Wisler v. Manor Care of Lancaster Pa, LLCD/B/A Manorcare Health Services-Lancaster, HCR Manor Care, Inc.

• Decision Date: 08 September 2015
• Docket Number: No. 1226 MDA 2014,1226 MDA 2014
• Citation: 2015 PA Super 189,124 A.3d 317
• Parties: H. Randall WISLER and H. Keith Wisler, Co–Executors of the Estate of Herbert C. Wisler, Deceased, Appellees v. MANOR CARE OF LANCASTER PA, LLCd/b/a ManorCare Health Services–Lancaster, HCR Manor Care, Inc., ManorCare Health Services, Inc., Manor Care, Inc., HCR Healthcare, LLC, HCR Healthcare II, LLC, HCR Healthcare III, LLC, and HCR Healthcare IV, LLC, Appellants.
• Court: Pennsylvania Superior Court

124 A.3d 317

2015 PA Super 189

H. Randall WISLER and H. Keith Wisler, Co–Executors of the Estate of Herbert C. Wisler, Deceased, Appellees

v.MANOR CARE OF LANCASTER PA, LLCd/b/a ManorCare Health Services–Lancaster, HCR Manor Care, Inc., ManorCare Health Services, Inc., Manor Care, Inc., HCR Healthcare, LLC, HCR Healthcare II, LLC, HCR Healthcare III, LLC, and HCR Healthcare IV, LLC, Appellants.

No. 1226 MDA 2014

Superior Court of Pennsylvania.

Argued June 24, 2015.

Filed Sept. 8, 2015.

John M. Skrocki, West Conshohocken, for appellants.

Stephen Trzcinski, Philadelphia, for appellees.

Opinion

OPINION BY STABILE, J.:

Appellants (collectively, ManorCare) appeal from an order sustaining in part and overruling in part their preliminary objections to the complaint of H. Randall and Keith Wisler (collectively, Executors), co-executors of the estate of Herbert C. Wisler (Decedent). ManorCare contends the trial court erred in refusing to compel arbitration of Executors' claims arising out of Decedent's stay at a ManorCare nursing home. The trial court found the arbitration agreement invalid, ruling that H. Randall Wisler, as power of attorney for Decedent, lacked the authority to enter into such an agreement. Upon review, we affirm.

[Decedent] was a resident at [ManorCare Lancaster] from March 4, 2010 through April 28, 2010, and from August 13, 2010, through October 11, 2010. Thereafter, [Decedent] died on February 6, 2011. At the time of his [first] admission, [Decedent] required assistance with care for all of his activities of daily living. His medical history was significant for diabetes

(type 2), chronic kidney disease, [p]acemaker, Orthostatis, coronary artery disease, multiple [cerebrovascular accidents, i.e.,strokes], Hyperlipidemia, depression, prostate and colon cancer, swallowing dysfunction, acute congestive heart failure, anemia[,] and protein calorie malnutrition.

On March 4, 2010, the date of [D]ecedent's first admission to [ManorCare Lancaster], H. Randall Wisler, the [D]ecedent's son, co-executor, and co-plaintiff in this matter, signed [ManorCare Lancaster's] admission papers. On March 30, 2010, H. Randall Wisler further signed an [A]rbitration [A]greement as part of the admission process. This [A]greement provided that any disputes arising out of or in any way relating to the agreement or to [Decedent's] stay at [ManorCare Lancaster] “shall be submitted to binding arbitration.”

At the time of [D]ecedent's second admission on August 13, 2010, his son, H. Randall Wisler, again signed the admissions paperwork. Several days later, H. Randall Wisler was again asked to sign a second [A]rbitration [A]greement ^[[[^1]on August 16, 2010.

At all times relevant to the [D]ecedent's admissions to ManorCare, H. Randall Wisler had a power of attorney for his father. H. Randall Wisler advised ManorCare that he possessed his father's power of attorney. However, ManorCare did not obtain a copy of the power of attorney, nor could H. Randall Wisler produce a copy at the time of his deposition.

[Executors] were appointed executors of [Decedent's] estate on October 4, 2011, by the Register of Wills of Lancaster County. [Executors] filed a complaint on November 27, 2012, alleging that [ManorCare's] professional negligence and reckless conduct caused their [D]ecedent severe injuries during his two admissions at [ManorCare Lancaster]. Those injuries included numerous falls, poor skin care, urinary tract infections

, malnutrition, dehydration, poor hygiene, and severe pain.

Trial Court 6/27/14, at 2–3 (internal record citations omitted). Executors bring their claims in their representative capacities as co-executors of Decedent's estate under the Survival Act. See42 Pa.C.S.A. § 8302. Executors did not bring claims in their individual capacities as Decedent's sons under the Wrongful Death Act. See id.§ 8301(b).

ManorCare filed preliminary objections to Executors' complaint, including a request to compel arbitration. The parties engaged in discovery relating to the enforceability of the Arbitration Agreement. After receiving briefs, the trial court entered an order sustaining in part and overruling in part ManorCare's preliminary objections. In relevant part, the trial court refused to compel arbitration, finding that H. Randall Wisler lacked authority to sign the Arbitration Agreements on Decedent's behalf. The trial court declined to consider other reasons Executors advanced in favor of refusing to compel arbitration. This appeal followed.²

On appeal, ManorCare raises the following question for review:

Whether the trial court erred in concluding that the Appellee, H. Randall Wisler, did not have the authority to bind his father, [Decedent], to [ManorCare's] Arbitration Agreements where Appellees concede having a [p]ower of [a]ttorney, but have not produced the [p]ower of [a]ttorney document?

