                     [J-24-2015][M.O. – Stevens, J.]
              IN THE SUPREME COURT OF PENNSYLVANIA
                           MIDDLE DISTRICT


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
           v.                     :   12/19/13 affirming the order of the
                                  :   Cumberland County Court of Common
MANORCARE OF CARLISLE PA, LLC     :   Pleas, Civil Division, at No. 12-165 Civil
D/B/A MANORCARE HEALTH            :   dated 9/13/12
                                  :
SERVICES-CARLISLE; HCR
                                  :
MANORCARE, INC; MANOR CARE, INC.; :   ARGUED: April 7, 2015
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      :




                       CONCURRING OPINION
MR. CHIEF JUSTICE SAYLOR                                 DECIDED: October 27, 2015


       Although I have differences with the rationale set forth in the Opinion Announcing

the Judgment of the Court, I support the result for many of the reasons articulated by

Judge Hamilton of the United States Court of Appeals for the Seventh Circuit in his

dissenting opinion in Green v. U.S. Cash Advance Illinois, LLC, 724 F.3d 787 (7th Cir.

2013). In addition to agreeing with Judge Hamilton’s analysis of Rules 1(A) and 48(D)

of the National Arbitration Forum (“NAF”) Code, see id. at 795-96 (Hamilton, J.,

dissenting), I am aligned with his position that it is not the courts’ role to compensate for

the negligence of an entity presenting a form contract in a consumer-oriented setting

which this entity knew or should have known could not be enforced on its own terms.

See id. at 793.     See generally Majority Opinion, slip op. at 11 (explaining that the

arbitration agreement at issue in the present case was executed eight months after the

NAF’s decision to withdraw from the field of consumer arbitrations). To the extent that

unwanted consequences must attend such a patent drafting error, from my point of view

these are more justly visited upon the more sophisticated party to which such mistake is

most fairly attributable.

       Finally, although I certainly recognize the federal and state policies favoring

arbitration, I also believe it is important to acknowledge the inauspicious circumstances

surrounding the NAF’s decision to forego administering consumer arbitrations, in that

the organization entered into a consent decree with a state attorney general after having

been sued on the allegation that it colluded with businesses relative to their disputes

with consumers. See id. at 794. See generally Note, Nicole Wanlass, No Longer

Available: Critiquing the Contradictory Way Courts Treat Exclusive Arbitration Forum

Clauses When the Forum Can No Longer Arbitrate, 99 MINN. L. REV. 2005, 2009 (2015).

To the degree that such allegations cannot be discounted, reflexive adherence to the

                            [J-24-2015][M.O. – Stevens, J.] - 2
courts’ self-protective preferences for arbitration -- particularly relative to agreements

which are incapable of enforcement according to their own terms – would be

problematic.




                           [J-24-2015][M.O. – Stevens, J.] - 3
