*1 MACPHERSON, Executor of Patrick J. MacPherson,

the Estate Richard Deceased, The MAGEE MEMORIAL HOSPITAL Magee

FOR CONVALESCENCE d/b/a Hospital, Rehabilitation Jefferson System, Inc., System, Health TJUH PA, LLC, Manor Care Yeadon d/b/a Services-Yeadon, ManorCare Health Inc., Care, ManorCare, HCR Manor Inc., LLC, Healthcare, HCR II HCR Healthcare, LLC, HCR III Health-

care, LLC Appeal PA, Manor Care Yeadon

LLC, ManorCare Health Ser- d/b/a vices-Yeadon, Care, Inc., HCR Manor Care, Inc., Healthcare, HCR

LLC, Healthcare, LLC, II HCR HCR Healthcare, LLC, Appellants.

III Superior Pennsylvania. Court of

Argued March Filed Nov.

SHOGAN, BY J.:

OPINION PA, Manor Care Yeadon

Appellants, LLC, Manor Care Health Services- d/b/a Care”), et al. (“Manor from Yeadon, appeal overruling pre- their court’s order the trial ju- objections to the trial court’s liminary in this action filed and venue risdiction (“Mac- MacPherson Appellee, Patrick J. Pherson”), of the estate his as executor *4 (“Dece- brother, Richard MacPherson dent”). objections were preliminary The of an on the existence based Manor Care and Dece- agreement between of the Following our careful review dent. record, applica- and consideration arguments parties, we ble and law this case for referral reverse and remand to arbitration. Decedent, 20, 2009, was August

On who history fifty-four years old and had illness, or mental was admitted dementia (“Ma- Hospital Magee Rehabilitation 15, 2009, Decedent gee”).1 September On Care, nursing to Manor was admitted facility.2 transferred home Decedent was Septem- Fitzgerald Hospital on Mercy 19, 2009, to Manor ber and readmitted 24, 2009. On October September Care on 6, 2009, rep- a Manor Care Decedent and agree- an arbitration resentative executed Conshohocken, Mundy, William J. West provided which (“Agreement”), ment appellants. for parties would be any dispute between the Trzcinski, Philadelphia, ap- Stephen binding arbitration. Dece- submitted pellee. until his death dent resided Manor Care 27, 1, January 2010. On February on BOWES, DONOHUE, BEFORE: OLSON, complaint ad- MacPherson filed SHOGAN, LAZARUS, MUNDY, STABILE, JENKINS, negligence, WECHT, vancing negligence claims of JJ. and System potential Hospital but allowed for the Magee for Convales- TJUH 1. The Memorial Magee Hospital, pursuant Rehabilitation cence defendant reinstatement d/b/a Inc., Sys- System, and TJUH Entry Jefferson Health 1036.1. Docket Pa.R.C.P. Defendants”) engaged are (“Hospital tem ownership operation hospital facili- and operate nursing Appellants own home and ties, Magee. April On which include facilities, which Care. include ap- Moss Honorable Sandra M. stipulation to dismiss Defendant proved the se, wrongful corporate negligence, tained in' per Federal Arbitration (“FAA”) death, survivorship Pennsylvania with Act connection law? stays Magee and' Manor Decedent’s II. Trial Court Whether the erred 30,2012, On Manor Care filed Care. March Decedent, finding that the Richard objections preliminary seeking transfer MacPherson, capacity lacked to ex- pursuant case to Agreement? ecute Arbitration discovery Following III. Whether the Trial erred briefing by parties, the trial court en- finding Agree- the Arbitration 20, 2012, an order November tered ment at in this issue case was un- overruling preliminary ob- Manor Care’s both procedural enforceable due to jections. timely appeal This followed.3 unconscionability? substantive Court, panel judge A with one Whether Trial Court IV. erred opinion dissenting, reversing filed finding Agree- the Arbitration remanding this for referral to case arbitra was ment unenforceable due Magee tion. MacPherson v. Memori *5 failure a term the Convalescence, PA Hospital al 2014 for designating National Arbitra- 2014). July 10, 143 Super (Pa.Super. filed (“NAF”) Forum tion to adminis- Thereafter, for MacPherson filed a motion trate the arbitration? . granted en mo reargument banc We Manor Brief at 5. Care’s arguments oral on heard March 24, 2015. is for ripe This matter now Agreement provides The fol- at issue disposition. lows: you VOLUNTARY If AGREEMENT: Manor raises four Care issues accept Agreement, do not the Pa- this challenge all trial appeal, which in, still tient will live be allowed to court’s to to refusal matter transfer in, and receive services this Center. arbitration,4 as follows: ARBITRATION AGREEMENT Trial Court I.Whether erred (“AGREEMENT”) overruling Prelimi- [Manor Care’s] nary Objections compel seeking to BY THIS AGREE- ACCEPTING MENT, ac- arbitration without or applying THE PARTIES ARE WAIV- knowledging the liberal standards A THEIR TO TRIAL BE- ING RIGHT con- A A favoring disputes FORE JURY JUDGE AND/OR per.2007), trial order to appealable exception 3. The court did not Manor Care that is as an complained a statement of errors of on file overruling general rule order that an pursuant appeal On Feb- Pa.R.A.P. 1925. objections interlocutory preliminary is 6, 2013, ruary compliance with Pa.R.A.P. right. Pisano v. appealable as Extendi 1925(a)(1), rely- the trial court filed an order Homes, Inc., (Pa.Su care 77 654 A.3d ing upon prior opinion dated its order denied, appeal per.2013), Pa. 86 A.3d 20, 2012, overruling November for reasons (2014), Homes, denied, cert. Extendicare objections. preliminary — U.S. -, Pisano, Inc. 134 S.Ct. (2014); also 42 L.Ed.2d 838 see Pa.C.S. compel.a refusing An order arbi- case to taken, alia, 7320(a)(1) (appeal § may be inter threshold, jurisdictional question, is a tration application denying from án order to com Company, an Insurance Ltd. v. Discover Gaffer " (Pa.Su- arbitration). pel Company, 936 A.2d Reinsurance or statutory, compensatory DISPUTE BETWEEN whether ANY OF sounding damages punitive and whether THIS THEM. PLEASE READ contract, breach tort-or AND IN CAREFULLY breach AGREEMENT (including, limi- statutory duties BEFORE ACCEPT- without ITS ENTIRETY indicated, any claim except as tation TERMS. ING ITS .on, or a claim for Rights Patients’ based on-(date) Agreement made This charges), unpaid regardless Center Parties, Patient and between ' duty legal or of the the basis for the [handwritten] MacPherson Richard is assert- upon theories which the claim Legal Representative Patient’s and/or ed, binding shall be submitted arbi- _ to as “Pa- (collectively referred above, Notwithstanding the tration. tient”), the Center Care Agreement nothing prevents [handwritten], is an Yeadon or filing grievance com- Patient from Disputes be require re- intended appropriate with the or plaint Center Le- by arbitration. The Patient’s solved requesting governmental agency; from Representative agrees- that he gal from such inspection of the Center Party, both signing agency; seeking or from review under ca- representative-and -individual in his federal, local any applicable law state pacity. discharge involuntarily decision Arbitration?: Arbitration What A. transfer, Center. from the Patient saving is a cost effective and time meth- Administrator: resolving disputes without involv- od *6 Arbi- shall be administered National arbitration, using ing the courts. (“NAF”), Wayzata tration Forum by a disputes heard and decided are Blvd., Minneapolis, MN Suite n private individual called an arbitrator. 55426; www.arbitration-forum.com will not be or dispute heard decided (hereinafter “Administrator”). If the jury. or by judge a mutually agree writing Parties not to' B. AGREEMENT TO ARBITRATE unwilling select or if is or NAF the NAF “DISPUTES”: or Any and all claims Administrator, unable to. serve as the any arising of or m out controversies shall, agree upon the Parties another way relating to this Agreement, the Ad- independent entity to serve as Ad- any or of Pa- mission ministrator, mutually unless Parties Center, stays any Cen- tient’s or. agree to not have an Administrator. of operated by any subsidiary HCR- ter 2. Demand for shall be Arbitration Inc., Care, or not relat- whether Party writing, sent to the other made malpractice,.including ed to medical but mail, request- via receipt certified return - disputes regarding not limited ed, (unless NAF filed with NAF execution, making, validity, enforceabili- waived). is mutually voidability, ty, unconscionability, sever- 3. ability, scope,, preemp- Panel: The arbitration interpretation, Arbitration waiver, (3) tion, any or three Arbitra- other defense shall be conducted “Panel”). (the enforceability Party or tors Each will se- Agreement, arising lect one Arbitrator. The two selected Admission whether law, Arbitrator. out State Federal whether will Arbitrators select third future, existing arising now or Each Arbitrator must be retired State the- Judge or a indigents; regarding Federal Member appeals ju- - .review). Bar where the Center is locat- the State dicial years ed least 10 experience with 6. Refusal Any Party Arbitrate: attorney. approved as an Arbitra- go who refuses forward with arbitra- tors not have to If do be used. one acknowledges tion go the Panel will Party refuses select its arbitrator forward with the arbitration hearing and days request within 30 of a written binding render á par- award without the same, then shall se- Administrator ticipation of Party such or despite his Party’s lect that Arbitrator. hearing. absence at the Decision Maker: Sole The Arbitra- Any Waiver Claim: claim shall empowered Panel the sole with' if it forever waived arose prior to, shall, jurisdiction resolve all- dis- hearing and is not presented limitation, putes, including without hearing. in such A claim that disputes making, validity, about the en- served, within the statute limitations forceability, interpretation, scopé, voida- period applicable to the same claim in a bility, unconscionability, preemption, court of iaw in the "in state which this (cid:127) severability Agree- waiver and/or Center is located shall be forever Agreement, ment or the Admission waived. as resolve underlying well the.Parties’ disputes, is the Parties’ intent 8.. Award. The must Panel’s award completely involving sys- avoid the court unanimous and shall.be later served-no " jurisdic- tem. The Panel shall not (5) have days than five working after the arbi- tion to certify any person represen- as a hearing.-; tration The award must state and, persons tative of a by doing class in detail Panels’ findings of fact so, adjudicate of persons not di- claims law, “con- be marked .conclusions rectly taking part in Arbitration. fidential”, signed by and must be all If any damages Arbitrators. are (cid:127)three 5. Procedural Rules and Substantive award, awarded, the must spe- delineate *7 Law: The apply Panel shall the Federal cific for amounts economic non- and/or of Rules of Evidence and Federal Rules econqmic damages. except Civil Procedure where otherwise Also, stated in Agreement. this Rights 9. Final with Limited to Re- apply, Panel shall and the arbitration (Appeal): view The Panel’s binds award with, award shall be consistent the State the Parties. The Parties have a limited la\y substantive all (including any and right only of for express review rea- statutory damage caps) FAA; for the State sons by allowed located, except which the .Center original] C. in section [No Agreement otherwise stated in this. D. Discovery shall DISCOVERY: be preempted by

