 20 Pa.C.S. § 5511. Walton,
121 A.3d at 786-87.
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Guyaux signed pleadings on his mother’s behalf had the effect of ratifying
these past actions).
The Facility next relies upon Gross’s signing of the Responsible Person
Agreement, arguing that by signing the agreement Gross “affirmed that she
had the authority from [Decedent] to sign the paperwork on his behalf.” The
Facility’s Brief at 35, 47-49. The Facility directs our attention to a clause in
the Responsible Person Agreement, wherein Gross represented that she was
Decedent’s guardian or Decedent’s agent pursuant to a power of attorney,
had Decedent’s authorization to execute the Admission Agreement, or
previously had Decedent’s authorization to act as his agent. Id. at 49; see
Responsible Person Agreement, 3/26/2015, at 4.
However, the flaw in the Facility’s argument is that Decedent was
suffering from dementia, and there is no evidence in the record that
Decedent had any awareness of the Agreements. Decedent did not sign the
Agreements. Decedent was not present while Gross signed the Agreements.
Gross Deposition, 4/26/2017, at 77. Gross “might have mentioned [signing
the Agreements] to [Decedent], but it went over his head.” Id. at 78.
While the Admission Agreement claims that Decedent selected Gross as his
Responsible Person, only Gross signed the Admission Agreement, and she
did so in her capacity as the Responsible Person. “An agent cannot simply
by h[er] own words, invest [her]self with apparent authority. Such authority
emanates from the action of the principal and not the agent.” Wisler, 124
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A.3d at 324. Thus, even if Gross represented that Decedent authorized her
to sign the Admission Agreement or serve as his Responsible Person, the
Facility did not point to any words or actions by Decedent that led it to
believe that he had invested Gross with such authority. See id.
While the Facility emphasizes Gross’s management of Decedent’s
“personal, financial[,] and business affairs” after Decedent had a mini-stroke
in 2014 prior to Decedent’s admission at the Facility, see the Facility’s Brief
at 36, these actions do not aid its contention that Gross had express,
implied, or apparent authority. The Facility argues that because Gross “took
over all the bills, dealt with Social Security and Medicare, filled out and
signed [Decedent’s] paperwork,5 took control over [Decedent’s] money and
finances, … and made his medical appointments and accompanied him,” this
demonstrated that “Gross was managing all of [Decedent’s] affairs and
completing paperwork on his behalf with his knowledge, consent[,] and
authority.” Id. at 41, 46-49 (emphasis removed). Again, however, there is
no evidence that Decedent authorized Gross to do these things, as opposed
5
It is unclear to which paperwork the Facility is referring. Gross indicated
that she signed consent forms when Decedent was admitted to a hospital in
2014 after suffering a stroke and at subsequent doctor’s appointments.
Gross Deposition, 4/26/2017, at 13, 18. She also stated that she would fill
out and/or sign unspecified “paperwork” due to Decedent’s health issues,
but denied signing “legal documents.” Id. at 16.
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to Gross taking it upon herself to assist Decedent.6 See Washburn, 121
A.3d at 1014 (“The flaw in [the nursing home’s] position is that while there
is evidence that Mrs. Washburn previously acted on her husband’s behalf,
the record is devoid of evidence that Mr. Washburn ever authorized his wife
to do so.”); Wisler, 124 A.3d at 325 (dismissing nursing home’s argument
that son’s actions on behalf of father, including being involved in prior
hospital admissions, handling his banking, and paying his bills, indicated that
son was his father’s agent; “[a]gain, authority emanates from the principal’s
action, and not the agent’s”).
Even if Decedent had authorized Gross to manage certain aspects of
his finances and healthcare, the Facility fails to convince us that this
authorization constituted an express or implied grant of authority to manage
his legal affairs, such that Gross was authorized to waive his constitutional
right to a jury trial. See Wisler, 124 A.3d at 324 (distinguishing authority
to consent to medical treatment and care from authority to consent to
arbitration); Walton, 66 A.3d at 788 (same). A deliberate and specific
grant of authority as to “certain matters” does not constitute a deliberate
and specific grant of authority as to all matters. Id.
6
For example, Gross stated that Decedent did not have control over his
finances after he suffered a mini-stroke, and she “was making sure that all
his bills were being paid. Everything he had to get paid I took over.”
Gross Deposition, 4/26/2017, at 16 (emphasis added).
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Moreover, nothing in Gross’s deposition testimony or the affidavit of
Patricia Prout, the Facility’s admissions coordinator who met with Gross
when she signed the Agreements,7 indicates that at the time of signing the
Facility was aware that Gross had been handling certain of Decedent’s
affairs.8 Thus, for purposes of apparent authority, the Facility has no basis
to contend that it was caused to believe that Decedent had granted Gross
authority to act. See Washburn, 121 A.3d at 1015 (concluding that
because there were no prior dealings between the decedent and the nursing
home, and the nursing home was unaware that Washburn had been signing
her husband’s name to some documents, “it had no basis to infer that she
was authorized to act on his behalf”).
