MacPherson v. Magee Memorial Hospital for Convalescence

J-E01002-15

2015 PA Super 248

PATRICK J. MACPHERSON, EXECUTOR IN THE SUPERIOR COURT OF

OF THE ESTATE OF RICHARD

MACPHERSON, DECEASED, PENNSYLVANIA

v.

THE MAGEE MEMORIAL HOSPITAL FOR

CONVALESCENCE D/B/A MAGEE

REHABILITATION HOSPITAL, JEFFERSON

HEALTH SYSTEM, INC., TJUH SYSTEM,

MANOR CARE OF YEADON PA, LLC,

D/B/A MANORCARE HEALTH SERVICES-

YEADON, HCR MANOR CARE, INC.,

MANORCARE, INC., HCR HEALTHCARE,

LLC, HCR II HEALTHCARE, LLC, HCR III

HEALTHCARE, LLC

APPEAL OF: MANOR CARE OF YEADON

PA, LLC, D/B/A MANORCARE HEALTH

SERVICES-YEADON, HCR MANOR CARE,

INC., MANORCARE, INC., HCR

HEALTHCARE, LLC, HCR II HEALTHCARE,

LLC, HCR III HEALTHCARE, LLC,

Appellants No. 80 EDA 2013

Appeal from the Order Entered November 20, 2012

In the Court of Common Pleas of Philadelphia County

Civil Division at No(s): No. 191 Oct. Term 2011

BEFORE: BOWES, DONOHUE, SHOGAN, LAZARUS, MUNDY, OLSON, WECHT,

STABILE, and JENKINS, JJ.

J-E01002-15

OPINION BY SHOGAN, J.: FILED NOVEMBER 25, 2015

Appellants, Manor Care of Yeadon PA, LLC, d/b/a ManorCare Health

Services-Yeadon, et al. (“Manor Care”), appeal from the trial court’s order

overruling their preliminary objections to the trial court’s jurisdiction and

venue in this action filed by Appellee, Patrick J. MacPherson (“MacPherson”),

as executor of the estate of his brother, Richard MacPherson (“Decedent”).

The preliminary objections were based on the existence of an arbitration

agreement between Manor Care and Decedent. Following our careful review

of the record, and in consideration of the applicable law and arguments of

the parties, we reverse and remand this case for referral to arbitration.

On August 20, 2009, Decedent, who was fifty-four years old and had

no history of dementia or mental illness, was admitted to Magee

Rehabilitation Hospital (“Magee”).1 On September 15, 2009, Decedent was

admitted to Manor Care, a nursing home facility.2 Decedent was transferred

to Mercy Fitzgerald Hospital on September 19, 2009, and readmitted to

Manor Care on September 24, 2009. On October 6, 2009, Decedent and a

1

The Magee Memorial Hospital for Convalescence d/b/a Magee

Rehabilitation Hospital, Jefferson Health System, Inc., and TJUH System

(“Hospital Defendants”) are engaged in the ownership and operation of

hospital facilities, which include Magee. On April 18, 2012, the Honorable

Sandra M. Moss approved the stipulation to dismiss Defendant TJUH System

but allowed for the potential reinstatement of that defendant pursuant to

Pa.R.C.P. 1036.1. Docket Entry 31.

2

Appellants own and operate nursing home facilities, which include Manor

Care.

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Manor Care representative executed an arbitration agreement

(“Agreement”), which provided that any dispute between the parties would

be submitted to binding arbitration. Decedent resided at Manor Care until

his death on February 1, 2010. On January 27, 2012, MacPherson filed a

complaint advancing claims of negligence, negligence per se, corporate

negligence, wrongful death, and survivorship in connection with Decedent’s

stays at Magee and Manor Care. On March 30, 2012, Manor Care filed

preliminary objections seeking transfer of the case to arbitration pursuant to

the Agreement. Following discovery and briefing by the parties, the trial

court entered an order on November 20, 2012, overruling Manor Care’s

preliminary objections. This timely appeal followed.3

A panel of this Court, with one judge dissenting, filed an opinion

reversing and remanding this case for referral to arbitration. MacPherson

v. The Magee Memorial Hospital for Convalescence, 2014 PA Super 143

(Pa. Super filed July 10, 2014). Thereafter, MacPherson filed a motion for

reargument en banc. We granted the motion and heard oral arguments on

March 24, 2015. This matter is now ripe for disposition.

3

The trial court did not order Manor Care to file a statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925. On February 6, 2013,

in compliance with Pa.R.A.P. 1925(a)(1), the trial court filed an order relying

upon its prior order and opinion dated November 20, 2012, for its reasons

overruling the preliminary objections.

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Manor Care raises four issues on appeal, all of which challenge the trial

court’s refusal to transfer this matter to arbitration,4 as follows:

I. Whether the Trial Court erred in overruling [Manor Care’s]

Preliminary Objections seeking to compel arbitration

without applying or acknowledging the liberal standards

favoring arbitration of disputes contained in the Federal

Arbitration Act (“FAA”) or Pennsylvania law?

II. Whether the Trial Court erred in finding that the Decedent,

Richard MacPherson, lacked capacity to execute the

Arbitration Agreement?

III. Whether the Trial Court erred in finding that the Arbitration

Agreement at issue in this case was unenforceable due to

both procedural and substantive unconscionability?

IV. Whether the Trial Court erred in finding that the Arbitration

Agreement was unenforceable due to the failure of a term

in the agreement designating the National Arbitration

Forum (“NAF”) to administrate the arbitration?

Manor Care’s Brief at 5.

The Agreement at issue provides as follows:

VOLUNTARY AGREEMENT: If you do not accept this

Agreement, the Patient will still be allowed to live in, and

receive services in, this Center.

ARBITRATION AGREEMENT (“AGREEMENT”)

4

An order refusing to compel a case to arbitration is a threshold,

jurisdictional question, Gaffer Insurance Company, Ltd. v. Discover

Reinsurance Company, 936 A.2d 1109 (Pa. Super. 2007), that is

appealable as an exception to the general rule that an order overruling

preliminary objections is interlocutory and not appealable as of right.

Pisano v. Extendicare Homes, Inc., 77 A.3d 651, 654 (Pa. Super. 2013),

appeal denied, 86 A.3d 233 (Pa. 2014), cert. denied, Extendicare Homes,

Inc. v. Pisano, 134 S.Ct. 2890 (2014); see also 42 Pa.C.S. § 7320(a)(1)

(appeal may be taken, inter alia, from an order denying an application to

compel arbitration).

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BY ACCEPTING THIS AGREEMENT, THE PARTIES ARE

WAIVING THEIR RIGHT TO A TRIAL BEFORE A JUDGE

AND/OR A JURY OF ANY DISPUTE BETWEEN THEM.