where The Pan- the FAA. by governed NAF’s of apply el shall of Procedure. NAF’s Code Procedure Code (in 2006) However, discovery of be May effect as oth- shall unless limited- (1) days after service Agreement. erwise stated this follows: Within .in Demand, may Party NAF’s Code each comply of ob- must Procedure be NAF, (877) 656-7765, Fed;R.Civ.P., 26(a)(1) tained from www. with Rule and 26(e) comply arbitration-forum.com. must The Parties here- thereafter with Rule (45 by opt-out regarding regarding supplementation Rules of disclo- (2) subject to may split pro A be on a rata basis Party responses. sures and (6) The Panel’s discretion. Parties ques- of 30 written a maximum serve may agree discovery modify to these to (interrogatories), requests tions terms or deadlines. for requests and 30 produce documents (3) admissions; of subparts. inclusive E. TO CHANGE YOUR RIGHT shall following The be served disclosures may MIND: can- Agreement This be (150) fifty no than one hundred later by sent by celled notice certified written hearing by days the arbitration before mail to the Center’s Administrator with- Claimant, twenty and one hundred (30) thirty days Pa- calendar (120) hearing days before alleged tient’s If acts date admission. (a) underlying dispute occur before Respondent: list witnesses date, (full name, shall cancellation Hearing to called at be respect alleged be with to those binding title, phone and if address number cancelled, acts. If not known) outline of each and an witnesses’ shall be binding on the Patient for this (b) testimony; list of docu- [sic] intended all other admissions the Patient’s upon Hearing; ments to be relied any need for fur- Center without solely to be for documents used except ther renewal. (c) impeachment purposes; any sworn upon statements recorded relied F. OTHER PROVISIONS: name, title, including full Hearing Damages: Caps/Limits 1. No on person phone number address and caps/limits There no are the amount gave who statement. Parties The can damages the Panel award other supplement per shall these disclosures already than imposed those law 26(e). (4) Pr., R. Rule Each Fed. Civ. this Center is state in which located. (3) up experts Party may have three laws, regulations All state statutes (10) than lay and no more ten 'witnesses damages that limit awardable define list, as well as for the witness scope admissible inadmissible Hearing. Depositions witnesses (i.e. surveys, regulatory inci- evidence people those on the limited to listed etc.) expressly dent reports, apply or in lists Parties’ Parties’ witness healing pursuant held discovery Rule 26 re- disclosures sponses will but under circumstances Opportunity Right Review & take Party be allowed to more than 13 Attorney: (if patient Consult with depositions. report A written summar- *8 competent) Legal Rep- and Patient’s

