Wert v. Manorcare of Carlisle ( 2015 )


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  •                      [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
    

Document Info

Docket Number: 62 MAP 2014

Judges: Stevens, Correale F.

Filed Date: 10/27/2015

Precedential Status: Precedential

Modified Date: 3/3/2016