J-A12043-26
2026 PA Super 138
ESTATE OF GLENDON SMALLING, BY : IN THE SUPERIOR COURT OF
AND THROUGH SIERRA SMALLING : PENNSYLVANIA
AND SHARESE SMALLING :
:
:
v. :
:
:
2990 HOLME OPERATING, LLC D/B/A : No. 2172 EDA 2025
IMMACULATE MARY CENTER FOR :
REHABILITATION AND HEALTHCARE :
AND CATHOLIC HEALTH SERVICES, :
LLC D/B/A CATHOLIC HEALTH GROUP :
:
Appellants :
Appeal from the Order Entered July 29, 2025
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 240102492
BEFORE: LAZARUS, P.J., SULLIVAN, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED JUNE 30, 2026
Appellants, 2990 Holme Operating, LLC d/b/a Immaculate Mary Center
for Rehabilitation and Healthcare, and Catholic Health Services, LLC d/b/a
Catholic Health Group (collectively “Appellants”), appeal from the July 29,
2025, order entered in the Court of Common Pleas of Philadelphia County,
which denied Appellants’ petition to compel arbitration in this wrongful death
and survival action brought by Sierra Smalling and Sharese Smalling
* Former Justice specially assigned to the Superior Court.
J-A12043-26
(collectively “Appellees”) as co-executors of their mother’s estate. 1 After our
careful review, we affirm.
The relevant facts and procedural history are as follows: Appellees
initiated this action on behalf of the Estate of Glendon Smalling by filing a
complaint on January 22, 2024. Appellees are the adult children of Glendon
Smalling (“decedent”), who was admitted to Appellants’ healthcare facility,
known as the Immaculate Mary Center for Rehabilitation & Healthcare
(“Immaculate Mary Center” or “facility”), from January 20, 2022, to April 21,
2022. Appellees averred that decedent passed away on January 9, 2023, due
to negligent treatment received at Appellants’ facility, which allegedly caused
decedent to suffer numerous pressure wounds, malnutrition, weight loss,
infections, and subsequent hospitalization. The complaint included counts for
professional negligence, a survival action, and a wrongful death action
predicated upon Appellees’ appointment by the Register of Wills of
Philadelphia County to administer decedent’s estate.
Appellees filed certificates of merit on March 5, 2024, and on March 22,
2024, Appellants filed preliminary objections. Therein, Appellants sought to
strike all allegations of vicarious liability based on acts of purported agents,
1 We note that “[a]n order denying a petition to compel arbitration is an interlocutory order appealable as of right.” Fineman, Krekstein & Harris, P.C. v. Perr, 278 A.3d 385, 389 (Pa.Super. 2022) (footnote omitted).
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who were not specifically identified in the complaint, and strike count IV of the
complaint relating to the wrongful death action based on Appellees’ alleged
failure to sufficiently plead specific facts connecting decedent’s death to care
received at the Immaculate Mary Center. The preliminary objections
presented no claim or argument related to arbitration.
On April 11, 2024, Appellees filed an amended complaint, which
contained more specific language in paragraph 10 averring that decedent’s
death resulted from care she received from Appellants during her stay at the
Immaculate Mary Center. On May 2, 2025, Appellants filed renewed
preliminary objections to the amended complaint raising the same issues
presented in their initial preliminary objections, as well as seeking to strike
Appellees’ wrongful death count on the additional grounds that the amended
complaint did not include the addresses of the alleged beneficiaries. The
renewed preliminary objections presented no claim or argument related to
arbitration.
The trial court held a case management conference, and on May 7,
2024, the trial court issued an order setting a discovery deadline of August 4,
2025, a pre-trial motion deadline of October 6, 2025, and a trial readiness
date of February 2, 2026.
On May 22, 2024, Appellees filed a second amended complaint, which
included addresses for the alleged wrongful death beneficiaries. On June 21,
2024, Appellants filed an answer with new matter averring they “incorporated
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by reference all applicable defenses provided under the Health Care Services
Malpractice Act, 40 P.S. § 1301.101 et seq., and the Medical Care Availability
and Reduction Error Act (“M-Care”).” Appellants’ Answer with New Matter,
filed 6/21/24. Appellants also alleged a lack of negligence, a lack of causation,
the barring of claims against Appellants based on actions of a non-party, and
the limit of any potential damages to the amount the decedent paid for the
medical services. Neither the answer nor the new matter raised any claim or
argument regarding arbitration.