izing expert’s opinions ba- each and acknowledge that Pa- resentative opinion, sis for and a of all each list Legal Representative tient have and file, expert’s contained records Agreement, each of this copy received (30) days must be served at least thirty opportunity and have had read (5) expert’s deposition; Dis- before the (or him/her) have ask it read and completed 45 covery shall be before days questions about it before it. accepting Hearing Hearing begin and the shall Agreement very Please this care- read days no after for later than 365 Demand fully any questions you and ask served, shall Arbitration is last in dura- signing have before it. free to Feel (5) working longer attorney than five your consult with an choice days, hearing before signing Agreement. time shall and allowed cessor's, children, kin, spouses, 3. Benefits of Arbitration: The Par- next administrators, guardians, legal to select Arbitration is repre- ties’ decision sentatives, responsible parties, supported by potential assigns, cost-effec- time-savings agents, attorneys, proxies, tiveness and offered se- health care arbitration, lecting surrogates, which seeks to avoid health care Party third ben- eficiaries, insurers, heirs, trustees, expense delay sys- and in the court sur- recognize The representatives, tem. Parties that often vivors and including the elderly may personal representatives the Patient and have a or-executors of estate, life-expectancy, any person and limited therefore whose claim is his/her selecting quick through method of resolution is derived behalf of the Pa- or.on potentially advantage. to a any way Patient’s or tient relates to the Pa- Center, The Parties that the agree stay(s) reasons stat- tient’s any or ed for proper person previously above are consideration who respon- assumed acceptance Agreement. sibility providing Patient with neces- sary food, shelter, services such cloth- FAA: hereby agree 4. The and Parties medicine, ing, any person and who Agreement, intend that this the Admis- this Agreement executed or the Admis- Agreement sion stays and the Patient’s sion substantially at the Center involve inter- commerce, stipulate state Fees Costs: The Panels’ fees (“FAA”) paid by Federal Arbitration Act will ef- costs the Center fect as of except disputes November 2008 and federal non-payment over interpreting charges case law version of the such Center such wherein fees and FAA' apply Agreement, shall to this costs will equally be divided between the any shall inconsistent State Parties.' preempt law NAF’s- fees administrative and shall preempted by equally among not be reverse shall be divided the Par- Act; McCarran-Ferguson law, United To permitted by ties. the extent Chapter any Party unsuccessfully (cid:127)States Code Title challenges who Any other law. to such ver- amendment enforcement of this shall hereby sion of the FAA is expressly required pay Par- the successful attorney waived. reasonable fees and costs ties’ (i.e., incurred to enforce such contract Binding on Parties & Others: Arbitration). Motion to Compel .The Parties intend Parties, attorney shall bear their own inuré the direct benefit of and bind to all fees and costs relation prepara- Center, affiliates, parent, tion and the arbitration attendance at subsidiary companies, management com- hearing, the Panel concludes that unless directors, owners, panies, executive offi- ..Except.as the law provides otherwise. cers, shareholders, partners, directors,' above,, any right stated the Parties waive directors, employees, medical succes- attorneys’ and costs. recover fees sors, assigns, agents, insurers and *9 Confidentiality: entity person or (including health 7. The care services, provided providers) any proceedings that shall remain confidential supplies equipment or respects, including filings, deposi- related Pa- all all Center, stay documents, transcripts, discovery tient’s and shall in- or ure exchanged to the direct benefit and bind the other materials between the . (as herein), Patient defined suc- [sic] Parties and the Panels’ award. his/her changed writing signed by all only addition, following receipt of the be Panels’ Agreement shall Parties. This remain award, Party agrees return each to [sic] notwithstanding in full force and effect days Party within producing to termination, or natural copies cancellation all of documents original and expiration of the Admission discovery and at arbi- exchanged Hearing. tration Jury Agreement If this 10. No Trial: Agreement: is found to be unenforceable and arbitra- Either 8. Waiver default, tion is then as a compelled, dispute in a court of its Party may file agree disputes shall Party approves, which the Parties if other law by solely by judge via a bench only be established resolved a shall approval' response will a filing a to the Com- trial. Under no circumstances Party such timely in a man- moving jury any dispute. plaint without decide ner, by applicable prescribed Par- Decision: The 11. Health Care court, Agree- to 'this enforce rules hereby stipulate that the decision to ties However, should' of the Par- one ment. into this the Patient move Center have Agree- Arbitration Binding to this ties agree Agree- to to this and the decision initiating breach terms ment care ment are each a health decision. forum, judicial the Parties lawsuit oth- stipulate Parties there are participation in co- expressly agree health care facilities this communi- er discovery a mo- operative general while currently Pa- ty available meet the compel pending arbitration is tion to tient’s needs. of a waiver shall not constitute evidence Legal Representative: The Pa- A right to arbitrate. waiver his or Legal Representative, by tient’s specific right Dispute arbitrate below, signature hereby represents her Disputes, as described or series stipulates and has au- been above, Party of con- he/she neither relieves sign thorized the Patient other obligation arbitrate tractual Agreement on of the Patient. behalf including permissive both and Disputes, counterclaims, mandatory unless also BELOW, BY THE PAR- SIGNING subsequently waived. THAT EACH TIES CONFIRM OF (4) THEM ALL HAS READ FOUR Severability, Integration and Sur- AND term, PAGES OF THIS or AGREEMENT Any phrase provision vival: THAT EACH HAS UNDERSTANDS in this is severa- contained THE TO TRIAL ble,' RIGHT A any them is WAIVED in the event BEFORE A JUDGE OR AND void, JURY invalid unenforcea- found to be reason, THAT EACH OF THEM CONSENTS any ble for term, ALL THE TO OF TERMS OF THIS phrase as if such interpreted herein, AGREEMENT. provision were not contained VOLUNTARY Agree- of this remaining provisions 10/06/09, (emphases 1-4 Agreement, by such ment shall not be affected deter- original). shall remain in full force mination -and of a Our of review claim Agreement represents standard effect. This improperly that the trial court overruled agreement regarding the Parties’ entire of a Disputes, agree- preliminary objections in the nature supersedes other compel arbitration is relating disputes, may petition ment clear.

1219 determining “is with policy aligns Our review limited approach federal findings sup expressed the trial court’s are in the whether Federal Arbitration Act (“FAA”). ported substantial evidence and wheth purpose fundamental trial court er the abused its discretion is to parties [FAA] relieve the from denying petition.” v. Extendi Pisano expensive litigation help and to ease the Homes, Inc., 651, (Pa.Su care 654 77 A.3d congestion current calendars. court denied, 683, per.2013), appeal 624 Pa. 86 Its passage congressional was a declara- (2014), denied, cert. Extendicare A.3d 233 tion of a liberal policy favoring federal — Homes, Pisano, U.S.-, Inc. v. 134 agreements. arbitration 2890, (2014) (quot S.Ct. 189 L.Ed.2d 838 Pisano, (citations, quotation 77 A.3d 661 Johnson, 782, ing v. 66 Walton A.3d 787 marks, omitted); and footnote see also (Pa.Super.2013)). Facilities, Taylor v. Extendicare Health so, doing “In employ two-part we test Inc., 113 A.3d (Pa.Super.2015) 324 to determine whether the trial court (“Pennsylvania has a pub- well-established Elwyn compelled should have arbitration.” arbitration, lic policy that favors and this ], [457], DeLuca 48 A.3d 461 [ policy aligns with approach the federal ex- (Pa.Super.2012) (quoting Smay v. [ ] préssed FAA”); petition allow- Stuebner, Inc., E.R. 864 A.2d 1270 appeal granted ance other First, (Pa.Super.2004)). we examine — -, grounds, Pa. 122 A.3d 1036 á agreement whether valid to arbitrate (2015). policy This applies' equally to all Second, exists. . we must determine agreements, including arbitration in- those dispute scope whether the is within the volving nursing homes. See Marmet agreement. — Center, Brown, Health Care Inc. v. Pisano, 77 A.3d 654-655. “Whether , 1201, 1203-1204, U.S. S.Ct. claim is scope within the (2012) (holding L.Ed.2d FAA contract, is a provision matter and as preempts state law categorically pro- law, questions with all our review of the arbitration of particular types hibits court’s plenary.” trial conclusion is El claims, “contrary which is to the terms and wyn, 48 A.3d at 461. appears There to be FAA”); Pisano, coverage of the accord disagreement that the claims are within (same). Thus, at 661 n. A.3d ‘-‘when Thus, scope we addressing specific issue of whether upon agreement focus whether a valid tó arbitrate, there is a valid exists. arbitrate generally ordinary courts apply should principles govern state-law the forma As to Manor first issue on Care’s contracts, so, in doing tion of but give must appeal, agree opin that the trial court’s we regard favoring due federal policy ion recognize,' apply, fails to no less Company, arbitration.” Insurance Gaffer policy favoring liberal con Company, Ltd. v. Discover Reinsurance Act, tained in the Federal Arbitration '9 1114 (Pa.Super.2007). 936 A.2d (“FAA”), §§ 1-16 U.S.C. as well as Penn law, sylvania instant Agreement. Here, opinion the trial court’s includes Trial As Opinion, See we 11/20/12. cursory findings,' lack of á súbstantive recently explained: analysis, applicable a failure to discuss such, Pennsylvania law.- As the decision below fails to pub- has a well-established arbitration, policy lic recognize apply favors and this 'and thé standards *11 dementia, illness, mental policy favoring evidence of FAA liberal arbitra- and its disorientation, fact, or even confusion. In tion.