PLEASE READ THIS AGREEMENT CAREFULLY AND IN ITS

ENTIRETY BEFORE ACCEPTING ITS TERMS.

This Agreement made on ______ (date) by and between

the Parties, Patient Richard MacPherson [handwritten] and/or

Patient’s Legal Representative _______ (collectively referred to

as “Patient”), and the Center Manor Care Yeadon [handwritten],

is an Agreement intended to require that Disputes be resolved

by arbitration. The Patient’s Legal Representative agrees that he

is signing this Agreement as a Party, both in his representative

and individual capacity.

A. What is Arbitration?: Arbitration is a cost effective and

time saving method of resolving disputes without involving the

courts. In using arbitration, the disputes are heard and decided

by a private individual called an arbitrator. The dispute will not

be heard or decided by a judge or jury.

B. AGREEMENT TO ARBITRATE “DISPUTES”: Any and all

claims or controversies arising out of or in any way relating to

this Agreement, the Admission Agreement or any of the Patient’s

stays at this Center, or any Center operated by any subsidiary of

HCR-Manor Care, Inc., whether or not related to medical

malpractice, including but not limited to disputes regarding the

making, execution, validity, enforceability, voidability,

unconscionability, severability, scope, interpretation,

preemption, waiver, or any other defense to enforceability of

this Agreement or the Admission Agreement, whether arising out

of State or Federal law, whether existing now or arising in the

future, whether for statutory, compensatory or punitive damages

and whether sounding in breach of contract, tort or breach of

statutory duties (including, without limitation except as

indicated, any claim based on Patients’ Rights or a claim for

unpaid Center charges), regardless of the basis for the duty or of

the legal theories upon which the claim is asserted, shall be

submitted to binding arbitration. Notwithstanding the above,

nothing in this Agreement prevents the Patient from filing a

grievance or complaint with the Center or appropriate

governmental agency; from requesting an inspection of the

Center from such agency; or from seeking review under any

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applicable federal, state or local law of any decision to

involuntarily discharge or transfer the Patient from the Center.

1. Administrator: The arbitration shall be administered by

National Arbitration Forum (“NAF”), 6465 Wayzata Blvd.,

Suite 500, Minneapolis, MN 55426; www.arbitration-forum.com

(hereinafter “Administrator”). If the Parties mutually agree in

writing not to select NAF or if the NAF is unwilling or unable to

serve as the Administrator, the Parties shall agree upon another

independent entity to serve as the Administrator, unless the

Parties mutually agree to not have an Administrator.

2. Demand for Arbitration shall be made in writing, sent to

the other Party via certified mail, return receipt requested, and

filed with the NAF (unless NAF is mutually waived).

3. Arbitration Panel: The arbitration shall be conducted by

three (3) Arbitrators (the “Panel”). Each Party will select one

Arbitrator. The two selected Arbitrators will select a third

Arbitrator. Each Arbitrator must be a retired State or Federal

Court Judge or a Member of the State Bar where the Center is

located with at least 10 years of experience as an attorney. NAF

approved Arbitrators do not have to be used. If one Party

refuses to select its arbitrator within 30 days of a written request

for same, then the Administrator shall select that Party’s

Arbitrator.

4. Sole Decision Maker: The Arbitration Panel is

empowered with the sole jurisdiction to, and shall, resolve all

disputes, including without limitation, any disputes about the

making, validity, enforceability, scope, interpretation, voidability,

unconscionability, preemption, severability and/or waiver of this

Agreement or the Admission Agreement, as well as resolve the

Parties’ underlying disputes, as it is the Parties’ intent to

completely avoid involving the court system. The Panel shall not

have jurisdiction to certify any person as a representative of a

class of persons and, by doing so, adjudicate claims of persons

not directly taking part in Arbitration.

5. Procedural Rules and Substantive Law: The Panel

shall apply the Federal Rules of Evidence and Federal Rules of

Civil Procedure except where otherwise stated in this Agreement.

Also, the Panel shall apply, and the arbitration award shall be

consistent with, the State substantive law (including any and all

statutory damage caps) for the State in which the Center is

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Manor Care raises four issues on appeal, all of which challenge the trial

court’s refusal to transfer this matter to arbitration,4 as follows:

I. Whether the Trial Court erred in overruling [Manor Care’s]

Preliminary Objections seeking to compel arbitration

without applying or acknowledging the liberal standards

favoring arbitration of disputes contained in the Federal

Arbitration Act (“FAA”) or Pennsylvania law?

II. Whether the Trial Court erred in finding that the Decedent,

Richard MacPherson, lacked capacity to execute the

Arbitration Agreement?

III. Whether the Trial Court erred in finding that the Arbitration

Agreement at issue in this case was unenforceable due to

both procedural and substantive unconscionability?

IV. Whether the Trial Court erred in finding that the Arbitration

Agreement was unenforceable due to the failure of a term

in the agreement designating the National Arbitration

Forum (“NAF”) to administrate the arbitration?

Manor Care’s Brief at 5.

The Agreement at issue provides as follows:

VOLUNTARY AGREEMENT: If you do not accept this

Agreement, the Patient will still be allowed to live in, and

receive services in, this Center.

ARBITRATION AGREEMENT (“AGREEMENT”)

4

An order refusing to compel a case to arbitration is a threshold,

jurisdictional question, Gaffer Insurance Company, Ltd. v. Discover

Reinsurance Company, 936 A.2d 1109 (Pa. Super. 2007), that is

appealable as an exception to the general rule that an order overruling

preliminary objections is interlocutory and not appealable as of right.

Pisano v. Extendicare Homes, Inc., 77 A.3d 651, 654 (Pa. Super. 2013),

appeal denied, 86 A.3d 233 (Pa. 2014), cert. denied, Extendicare Homes,

Inc. v. Pisano, 134 S.Ct. 2890 (2014); see also 42 Pa.C.S. § 7320(a)(1)

(appeal may be taken, inter alia, from an order denying an application to

compel arbitration).

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and one hundred twenty (120) days before the arbitration

hearing by the Respondent: (a) list of witnesses to be called at

the Hearing (full name, title, address and phone number if

known) and an outline of each witnesses’ [sic] intended

testimony; (b) list of documents to be relied upon at Hearing;

except documents to be used solely for impeachment purposes;

(c) any sworn recorded statements to be relied upon at Hearing

including the full name, title, address and phone number of the

person who gave the statement. The Parties shall supplement

these disclosures per Fed. R. Civ. Pr., Rule 26 (e). (4) Each

Party may have up to three (3) experts and no more than ten

(10) lay witnesses for its witness list, as well as for the Hearing.

