[J-24-2015] [MO: Stevens, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
SAYLOR, C.J., EAKIN, BAER, TODD, STEVENS, JJ.
EVONNE K. WERT, EXECUTRIX OF THE : No. 62 MAP 2014
ESTATE OF ANNA E. KEPNER, :
DECEASED : Appeal from the order of the Superior
: Court at No. 1746 MDA 2012 dated
: December 19, 2013 Affirming the order of
v.
: the Cumberland County Court of Common
: Pleas, Civil Division, at No. 12-165 CIVIL
dated September 13, 2012.
MANORCARE OF CARLISLE PA, LLC :
D/B/A MANORCARE HEALTH :
ARGUED: April 7, 2015
SERVICES-CARLISLE; HCR :
MANORCARE, INC; MANOR CARE, :
INC.; HCR HEALTHCARE, LLC; HCR II :
HEALTHCARE, LLC; HCR III :
HEALTCARE, LLC; HCR IV :
HEALTHCARE, LLC: GGNSC :
GETTYSBURG, LP, D/B/A GOLDEN :
LIVING CENTER-GETTYSBURG;
:
GGNSC GETTYSBURG GP, LLC;
:
GGNSC HOLDINGS, LLC; GOLDEN
GATE NATIONAL SENIOR CARE, LLC; :
GGNSC EQUITY HOLDINGS, LLC; :
GGNSC ADMINISTRATIVE SERVICES, :
LLC :
:
:
APPEAL OF: GGNSC GETTYSBURG LP, :
D/B/A GOLDEN LIVING CENTER - :
GETTYSBURG; GGNSC GETTYSBURG :
GP, LLC; GGNSC HOLDINGS, LLC; :
GOLDEN GATE NATIONAL SENIOR
:
CARE, LLC; GGNSC EQUITY
HOLDINGS, LLC AND GGNSC :
ADMINISTRATIVE SERVICES, LLC :
DISSENTING OPINION
MR. JUSTICE BAER DECIDED: October 27, 2015
Like the Superior Court, the Majority has decided to repudiate the arbitration
agreement entered into by the parties, Golden Living Center-Gettysburg et al.
(Appellants) and Evonne K. Wert (Appellee), and to compel Appellants to litigate the
dispute in the trial court. I perceive this result to be contrary to the plain language of the
arbitration agreement, which provided that the agreement was intended to require
arbitration and to preclude a lawsuit or court process, and to flow from a leap in logic
that finds no support in the actual agreement or governing law, as explained below.
Accordingly, I dissent.
Public policy in this Commonwealth favors arbitration agreements. See Fastuca
v. L.W. Molnar & Assoc., 10 A.3d 1230, 1245 (Pa. 2011) (“As our Court has observed
on repeated occasions, the settlement of disputes by arbitration is favored by the public
policy of this Commonwealth and is, therefore, encouraged by our courts and by
statute.”); Borgia v. Prudential Ins. Co., 750 A.2d 843, 850-51 (Pa. 2000); Johnson v.
Pennsylvania Nat. Ins. Companies, 594 A.2d 296, 300 (Pa. 1991); Flightways Corp. v.
Keystone Helicopter Corp., 331 A.2d 184, 185 (Pa. 1975); Ice City, Inc. v. Ins. Co. of N.
Am., 314 A.2d 236, 241 (Pa. 1974) (“It is beyond cavil that settlement of disputes by
arbitration or appraisal is the approved public policy of this Commonwealth.”);
Mendelson v. Shrager, 248 A.2d 234, 235 (Pa. 1968) (“[O]ur statutes encourage
arbitration and with our dockets crowded and in some jurisdictions conjested [sic]
arbitration is favored by the courts.”); Capecci v. Joseph Capecci, Inc., 139 A.2d 563,
[J-24-2015] [Stevens, J.] - 2
565 (Pa. 1958) (recognizing that “[t]he public policy of this State is to give effect to
arbitration agreements,” and providing that “[w]here the parties by contract contemplate
the settlement of disputes by arbitration, every reasonable intendment will be made in
favor of the agreement.”).
Because Pennsylvania favors arbitration, it is consistent with the federal policy of
also favoring arbitration enforcement. Moscatiello v. Hilliard, 939 A.2d 325, 329 (Pa.