medical records indicate Decedent was issue, person, place, Manor alert and to second Care oriented as In its 8, January Supplemental time until 2010. trial court erred in hold contends that Support Memorandum of Law requisite ca ing lacked that Decedent Preliminary Objections Care Defendants’ into the Man- pacity to enter Complaint Amended [MacPherson’s] Despite at 19. the fact Brief or Care’s Memo”), 10/12/12, (“Supplemental Exhibit clearly he indicated that that MacPherson (Docket 50). Indeed, K Dr. Entry No. challenging capacity Decedent’s was not Khan, treating physician, Azad Decedent’s Agreement,5 the trial enter court into physical completed history and ex- medical capaci that Decedent lacked the intimated weekly progress amination records and Agreement, signed it ty sign 25, 2009, September notes from until Octo- duress, follows: under 31, 2009, encompassed peri- ber which [T]he records reveal October signed od when Decedent lost had more than [Decedent] on October Those notes consis- initial pounds August, 2009 since his tently that Decedent indicated was alert was hospitalization. dependent He place, person, time. oriented His body incontinent. staff was Id. blisters, scars[,] wounds, covered with Moreover, nursing admission evalua- tissue, and lesions. He suffered necrotic completed admission, tions on the date ailments, including from [congestive ob- 15, 2009, which was September and the COPD, pulmonary disorder] structive readmission, September 24, 2009, date failure, congestive depression, heart cognitive reveal Decedent’s status was C, Hepatitis diabetes and substance time, person, place, “alert and oriented MacPherson Mr. was deceased abuse. Supplemental and situation.” Memo at and, for deposition, and not available 29, 2009, Exhibit as of October M. Even representative no [Manor Care’s] has nursing cogni- evaluation Decedent’s of her conversation with recollection tive status the same. remained At all him. 15, 2009, times from September through 11/20/12, Trial Opinion, 29, 2009, nursing staff October at Man- or Care cognitively Decedent com- deemed court Although specifi- trial did petent. Id. cally Decedent’s “capacity,” reference appears to cogni- conclude Decedent’s Significantly, MacPherson did not visit regard. in this lacking was While Decedent was when Decedent admitted to us certified record before reflects that De- September Manor Care in 2009 or near ailments, physical cedent numerous signed had the time the Agree- when Decedent there is including Supplemental ment. Memo at paraplegia, indication Exhibit N. appears "[c]apacity simply 5. This MacPherson statement a non-issue in supplemental 36; his answers arbitration dis- case.” Substituted MacPherson's Brief at covery apparently filed after the deadline for Supplemental [MacPherson’s] Answers to filing supplemental briefs the trial court. Interrogatories, [Manor Care’s] 10/9/12 Brief at 10. It Manor Care's is consistent ¶ 9(e). representation with MacPherson’s in his brief

1221 Thus, cannot attest to Dece- the District of Columbia Circuit MacPherson during period. that Williams v. mental status Walker-Thomas Furniture dent’s ¶¶N, 15-16; (D.C.Cir.1965): Company, 445 at Exhibit 350 F.2d [MacPherson’s] Id. Care’s] Answers to Supplemental [Manor Unconscionability generally has been ¶ 18; Interrogatories, Manor 10/9/12 recognized to include an absence Brief Addendum B. In the ab- Care’s meaningful part choice of one the record evidence Decedent’s sence parties together with contract incapacity, apparent conclusion mental unreasonably terms which are favor- is not supported trial court party. able to the other cannot as a certified record and be used F.2d (Emphasis supplied). 350 at 449 basis for its decision. 540, v. Exxon Corp., Witmer 495 Pa. 434 issue, In its third Manor Care 1222, 1228 (1981).Moreover, A.2d challenges the trial court’s conclusion that unconscionability [a] determination of substantively was either 1) requires a two-fold determination: unconscionable, though procedurally even that the contractual terms are unreason- acknowledged pro the trial court that the ably drafter, 2) favorable that of the visions neutral. were there no meaningful choice on the Brief at 14. Manor Care’s Care part of the other party regarding the specifically asserts that the trial court acceptance of provisions. McNulty Agreement’s that the found terms unrea Block, Inc., 1267, v. H & R 843 A.2d sonably favored Manor Care in four in (Pa.Super.2004). 1273 stances. Id. at 23. Services, H R Block & Eastern Tax Inc. v. trial court The stated: Zarilla, 246, (Pa.Super.2013). 69 A.3d 250 considering [W]hen the medical condi- party challenging The resident, inability tion of this and his proof. Salley Op- bears the burden of terms, negotiate apparent it is Mortg. Corp., tion One 592 Pa. unreasonably (2007). favor the terms the Defen- A.2d 115 agreement, of the includ- dant-drafters noting Agree- addition to alia, ing, losing challenger inter must precludes jury imposes ment trial a costs, pay attorney opponent’s fees and rights, limitation on trial appellate divided, equally arbitration costs to be Agreement’s provision court identified the trial, jury rights very limited losing that a to its challenger enforcement appeal. pay party’s must other fees and costs 11/20/12, Opinion, Trial Court at 2. This as of unconscionability. Agree- evidence ¶ well, conclusion, 3, F(6). However, unsupportable and ment at in preparing arbitration, Agreement provides cannot be used a basis for trial for parties pay their own court’s decision. fees and costs, litigation practice similar civil Supreme Court has Our ex ¶ F(6). 3-4, pleas common court. Id. at plained: Further, Agreement contains a con- oft-quoted classic spicuous, large, definition notification that the bolded waiving of “unconscionability” by parties, by signing, right was articulated are Appeals judge jury. Court of to a trial Id. at 1. United States before lcourt, tria absent (Pa.Super.2010). The Indeed, purpose of arbitration. that is . single sentence Home, any analysis, included.a Oakridge v e.g., Hayes See addressing this is opinion perfunctory (2009) N.E.2d Ohio.St.3d there is “Finally,- appear sue: does (“waiver by jury is a . right to trial *13 is not integral- which a failure an- term agreeing to consequence of have necessary is, severable, NAF, requirements.” that the dispute, a and an arbitrator decide 11/20/12, Opinion, at 2. Trial Court is not clause sub aspect of an arbitration unconscionable.”). de upon MacPherson relies Stewart6 stantively case, that fending determination.7 Moreover, top Agreement, the of the at attorney-in-fact, plaintiff, the her underlined, and the typeface in bold . nurs against action a brought negligence a voluntary, it is Agreement states preliminary filed facility, home which ing it, sign to if refused “the Pa patient the seeking compel objections enforcement in, allowed to still live tient will be a agreement that included anof arbitration Agree at Manor Care. receive services” designating the clause forum selection Also, Agreement provides the at 1. ment Stewart, procedures. and its 9 A.3d the pay will that Manor Care arbitrators’ Stewart 216-217. The trial court costs, no caps are that there fees and agreement arbitration determined the s damages on other than those limit provisions was because the unenforceable Id. at already imposed by state law. designating procedures NAF and its ¶¶ F(6). Lastly, F(l), Agreement agreement con and could integral were allowing patient unavailability not due to the provision a enforced tains ¶ con court the NAF. Id. at 217. The trial thirty days. E. within Id. rescind agreement to submit a cluded that an our conclusion that compels Our review comprehensive set of specific forum and its not Agreement be invalidated should express intention rules evidenced procedural or substantive basis organiza exclusively before that arbitrate unconscionab'ility. tion. Id. court also determined The trial severability not save that the clause could issue, Manor In its fourth Care agreement because the the arbitration in holding trial court erred asserts the forum court to rewrite forced would was unenforceable due a selection clause and substitute devise of a term in the to the failure par forum and mode National Arbitration Fo designating the Id. This Court trial ties. reviewed (“NAF”) to the arbitration. rum administer impres of first court’s decision as matter Brief at 5. The NAF can Care’s by specifically adopting sion and affirmed accept pursuant cases longer at 219. reasoning. trial court’s Id. a consent it entered with the Attor decree Stewart, of Minnesota. See Stewart v. conclude that ney General We 215, 217 Wert,8 L.P., GGNSC-Canonsburg, distinguishable. 9 A.3d therefore LLC, ap- PA was not discussed their parties v. Manorcare Carlisle See Wert — Pa. -, (2015) (plurality), 124 A.3d 1248 peal in instant case. recently Supreme Court our statéd where Opinion Announcing Judgment its Stewart, The trial herein also but court cited Court, Stew overturn "[W]e decline engage any analysis did not of the case's it Stewart, Unlike Court's deci art...."']. applicability. was a decision sion in Wert memorandum Thus, precedential rightly devoid of value. (“Section compel also our A.3d at 1263 five of distinguishing features the FAA preserve NAF-incorporated. cannot arbi disagreement position with the of the dis tration agreements parties unless First, sent in the instant ease. Wert ais availability made non-essen NAF’s decision; plurality plurality opinion by varying tial terms of proce Toms, binding precedent. Shinal v. dure.”) added). (emphasis 122 A.3d 1066 As our (Pa.Super.2015). Supreme has explained: “While the Stewart, We stated “[A]n arbi of a plurality opinion; ultimate order i.e. tration will not fail because reversal, is binding an affirmance on the unavailability of a chosen arbitrator case, parties particular legal in that conclu *14 parties’ unless the choice forum is an reasoning employed plu sions by and/or ‘integral part’ agreement to arbi certainly binding do rality not constitute trate, ancillary rather than ‘an logistical authority.” added) (emphasis at 1076 Id. ” Stewart, concern.’ 9 A.3d at (citing 219 666, of O.A., In Interest (citing 552 Pa. 717 L.L.P., 1054, Reddam v. KPMG 457 F.3d (1998)).