Depositions of witnesses shall be limited to those people listed

on the Parties’ witness lists or in the Parties’ Rule 26 disclosures

or discovery responses but under no circumstances will a Party

be allowed to take more than 13 depositions. A written report

summarizing each expert’s opinions and the basis for each

opinion, and a list of all records contained in the expert’s file,

must be served at least thirty (30) days before the expert’s

deposition; (5) Discovery shall be completed 45 days before the

Hearing and the Hearing shall begin no later than 365 days after

Demand for Arbitration is served, shall last in duration no longer

than five (5) working days, and the hearing time allowed shall be

split on a pro rata basis subject to the Panel’s discretion.

(6) The Parties may agree to modify these discovery terms or

deadlines.

E. RIGHT TO CHANGE YOUR MIND: This Agreement may

be cancelled by written notice sent by certified mail to the

Center’s Administrator within thirty (30) calendar days of the

Patient’s date of admission. If alleged acts underlying the

dispute occur before the cancellation date, this Agreement shall

be binding with respect to those alleged acts. If not cancelled,

this Agreement shall be binding on the Patient for this and all of

the Patient’s other admissions to the Center without any need

for further renewal.

F. OTHER PROVISIONS:

1. No Caps/Limits on Damages: There are no caps/limits

on the amount of damages the Panel can award other than those

already imposed by law in the state in which this Center is

located. All state laws, statutes and regulations that limit

awardable damages and define the scope of admissible and

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inadmissible evidence (i.e. regulatory surveys, incident reports,

etc.) expressly apply to any arbitration hearing held pursuant to

this Agreement.

2. Opportunity to Review & Right to Consult with

Attorney: The patient (if competent) and the Patient’s Legal

Representative acknowledge that the Patient and Legal

Representative have each received a copy of this Agreement,

and have had an opportunity to read it (or have it read to

him/her) and ask questions about it before accepting it. Please

read this Agreement very carefully and ask any questions that

you have before signing it. Feel free to consult with an attorney

of your choice before signing this Agreement.

3. Benefits of Arbitration: The Parties’ decision to select

Arbitration is supported by the potential cost-effectiveness and

time-savings offered by selecting arbitration, which seeks to

avoid the expense and delay in the court system. The Parties

recognize that often the Patient is elderly and may have a

limited life-expectancy, and therefore selecting a quick method

of resolution is potentially to a Patient’s advantage. The Parties

agree that the reasons stated above are proper consideration for

the acceptance of the Agreement.

4. FAA: The Parties hereby agree and intend that this

Agreement, the Admission Agreement and the Patient’s stays at

the Center substantially involve interstate commerce, and

stipulate that the Federal Arbitration Act (“FAA”) in effect as of

November 1, 2008 and federal case law interpreting such version

of the FAA shall apply to this Agreement, shall preempt any

inconsistent State law and shall not be reverse preempted by the

McCarran-Ferguson Act; United States Code Title 15,

Chapter 20, or other law. Any amendment to such version of

the FAA is hereby expressly waived.

5. Binding on Parties & Others: The Parties intend that

this Agreement shall inure to the direct benefit of and bind the

Center, its parent, affiliates, and subsidiary companies,

management companies, executive directors, owners, officers,

partners, shareholders, directors, medical directors, employees,

successors, assigns, agents, insurers and any entity or person

(including health care providers) that provided any services,

supplies or equipment related to the Patient’s stay at the Center,

and shall inure to the direct benefit of and bind the Patient (as

defined herein), his/her successors, spouses, children, next of

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kin, guardians, administrators, legal representatives, responsible

parties, assigns, agents, attorneys, health care proxies, health

care surrogates, third Party beneficiaries, insurers, heirs,

trustees, survivors and representatives, including the personal

representatives or executors of his/her estate, any person whose

claim is derived through or on behalf of the Patient or relates in

any way to the Patient’s stay(s) at this Center, or any person

who previously assumed responsibility for providing Patient with

necessary services such as food, shelter, clothing, or medicine,

and any person who executed this Agreement or the Admission

Agreement.

6. Fees and Costs: The Panels’ fees and costs will be paid

by the Center except in disputes over non-payment of Center

charges wherein such fees and costs will be divided equally

between the Parties. NAF’s administrative fees shall be divided

equally among the Parties. To the extent permitted by law, any

Party who unsuccessfully challenges the enforcement of this

Agreement shall be required to pay the successful Parties’

reasonable attorney fees and costs incurred to enforce such

contract (i.e., Motion to Compel Arbitration). The Parties shall

bear their own attorney fees and costs in relation to all

preparation and attendance at the arbitration hearing, unless the

Panel concludes that the law provides otherwise. Except as

stated above, the Parties waive any right to recover attorneys’

fees and costs.

7. Confidentiality: The arbitration proceedings shall remain

confidential in all respects, including all filings, deposition

transcripts, discovery documents, or other materials exchanged

between the Parties and the Panels’ [sic] award. In addition,

following receipt of the Panels’ [sic] award, each Party agrees to

return to the producing Party within 30 days the original and all

copies of documents exchanged in discovery and at the

arbitration Hearing.

8. Waiver of this Agreement: Either Party may file its

dispute in a court of law if the other Party approves, which

approval shall only be established by such Party filing a response

to the Complaint without moving in a timely manner, as

prescribed by the applicable rules of court, to enforce this

Agreement. However, should one of the Parties to this Binding

Arbitration Agreement breach its terms by initiating a lawsuit in

the judicial forum, the Parties expressly agree that participation

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in cooperative general discovery while a motion to compel

arbitration is pending shall not constitute evidence of a waiver of

the right to arbitrate. A waiver of the right to arbitrate a specific

Dispute or series of Disputes, as described above, relieves

neither Party of the contractual obligation to arbitrate other

Disputes, including both permissive and mandatory

counterclaims, unless also subsequently waived.

9. Severability, Integration and Survival: Any term,

phrase or provision contained in this Agreement is severable,

and in the event any of them is found to be void, invalid or

unenforceable for any reason, this Agreement shall be

interpreted as if such term, phrase or provision were not

contained herein, and the remaining provisions of this

Agreement shall not be affected by such determination and shall

remain in full force and effect. This Agreement represents the

Parties’ entire agreement regarding Disputes, supersedes any

other agreement relating to disputes, and it may only be

changed in writing signed by all Parties. This Agreement shall

remain in full force and effect notwithstanding the termination,

cancellation or natural expiration of the Admission Agreement.

10. No Jury Trial: If this Agreement is found to be

unenforceable and arbitration is not compelled, then as a

default, the Parties agree that the disputes shall be resolved

solely by a judge via a bench trial. Under no circumstances will

a jury decide any dispute.

11. Health Care Decision: The Parties hereby stipulate that

the decision to have the Patient move into this Center and the

decision to agree to this Agreement are each a health care

decision. The Parties stipulate that there are other health care

facilities in this community currently available to meet the

Patient’s needs.

12. Legal Representative: The Patient’s Legal

Representative, by his or her signature below, hereby represents

and stipulates that he/she has been authorized by the Patient to

sign this Agreement on behalf of the Patient.

