Wert v. Manor Care of Carlisle
– Pa. Supreme Court – 10-27-15
Golden Living Center -
Gettysburg et al. (“Appellants”) appeal the Superior Court’s decision
affirming, in relevant part, the trial court’s order overruling Appellants’
preliminary objections seeking to compel arbitration and reserving for trial
the underlying
negligence action filed by
Evonne K. Wert (“Appellee”), daughter of Anna E. Kepner (“Decedent”) and
executrix of Decedent’s estate. For the following reasons, we affirm the order
of the Superior Court and remand to the trial court for further proceedings
consistent with this decision.
The following issues of first
impression have been presented before this Court:
(a) Whether the Superior Court’s
decision in Stewart v.
GGNSC-Canonsburg, L.P., 9 A.3d
215 (Pa. Super. 2010), holding that the
NAF Designation voided an
identical Arbitration Agreement, was
incorrectly decided and should
be reversed, where there is no evidence
indicating that the NAF designation
was integral to the Agreement?
(b) Whether the Court may
ignore undisputed testimonial evidence that
the party seeking to void the
Agreement did not consider the NAF
Designation to be an “integral
part” of the Arbitration Agreement (because
she did not bother to read the
agreement)?
Wert v. ManorCare of Carlisle
PA, LLC, 95 A.3d 268, 268-69 (Pa. 2014) (per curiam
order) (footnote omitted).
Pursuant to the reasoning of
the Stewart court and the majority of our sister jurisdictions, we find that,
post-consent decree, Section five of the FAA cannot preserve
NAF-incorporated arbitration
agreements unless the parties made the NAF’s availability non-essential
by specifically varying the terms of its procedure.17 Regardless of
whether Section five may apply
where there is a lapse in the administrator, by its own rules, the NAF must
administer its code unless the parties agree to the contrary. The
parties here agreed that any
disputes “shall be resolved exclusively by binding arbitration to be
conducted . . . in accordance with the [NAF] Code of Procedure, which is
hereby incorporated into this
Agreement[.]” R. 348a (emphasis added).
We therefore find the provision
integral and non-severable. Doing otherwise would require this Court to rewrite
the Agreement. Underlying FAA policy, as interpreted by the Supreme Courtin
Marmet, does not mandate a different result because our conclusion is based on
settled Pennsylvania contract law principles that stand independent of
arbitration.