Thus, based on the foregoing, the trial court did not err in determining
that Gross did not have express, implied, or apparent authority to bind
Decedent to arbitration.
In addition to arguing that Gross had express, implied, and apparent
authority to bind Decedent, the Facility also argues that Gross was
Decedent’s agent by estoppel. There are two basic elements to agency by
7
Prout had no recollection of meeting with Gross and merely reviewed her
custom and practice for admission in her affidavit. Trial Court Opinion,
6/8/2017, at 3-4.
8 This is the case even though Gross did not tell Prout that she did not have
authority to sign on Decedent’s behalf. The Facility had a duty to exercise
“reasonable diligence to ascertain the agent’s authority.” Bolus, 525 A.2d at
1222. There is no indication that Prout questioned Gross about her
authority, let alone inquired about her handling of Decedent’s affairs.
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estoppel: “(1) there must be negligence on the part of the principal in failing
to correct the belief of the third party concerning the agent; and (2) there
must be justifiable reliance by the third party.” Turnway Corp. v. Soffer,
336 A.2d 871, 876 (Pa. 1975). For the doctrine to apply, the principal
intentionally or carelessly must have caused a third party to believe an
agency relationship existed, or must have known that the third party held
such a belief without taking reasonable steps to clarify the facts. Petersen,
155 A.3d at 647 (citing Restatement (Second) of Agency, Section 8(B)).
The Facility baldly asserts that Decedent was careless and negligent in
allowing the Facility to believe Gross had authority to complete the
enrollment process. The Facility’s Brief at 51; The Facility’s Reply Brief at
15. The Facility also contends that since Decedent received the benefits of
the nursing home’s services without repudiating the Admission Agreement,
Decedent cannot now “pick and choose” which parts of the Admission
Agreement he wants to enforce. Id. at 53.
Gross urges us to find waiver, stating that the Facility failed to
preserve the arguments by not presenting them to the trial court. Gross’s
Brief at 18. In its reply brief, the Facility responds that these arguments are
“merely part and parcel” of its other arguments, particularly apparent
authority. The Facility’s Reply Brief at 10. However, while agency by
estoppel and apparent authority are similar, they are distinct doctrines.
Jones v. Van Norman, 522 A.2d 503, 511 (Pa. 1987). Furthermore, the
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Facility’s contention that Decedent’s estate is estopped from disavowing the
Arbitration Clause because Decedent accepted other benefits of the
Admission Agreement is actually an equitable estoppel argument, another
wholly distinct theory. Petersen, 155 A.3d at 646 (explaining that equitable
estoppel is distinct from agency by estoppel and applies to prevent a party
from assuming a position or asserting a right to another’s disadvantage
inconsistent with a position previously taken).
The trial court did not address agency by estoppel or equitable
estoppel in its opinion. Moreover, the Facility did not present such theories
in its preliminary objections, accompanying brief, or supplemental brief to
the trial court. “A new argument cannot be raised in support of an issue on
appeal if it was not first presented before the trial court.” Newman Dev.
Grp. of Pottstown, LLC v. Genuardi’s Family Mkt., Inc., 98 A.3d 645,
658 n.16 (Pa. Super. 2014); see also Pa.R.A.P. 302(a). Thus, we find that
the Facility has waived its claim of agency by estoppel and equitable
estoppel.9
Even if the Facility had not waived its claims of agency by estoppel and
equitable estoppel, it has not convinced us that it is entitled to relief.
Despite discussing its interpretation of the law regarding agency by estoppel
9
The Facility also claims that Gross is a third-party beneficiary of the
Admission Agreement. The Facility’s Brief at 54. This claim is also waived,
both because the Facility did not present this argument to the trial court in
the first instance, and because it failed to develop the claim in its brief. See
Pa.R.A.P. 302(a), 2119(a).
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at length, the Facility’s analysis of law as it applies to the facts of this case is
lacking. Specifically, the Facility fails to explain how Decedent, despite
suffering from dementia, somehow carelessly or negligently caused the
Facility to believe an agency relationship existed such that Gross could bind
him as to his legal affairs. See Walton, 66 A.3d at 789-90.
Furthermore, the Facility’s argument that Decedent is picking and
choosing certain parts of the Admission Agreement does not hold water. As
explained supra, the Facility chose to enter into the Admission Agreement
without seeking to obtain a guardian or use reasonable diligence to ensure
that Gross had authority to bind Decedent. Again, there is no evidence that
Decedent, who was suffering from dementia, ever knew Gross had signed
any agreement on his behalf, including the Admission Agreement.
In sum, there is no enforceable arbitration agreement between the
Facility and Decedent under any of the theories advanced by the Facility.
“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 Federal Arbitration Act.” Washburn, 121
A.3d at 1016. Thus, we affirm the trial court’s order overruling the Facility’s
preliminary objections in the nature of a motion to compel arbitration.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/30/18
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