BY SIGNING BELOW, THE PARTIES CONFIRM THAT EACH

OF THEM HAS READ ALL FOUR (4) PAGES OF THIS

AGREEMENT AND UNDERSTANDS THAT EACH HAS WAIVED

THE RIGHT TO A TRIAL BEFORE A JUDGE OR JURY AND

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BY ACCEPTING THIS AGREEMENT, THE PARTIES ARE

WAIVING THEIR RIGHT TO A TRIAL BEFORE A JUDGE

AND/OR A JURY OF ANY DISPUTE BETWEEN THEM.

PLEASE READ THIS AGREEMENT CAREFULLY AND IN ITS

ENTIRETY BEFORE ACCEPTING ITS TERMS.

This Agreement made on ______ (date) by and between

the Parties, Patient Richard MacPherson [handwritten] and/or

Patient’s Legal Representative _______ (collectively referred to

as “Patient”), and the Center Manor Care Yeadon [handwritten],

is an Agreement intended to require that Disputes be resolved

by arbitration. The Patient’s Legal Representative agrees that he

is signing this Agreement as a Party, both in his representative

and individual capacity.

A. What is Arbitration?: Arbitration is a cost effective and

time saving method of resolving disputes without involving the

courts. In using arbitration, the disputes are heard and decided

by a private individual called an arbitrator. The dispute will not

be heard or decided by a judge or jury.

B. AGREEMENT TO ARBITRATE “DISPUTES”: Any and all

claims or controversies arising out of or in any way relating to

this Agreement, the Admission Agreement or any of the Patient’s

stays at this Center, or any Center operated by any subsidiary of

HCR-Manor Care, Inc., whether or not related to medical

malpractice, including but not limited to disputes regarding the

making, execution, validity, enforceability, voidability,

unconscionability, severability, scope, interpretation,

preemption, waiver, or any other defense to enforceability of

this Agreement or the Admission Agreement, whether arising out

of State or Federal law, whether existing now or arising in the

future, whether for statutory, compensatory or punitive damages

and whether sounding in breach of contract, tort or breach of

statutory duties (including, without limitation except as

indicated, any claim based on Patients’ Rights or a claim for

unpaid Center charges), regardless of the basis for the duty or of

the legal theories upon which the claim is asserted, shall be

submitted to binding arbitration. Notwithstanding the above,

nothing in this Agreement prevents the Patient from filing a

grievance or complaint with the Center or appropriate

governmental agency; from requesting an inspection of the

Center from such agency; or from seeking review under any

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applicable federal, state or local law of any decision to

involuntarily discharge or transfer the Patient from the Center.

1. Administrator: The arbitration shall be administered by

National Arbitration Forum (“NAF”), 6465 Wayzata Blvd.,

Suite 500, Minneapolis, MN 55426; www.arbitration-forum.com

(hereinafter “Administrator”). If the Parties mutually agree in

writing not to select NAF or if the NAF is unwilling or unable to

serve as the Administrator, the Parties shall agree upon another

independent entity to serve as the Administrator, unless the

Parties mutually agree to not have an Administrator.

2. Demand for Arbitration shall be made in writing, sent to

the other Party via certified mail, return receipt requested, and

filed with the NAF (unless NAF is mutually waived).

3. Arbitration Panel: The arbitration shall be conducted by

three (3) Arbitrators (the “Panel”). Each Party will select one

Arbitrator. The two selected Arbitrators will select a third

Arbitrator. Each Arbitrator must be a retired State or Federal

Court Judge or a Member of the State Bar where the Center is

located with at least 10 years of experience as an attorney. NAF

approved Arbitrators do not have to be used. If one Party

refuses to select its arbitrator within 30 days of a written request

for same, then the Administrator shall select that Party’s

Arbitrator.

4. Sole Decision Maker: The Arbitration Panel is

empowered with the sole jurisdiction to, and shall, resolve all

disputes, including without limitation, any disputes about the

making, validity, enforceability, scope, interpretation, voidability,

unconscionability, preemption, severability and/or waiver of this

Agreement or the Admission Agreement, as well as resolve the

Parties’ underlying disputes, as it is the Parties’ intent to

completely avoid involving the court system. The Panel shall not

have jurisdiction to certify any person as a representative of a

class of persons and, by doing so, adjudicate claims of persons

not directly taking part in Arbitration.

5. Procedural Rules and Substantive Law: The Panel

shall apply the Federal Rules of Evidence and Federal Rules of

Civil Procedure except where otherwise stated in this Agreement.

Also, the Panel shall apply, and the arbitration award shall be

consistent with, the State substantive law (including any and all

statutory damage caps) for the State in which the Center is

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located, except as otherwise stated in this Agreement or where

preempted by the FAA. The Panel shall apply NAF’s Code of

Procedure (in effect as of May 1, 2006) unless otherwise stated

in this Agreement. NAF’s Code of Procedure may be obtained

from NAF, (877) 655-7755, www.arbitration-forum.com. The

Parties hereby opt-out of NAF Rules (45 regarding indigents; 43

regarding appeals and judicial review).

6. Refusal to Arbitrate: Any Party who refuses to go

forward with arbitration acknowledges that the Panel will go

forward with the arbitration hearing and render a binding award

without the participation of such Party or despite his absence at

the hearing.

7. Waiver of Claim: Any claim shall be forever waived if it

arose prior to the arbitration hearing and is not presented in

such hearing. A claim that is not served within the statute of

limitations period applicable to the same claim in a court of law

in the state in which this Center is located shall be forever

waived.

8. Award. The Panel’s award must be unanimous and shall

be served no later than five (5) working days after the

arbitration hearing. The award must state in detail the Panels’

findings of fact and conclusions of law, shall be marked

“confidential”, and must be signed by all three Arbitrators. If

any damages are awarded, the award must delineate specific

amounts for economic and/or non-economic damages.

9. Final with Limited Rights to Review (Appeal): The

Panel’s award binds the Parties. The Parties have a limited right

of review for only the express reasons allowed by the FAA.

[No section C. in original]

D. DISCOVERY: Discovery shall be governed by NAF’s Code

of Procedure. However, discovery shall be limited as follows:

(1) Within 30 days after service of the Demand, each Party must

comply with Fed. R. Civ. P., Rule 26(a)(1) and thereafter must

comply with Rule 26(e) regarding supplementation of disclosures

and responses. (2) A Party may serve a maximum of 30 written

questions (interrogatories), 30 requests to produce documents

and 30 requests for admissions; inclusive of subparts. (3) The

following disclosures shall be served no later than one hundred

fifty (150) days before the arbitration hearing by the Claimant,

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and one hundred twenty (120) days before the arbitration

hearing by the Respondent: (a) list of witnesses to be called at

the Hearing (full name, title, address and phone number if

known) and an outline of each witnesses’ [sic] intended

testimony; (b) list of documents to be relied upon at Hearing;

except documents to be used solely for impeachment purposes;

(c) any sworn recorded statements to be relied upon at Hearing

including the full name, title, address and phone number of the

person who gave the statement. The Parties shall supplement

these disclosures per Fed. R. Civ. Pr., Rule 26 (e). (4) Each

Party may have up to three (3) experts and no more than ten

(10) lay witnesses for its witness list, as well as for the Hearing.

