J-E01002-15

2015 PA Super 248

PATRICK J. MACPHERSON, EXECUTOR 

OF THE ESTATE OF RICHARD 

MACPHERSON, DECEASED,

IN THE SUPERIOR COURT OF

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 SERVICESYEADON, 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.
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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,4as 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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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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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,5the 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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Exhibit M. Even as of October 29, 2009, the nursing evaluation of 

Decedent’s cognitive status remained the same. At all times from 

September 15, 2009, through October 29, 2009, the nursing staff at Manor 

Care deemed Decedent cognitively competent. Id.

Significantly, MacPherson did not visit Decedent when Decedent was 

admitted to Manor Care in September 2009 or near the time when Decedent 

signed the Agreement. Supplemental Memo at Exhibit N. Thus, MacPherson 

cannot attest to Decedent’s mental status during that period. Id. at Exhibit 

N, ¶¶ 15–16; [MacPherson’s] Supplemental Answers to [Manor Care’s] 

Interrogatories, 10/9/12 at ¶ 18; Manor Care’s Brief at Addendum B. In the 

absence of record evidence of Decedent’s mental incapacity, this apparent 

conclusion by the trial court is not supported by the certified record and 

cannot be used as a basis for its decision.

In its third issue, Manor Care challenges the trial court’s conclusion 

that the Agreement was either substantively or procedurally unconscionable, 

even though the trial court acknowledged that the provisions of the 

Agreement were neutral. Manor Care’s Brief at 14. Manor Care asserts that 

the trial court specifically found that the Agreement’s terms unreasonably 

favored Manor Care in four instances. Id. at 23.

The trial court stated:

[W]hen considering the medical condition of this resident, and 

his inability to negotiate the terms, it is apparent that the terms 

unreasonably favor the Defendant-drafters of the agreement, 

including, inter alia, losing challenger must pay opponent’s 
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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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Agreement at 3, ¶ F(6). However, in preparing for arbitration, the 

Agreement provides that the parties pay their own fees and costs, similar to 

civil litigation practice in common pleas court. Id. at 3–4, ¶ F(6). Further, 

the Agreement contains a conspicuous, large, bolded notification that the 

parties, by signing, are waiving the right to a trial before a judge or jury. 

Id. at 1. Indeed, that is the purpose of arbitration. See e.g., Hayes v. 

Oakridge Home, 908 N.E.2d 408, 414 (Ohio 2009) (“waiver of the right to 

trial by jury is a necessary consequence of agreeing to have an arbitrator 

decide a dispute, and this aspect of an arbitration clause is not substantively 

unconscionable.”).

Moreover, at the top of the Agreement, in bold typeface and 

underlined, the Agreement states that it is voluntary, and if the patient 

refused to sign it, “the Patient will still be allowed to live in, and receive 

services” at Manor Care. Agreement at 1. Also, the Agreement provides 

that Manor Care will pay the arbitrators’ fees and costs, and that there are 

no caps or limits on damages other than those already imposed by state law. 

Id. at 3, ¶¶ F(1), F(6). Lastly, the Agreement contains a provision allowing 

the patient to rescind within thirty days. Id. at 3, ¶ E. Our review compels 

our conclusion that the Agreement should not be invalidated on the basis of 

procedural or substantive unconscionability.

In its fourth issue, Manor Care asserts that the trial court erred in 

holding that the Agreement was unenforceable due to the failure of a term in 
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the Agreement designating the National Arbitration Forum (“NAF”) to 

administer the arbitration. Manor Care’s Brief at 5. The NAF can no longer 

accept arbitration cases pursuant to a consent decree it entered with the 

Attorney General of Minnesota. See Stewart v. GGNSC-Canonsburg, 

L.P., 9 A.3d 215, 217 (Pa. Super. 2010). The trial court, absent any 

analysis, included a single sentence in its perfunctory opinion addressing this 

issue: “Finally, it does appear that there is a failure of an integral term 

which is not severable, that is, the NAF requirements.” Trial Court Opinion, 

11/20/12, at 2.

MacPherson relies upon Stewart6in defending this determination.7 In 

that case, the plaintiff, by her attorney-in-fact, brought a negligence action 

against a nursing home facility, which filed preliminary objections seeking to 

compel enforcement of an arbitration agreement that included a forum 

selection clause designating the NAF and its procedures. Stewart, 9 A.3d at 

216–217. The trial court in Stewart determined that the arbitration

agreement was unenforceable because the provisions designating the NAF 

and its procedures were integral to the agreement and could not be enforced 

 

6

 See Wert v. Manorcare of Carlisle PA LLC, ___ A.3d ___, 2015 WL 

6499141 (Pa. filed October 27, 2015) (plurality), where our Supreme Court 

recently stated in its Opinion Announcing the Judgment of the Court, “[W]e 

decline to overturn Stewart . . . .”]. Unlike Stewart, this Court’s decision 

in Wert was a memorandum decision devoid of precedential value. Thus, it 

rightly was not discussed by the parties in their appeal in the instant case.

7

 The trial court herein also cited Stewart, but it did not engage in any 

analysis of the case’s applicability.
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due to the unavailability of the NAF. Id. at 217. The trial court concluded 

that an agreement to submit to a specific forum and its comprehensive set 

of rules evidenced an express intention to arbitrate exclusively before that 

organization. Id. The trial court also determined that the severability 

clause could not save the arbitration agreement because the court would be 

forced to rewrite the forum selection clause and devise a substitute forum 

and mode of arbitration for the parties. Id. This Court reviewed the trial 

court’s decision as a matter of first impression and affirmed by specifically 

adopting the trial court’s reasoning. Id. at 219.

