Superior Court Finds That Defendant Waived Right to Arbitration by Participating in the Litigation Process

In the case of Estate of Smalling v. 2990 Holme Operating, LLC, No. 2172 EDA 2025 (Pa. Super. June 30, 2026 Lazarus, P.J., Sullivan, J., and Stevens, P.J.E.) (Op. by Stevens, P.J.E.), the court affirmed a trial court Order finding that the Defendants had waived the contractual right to compel Arbitration in a wrongful death and survival action by failing to raise a request for Arbitration promptly.

The court also noted that the Defendants had substantially invoked the judicial process by way of participating in the litigation of a lawsuit, including through Preliminary Objections, other pleadings, participating in discovery and also participated in other case management activities before the Defendants sought Arbitration fourteen (14) months into the lawsuit.

As such, the Defendants were found to have waived their contractual right to arbitration.   

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Source: The Legal Intelligencer State Appellate Case Alert, www.Law.com (July 24, 2026).

Source of above image:  Photo by Felix Mittermeier on www. unsplash.com.

Trial Court Finds That Defendant Waived Arbitration Clause in Nursing Home Case by Litigating Case in Court

 

In the case of the Estate of Smalling v. 2990 Holm Operating, LLC, Jan. Term 2024, No. 240102492 (C.P. Phila. Co. Dec. 9, 2025 Cohen, J.), the trial court issued a Rule 1925 Opinion requesting the appellate court to uphold the trial court’s decision to deny a Defendant’s Motion to Compel an Arbitration in a nursing home case.

In this matter, the Plaintiffs allege that their family member decedent had passed away due to alleged negligence treatment received at the Defendant’s facility.

After the Plaintiffs had filed suit, the case proceeded with pleadings and discovery. Fourteen months after the lawsuit was filed, the Defendants filed a Petition to Compel Arbitration.

The court denied the Petition under the primary rationale that the Defendants had waived its right to compel arbitration by availing itself of the judicial process. The court noted that, here, there was a significant delay of over one year before the Defendant sought to compel arbitration. Given the delay and the active litigation in the lawsuit, including the filing of earlier Preliminary Objections by the Defendant, the trial court found a waiver of the right of the Defendant to request arbitration.

In so ruling, the trial court did not reach the Plaintiffs’ other arguments that the arbitration clause in the nursing home agreement was unenforceable under the doctrines of procedural and substantive unconscionability, and/or the argument that the person who had signed the arbitration agreement did not have the power to bind the decedent to the arbitration agreement.

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Source of image:  Photo by Matthius Zomer on www.pexels.com.

Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (Feb. 12, 2026).

Defendants' Participation in Judicial Process Results in Waiver of Arbitration Agreement

In the case of Cooper v. Abington Senior Care, LLC, Dec. Term 2020, No. 00765 (C.P. Phila. Co. Aug. 2, 2023 Shreeves-Johns, J.), the trial court issued a Rule 1925 Opinion asking the Superior Court to affirm the trial court’s decision that, in this nursing home negligence action, the Defendants had waived their right to enforce an Arbitration agreement by participating in the judicial process.

According to the Opinion, the Defendants filed a Petition to Compel Arbitration. The trial court denied this petition after noting the other Defendants had gained advantages by participating in the judicial process, including with respect to completing discovery and motions practice. 

More specifically, the Defendants have filed three (3) separate sets of Preliminary Objections. It was only after the third set of Preliminary Objections was overruled that the Defendants finally asserted the issue of Arbitration in their Answer to the Complaint and in a Petition to Compel Arbitration.

Also, the Defendants had not raised the issue of Arbitration in the previously filed Preliminary Objections.

As such, the court ruled that, although there was a valid Arbitration agreement between the parties that may have required certain claims in this litigation to be submitted to Arbitration, the Defendants’ participation in this litigation was held to confirm an acceptance of the judicial process and a waiver of the right to arbitrate.

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Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Oct. 23, 2023).

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