Depositions of witnesses shall be limited to those people listed

on the Parties’ witness lists or in the Parties’ Rule 26 disclosures

or discovery responses but under no circumstances will a Party

be allowed to take more than 13 depositions. A written report

summarizing each expert’s opinions and the basis for each

opinion, and a list of all records contained in the expert’s file,

must be served at least thirty (30) days before the expert’s

deposition; (5) Discovery shall be completed 45 days before the

Hearing and the Hearing shall begin no later than 365 days after

Demand for Arbitration is served, shall last in duration no longer

than five (5) working days, and the hearing time allowed shall be

split on a pro rata basis subject to the Panel’s discretion.

(6) The Parties may agree to modify these discovery terms or

deadlines.

E. RIGHT TO CHANGE YOUR MIND: This Agreement may

be cancelled by written notice sent by certified mail to the

Center’s Administrator within thirty (30) calendar days of the

Patient’s date of admission. If alleged acts underlying the

dispute occur before the cancellation date, this Agreement shall

be binding with respect to those alleged acts. If not cancelled,

this Agreement shall be binding on the Patient for this and all of

the Patient’s other admissions to the Center without any need

for further renewal.

F. OTHER PROVISIONS:

1. No Caps/Limits on Damages: There are no caps/limits

on the amount of damages the Panel can award other than those

already imposed by law in the state in which this Center is

located. All state laws, statutes and regulations that limit

awardable damages and define the scope of admissible and

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inadmissible evidence (i.e. regulatory surveys, incident reports,

etc.) expressly apply to any arbitration hearing held pursuant to

this Agreement.

2. Opportunity to Review & Right to Consult with

Attorney: The patient (if competent) and the Patient’s Legal

Representative acknowledge that the Patient and Legal

Representative have each received a copy of this Agreement,

and have had an opportunity to read it (or have it read to

him/her) and ask questions about it before accepting it. Please

read this Agreement very carefully and ask any questions that

you have before signing it. Feel free to consult with an attorney

of your choice before signing this Agreement.

3. Benefits of Arbitration: The Parties’ decision to select

Arbitration is supported by the potential cost-effectiveness and

time-savings offered by selecting arbitration, which seeks to

avoid the expense and delay in the court system. The Parties

recognize that often the Patient is elderly and may have a

limited life-expectancy, and therefore selecting a quick method

of resolution is potentially to a Patient’s advantage. The Parties

agree that the reasons stated above are proper consideration for

the acceptance of the Agreement.

4. FAA: The Parties hereby agree and intend that this

Agreement, the Admission Agreement and the Patient’s stays at

the Center substantially involve interstate commerce, and

stipulate that the Federal Arbitration Act (“FAA”) in effect as of

November 1, 2008 and federal case law interpreting such version

of the FAA shall apply to this Agreement, shall preempt any

inconsistent State law and shall not be reverse preempted by the

McCarran-Ferguson Act; United States Code Title 15,

Chapter 20, or other law. Any amendment to such version of

the FAA is hereby expressly waived.

5. Binding on Parties & Others: The Parties intend that

this Agreement shall inure to the direct benefit of and bind the

Center, its parent, affiliates, and subsidiary companies,

management companies, executive directors, owners, officers,

partners, shareholders, directors, medical directors, employees,

successors, assigns, agents, insurers and any entity or person

(including health care providers) that provided any services,

supplies or equipment related to the Patient’s stay at the Center,

and shall inure to the direct benefit of and bind the Patient (as

defined herein), his/her successors, spouses, children, next of

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attorney fees and costs, arbitration costs to be equally divided,

no jury trial, and very limited rights to appeal.

Trial Court Opinion, 11/20/12, at 2. This conclusion, as well, is

unsupportable and cannot be used as a basis for the trial court’s decision.

Our Supreme Court has explained:

The classic and oft-quoted definition of “unconscionability”

was articulated by the United States Court of Appeals for the

District of Columbia Circuit in Williams v. Walker-Thomas

Furniture Company, 350 F.2d 445 (D.C. Cir. 1965):

Unconscionability has generally been recognized to

include an absence of meaningful choice on the part

of one of the parties together with contract terms

which are unreasonably favorable to the other party.

350 F.2d at 449 (Emphasis supplied).

Witmer v. Exxon Corp., 434 A.2d 1222, 1228 (Pa. 1981). Moreover,

[a] determination of unconscionability requires a two-fold

determination: 1) that the contractual terms are unreasonably

favorable to the drafter, and 2) that there is no meaningful

choice on the part of the other party regarding the acceptance of

the provisions. McNulty v. H & R Block, Inc., 843 A.2d 1267,

1273 (Pa. Super. 2004).

H & R Block Eastern Tax Services, Inc. v. Zarilla, 69 A.3d 246, 250 (Pa.

Super. 2013). The party challenging the agreement bears the burden of

proof. Salley v. Option One Mortg. Corp., 925 A.2d 115 (Pa. 2007).

In addition to noting that the Agreement precludes a jury trial and

imposes a limitation on appellate rights, the trial court identified the

Agreement’s provision that a losing challenger to its enforcement must pay

the other party’s fees and costs as evidence of unconscionability.

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kin, guardians, administrators, legal representatives, responsible

parties, assigns, agents, attorneys, health care proxies, health

care surrogates, third Party beneficiaries, insurers, heirs,

trustees, survivors and representatives, including the personal

representatives or executors of his/her estate, any person whose

claim is derived through or on behalf of the Patient or relates in

any way to the Patient’s stay(s) at this Center, or any person

who previously assumed responsibility for providing Patient with

necessary services such as food, shelter, clothing, or medicine,

and any person who executed this Agreement or the Admission

Agreement.

6. Fees and Costs: The Panels’ fees and costs will be paid

by the Center except in disputes over non-payment of Center

charges wherein such fees and costs will be divided equally

between the Parties. NAF’s administrative fees shall be divided

equally among the Parties. To the extent permitted by law, any

Party who unsuccessfully challenges the enforcement of this

Agreement shall be required to pay the successful Parties’

reasonable attorney fees and costs incurred to enforce such

contract (i.e., Motion to Compel Arbitration). The Parties shall

bear their own attorney fees and costs in relation to all

preparation and attendance at the arbitration hearing, unless the

Panel concludes that the law provides otherwise. Except as

stated above, the Parties waive any right to recover attorneys’

fees and costs.

