                        [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