After the pleadings closed, on January 22, 2025, the parties attended a
one-year status conference. On March 21, 2025, Appellants filed a petition to
compel arbitration. Therein, Appellants averred, for the first time, that, on
February 10, 2022, Appellee Sharese Smalling, in her capacity as decedent’s
representative and power of attorney, executed an Admission Agreement for
decedent’s stay at the Immaculate Mary Center. Appellants averred that the
Admission Agreement included a voluntary agreement to binding arbitration
for claims including, but not limited to, personal injury and medical
malpractice. Thus, Appellants claimed the dispute at issue was within the
scope of the arbitration provision, which was explicitly set forth in the
Admission Agreement.
Moreover, Appellants alleged that, pursuant to Pennsylvania Rule of Civil
Procedure 1028(a)(6), claims for enforcement of the arbitration agreement
may be asserted by preliminary objections or by a petition to compel
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arbitration. Appellants claimed the arbitration agreement had never been
rescinded and was enforceable under the Federal Arbitration Act, 9 U.S.C. §
2, and the Pennsylvania Uniform Arbitration Act, 42 Pa.C.S.A. § 4303.
Consequently, Appellants claimed that, since the arbitration provision was
valid and the dispute fell within the scope of the provision, the trial court did
not have subject matter jurisdiction, and, thus, the dispute must be submitted
to arbitration.
On April 10, 2025, Appellees filed a response in opposition to Appellants’
petition to compel arbitration. Therein, Appellees averred Appellants waived
their ability to enforce the arbitration clause. Specifically, Appellees averred
that the parties invested time and resources in preparing for litigation, and,
thus, Appellees would be prejudiced by the duplicative effort, added costs,
and undue delay of submitting this case to arbitration. Appellees contended
that Appellants litigated the claims subject to the arbitration provision in the
trial court, engaged in discovery, participated in the judicial process to win
favorable rulings, discovered Appellees’ strategic legal position, and failed to
seek to compel arbitration in their preliminary objections. Appellees
contended that, by waiting fourteen months after the initial complaint was
filed to request arbitration, engaging in discovery, and failing to raise the issue
in their preliminary objections, Appellants implicitly waived their right to move
for arbitration.
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Moreover, Appellees contended the arbitration provision was invalid,
and in any event, the dispute did not fall within the scope of the arbitration
provision. In this vein, Appellees alleged the arbitration provision was
unenforceable under the doctrines of unconscionability. Additionally,
Appellees contended the arbitration agreement was unenforceable because
Appellants failed to prove Sharese Smalling had agency to sign the Admission
Agreement.
On July 29, 2025, the trial court denied Appellants’ petition to compel
arbitration, and on August 12, 2025, Appellants filed a notice of appeal. The
trial court directed Appellants to file a Pa.R.A.P. 1925(b) statement, and
Appellants timely complied. The trial court filed a responsive Rule 1925(a)
opinion on December 9, 2025. Specifically, the trial court explained that it
denied Appellants’ petition to compel arbitration because Appellants waived
the opportunity to enforce the arbitration clause by failing to promptly raise
the issue of arbitration and availing themselves of the judicial process. 2
On appeal, Appellants set forth the following issues in their “Statement
of the Questions Involved” (verbatim):
1. Whether the Trial Court erred in denying the Petition to Compel
Arbitration when there was a valid, binding, enforceable,
Arbitration Agreement?
2 In the alternative, the trial court opined that, if this Court finds Appellants
did not waive their right to seek enforcement of the arbitration provision, then the matter should be remanded to the trial court for discovery related to Appellee Sharese Smalling’s agency to contract on behalf of decedent.
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2. Whether the Trial Court erred in not permitting the parties to
develop a full record as to Arbitration enforcement by ordering
discovery on the issue of Arbitration based upon the Petition to
Compel Arbitration?
Appellants’ Brief at 4 (suggested answers omitted).
Initially, we note that, intertwined within their first issue, Appellants
contend the trial court erred in holding they waived their claim of arbitration
by failing to raise it in a timely manner. See Appellants’ Brief at 30-41.
Our review of an order denying 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.” Goral
v. Fox Ridge, Inc., 683 A.2d 931, 933 (Pa.Super. 1996).
It is well-settled that, although as a matter of public policy,
our courts favor the settlement of disputes by arbitration, the right
to enforce an arbitration clause can be waived. O’Donnell v.
Hovnanian Enterprises, Inc., 29 A.3d 1183, 1187 (Pa.Super.