7. Confidentiality: The arbitration proceedings shall remain

confidential in all respects, including all filings, deposition

transcripts, discovery documents, or other materials exchanged

between the Parties and the Panels’ [sic] award. In addition,

following receipt of the Panels’ [sic] award, each Party agrees to

return to the producing Party within 30 days the original and all

copies of documents exchanged in discovery and at the

arbitration Hearing.

8. Waiver of this Agreement: Either Party may file its

dispute in a court of law if the other Party approves, which

approval shall only be established by such Party filing a response

to the Complaint without moving in a timely manner, as

prescribed by the applicable rules of court, to enforce this

Agreement. However, should one of the Parties to this Binding

Arbitration Agreement breach its terms by initiating a lawsuit in

the judicial forum, the Parties expressly agree that participation

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in cooperative general discovery while a motion to compel

arbitration is pending shall not constitute evidence of a waiver of

the right to arbitrate. A waiver of the right to arbitrate a specific

Dispute or series of Disputes, as described above, relieves

neither Party of the contractual obligation to arbitrate other

Disputes, including both permissive and mandatory

counterclaims, unless also subsequently waived.

9. Severability, Integration and Survival: Any term,

phrase or provision contained in this Agreement is severable,

and in the event any of them is found to be void, invalid or

unenforceable for any reason, this Agreement shall be

interpreted as if such term, phrase or provision were not

contained herein, and the remaining provisions of this

Agreement shall not be affected by such determination and shall

remain in full force and effect. This Agreement represents the

Parties’ entire agreement regarding Disputes, supersedes any

other agreement relating to disputes, and it may only be

changed in writing signed by all Parties. This Agreement shall

remain in full force and effect notwithstanding the termination,

cancellation or natural expiration of the Admission Agreement.

10. No Jury Trial: If this Agreement is found to be

unenforceable and arbitration is not compelled, then as a

default, the Parties agree that the disputes shall be resolved

solely by a judge via a bench trial. Under no circumstances will

a jury decide any dispute.

11. Health Care Decision: The Parties hereby stipulate that

the decision to have the Patient move into this Center and the

decision to agree to this Agreement are each a health care

decision. The Parties stipulate that there are other health care

facilities in this community currently available to meet the

Patient’s needs.

12. Legal Representative: The Patient’s Legal

Representative, by his or her signature below, hereby represents

and stipulates that he/she has been authorized by the Patient to

sign this Agreement on behalf of the Patient.

BY SIGNING BELOW, THE PARTIES CONFIRM THAT EACH

OF THEM HAS READ ALL FOUR (4) PAGES OF THIS

AGREEMENT AND UNDERSTANDS THAT EACH HAS WAIVED

THE RIGHT TO A TRIAL BEFORE A JUDGE OR JURY AND

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THAT EACH OF THEM CONSENTS TO ALL OF THE TERMS OF

THIS VOLUNTARY AGREEMENT.

Agreement, 10/06/09, at 1–4 (emphases in original).

Our standard of review of a claim that the trial court improperly

overruled preliminary objections in the nature of a petition to compel

arbitration is clear. Our review “is limited to determining whether the trial

court’s findings are supported by substantial evidence and whether the trial

court abused its discretion in denying the petition.” Pisano v. Extendicare

Homes, Inc., 77 A.3d 651, 654 (Pa. Super. 2013), appeal denied, 86 A.3d

233 (Pa. 2014), cert. denied, Extendicare Homes, Inc. v. Pisano, 134

S.Ct. 2890 (2014) (quoting Walton v. Johnson, 66 A.3d 782, 787 (Pa.

Super. 2013)).

“In doing so, we employ a two-part test to determine whether

the trial court should have compelled arbitration.” Elwyn [v.

DeLuca], 48 A.3d [457], 461 [(Pa. Super. 2012)] (quoting

Smay v. E.R. Stuebner, Inc., 864 A.2d 1266, 1270 (Pa. Super.

2004)). First, we examine whether a valid agreement to

arbitrate exists. Second, we must determine whether the

dispute is within the scope of the agreement.

Pisano, 77 A.3d at 654–655. “Whether a claim is within the scope of an

arbitration provision is a matter of contract, and as with all questions of law,

our review of the trial court’s conclusion is plenary.” Elwyn, 48 A.3d at 461.

There appears to be no disagreement that the claims are within the scope of

the Agreement. Thus, we focus upon whether a valid agreement to arbitrate

exists.

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As to Manor Care’s first issue on appeal, we agree that the trial court’s

opinion fails to recognize, no less apply, the liberal policy favoring arbitration

contained in the Federal Arbitration Act, 9 U.S.C. §§ 1–16 (“FAA”), as well as

Pennsylvania law, to the instant Agreement. See Trial Court Opinion,

11/20/12. As we recently explained:

Pennsylvania has a well-established public policy that favors

arbitration, and this policy aligns with the federal approach

expressed in the Federal Arbitration Act (“FAA”). The

fundamental purpose of the [FAA] is to relieve the parties from

expensive litigation and to help ease the current congestion of

court calendars. Its passage was a congressional declaration of

a liberal federal policy favoring arbitration agreements.

Pisano, 77 A.3d at 661 (citations, quotation marks, and footnote omitted);

see also Taylor v. Extendicare Health Facilities, Inc., 113 A.3d 317,

324 (Pa. Super. 2015) (“Pennsylvania has a well-established public policy

that favors arbitration, and this policy aligns with the federal approach

expressed in the FAA”); petition for allowance of appeal granted on other

grounds, 161 WAL 2015, 2015 WL 5569766 (Pa. September 23, 2015). This

policy applies equally to all arbitration agreements, including those involving

nursing homes. See Marmet Health Care Center, Inc. v. Brown, 132

S.Ct. 1201, 1203–1204 (2012) (holding that the FAA preempts state law

that categorically prohibits arbitration of particular types of claims, which is

“contrary to the terms and coverage of the FAA”); accord Pisano, 77 A.3d

at 661 n.7 (same). Thus, “when addressing the specific issue of whether

there is a valid agreement to arbitrate, courts generally should apply

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ordinary state-law principles that govern the formation of contracts, but in

doing so, must give due regard to the federal policy favoring arbitration.”

Gaffer Insurance Company, Ltd. v. Discover Reinsurance Company,

936 A.2d 1109, 1114 (Pa. Super. 2007).

Here, the trial court’s opinion includes cursory findings, a lack of

substantive analysis, and a failure to discuss applicable law. As such, the

decision below fails to recognize and apply the standards of the FAA and its

liberal policy favoring arbitration.