A.2d 495-496 n. 4 (9th Cir.2006); 1061 and Brown v. ITT Corp., Consumer Financial 211 F.3d

Moreover, significant Wert has differ (11th Cir.2000)). Moreover, since the from Supreme ences the instant case. Our parties Stewart and Wert expressly Court noted that arbitration Wert any agreed disputes that would be re Stetoart, agreement, provided similar exclusively through solved arbitration . parties agreed any that therein NAF, with the this Court found exclu exclusively disputes by “shall resolved sive selection inte be an forum clause binding arbitration to be conducted ...' in gral part of arbitration agreement., proce accordance with the NAF Code Relying primarily on the exclusive forum Wert, 124 (emphasis dure.” A.3d at 1267 clause, selection we thus held original); see also 124 at 1262 n. 15 A.3d unavailability of the NAF rendered the (use of “exclusively” word Wert arbitra unenforceable. agreement agreement distinguishes it from lan Stewart, Stewart, at 222. A.3d Like guage agreement in Green Cash U.S. on Wert Court focused the arbitration Illinois, LLC, Advance F.3d agreement’s exclusivity provision therein. (7th Cir.2013)). Agreement The instant is case, however, present plain In the glaringly distinct due the absence Agreement language does not evince exclusivity reference to the of NAF. only an intent arbitrate before the Indeed, provided herein provides hierarchy It NAF.9 sorts that parties option using that the had the of not initial places position:' NAF using or not NAF even administrator. Significantly, the instant Agreement made 1. Administrator: .The non-essential,” “the NAF’s availability by shall be administered National Arbi- proviso (“NÁF”)-"If which cited the Wert tration Forum the Par- Wert, modifying holding. mutually agree writing Court as -to See ties not fact, placed Supreme NAF-approved 8. The initial issue our before In arbitrators are not agree Court Wert described the arbitration required under the ’ - in Wert as "identical” to ment 1, ¶ B(3). Wert, in Stewart. 124 A.3d at 1251. unwilling if A to MacPherson’s or the NAF is attached Exhibit NAF select that: brief. We remind MacPherson or to serve as the Administra- unable tor, agree upon anoth- Parties Pennsylvania is well [t]he law settled as the entity to serve independent er are not of matters which record Administrator, mutu- unless the Parties appeal. cannot be [A]n considered to not have an Administrator. ally agree appellate considering court is limited only ¶ in the added).10 the materials certified record B(l) (emphasis Agreement at 1 resolving regard, when an issue. Agreement is in the instant language our law is in both the civil the same pro- mandatory, permissive, thus because, criminal context under if it is for an alternative to vides Pennsylvania of Appellate serve, if Rules Proce- unwilling unable dure, any part is not document which parties otherwise. The arbitration choose officially certified record agreements in contained deemed Stewart Wert Therefore, deficiency hold non-existent —a which cannot provisions.11 we such merely including copies be remedied the non-exclusive forum-selection *15 of integral part missing is not an the of in a or in clause herein the documents brief Agreement, reproduced not Agreement and the the record. does unavailability fail of of the the because Preston, 1, Commonwealth v. 904 A.2d 6-7 NAF. (en banc) (internal (Pa.Super.2006) cita omitted). purposes of appel “[F]or tions reject also MacPherson’s We review, late is not in the Agreement’s what that the reference certified contention Glatz, Ruspi does not record exist.” 69 to of NAF of the use the Code Procedure 680, 1, (“2006 Code”) appeal 691 May (Pa.Super.2013), in A.3d de effect as of 2006 nied, Glatz, 770, Ruspi v. 622 Pa. 81 Agreement renders the unenforceable. A.3d (2013). Thus, First, any arguments that 2006 78 on we note the referenced based specific provisions not in the certified the of 2006 Code could be found the Code rather, appeal; merely it record was are waived.12 waiver, § provision rejection 10. This is 5 the consistent with of 12.The dissent's of Dissent- fn, 2, provides ing Opinion FAAwhich that an will be arbitrator at to is a refusal acknowl- appointed by parties edge court party the if the cannot is the MacPherson who relied § 5. upon making argument. select one. 9 U.S.C. the 2006 in Code Thus, party is the who MacPherson bore the burden of including the document in the rec- reject suggestion 11. We the dissent's that be- duty ord. Manor Care had include the in Wert is cause arbitration herein, solely upon the record a relied document substantially similar opposing party. an Manor Care cannot be compels Wert affirmance of the instant case. responsible held have been for MacPher- exclusivity provisions of the in the Stewart, completing son's dereliction in the agreements record in Wert and place. first judice, duty the It was not Manor Care’s which is not a factor the sub case to include in the very record a document Supreme for our affir- relied basis Court’s upon by opposing party apparently dissimilarity mance Wert. Substantial thus formally was never distinguishes part introduced and made Wert and The exclusiv- Stewart. ity of the certified Parr of NAF in Wert arbitra- record. v. Ford Motor and Stewart Co., 682, agreements simply (Pa.Super.2014), present in the 109 A.3d n. 10 is not denied, (Pa. 27, judice, "meaningful appeal May case sub differ- 2015 WL 3500130 ence,” 2015), Dissenting Opinion petition filed, see at cert. October why distinguishable. raison d'etre Wertis Alternatively, we in this pronouncements conclude area. “Where provisions specifying the use merely arbitration clause selects the rules integral parts are not Code forum, specific opposed arbitral Agree Agreement and do render the itself, forum and another arbitral fo provisions ment The relevant invalid. rules, apply rum could those the unavaila Agreement provide, in part, follows: bility implicitly intended arbitral require forum will not the court to con B. 5. Procedural Rules and Sub- Stewart, the arbitration clause.” demn apply stantive Law: The Panel shall Reddam, (citing at 219 A.3d Rules of F.3d the Federal Evidence and Fed- 1059-1061). except previously, eral Rules Civil Procedure As concluded Agree- otherwise stated in this where Agreement does not a spe issue select apply, ment. Also the shall Panel forum; rather, cific arbitral creates a award be consistent hierarchy, with alternatives the NAF. with, (includ- the State substantive law Conceivably, arbitral another forum could ing any statutory damage caps) and all apply designated procedures. rules for the State which the Center is Stewart, Thus, 9 A.3d at in the 219.13 located, except as otherwise stated in Brief at Appen MacPherson’s Substituted preempted where Indeed, dix A. instant absence FAA. shall apply The Panel NAF’s clause, exclusive forum-selection we hold (in May Code Procedure effect as provisions that the relating the use 2006) unless otherwise stated integral the 2006 are not Code Agreement.... hereby opt The Parties *16 (45 regarding of Rules out NAF indi- gents; judicial 43 regarding appeals and Moreover, provisions because the refer- review). ring to the use of the 2006 Code are not