2007). See also Bhatia v. Johnston, 818 F.2d 418, 421 (5th Cir. 1987) (recognizing that
“the question of arbitrability [is to] be addressed with a ‘healthy regard for the federal
policy favoring arbitration,’ with doubts regarding the scope of the agreement resolved
in favor of arbitration.” (quoting Moses H. Cone Mem’l Hosp. v. Mercury Const. Corp.,
460 U.S. 1, 24-25 (1983)); Salley v. Option One Mortgage Corp., 925 A.2d 115, 118
(Pa. 2007) (acknowledging the liberal federal policy favoring arbitration agreements);
Thibodeau v. Comcast Corp., 912 A.2d 874, 878-80 (Pa.Super. 2006).1
1
Indeed, the Federal Arbitration Act (FAA) was enacted to ensure the enforcement
of arbitration agreements, as the Supreme Court has explained:
The FAA was designed “to overrule the judiciary's longstanding refusal to
enforce agreements to arbitrate,” Dean Witter Reynolds, Inc. v. Byrd, 470
U.S. 213, 219–220, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985), and to place
such agreements “‘upon the same footing as other contracts,’” Scherk v.
Alberto–Culver Co., 417 U.S., 506, 511, 94 S.Ct. 2449, 41 L.Ed.2d 270
(1974) (quoting H.R.Rep. No. 96, 68th Cong., 1st Sess., 1, 2 (1924)).
While Congress was no doubt aware that the Act would encourage the
expeditious resolution of disputes, its passage “was motivated, first and
foremost, by a congressional desire to enforce agreements into which
parties had entered.” Byrd, 470 U.S. at 220, 105 S.Ct. 1238.... [The FAA]
simply requires courts to enforce privately negotiated agreements to
arbitrate, like other contracts, in accordance with their terms. See Prima
Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 404 n. 12, 87 S.Ct.
(Pcontinued)
[J-24-2015] [Stevens, J.] - 3
With this background in mind, and to analyze the terms of this particular
arbitration agreement, we should be clear about what the agreement did, and did not
say. As the Majority relates, the agreement provided that any ensuing litigation “shall
be resolved exclusively by binding arbitration . . . in accordance with the National
Arbitration Forum Code of Procedure. . .” The agreement further provided that it was to
be governed and interpreted under the Federal Arbitration Act (FAA), 9 U.S.C. §§ 1-16.
Finally, relevant to our analysis, it provided a severance clause requiring that if a court
were to find any portion of the agreement unenforceable, the rest of the agreement
“shall remain effective.” With this clear language, the agreement established that the
exclusive form of dispute resolution is arbitration, not the courts, and that such
arbitration will be conducted pursuant to a certain set of procedural rules.
Notably, the arbitration agreement did not name an arbitrator, and most certainly
did not provide that the National Arbitration Forum (NAF) was the only entity that could
serve as arbitrator. The Majority’s holding that the arbitration agreement required that
arbitration be conducted by the NAF departs from the plain language of the agreement.
Agreeing to utilize a certain set of procedural rules does not name the administering
body of those rules as sole arbitrator. As Judge Easterbrook observed in interpreting a
similar arbitration agreement in favor of arbitration, “[i]f [the agreement] were designed
to require arbitration to be conducted by [NAF] exclusively, the reference to its Code
would be surplusage; the only reason to refer to the Code is to create the possibility of
(continuedP)
1801, 18 L.Ed.2d 1270 (the Act was designed “to make arbitration
agreements as enforceable as other contracts, but not more so”).
Volt Info. Sciences, Inc., v. Bd. of Tr. of the Leland Jr. Univ., 489 U.S. 468, 478 (1989).
[J-24-2015] [Stevens, J.] - 4
arbitration outside the [NAF]’s auspices, but using its rules of procedure.” Green v. U.S.
Cash Advance Illinois, LLC, 724 F.3d 787, 789 (7th Cir. 2013). See also Wert v.
Manorcare of Carlisle et al., No. 1746 MDA 2012 (Pa.Super. Dec. 19, 2013) (Fitzgerald,
J., concurring) (“I would not find that the agreement to arbitrate pursuant to the NAF
Code is coterminous with agreement that only NAF could administer the arbitration,
where the document itself does not identify who shall administer the arbitration.”).
Although the NAF Code of Procedure provides, in Rule 1.A, that it shall be
administered by the NAF, this is not the same as requiring NAF to act as sole arbitrator.
While the NAF administers its Code of Procedure, there is nothing limiting another
arbitrator from employing the code to arbitrate the parties’ dispute. An agreement to
arbitrate in accord with the NAF Code of Procedure is valid, even without NAF’s
availability to serve as arbitrator.
To the extent that one can interpret Rule 1.A as providing that the NAF Code of
Procedure depends on the NAF as arbitrator, a proposition of which I remain
unconvinced, it is unenforceable because of NAF’s unavailability. Under such
circumstances, Rule 1.A is qualified by Rule 48.C, which provides that if a portion of the
NAF Code of Procedure is unenforceable, the remainder of the code will continue in
effect. See Green, 724 F.3d at 789. Accordingly, the NAF’s Code of Procedure
remains in effect even where the NAF is not serving as arbitrator.
