J-A26023-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
SANDRA A. CHRISTMAN, IN THE SUPERIOR COURT OF
ADMINISTRATRIX OF THE ESTATE OF PENNSYLVANIA
ESTER I. STRAUSE, DECEASED,
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 non-
severable’ 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,
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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.
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I cannot agree with the Majority’s conclusion that Wert does not apply in
this case. Accordingly, I respectfully concur in the result only.
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