We conclude that Stewart, and therefore Wert,

8

is distinguishable. 

The distinguishing features also compel our disagreement with the position 

of the dissent in the instant case. First, Wert is a plurality decision; a 

plurality opinion is not binding precedent. Shinal v. Toms, 122 A.3d 1066 

(Pa. Super. 2015). As our Supreme Court has explained: “While the 

ultimate order of a plurality opinion; i.e. an affirmance or reversal, is binding 

on the parties in that particular case, legal conclusions and/or reasoning 

employed by a plurality certainly do not constitute binding authority.” 

Id. at *8 (emphasis added) (citing In Interest of O.A., 717 A.2d 490, 495–

496 n. 4 (Pa. 1998)).

 

8

 The initial issue placed before our Supreme Court in Wert described the 

arbitration agreement in Wert as “identical” to the agreement in Stewart. 

Wert, ___ A.3d at ___, slip op. at *1.
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Moreover, Wert has significant differences from the instant case. Our 

Supreme Court noted that the Wert arbitration agreement, similar to 

Stewart, provided that the parties therein agreed that any disputes “shall 

be resolved exclusively by binding arbitration to be conducted . . . in 

accordance with the NAF Code of procedure.” Wert, ___ A.3d at ___, *10 

(emphasis in original); see also ___ A.3d at ___, *10 n.15 (use of word 

“exclusively” in Wert arbitration agreement distinguishes it from language of 

agreement in Green v. U.S. Cash Advance Illinois, LLC, 724 F.3d 787, 

788 (7th Cir. 2013)). The instant Agreement is glaringly distinct due to the 

absence of any reference to the exclusivity of NAF. Indeed, the Agreement 

herein provided that the parties had the option of not using NAF or even not 

using an administrator. Significantly, the instant Agreement made “the 

NAF’s availability non-essential,” which is the proviso cited by the Wert

Court as modifying its holding. See Wert, ___ A.3d at ___, *10 (“Section 

five of the FAA cannot preserve NAF-incorporated arbitration agreements 

unless the parties made the NAF’s availability non-essential by 

varying the terms of its procedure.”) (emphasis added).

We stated in Stewart, “[A]n arbitration agreement will not fail 

because of the unavailability of a chosen arbitrator unless the parties’ choice 

of forum is an ‘integral part’ of the agreement to arbitrate, rather than ‘an 

ancillary logistical concern.’” Stewart, 9 A.3d at 219 (citing Reddam v. 

KPMG L.L.P., 457 F.3d 1054, 1061 (9th Cir. 2006); and Brown v. ITT 
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Consumer Financial Corp., 211 F.3d 1217, 1222 (11th Cir. 2000)). 

Moreover, since the parties in Stewart and Wert expressly agreed that any 

disputes would be resolved exclusively through arbitration with the NAF, 

this Court found the exclusive forum selection clause to be an integral part 

of the arbitration agreement. Relying primarily on the exclusive forum 

selection clause, we thus held that the unavailability of the NAF rendered the 

arbitration agreement unenforceable. Stewart, 9 A.3d at 222. Like 

Stewart, the Wert Court focused on the arbitration agreement’s exclusivity 

provision therein.

In the present case, however, the plain language of the Agreement 

does not evince an intent to arbitrate only before the NAF.9 It provides a 

hierarchy of sorts that places NAF in the initial position:

1. Administrator: The arbitration shall be administered by 

National Arbitration Forum (“NAF”). . . . 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.

Agreement at 1 ¶ B(1) (emphasis added).10 The language in the instant 

Agreement is thus permissive, not mandatory, and provides for an 

alternative to NAF if it is unable or unwilling to serve, or if the parties choose 

 

9

 In fact, NAF-approved arbitrators are not required under the Agreement. 

Agreement at 1, ¶ B(3).

10

 This provision is consistent with § 5 of the FAA which provides that an 

arbitrator will be appointed by the court if the parties cannot select one. 

9 U.S.C. § 5.
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otherwise. The arbitration agreements in Stewart and Wert contained no 

such provisions.11 Therefore, we hold that the non-exclusive forum-selection 

clause herein is not an integral part of the Agreement, and the Agreement 

does not fail because of the unavailability of the NAF.

We also reject MacPherson’s contention that the Agreement’s 

reference to the use of the NAF Code of Procedure in effect as of May 1, 

2006 (“2006 Code”) renders the Agreement unenforceable. First, we note 

that the referenced 2006 Code could not be found in the certified record on 

appeal; rather, it was merely attached as Exhibit A to MacPherson’s brief. 

We remind MacPherson that:

[t]he law of Pennsylvania is well settled that matters which are 

not of record cannot be considered on appeal. [A]n appellate 

court is limited to considering only the materials in the certified 

record when resolving an issue. In this regard, our law is the 

same in both the civil and criminal context because, under the 

Pennsylvania Rules of Appellate Procedure, any document which 

is not part of the officially certified record is deemed nonexistent—a deficiency which cannot be remedied merely by 

including copies of the missing documents in a brief or in the 

reproduced record.

 

11

 We reject the dissent’s suggestion that because the arbitration 

agreement in Wert is substantially similar to the Agreement herein, Wert

compels affirmance of the instant case. The exclusivity of the NAF 

provisions in the arbitration agreements in Wert and Stewart, which is not 

a factor in the case sub judice, is the very basis for our Supreme Court’s 

affirmance in Wert. Substantial dissimilarity thus distinguishes Wert and 

Stewart. The exclusivity of the NAF in the Wert and Stewart arbitration 

agreements simply is not present in the case sub judice, and that 

“meaningful difference,” see Dissenting Opinion at 3, is the raison d’etre

why Wert is distinguishable.
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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 nonarbitrable 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