integral Agreement, they as were in Stewart, they Wert and be can severed DISCOVERY: D. shall Discovery provision, pro- under severance which by governed NAF’s Code Procedure. vides as follows: However, discovery shall be limited as Severability, Integration and Sur- (6) may agree follows.... The Parties Any term, provision phrase or vival: modify discovery these terms or dead- Agreement contained is severa- lines. ble, any event of them is ¶¶2, B(5) (D) Agreement (emphasis at void, found to be or invalid unenforce- original). any reason, Agreement for able interpreted term, if In as such analyzing provisions, the above again guided phrase provision by previous we are once our or not con- were record, suggests argument 13. MacPherson the 2006 Code lacks merit since this because, "separated” cannot be from the NAF provision appears provi- to conflict with other Code, pursuant to Rule 1 of the 2006 See, e.g., Rule of the sions that Code. required staff are to administer the arbitra- Forum, (neither 2006 Code nor its di- place tions that take under the NAF Code. rector, agent any employee nor MacPherson’s Substituted Brief 18-21. arbitration).Agree- forum shall administer arguments any specific Even if based on the require ment itself the use of NAF- does provisions of the 2006 Code were not waived B(3). ¶1, approved arbitrators. for failure to include that Code the certified .(b) Except provided herein, remaining prpvi- .and tained Beneficiaries. — (d), right shall. not be of this subsection action sions only and shall by by determination such exist affected created this section shall in full and effect.... force spouse, remain children benefit parents of the deceased.... ¶ added). F(9) (emphasis Agreement at :J; í{{ Finally, the effect Pisa we consider no, ensuing opinions 77 A.3d (d) by representa- personal Action of this matter. on the resolution this Court person eligible tive.—If no to recover matter, an initial we conclude Pisano As (b), per- damages under subsection Pisano, appellee, distinguishable. representative of the deceased sonal son and adminis who the decedent’s was damages may bring an action to recover estate, a brought his trator father’s nursing, hospital, medi- for reasonable against wrongful suit the appellant, death cal, expenses expenses funeral long-term nursing facility. The care by reason of administration necessitated facility nursing preliminary objections filed injuries causing death. of an based the existence alternative upon (d) 8301(a), (b), between the dispute (emphasis § resolution 42 Pa.C.S. facility and Pisano held added). the decedent. while'wrongful death actions are de MacPherson, as brother De injuries, they are not

rivative decedents’ cedent, group of does not fall within the rights, and derivative of decedents’ there designated un beneficiaries the statute belong fore the decedent’s beneficiaries (b) above, subsection and he has not der Pi opposed deceased individual. identified individuals who would be sano, Thus, wrongful at 660. as a 77 A.3d damages under that entitled recover beneficiary, decedent’s son was death provision. He is the executor of Dece not bound estate, such, may he bring dent’s and as Pisano, explained in As we under wrongful death action for the benefit solely *17 statute, Pennsylvania wrongful death re- (d). pursuant the estate to subsection covery passes to the group limited bene- A personal representa limited aby claim ficiaries defined in the statute: 8301(d) § pursuant tive to is derivative § by rights. 8301. action and defined the Death decedent’s Conversely, wrongful an action for death (a) action-may General rule.—An be 8301(b); § pursuant although benefits to brought, procedures prescribed under usually by personal repre commenced the rules, by general damages to recover for beneficiaries, on behalf of the sentative death of by individual caused an belongs designated to relatives and act wrongful neglect or or unlawful vio- Pisano, only exists for their benefit. 77 negligence or lence if no another re- Rubright, (citing Moyer A.3d at 657 covery damages for the same claimed in 1139, 154, (1994)). Pa.Super. 651 A.2d wrongful death action was obtained Accordingly, we conclude Pisano by injured his during individual life- applicable wrongful only to death claims any prior time and for the same actions brought on of the behalf beneficiaries des injuries wrong- are consolidated with the 8301(b). § ignated in 42 ful claim Pa.C.S. Personal duplicate death so as to avoid a recovery. to representatives proceeding pursuant 8801(d), however, compel § other- vival claim are bound agreements so, survival enforceable arbitration claim that case. In doing wise signed by Taylor panel a decedent. distinguished the situa- us, currently before as follows: recognized by