In its second issue, Manor Care contends that the trial court erred in

holding that Decedent lacked the requisite capacity to enter into the

Agreement. Manor Care’s Brief at 19. Despite the fact that MacPherson

clearly indicated that he was not challenging Decedent’s capacity to enter

into the Agreement,5 the trial court intimated that Decedent lacked the

capacity to sign the Agreement, or signed it under duress, as follows:

[T]he records reveal that by October 6, 2009, [Decedent] had

lost more than 20 pounds since his initial August, 2009

hospitalization. He was dependent on staff and incontinent. His

body was covered with blisters, scars[,] wounds, necrotic tissue,

and lesions. He suffered from ailments, including [congestive

obstructive pulmonary disorder] COPD, congestive heart failure,

depression, Hepatitis C, diabetes and substance abuse. Mr.

5

This statement by MacPherson appears in his supplemental answers to

arbitration discovery apparently filed after the deadline for filing

supplemental briefs in the trial court. Manor Care’s Brief at 10. It is

consistent with MacPherson’s representation in his brief that “[c]apacity is

simply a non-issue in this case.” MacPherson’s Substituted Brief at 36;

[MacPherson’s] Supplemental Answers to [Manor Care’s] Interrogatories,

10/9/12 at ¶ 9(e).

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MacPherson was deceased and not available for deposition, and,

[Manor Care’s] representative has no recollection of her

conversation with him.

Trial Court Opinion, 11/20/12, at 1.

Although the trial court did not specifically reference Decedent’s

“capacity,” it appears to conclude that Decedent’s cognition was lacking in

this regard. While the certified record before us reflects that Decedent had

numerous physical ailments, including paraplegia, there is no indication or

evidence of dementia, mental illness, disorientation, or even confusion. In

fact, medical records indicate Decedent was alert and oriented as to person,

place, and time until January 8, 2010. Supplemental Memorandum of Law in

Support of Manor Care Defendants’ Preliminary Objections to [MacPherson’s]

Amended Complaint (“Supplemental Memo”), 10/12/12, Exhibit K (Docket

Entry No. 50). Indeed, Dr. Azad Khan, Decedent’s treating physician,

completed medical history and physical examination records and weekly

progress notes from September 25, 2009, until October 31, 2009, which

encompassed the period when Decedent signed the Agreement on October

6, 2009. Those notes consistently indicated that Decedent was alert and

oriented to person, place, and time. Id.

Moreover, the nursing admission evaluations completed on the date of

admission, which was September 15, 2009, and the date of readmission,

September 24, 2009, reveal that Decedent’s cognitive status was “alert and

oriented to time, person, place, and situation.” Supplemental Memo at

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Commonwealth v. Preston, 904 A.2d 1, 6–7 (Pa. Super. 2006) (en banc)

(internal citations omitted). “[F]or purposes of appellate review, what is not

in the certified record does not exist.” Ruspi v. Glatz, 69 A.3d 680, 691

(Pa. Super. 2013), appeal denied, Ruspi v. Glatz, 81 A.3d 78 (Pa. 2013).

Thus, any arguments based on the specific provisions of the 2006 Code are

waived.12

Alternatively, we conclude that the provisions specifying the use of the

2006 Code are not integral parts of the Agreement and do not render the

Agreement invalid. The relevant provisions of the Agreement provide, in

part, as follows:

B. 5. Procedural Rules and Substantive Law: The Panel

shall apply the Federal Rules of Evidence and Federal Rules of

Civil Procedure except where otherwise stated in this Agreement.

Also the Panel shall apply, and the arbitration award shall be

consistent with, the State substantive law (including any and all

statutory damage caps) for the State in which the Center is

located, except as otherwise stated in this Agreement or where

preempted by the FAA. The Panel shall apply NAF’s Code of

Procedure (in effect as of May 1, 2006) unless otherwise stated

in this Agreement . . . . The Parties hereby opt out of NAF Rules

12

The dissent’s rejection of waiver, Dissenting Opinion at fn. 2, is a refusal

to acknowledge that MacPherson is the party who relied upon the 2006

Code in making this argument. Thus, MacPherson is the party who bore

the burden of including the document in the record. Manor Care had no duty

to include in the record a document solely relied upon by an opposing party.

Manor Care cannot be held to have been responsible for MacPherson’s

dereliction in completing the record in the first place. It was not Manor

Care’s duty to include in the record a document relied upon by the opposing

party that apparently was never formally introduced and made part of the

certified record. Parr v. Ford Motor Co., 109 A.3d 682, 695 n.10 (Pa.

Super. 2014), appeal denied, (Pa. May 27, 2015), petition for cert. filed,

2015 WL 3500130, October 15, 2015.

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(45 regarding indigents; 43 regarding appeals and judicial

review).

* * *

D. DISCOVERY: Discovery shall be governed by NAF’s Code

of Procedure. However, discovery shall be limited as

follows . . . . (6) The Parties may agree to modify these

discovery terms or deadlines.

Agreement at 2, ¶¶ B(5) and (D) (emphasis in original).

In analyzing the above provisions, we are once again guided by our

previous pronouncements in this area. “Where the arbitration clause selects

merely the rules of a specific arbitral forum, as opposed to the forum itself,

and another arbitral forum could apply those rules, the unavailability of the

implicitly intended arbitral forum will not require the court to condemn the

arbitration clause.” Stewart, 9 A.3d at 219 (citing Reddam, 457 F.3d

at 1059-1061). As concluded previously, the Agreement at issue does not

select a specific arbitral forum; rather, it creates a hierarchy, with

alternatives to the NAF. Conceivably, another arbitral forum could apply the

designated rules and procedures. Stewart, 9 A.3d at 219.13 Thus, in the

13

MacPherson suggests that the 2006 Code cannot be “separated” from the

NAF because, pursuant to Rule 1 of the 2006 Code, NAF staff are required to

administer the arbitrations that take place under the NAF Code.

MacPherson’s Substituted Brief at 18–21. Even if any arguments based on

the specific provisions of the 2006 Code were not waived for failure to

include that Code in the certified record, this argument lacks merit since this

provision appears to conflict with other provisions in that Code. See, e.g.,

Rule 47 of the 2006 Code (neither the Forum, nor its director, nor any

employee or agent of the forum shall administer the arbitration).

MacPherson’s Substituted Brief at Appendix A. Indeed, the instant

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absence of an exclusive forum-selection clause, we hold that the provisions

relating to the use of the 2006 Code are not integral to the Agreement.

Moreover, because the provisions referring to the use of the 2006

Code are not integral to the Agreement, as they were in Wert and Stewart,

they can be severed under the severance provision, which provides as

follows:

9. Severability, Integration and Survival: Any term,

phrase or provision contained in this Agreement is

severable, and in the event any of them is found to be

void, invalid or unenforceable for any reason, this

Agreement shall be interpreted as if such term, phrase or

provision were not contained herein, and the remaining

provisions of this Agreement shall not be affected by such

determination and shall remain in full force and effect. . . .

