Article by Jill Persico, Esq.
Arbitration enforcement is key to transferring your case out of the Court System (and potentially a Plaintiff-friendly jury.) Before filing your Preliminary Objections, confirm whether your client utilizes arbitration agreements. If so, find out if one was executed in your case.
If an arbitration agreement was signed, request enforcement first and foremost in your Preliminary Objections to Plaintiff’s Complaint.  Next, speak with counsel to agree on timelines to conduct your arbitration-related discovery, along with deadlines for filing your supplemental brief. If plaintiff’s counsel objects, cite to the note to Pa. RCP 1028(c), which states, “Preliminary objections raising an issue under subdivision (a)(6), cannot be determined from facts of record,” thus discovery is permitted. 
Arbitration-related discovery can include: interrogatories; requests for admissions; requests for production of documents; affidavits; depositions; and for good cause shown, evidentiary hearings with live testimony before the Court. Written discovery should be sent out immediately upon knowledge of an arbitration agreement, due to the limited time to complete your discovery. This discovery must be related to the arbitration agreement. PLEASE NOTE: Propounding regular discovery may be deemed a waiver of your preliminary objection to enforce the arbitration agreement.  Also, do not send subpoenas, or request any assistance of the Court, which may be seen as availing your client to the Court’s jurisdiction.
Discovery should always include a request for any legal documents that grant the signatory authority to act on behalf of the Plaintiff patient/resident, i.e. Power of Attorney (“POA”) or Guardianship. However, not all cases will have a POA. Many times spouses, children, or siblings, who do not hold POA, sign the arbitration agreement, along with other documentation, to have their loved one admitted to the facility. In those cases, written discovery provides the opportunity to find evidence that supports enforcement of the agreement. The biggest issue to tackle is proving authority. Did the signatory have the authority to bind the patient/resident to the agreement?
There are different types of authority: express, apparent, implied and authority by estoppel. Arbitration-related discovery can reveal evidence that the signatory held authority to act on behalf of the patient/resident. Without a POA (express authority), the next step should be to find evidence of non-express authority. Discovery requests should try to identify examples where the agent held authority in the past, such as: access to the principal’s bank account; social security benefits; approved contact for release of health information; signature on medical documents, including surgical consents; or other legal documents that the agent signed on behalf of the principal. In addition, it can be beneficial to find non-legal documents that show implied authority, such as the medical condition of the patient/resident. If the patient/resident has physical limitations, such as limited vision or a broken hand, how can they sign the agreement themselves? Additionally, any evidence regarding prior authority to sign on behalf of the patient/resident without objection, is known as authority by estoppel, i.e. since the patient/resident did not object, they approved.
In addition to proving authority, the party trying to enforce the arbitration agreement will also need to establish there was a valid and binding agreement, i.e., mutual assent to the terms of the agreement. To form a “meeting of the minds,” the contract must be conscionable. Look to see if your client’s contract is reasonable to a lay person. Can a non-lawyer understand it? How detailed and long is it? Most important, does it clearly state that the parties are entering into the agreement voluntarily (not a condition of admission), and that they are waiving their right to a trial by jury? Does it also provide for a period to rescind/revoke?
Depositions of those who signed the agreement, along with the patient/resident (if alive) should be taken after written discovery is completed. Prior to the depositions, do some background investigation into the witnesses, especially Plaintiff’s witnesses. Try to find out their education, job history, interests, prior lawsuits, licenses. If the Plaintiff signatory was a former state representative who was indicted for bribery and corruption (true case), those facts are extremely relevant to show the witness was familiar with legal contracts, and that she has crimen falsi convictions, which diminish her credibility. Also, Google witnesses to find out if they are in the news or on social media. Social Media always helps your investigation (just don’t “friend them”). Additionally, at the deposition of the signatory, present any admission documentation that they refused or declined to sign on behalf of the patient/resident. Typically, the signatory will state the documents were presented as a huge stack of documents, and that they were told to “sign here.” When presented with documents that were declined or refused, the signatory has to admit that they actually did stop and think about the documents presented to them.
Prior to the deposition of the facility representative, meet with the witness to review what they recall about the meeting when the arbitration agreement was signed. They may recall vital information, such as the Plaintiff signatory used to work there (true case). The facility representative can testify to their pattern and practice if they do not recall the Plaintiff. But most important, review the documentation produced by Plaintiff’s counsel. Ask for a copy of any information provided to Plaintiff, including the arbitration agreement. Review this information in detail. Confirm that the arbitration agreement produced by Plaintiff’s counsel is the same as the copy in your possession. You do not want to find out at deposition that Plaintiff’s copy of the agreement does not include your client’s signature! Which leads to the next scenario, when the facility has forgotten to sign the arbitration agreement.
Hopefully this doesn’t happen, but if the facility forgets to sign the agreement, try to find other evidence of mutual assent. Look to the written discovery responses and deposition testimony that Plaintiff recalls meeting with the facility representative and can identify them; confirm all parties names included in preamble of the agreement; determine if the facility representative initialed any sections within the agreement; determine if the terms of the agreement are completed, i.e., no blanks; and determine if the agreement was dated. 
By looking beyond the four corners of the agreement, and conducting thorough arbitration- related discovery, you can present the best evidence in support of your preliminary objection to enforce arbitration.