Moreover, the Code of Procedure also provides in Rule 48.D that “[i]f Parties are
denied the opportunity to arbitrate a dispute. . . before the [NAF], the Parties may seek
legal and other remedies in accord with applicable law.” Green, 724 F.3d at 789. Here,
the parties, in their agreement, identified the FAA as such an applicable law. Section 5
[J-24-2015] [Stevens, J.] - 5
of the FAA permits a court, upon request, to appoint a substitute arbitrator. 9 U.S.C. §
5.2 Section 5 further instructs that arbitration clauses remain enforceable if for any
reason there is a lapse in naming an arbitrator, and would seem to apply to the
circumstances presented here.
Additionally, the severability clause of this agreement further indicates the
parties’ intention to preserve their agreement to arbitrate in the event a portion of the
agreement is found unenforceable. When parties consent in an agreement to settle all
future disputes by arbitration, they are bound by that provision; “the function of the
courts is limited to enforcing this contractual provision according to its terms as
established by the parties.” Fastuca, 10 A.3d at 1245. Given the agreement’s purpose
of ensuring dispute resolution through arbitration, it is illogical to dispense with the
agreement because of the NAF’s unavailability.
Although, as the Majority recognizes, there is a split of authority by courts
interpreting similar arbitration agreements that rely on the NAF Code of Procedure, the
2
Section 5 provides as follows:
If in the agreement provision be made for a method of naming or
appointing an arbitrator or arbitrators or an umpire, such method shall be
followed; but if no method be provided therein, or if a method be provided
and any party thereto shall fail to avail himself of such method, or if for any
other reason there shall be a lapse in the naming of an arbitrator or
arbitrators or umpire, or in filling a vacancy, then upon the application of
either party to the controversy the court shall designate and appoint an
arbitrator or arbitrators or umpire, as the case may require, who shall act
under the said agreement with the same force and effect as if he or they
had been specifically named therein; and unless otherwise provided in the
agreement the arbitration shall be by a single arbitrator.
9 U.S.C.A. § 5.
[J-24-2015] [Stevens, J.] - 6
force of logic employed by those courts enforcing the arbitration agreement with a
substituted arbitrator3 is more persuasive than the fiction created by those courts that
have thrown out the arbitration agreement by equating use of the NAF Code of
Procedure with an identification of the NAF as sole arbitrator.4
In affirming the trial court’s finding that the agreement was unenforceable
because the NAF could not serve as arbitrator, the Superior Court relied on its prior
decision in Stewart v. GGNSC-Canonsburg, 9 A.3d 215 (Pa.Super. 2010), a decision
which I believe, in accord with my opinion herein, is not supportable. Although the
arbitration agreement interpreted and cast aside in Stewart mirrored the agreement
utilized by the parties in this case, the Superior Court’s decision therein suffered from
the same leap in logic I have identified in the Majority’s present analysis: it equated the
agreement’s invocation of the NAF Code of Procedure with naming the NAF as the sole
arbitrator.
Accordingly, I disagree with the Majority that the agreement identified the
arbitrator, and that the unavailability of this arbitrator vitiates the entire agreement.
3
See, e.g., Green v. U.S. Cash Advance Illinois, LLC, 724 F.3d 787, 789 (7th Cir.
2014); Kahn v. Dell, Inc., 669 F.3d 350 (3d Cir. 2012); Pendergast v. Sprint Nextel
Corp., 691 F.3d 1224, 1236 n.13 (11th Cir. 2012); Brown v. ITT Consumer Fin. Corp.,
211 F.3d 1217, 1222 (11th Cir. 2000); Wright v. GGNSC Holdings LLC, 808 N.W.2d 114,
119-20 (S.D. 2011); Jones v. GGNSC Pierre, 684 F.Supp.2d 1161, 1167 (D. S.D.
2010).
4
See, e.g., Ranzy v. Tijerina, 393 Fed. Appx. 174 (5th Cir. 2010); Licata v. GGNSC
Maiden Dexter, LLC, 29 Mass. L. Rep. 467 at *8 (Mass. Super. 2012); Stewart v.
GGNSC-Canonsburg, 9 A.3d 215 (Pa.Super. 2010); GGNSC Tylertown LLC v. Dillon,
87 So.3d 1063, 1066 (Miss. Ct. App. 2011); Geneva-Roth, Capital, Inc. v. Edwards, 956
N.E.2d 1195, 1203 (Ind. App. 2011), cert. den., 133 S. Ct. 650 (2012).
[J-24-2015] [Stevens, J.] - 7
Rather, the agreement invoked a set of procedural rules while remaining silent on the
identity of the arbitrator. Because the parties selected arbitration, courts should not
utilize logical fallacies or rely on nonexistent contractual terms to throw the baby out
with the bathwater.
[J-24-2015] [Stevens, J.] - 8
Wert v. Manorcare of Carlisle
Combined Opinion