Appellants' Brief at 5.

Before we reach the merits, we must address Executors' claim that ManorCare waived appellate review by briefing deficiencies. Specifically, Executors claim ManorCare waived its argument by failing to comply with Pa.R.A.P. 2117(c),³which requires an appellant to state where and how it preserved the issues on appeal, and Pa.R.A.P. 2119(e),⁴which requires an appellant to provide cross-reference citations from its argument section to the statement of the case.

Executors' waiver argument is somewhat puzzling, because we find that ManorCare's brief clearly complies with the applicable briefing rules. ManorCare's brief sufficiently sets forth its manner and method of issue preservation—with citations to the reproduced record. SeeAppellants' Brief at 6–7. ManorCare's statement of the case also succinctly frames the chief issue on appeal as whether H. Randall Wisler had power of attorney to bind Decedent to arbitration. See id.at 8–9. Further, ManorCare's argument section complies with Rule 2119(e), because it has cross-references to the statement of the case. See id.at 15–17, 26.

Additionally, waiver, and therefore dismissal of an appeal, for briefing defects is discretionary. SeePa.R.A.P. 2101. Even if ManorCare's brief were non-compliant, we would not impose such a harsh remedy, especially given that none of Executors' cited cases supports their waiver proposition. Commonwealth v. Wholaver,588 Pa. 218, 903 A.2d 1178, 1183–84 (2006), concerns mandatory waiver under Rule 1925, not prudential waiver for briefing deficiencies under Rule 2101. Compareid.(quotation omitted) (noting the “bright-line rule” that an appellant who fails to comply with Rule 1925 waives review), andPa.R.A.P.1925(b)(4)(vii)(“Issues not included in the Statement and/or not raised in accordance with the provisions of this paragraph (b)(4) are waived.”), withPa.R.A.P. 2101(providing that a deficient brief “maybe suppressed” and an appeal “maybe dismissed” for substantial defects) (emphases added). Executors' two cited Commonwealth Court decisions are wholly unpersuasive, because they concern waiver for failure to raise issues before administrative agencies, and the accompanying discussions of Rule 2117are dicta. See McGaffin v. Workers' Comp. Appeal Bd. (Manatron, Inc.),903 A.2d 94, 101–02 (Pa.Cmwlth.2006)(dismissing petition for review under Rule 1551 because petitioner failed to raise issue before the Board); Jonathan Sheppard Stables v. Workers' Comp. Appeal Bd. (Wyatt),739 A.2d 1084, 1089–90 & n. 6 (Pa.Cmwlth.1999)(refusing to consider some appellate issues under Rule 1551 because petitioner did not raise them before the Board).

Finally, it is disingenuous for Executors to raise ManorCare's alleged briefing defects given that their brief violates Rule 2117(b), which prohibits argument in the statement of the case.⁵SeeAppellees' Brief at 6–7 (characterizing the Arbitration Agreement as “grossly one-sided—and fatally flawed”); id.at 14 (criticizing ManorCare for not following its standard admissions procedures in this case); id.at 17 (accusing ManorCare of “routinely depriv[ing] signatories of even a basic understanding of [its] Arbitration Agreement”); id.at 18 (“There are Many Problems with the Arbitration Agreement[.]”); id.at 24 n.14 (charging ManorCare with violating the covenant of good faith and fair dealing). It is difficult to distinguish Executors' factual recitation from its argument. In sum, we reject Executors' waiver argument.

We proceed now to the merits of ManorCare's argument. On appeal from an order refusing to compel arbitration, our standard of review is as follows:

Our review of a claim that the trial court improperly denied the appellant's 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.

Walton v. Johnson,66 A.3d 782, 787 (Pa.Super.2013)(quoting Gaffer [ Ins. Co., Ltd. v. Discover Reins. Co.],936 A.2d [1109,] 1112[ (Pa.Super.2007) ] ). “In doing so, we employ a two-part test to determine whether the trial court should have compelled arbitration.” Elwyn[ v. DeLuca],48 A.3d [457,] 461[ (Pa.Super.2012) ] (quoting Smay v. E.R. Stuebner, Inc.,864 A.2d 1266, 1270 (Pa.Super.2004)). First, we examine whether a valid agreement to arbitrate exists. Second, we must determine whether the dispute is within the scope of the agreement.

Pisano v. Extendicare Homes, Inc.,77 A.3d 651, 654–55 (Pa.Super.2013). Our scope of review is plenary. McNulty v. H & R Block, Inc.,843 A.2d 1267, 1269 (Pa.Super.2004), abrogated on other grounds by,AT & T Mobility, LLC v. Concepcion,563 U.S. 333, 131 S.Ct. 1740, 179 L.Ed.2d 742 (2011).

This appeal concerns solely the validity of the Arbitration Agreement, i.e.,the first part of the two-part test. ManorCare contends that H. Randall Wisler had the legal authority to sign the Arbitration Agreement on Decedent's behalf. It also argues that the trial court erred in failing to recognize an unfavorable inference against Executors because they did not...