This a re- distinction was situation where the decedent Taylor, of this Court panel cent representative his' has entered an en- 317, A.3d within the context Pa.R.C.P. arbitrate, agreement forceable 213(e).14 Taylor alleged three involved wrongful death action is brought one negli- joint whose combined tortfeasors personal representative pursuant gence allegedly caused the death a 8301(d) § for Pa.C.S. the benefit of home nursing resident. Consistent with estate, Pisano, the decedent’s there not Taylor initially would supra,- panel appear any impediment to be be- held nursing consolidation of the tween home resident and the actions arbitra- nursing facility binding upon home was tion. not non-signatory death wrongful beneficia- Taylor, 113 A.3d

ry. Taylor, Applying 113 A.3d at 320. 213(e), Thus, reasons, for however, all of the Rule also above we panel held this, required proceed- not to reverse and for the trial.court was remand case ings non-signatory Opinion. have bifurcated the benefi- consistent with this Juris- ciary’s claim wrongful relinquished.15 death and the sur- diction 213(e) provides place joint 14. Pa.R.C.P. as follows: enforced it would because tortfea- forums, sor claims in different "a result that (e) wrongful A of action cause for death impermissible Pennsylvania under law.1' of a decedent and a cause of action for the MacPherson's Substituted Brief at 45. The injuries the decedent which his survives however, pleadings, support action, do not MacPher- may or her in one death enforced son’s of the Hospital characterization Defen- independent but if actions are commenced joint dants and Manor they Cafe tortfeasors. shall consolidated trial. < (1) Hospital The and Manor Care did independent Defendants If com- actions are court, together. allegations against pending act menced or are in the same court, Hospitál solely relate con- Defendants to their on its own motion the mo- resulting injuries duct and from any party, tion of order Decedent actions the. 2009, 2009; August September consolidated for trial. (2) independent against originate If actions are Care in its claims Manor com- courts, 15, 2009, through September menced different the court in conduct from Only February which the second was com- action Care is al- menced, leged wrongful motion own or motion death of cause.d have *18 Thus, any party, of appear shall order the action trans- Decedent. it would that the Hospital ferred the court against in which- the first claims are Defendants against action was sufficiently commenced. from the distinct claims (3) If an action is capable commenced to enforce resolution in Manor Care to be action, court, one cause of on its own Accordingly, different forums. here- facts may party, motion or the distinguishable motion in are those in further from Extendicare, stay Inc., the action until an com- Taylor action is 119 Tuomi v. and menced to enforce the other (Pa.Super.2015), cause al- A.3d 1030 where was action and is leged consolidated therewith or of the various defen- that the conduct until the of such second commencement combined to- cause the decedents’ dants applicable wrongful action is barred statute death. of limitation. Supreme We also note our Court’s that grant petition appeal 15. MacPherson also in for allowance asserted his substitut- Pa,R.C.P. Taylor ed brief that should not be in will whether address DONOHUE, OLSON, in BOWES, ... accordance with [NAF] ducted Judges Procedure, STABILE, join hereby which is incor- JENKINS Code of and Wert, Agreement^]” su- Opinion. porated into this (brackets, ellipses, empha- and pra at 1263 Dissenting Judge MUNDY files in marks original; quotation sis internal Judges in LAZARUS Opinion which omitted). Supreme Court that Our held join. WECHT only Code states because the NAF that code, own the NAF can administer MUNDY, OPINION BY DISSENTING provi- “integral was an and non-severable” J.: agreement. Id. at sion the arbitration noted, Supreme Court 1262. Our from dissent the Court’s respectfully I Stewart, in that “the did this Court the trial court’s order decision to reverse parties this case be to must administer its code unless the and to referred direct Wert, my disagreement agree contrary.” supra I with at base to the arbitration.1 Supreme on Majority primarily our Supreme Our Court further held in v. Manor recent decision Wert Court’s 5 of the Federal Arbitration Section — PA, LLC, , Pa. Act, care Carlisle pertaining appointment of alternate -— (2015) (plurality).2 124 A.3d 1248 arbitrators, agreement. could not save the Id.; § generally see also 9 U.S.C. 5. Wert, Supreme our In considered reasoning Pursuant to the the Stewart agreement, provided which an arbitration ju- majority court and the of our sister “any shall be resolved disputes exclu- risdictions, that, binding post-consent be con- we find sively 213(e) Opinion requires the consolidation of the other- at 1224-25. There no actual dis- arbitrable action with the non- pute wise survival this case about the relevant rules grounds wrongful death action on arbitrable acknowledges the NAF code. Manor Care efficiency and whether that conclusion vio- quotes reply Code and from it in its brief. See Taylor v. Extendicare lates the FAA. Health Reply (stating, Manor Care's Brief at 15 — Facilities, Inc., -, Pa. A.3d 1036 ‘[tjhis "Code Rule 1Astates Code shall be (2015). only by by any administered [NAF] outset, entity providing I note does At that MacPherson or individual administrative challenge capacity not the decedent’s lack of by agreement services with National Arbi- agreement. sign the arbitration MacPher- ”). tration Forum’ Therefore, unnecessary Brief it is son’s at 36. Furthermore, opinion both this Court’s view, my respectful Majority, L.P., GGNSC-Canonsburg, Stewart A.3d factfinding engage in its based own (Pa.Super.2010) Supreme our in an effort decedent’s medical records decide an that MacPherson does opinion quote issue Court's in Wert the relevant pursue generally Wert, wish to Court. See supra rules from the NAF Code. view, Majority my Opinion 1220-21. 1(A) full); Stewart, (quoting supra Rule that, Majority summarily should note Court, our 216-217. Because this Su question extent trial court decided a preme already published in Court have n capacity, parties agree issue that said 1(A), terpreted nothing Rule there is addition case, dispute *19 not in in and note that the I al for this Court to review on this issue. As wrong trial court was to decide it. Wert, explain adoption infra, under NAF Code of Procedure alone renders the disagree Majority's pronounce- I with the result, agreement As I do unenforceable. any argument ment that NAF Code agree not MacPherson has waived this failing of Procedure is that waived for to include argument. Majority the Code in the certified record. See First, decree, grounds. of the FAA cannot al Section five the Court concludes - NAF-incorporated arbitration preserve that a plurality opinion, because Wert is parties agreements unless made the it not-binding. is Majority Opinion at . by' spe- availability nón-essential NAF’s However, “[i]n 1222-23 cases where a proce- cifically varying the its terms concurring opinion por enumerates the Regardless whether Section dure. plurality’s tions of in opinion which may in lapse is a apply five where there author joins []agrees, por those administrator, by rules, its own agreement gain precedential tions val NAF code unless must administer Brown, ue.” Commonwealth v. 23 A.3d contrary. parties agree “[H]owever, (Pa.Super.2011). [if] explicitly the concurrence does not state Wert, (some added). emphasis supra its agreement disagreement with the In judice, case sub the arbitration look, plurality, must we the substance agreement panel defines the arbitration as of the concurrence to determine the ex arbitrators, three the NAF whether-from provides precedential tent which it val Majority at 1214- Opinion or otherwise. points agreement.” ue Id. view, my meaningful 15. In there is no provision in difference between the Wert Majority is that correct is a Wert exclusively “shall that states be resolved plurality by opinion, Justice authored Ste ... binding arbitration to be conducted joined vens in full Justice Todd. the [NAF] accordance with Code of concurring The Chief Justice opin filed-a Procedure, hereby which incorporated ion, noting agreed he with some of the Agreement!,]” provision into this and the plurality’s reasoning, but relied more on apply here that states Panel shall “[t]he Judge Hamilton’s Green v. U.S. dissent Wert, supra NAF’s Procedure!.]” Code Ill., LLC, (7th Cash Advance 724 F.3d 787 1262; at 1215. Majority Opinion at Consis- - Cir.2013). Green, Judge Hamilton view, it Supreme tent with our Court’s Wert, opined, as our Court Supreme did academic that arbitrator could another agreement at issue “[conceivably, apply chosen [] part Green was unenforceable because designated procedure.” Majori- rules and parties’ contract re terms “[t]he Wert, ty Opinion at 1225. reli- Under quire application of the Code ... [NAF] (the law), ance on the Code choice requires [and t]he [NAF] Code unavailability to the NAF’s opposed only by the [NAF].” administered Id. (the forum), itself is sufficient choice of (Hamilton, J., dissenting).4 The Chief legal basis alone to render the agreed explicitly Justice that he stated unenforceable.3 Judge analysis regarding Hamilton’s with 1(A) Code, case, speci con- the NAF which

