J-A03026-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BRANDON HETRICK, EXECUTOR OF THE                  IN THE SUPERIOR COURT OF
ESTATE OF: WILLIAM WASHINGTON,                          PENNSYLVANIA
DECEASED,

                            Appellee

                       v.

MANORCARE OF CARLISLE PA, LLC
D/B/A MANORCARE HEALTH SERVICE,
CARLISLE; HCR MANORCARE, INC. ET AL

                            Appellants                 No. 266 MDA 2014


                Appeal from the Order Entered January 10, 2014
              In the Court of Common Pleas of Cumberland County
                          Civil Division at No: 11-7979


BEFORE: MUNDY, STABILE, and FITZGERALD, * JJ.

MEMORANDUM BY STABILE, J.:                        FILED FEBRUARY 13, 2017

        This case returns to this Court following a remand from our Supreme

Court. On November 15, 2016, the Court granted the petition for allowance

of appeal filed by Appellants (collectively ManorCare), vacated our previous

order affirming the overruling of preliminary objections to compel arbitration

of claims brought under the Wrongful Death and Survival Acts,1 and

remanded the case to us for further proceedings consistent with Taylor v.


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    Respectively, 42 Pa.C.S.A. §§ 8301 and 8302.
J-A03026-15



Extendicare Health Facilities, Inc., ___A.3d___, 2016 WL 5630669 (Pa.

Sept. 28, 2016). Upon review, we reverse and remand.

        Briefly, the claims arise from the death of William Washington, after he

was a resident at a nursing home operated by ManorCare.

        We previously noted that wrongful death claims are not subject to

arbitration, because a decedent’s agreement to arbitrate is not enforceable

against     the     decedent’s   wrongful      death   beneficiaries.    Pisano   v.

Extendicare Homes, Inc., 77 A.3d 651, 661 (Pa. Super. 2013).                  In our

previous decision, we relied exclusively on this court’s decision in Taylor v.

Extendicare Homes, Inc., 113 A.3d 317, 320 (Pa. Super. 2015), rev’d,

____A.3d _____, 2016 WL 5630669 (Pa. Sept. 28, 2016).                   We held that

Pa.R.C.P. No. 213(e), requires compulsive joinder of Survival Act claims and

wrongful death claims and such joinder does not violate the Federal

Arbitration Act.2      Unpublished Memorandum, 6/3/2015, at 2.             Following

reversal in Taylor, it is now settled that Pa.R.C.P. No. 213(e) does violate

the Federal Arbitration Act, and therefore is preempted. Taylor, 2016 WL

563069 at 16.          This preemption requires that Appellants’ preliminary

objections to compel arbitration be sustained and the wrongful death and

Survival Act claims be severed unless the Arbitration Agreement is

unenforceable.       In our June 3, 2015 unpublished memorandum we noted

____________________________________________


2
    9 U.S.C. § 2.




                                           -2-
J-A03026-15



that we need not address Appellee’s argument that the unconscionability of

the Arbitration Agreement provides an alternative basis to affirm. “The only

exception to a state’s obligation to enforce an arbitration agreement is

provided by the savings clause, which permits the application of generally

applicable    state   contract   law   defenses   such   as   fraud,   duress,   or

unconscionability, to determine whether a valid contract exists.”         Taylor,

2016 WL 5630069 at 14 (citations omitted).           As the trial court did not

address these issues we remand to the trial court to address Appellee’s fact-

based defenses.       Should the defenses prove not to have merit, then the

wrongful death and survival claims shall proceed consistent with Taylor.

        Order reversed. Case remanded. Jurisdiction relinquished.

        Judge Mundy did not participate in the consideration or decision of this

case.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/13/2017




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