2011)[(quotation marks and quotation omitted)]. A party that
avails itself of the judicial process by attempting to win favorable
rulings from the judicial system following the filing of a complaint
waives the right to proceed through arbitration. Stanley-Laman
Group, Ltd. v. Hyldahl, 939 A.2d 378, 387 (Pa.Super. 2007).
When deciding whether a party accepted judicial process to
constitute waiver of a claim to arbitration, courts assess whether
the party: (1) failed to raise the issue of arbitration promptly; (2)
engaged in discovery; (3) filed pre-trial motions that do not raise
the issue of arbitration; (4) waited for adverse rulings on pre-trial
motions before asserting arbitration; or (5) waited until the case
is ready for trial before asserting arbitration. O’Donnell, supra.
Significantly, a party “cannot avail itself of the judicial process and
then pursue an alternate route when it receives an adverse
judgment. To allow litigants to pursue that course and thereby
avoid the waiver doctrine and our rules of court is to advocate
judicial inefficiency; this we are unwilling to do.” Samuel J.
Marranca General Contracting Co. v. Amerimar Cherry Hill
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Associates, 610 A.2d 499, 502 (Pa.Super. 1992). Nevertheless,
“the mere filing of a complaint or answer without resulting
prejudice to the objecting party will not justify a finding of waiver
of the right to arbitration.” Keystone Tech. Group, Inc. v. Kerr
Group, Inc., 824 A.2d 1223, 1226 (Pa.Super. 2003).
DiDonato v. Ski Shawnee, Inc., 242 A.3d 312, 318-19 (Pa.Super. 2020)
(bold in original) (citations omitted).
In the case sub judice, the trial court concluded that, assuming,
arguendo, the arbitration provision was valid, Appellants waived their right to
compel arbitration by availing themselves of the judicial process. See Trial
Court Opinion, filed 12/9/25, at 8-10. Specifically, regarding the first factor,
the trial court found Appellants failed to raise the issue of arbitration promptly.
See id. at 8 (citing DiDonato, supra). In this vein, the trial court held
“Appellants did not seek to compel arbitration for fourteen months after the
onset of this case, a significant delay directly comparable to the defendants’
failure to raise the issue of arbitration for eleven months in DiDonato,
supra[.]” Id.
Our review of the record confirms that Appellees filed their original
complaint on January 22, 2024, their amended complaint on April 11, 2024,
and their second amended complaint on May 22, 2024. Appellants filed
preliminary objections to the original complaint and the amended complaint;
however, neither of their preliminary objections acknowledged the existence
of a binding arbitration agreement nor sought to compel arbitration.
Moreover, Appellants filed an answer with new matter to Appellees’ second
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amended complaint, and, again, they failed to mention the existence of any
binding arbitration agreement. Thereafter, on March 21, 2025, approximately
nine months after filing their answer with new matter, Appellants raised for
the first time their claim of arbitration when they filed their motion to compel
arbitration. As the trial court indicated, “the instant case was never stayed or
dismissed, and Appellants had an uninterrupted fourteen-month period in
which the arbitration agreement could have been raised at any time.” Id. at
8. We agree with the trial court that, as it relates to the first factor, Appellants
did not promptly raise the issue of arbitration. See DiDonato, supra. See
also O’Donnell, supra (holding the fact the appellants allowed the
preliminary objection process to proceed for months demonstrated a failure
to promptly raise the issue of arbitration); Watson v. Terrace at Chestnut
Hill Senior Living, 1965 EDA 2022, 2023 WL 4395129 (Pa.Super. filed
7/7/23) (unpublished memorandum)3 (holding the appellant did not raise the
issue of arbitration promptly when it first sought to compel arbitration
approximately nine months after the appellee’s original complaint was filed
and several months after filing an answer to the appellee’s amended
complaint).
3 Pursuant to Pa.R.A.P. 126(b), unpublished non-precedential decisions of the
Superior Court filed after May 1, 2019, may be cited for their persuasive value. We find Watson to be persuasive in this matter.
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Regarding the second factor, the trial court found that Appellants
participated in discovery, again without any mention of the arbitration
agreement. Relevantly, the trial court found that Appellants served written
discovery requests upon Appellees on May 30, 2024, roughly four months after
the initiation of this action. See Trial Court Opinion, filed 12/9/25, at 8.
Specifically, Appellants served interrogatories and a request for production of
documents on Appellees. See id. We agree with the trial court that
Appellants’ “serving of discovery requests four months after the onset of
litigation evidences a conscious decision by Appellants to litigate the merits of
the case in this forum.” Id. See O’Donnell, 29 A.3d at 1189 (holding that,
where the defendants demonstrated a conscious engagement with the judicial
process with the arbitration agreement in their possession, they waived the
right to enforce the arbitration agreement).