Turning Majority to this Rule only apply cludes on sever- NAF can administer it. that Wert does fies Majority specifically If the were correct that the choice 4. The Chief Justice's concurrence Wert, controlling pre- of forum clause was Judge pages cited Hamilton’s 795-796 Supreme sumably, Court would sim- our have Wert,supra (Saylor, dissent in Green. FAA, ply applied Section 5 of the which it C.J., Green, concurring), supra citing at 795- acknowledged agreement. controlled (Hamilton, J., dissenting). Then forum would been chosen another have pursuant Supreme and our to Section judg- have reversed this Court’s would ment and referred the to arbitration. case *20 1230 writing not C.J., mutually agree in the Parties (Saylor, 1262 concur-

Wert, at supra three, unwilling if is to NAF or the NAF select Therefore, out of five justices ring). Administrator, .or to as the unable serve NAF issue the Code agreed that Wert in inde- agree upon shall another the Parties agreement arbitration unen- the rendered as the Administra- pendent entity to serve Thus, portion per- the Wert forceable. tor, agree to mutually the Parties .unless 1(A) requirement in Rule taining the ]”), with 9 Administrator[ not an have Code, which its own NAF administer that § rea- (stating, “if for other U.S.C. that conclusion in is Wert central naming in the lapse son there shall be a therein, un- agreement was arbitration the filling vacancy, arbitrator ... or an in enforceable, binding on is and precedential party upon application then the either Brown, supra. See this Court. designate controversy the court shall the Majority next concludes that ... who act appoint arbitrator The an agreement is with the same agreement in different under the said Wert they if he or had been force and effect as case.* The one in the than the instant []”). As specifically named therein apply that Wert does not Majority asserts acknowledges, that Majority Wert states plain language Agree- of the “the because “[sjection FAA preserve cannot five an to arbitrate not evince intent ment does agreements NAF-incorporated arbitration at Majority Opinion NAF.” only before NAF’s parties unless the made the avail- Majority original). The (emphasis varying ability specifically non-essential portion agreement of the then cites to Wert, supra procedure.” the terms .of parties an- that states .select can added). Therefore, in (emphasis at 1263 if at all or none other administrator Majority’s this regard, the insistence Id. In the NAF is unavailable to serve. apply parties did Wert cannot because view, Wert does not control Majority’s exclusively through agree arbitrate language “the case instant because entity misguided. NAF as an is The fatal permissive, is ... not manda- not, provision Majority as the Wert was tory, provides alternative concludes, “an exclusive forum-selection serve, unwilling to if it is or NAF unable (em- at Majority Opinion clause[.]” Id. parties or if the choose otherwise.” omitted). phasis was an The issue Wert Regardless choice clause. exclusive law Majority Respectfully, misconstrues forum, agree- of the chosen the arbitration Wert, Supreme our misapplies where requires, as provision choice-of law ment’s rejected reasoning. appel- The Wert, apply did one in that said forum as does argued, lants in Care Wert generally Majority Code. See here, agree parties were free to Opinion at 1214-16. upon According, arbitrator. our another Court, the fact that ad- Supreme another Majority goes on to state that Wert chosen, ministrator arbitrator could be provisions not apply does because the re- legal is no legally irrelevant. There ferring to NAF Code can be severed whether another difference arbiter would instant under the severance clause expressly it is be chosen because stated Opinion 1225-26. agreement. Majority case, agreement, in this However, already our has. Supreme Court FAA. Com- pursuant provision Section re- concluded Wert' Opinion (quoting pare Majority garding “integral at 1223-24 the NAF Code (em- Wert, supra stating, non-severable.” “[i]f the arbitration *21 added). liberty phasis We are not of Pennsylvania

disregard judgment Supreme of our COMMONWEALTH ,Appellee in respect. Court Based on these considerations, I conclude Manor issue, is not Care entitled to relief on FREEMAN, waiver, Appellant. Charles

either or on its merits. foregoing, light on the in Based Superior of Pennsylvania. Wert, I Supreme our Court’s decision in 18, Aug. Submitted not Ac- the trial court did err.5 conclude cordingly, I would affirm the trial court’s Filed Dec. I respectfully November 2012 order.

dissent:

Judge Judge LAZARUS and WECHT join dissenting opinion. omitted; added). emphasis

5. Because Manor Care is not entitled to relief Instantly, Mac- issue, on the Stewart was cor the trial court complaint alleged hospital Pherson’s that the preliminary rect to overrule Manor Care’s caused defendants the decedent "mental and Therefore, objections on this basis alone. inconvenience, physical pain, suffering and Manor Care’s other are moot for the issues pleasures aggravation pre- loss life's However, purposes appeal. of this I do note conditions, existing expense medical argues that MacPherson the arbitration unnecessary hospitalizations otherwise not be enforced because it should up including to and the time of death[.]’’ his "impermissible would under Pennsylvania 3/19/12, Complaint, MacPherson's Amended joint pursue law” to have him "one tortfeasor ¶ added). (emphasis at 212 al- MacPherson separate in court and the in others arbitra "(a) , leged Care caused severe proceeding).]” Brief at MacPherson’s permanent injuries resulting pain, in severe year Taylor 45. Earlier this v. Extendicare ' (b) suffering, disfigureirient arid ‘an mental Facilities, Inc., (Pa.Su Health 113 A.3d 317 embarrassment, humiliation, guish, degrada — --, per.2015), appeal granted, Pa. tion,- distress, persona) emotional and loss of (2015), A.3d 1036 this Court announced a (c) dignity capacity enjoyment loss of legally impermissible rule that it was for a life, (d) expense unnecessary of otherwise require wrong trial court to that survival and hospitalizations, expenses medical and resi litigated ful death claims be forums two (e) dency aggrava Facility at the ManorCare where there were other in the defendants case conditions, pre-existing tion of his medical agree that did not to arbitrate. ¶ (f) (emphases death.” Id. at 235 add Here, Majority concludes that MacPher- ed). Therefore, com MacPherson’s amended alleged son has hospital that the .defen alleges plaint hospital on its face that the tortfeasors, joint dants and Manor Care were acts, "indepen defendants and Manor Care's precluding application Taylor to this other, form” dent of each more unite[d] Majority Opinion case. at 1224 n. 12. Joint alleged injuries one of the than listed "parties tortfeasors are defined who either Co., Therefore, supra. same. L.B. Foster together committing wrong act or whose unite, view, acts, other, my injury, hospi for some claims of independent if .each alleged tal defendants and Manor are single injury.” form a Care L.B. Foster Co. v. tortfeasors, Yard, Inc., joint apply Taylor and I Charles Caracciolo Steel & Metal would (citation 777 A.2d (Pa.Super.2001) to this case alternative.