J-E01002-15


                           2015 PA Super 248

PATRICK J. MACPHERSON, EXECUTOR             IN THE SUPERIOR COURT OF
OF THE ESTATE OF RICHARD
MACPHERSON, DECEASED,                             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 SERVICES-
YEADON, 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.
J-E01002-15



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.

                                     -2-
J-E01002-15


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.


                                     -3-
J-E01002-15


      Manor Care raises four issues on appeal, all of which challenge the trial

court’s refusal to transfer this matter to arbitration,4 as 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).

                                      -4-
J-E01002-15


         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



                                     -5-
J-E01002-15


     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

                                     -6-
J-E01002-15


      Manor Care raises four issues on appeal, all of which challenge the trial

court’s refusal to transfer this matter to arbitration,4 as 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).

                                      -4-
J-E01002-15


     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


                                    -8-
J-E01002-15


     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

                                   -9-
J-E01002-15


     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


                                   - 10 -
J-E01002-15


     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


                                    - 11 -
J-E01002-15


         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



                                     -5-
J-E01002-15


     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

                                     -6-
J-E01002-15


     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,

                                   -7-
J-E01002-15


     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


                                    -8-
J-E01002-15


     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

                                   -9-
J-E01002-15


      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.



                                       - 17 -
J-E01002-15


     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


                                   - 10 -
J-E01002-15


     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


                                    - 11 -
J-E01002-15


      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.




                                     - 12 -
J-E01002-15


      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



                                      - 13 -
J-E01002-15


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,5 the 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).


                                       - 14 -
J-E01002-15


      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



                                       - 15 -
J-E01002-15


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.


                                     - 24 -
J-E01002-15


      (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

                                    - 25 -
J-E01002-15


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).


                                    - 26 -
J-E01002-15


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


                                     - 27 -
J-E01002-15


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.


                                     - 28 -
J-E01002-15


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.


                                     - 29 -
J-E01002-15


      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 non-
arbitrable 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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J-E01002-15


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/25/2015




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