Regarding the third and fourth factors, pertaining to pre-trial motions,
the trial court relevantly held:
Appellants’ filing of preliminary objections that did not raise
the issue of arbitration evidenced conscious engagement with the
judicial process. As in O’Donnell, Appellants raised demurrers
seeking to, inter alia, strike a count of the operative complaint
(specifically, count IV-wrongful death action) for legal
insufficiency. Appellants then raised similar demurrers a second
time after Appellees amended their complaint as of right and
mooted the first set of preliminary objections pursuant to
Pa.R.Civ.P. 1028(c)(1). The O’Donnell Court explained that the
defendants successfully obtaining dismissal of a single count of
the complaint via preliminary objection constituted substantive
engagement with the judicial process that, along with the
temporal delay in seeking to compel arbitration, justified waiver.
Id. at 1189. Appellants’ preliminary objections in this case raise
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precisely the same issues. It is worth noting that Appellants did
not obtain a ruling from the [trial] court sustaining their objections
in this case; but rather, they elected to file an answer with new
matter after Appellees amended their complaint for a second time
in response to the second set of preliminary objections. Even if
Appellants did not obtain dismissal of a cause of action via court
order, Appellants’ filing of an answer following amendment of the
complaint indicates satisfaction with the outcome of the pleading
process—otherwise, Appellants could have reasserted the same
objections. Appellants’ subsequent filing of new matter that
raised affirmative defenses and failed to mention arbitration
further indicates a choice to litigate this matter on the merits in a
judicial forum.
Trial Court Opinion, filed 12/9/25, at 9 (citation to record omitted).
We find no abuse of discretion in this regard. Simply put, Appellants
actively participated in the judicial process and did not seek to compel
arbitration until after waiting to see the outcome of their preliminary
objections. See O’Donnell, supra; GE Lancaster Investments, LLC v.
American Exp. Tax & Business Services, Inc., 920 A.2d 850, 855
(Pa.Super. 2007) (holding that, where a party attempts to win favorable
rulings from the trial court, it indicates an intent to avail oneself of the judicial
process).
Moreover, we note that the record reveals Appellants engaged in the
one-year case management conference and pre-trial scheduling orders before
filing their petition to compel arbitration. The trial court expended judicial
resources in issuing orders, including setting the deadline for discovery and
pre-trial motions, as well as a trial readiness date. Here, Appellants filed their
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first request for arbitration just months before the discovery deadline. See
Trial Court Opinion, filed 12/9/25, at 3.
Additionally, we note Appellees have been prejudiced by Appellants’
tactical maneuvers because, if the arbitration provision had been timely
raised, Appellees would have been spared the time, effort, and expense of
filing amended complaints. Simply put, as the trial court found:
The totality of the circumstances presents a situation similar to
O’Donnell, supra, and DiDonato, supra—a significant delay of
over one year in seeking to compel arbitration and active litigation
of non-arbitration issues through the pleadings….[T]his case
proceeded well beyond the pleadings with Appellants raising the
issue of arbitration for the first time four months before the close
of a nearly year-and-a half long discovery period. Appellees were
prejudiced by the fourteen-month delay in proceedings, and by
the expenses incurred in litigating multiple rounds of preliminary
objections and exchanging initial pre-trial discovery. Upon
consideration of these circumstances and the factors detailed in
O’Donnell [and DiDonato], the [trial] court found that
Appellants waived their right to enforce the arbitration clause.
Trial Court Opinion, filed 12/9/25, at 9-10.
Based on the aforementioned, we conclude the trial court’s findings are
supported by substantial evidence, and we discern no abuse of discretion in
the trial court’s holding that Appellants availed themselves of the judicial
process, thus waiving any right to arbitration. 4 Goral, supra. Accordingly,
4 We note that, on appeal, Appellants summarily claim they raised the issue
of arbitration as “promptly as possible,” and they “did not actively litigate this matter.” Appellants’ Brief at 34, 38. However, as the trial court found, the certified record belies this claim.
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we affirm the trial court’s order denying Appellants’ petition to compel
arbitration on this basis.5
Order affirmed.
Date: 6/30/2026
5 In light of our analysis supra, we need not address Appellants’ remaining claims. Nevertheless, we note that, to the extent Appellants contend it is necessary for this Court to remand to the trial court because the record is not sufficiently developed to determine whether Appellants waived their right to seek arbitration, as suggested by our discussion supra, Appellants are mistaken.
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