*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, Decedеnt 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 Carе 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 cancellatiоn 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 sponsеs 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, сounterclaims, 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 passagе
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.
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, сovered 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 сedent 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 arbitrаtor 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
аgreement
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),
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
hаd 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.
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. representativе 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, cоmpel § 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
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.” оnly 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 herе, 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. Becаuse 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