Christman, S. v. Manor Care (concurring)
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J-A26023-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 SANDRA A. CHRISTMAN, ADMINISTRATRIX OF THE ESTATE OF ESTER I. STRAUSE, DECEASED, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. MANOR CARE OF WEST READING PA, LLC, D/B/A MANORCARE HEALTH SERVICES – WEST READING NORTH, AND MANORCARE HEALTH SERVICES, INC. AND HCR MANORCARE, INC. AND MANORCARE INC. AND HCR HEALTHCARE, LLC, AND HCR II HEALTHCARE, LLC, AND HCR III HEALTHCARE, LLC AND HCR IV HEALTHCARE, LLC Appellants No. 1226 MDA 2013 Appeal from the Order June 13, 2013 In the Court of Common Pleas of Berks County Civil Division at No(s): 12-4389 BEFORE: BOWES, J., MUNDY, J., and JENKINS, J. CONCURRING STATEMENT BY MUNDY, J.: FILED JANUARY 05, 2016 I agree with the Majority’s application of Taylor v. Extendicare Health Facilities, Inc., 113 A.3d 317 (Pa. Super. 2015), appeal granted, 122 A.3d 1036 (Pa. 2015) to this case. However, I cannot agree with footnote 3, where the Majority concludes, albeit in dicta, that our Supreme J-A26023-14 Court’s recent decision in Wert v. Manorcare of Carlisle PA, LLC, --- A.3d ---, 2015 WL 6499141 (Pa. 2015) (plurality) does not apply in this case. 1 As I recently explained, Wert held that an arbitration agreement which required the arbitration forum to apply the NAF Code of Procedure, was unenforceable because “the NAF Code states that only the NAF can administer its own code, [rendering] this [clause] an ‘integral and nonseverable’ provision of the arbitration agreement.” MacPherson v. Magee Mem. Hosp. for Convalescence, --- A.3d ---, 2015 WL 7571937, at *15 (Pa. Super. 2015) (en banc) (Mundy, J., dissenting), quoting Wert, supra at *5, 10. In this case, like the agreement at issue in MacPherson, the arbitration agreement states that whoever the arbitration panel is, “[t]he Panel shall apply NAF’s Code of Procedure[.]” Memorandum of Law in Support of Appellant’s Preliminary Objections, 8/17/12, Exhibit B, at 2. In my view, consistent with our Supreme Court’s conclusion in Wert, the exclusivity of the choice of law in the arbitration agreement renders this provision “integral and non-severable”. Wert, supra at *5, 10. As a result, ____________________________________________ 1 Although Wert is a plurality opinion, “three justices out of five in Wert agreed that the NAF Code issue rendered the arbitration agreement unenforceable.” MacPherson, supra at *16. “Thus, the portion of Wert pertaining to the requirement in Rule 1(A) [of the NAF Code of Procedure] that NAF administer its own Code, which is central to the conclusion in Wert that the arbitration agreement therein was unenforceable, is precedential and binding on this Court.” Id. -2- J-A26023-14 I cannot agree with the Majority’s conclusion that Wert does not apply in this case. Accordingly, I respectfully concur in the result only. -3-
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