Agreement at 4, ¶ F(9) (emphasis added).

Finally, we consider the effect of Pisano, 77 A.3d 651, and ensuing

opinions of this Court on the resolution of this matter. As an initial matter,

we conclude Pisano is distinguishable. In Pisano, the appellee, who was

the decedent’s son and administrator of his father’s estate, brought a

wrongful death suit against the appellant, a long-term care nursing facility.

The nursing facility filed preliminary objections based upon the existence of

an alternative dispute resolution agreement between the facility and the

decedent. Pisano held that while wrongful death actions are derivative of

decedents’ injuries, they are not derivative of decedents’ rights, and

Agreement itself does not require the use of NAF-approved arbitrators.

Agreement at 1¶ B(3).

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therefore belong to the decedent’s beneficiaries as opposed to the deceased

individual. Pisano, 77 A.3d at 660. Thus, as a wrongful death beneficiary,

the decedent’s son was not bound by the Agreement.

As we explained in Pisano, under the Pennsylvania wrongful death

statute, recovery passes to the limited group of beneficiaries defined in the

statute:

§ 8301. Death action

(a) General rule.--An action may be brought, under procedures

prescribed by general rules, to recover damages for the death of

an individual caused by the wrongful act or neglect or unlawful

violence or negligence of another if no recovery for the same

damages claimed in the wrongful death action was obtained by

the injured individual during his lifetime and any prior actions for

the same injuries are consolidated with the wrongful death claim

so as to avoid a duplicate recovery.

(b) Beneficiaries.--Except as provided in subsection (d), the

right of action created by this section shall exist only for

the benefit of the spouse, children or parents of the

deceased . . . .

* * *

(d) Action by personal representative.--If no person is

eligible to recover damages under subsection (b), the personal

representative of the deceased may bring an action to recover

damages for reasonable hospital, nursing, medical, funeral

expenses and expenses of administration necessitated by reason

of injuries causing death.

42 Pa.C.S. § 8301 (a), (b), (d) (emphasis added).

MacPherson, as brother of Decedent, does not fall within the group of

beneficiaries designated by the statute under subsection (b) above, and he

has not identified any individuals who would be entitled to recover damages

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under that provision. He is the executor of Decedent’s estate, and as such,

he may bring a wrongful death action solely for the benefit of the estate

pursuant to subsection (d). A limited claim by a personal representative

pursuant to § 8301(d) is derivative of and defined by the decedent’s rights.

Conversely, an action for wrongful death benefits pursuant to § 8301(b),

although usually commenced by the personal representative on behalf of the

beneficiaries, belongs to the designated relatives and exists only for their

benefit. Pisano, 77 A.3d at 657 (citing Moyer v. Rubright, 651 A.2d 1139,

1141 (Pa. Super. 1994)). Accordingly, we conclude that Pisano is

applicable only to wrongful death claims brought on behalf of the

beneficiaries designated in 42 Pa.C.S. § 8301(b). Personal representatives

proceeding pursuant to § 8301(d), however, are bound by otherwise

enforceable arbitration agreements signed by a decedent.

This distinction was recognized by a recent panel of this Court in

Taylor, 113 A.3d 317, within the context of Pa.R.C.P. 213 (e).14 Taylor

14

Pa.R.C.P. 213 (e) provides as follows:

(e) A cause of action for the wrongful death of a decedent and a

cause of action for the injuries of the decedent which survives

his or her death may be enforced in one action, but if

independent actions are commenced they shall be consolidated

for trial.

(1) If independent actions are commenced or are pending

in the same court, the court, on its own motion or the

motion of any party, shall order the actions consolidated

for trial.

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involved three alleged joint tortfeasors whose combined negligence

allegedly caused the death of a nursing home resident. Consistent with

Pisano, supra, the Taylor panel initially held that an arbitration agreement

between a nursing home resident and the nursing home facility was not

binding upon a non-signatory wrongful death beneficiary. Taylor, 113 A.3d

at 320. Applying Rule 213(e), however, the panel also held that the trial

court was not required to have bifurcated the non-signatory beneficiary’s

wrongful death claim and the survival claim to compel arbitration of the

survival claim in that case. In doing so, the Taylor panel distinguished the

situation currently before us, as follows:

In the situation where the decedent or his representative has

entered an enforceable agreement to arbitrate, and the wrongful

death action is one brought by the personal representative

pursuant to 42 Pa.C.S. § 8301(d) for the benefit of the

decedent’s estate, there would not appear to be any impediment

to the consolidation of the actions in arbitration.

Taylor, 113 A.3d at 325.

(2) If independent actions are commenced in different

courts, the court in which the second action was

commenced, on its own motion or the motion of any party,

shall order the action transferred to the court in which the

first action was commenced.

(3) If an action is commenced to enforce one cause of

action, the court, on its own motion or the motion of any

party, may stay the action until an action is commenced to

enforce the other cause of action and is consolidated

therewith or until the commencement of such second

action is barred by the applicable statute of limitation.

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Thus, for all of the above reasons, we reverse and remand this case

for proceedings consistent with this Opinion. Jurisdiction relinquished.15

Judges Bowes, Donohue, Olson, Stabile, and Jenkins join the Opinion.

Judge Mundy files a Dissenting Opinion in which Judges Lazarus and

Wecht join.

15

MacPherson also asserted in his substituted brief that the Agreement

should not be enforced because it would place joint tortfeasor claims in

different forums, “a result that is impermissible under Pennsylvania law.”

MacPherson’s Substituted Brief at 45. The pleadings, however, do not

support MacPherson’s characterization of the Hospital Defendants and Manor

Care as joint tortfeasors. The Hospital Defendants and Manor Care did not

act together. The allegations against the Hospital Defendants relate solely

to their conduct and resulting injuries to Decedent from August 20, 2009, to

September 15, 2009; the claims against Manor Care originate in its conduct

from September 15, 2009, through February 1, 2010. Only Manor Care is

alleged to have caused the wrongful death of Decedent. Thus, it would

appear that the claims against the Hospital Defendants are sufficiently

distinct from the claims against Manor Care as to be capable of resolution in

different forums. Accordingly, the facts herein are further distinguishable

from those in Taylor and Tuomi v. Extendicare, Inc., 119 A.3d 1030 (Pa.

Super. 2015), where it was alleged that the conduct of the various

defendants combined to cause the decedents’ wrongful death.

We also note that our Supreme Court’s grant of the petition for

allowance of appeal in Taylor will address whether Pa.R.C.P. 213(e) requires

the consolidation of the otherwise arbitrable survival action with the non-

arbitrable wrongful death action on grounds of efficiency and whether that

conclusion violates the FAA. Taylor v. Extendicare Health Facilities,

Inc., 161 WAL 2015, 2015 WL 5569766, at *1 (Pa. September 23, 2015).

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/25/2015

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