J-S39033-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

MARY J. CHURLICK, EXECUTRIX OF    :            IN THE SUPERIOR COURT OF
THE ESTATE OF MARY J. YOHN,       :                  PENNSYLVANIA
DECEASED,                         :
                                  :
                      Appellee    :
                                  :
                      v.          :
                                  :
MANOR CARE OF CARLISLE PA, LLC,   :
D/B/A , MANORCARE HEALTH SERVICE, :
CARLISLE, AND HCR MANOR CARE,     :
INCL, MANORCARE INC., HCR         :
HEALTHCARE LLC, HCR HEALTHCARE    :
II, III, AND IV, LLC,             :
                                  :
                       Appellants :                No. 1108 MDA 2015

             Appeal from the Order Entered September 6, 2013
           in the Court of Common Pleas of Cumberland County,
                      Civil Division, at No(s): 12-7476

BEFORE:    STABILE, PLATT,* and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                      FILED JUNE 28, 2016

     Manor Care of Carlisle PA, LLC, d/b/a Manorcare Health Service,

Carlisle, and HCR Manor Care, Inc., Manorcare Inc., HCR Healthcare, LLC,

HCR Healthcare II, III, and IV, LLC (Appellants) appeal from the order

entered on September 6, 2013,1 which overruled their preliminary objections

in the nature of a motion to compel arbitration. Upon review, we affirm.


1
  Appellants purport to appeal from the order entered on June 18, 2015,
which denied their motion for reconsideration.       It is well-settled that
“[d]enial of reconsideration is not subject to appellate review.” Erie Ins.
Exchange v. Larrimore, 987 A.2d 732, 743 (Pa. Super. 2009). However,
based upon the unusual procedural history of this case, this appeal is timely.


*Retired Senior Judge assigned to the Superior Court.
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      The trial court summarized the factual and procedural history of this

case as follows.

            On December 13, 2012, [Appellee] Mary J. Churlick, in her
      capacity as Executrix of the Estate of Mary J. Yohn (hereinafter
      the “Decedent”), filed a complaint against [Appellants] in the
      above-captioned matter. The complaint contains claims which
      sound in negligence and negligence per se, as well as claims
      under the Survivor Statute, 42 Pa.C.S. § 8302, and the Wrongful
      Death Statute, 42 Pa.C.S. § 8301. The crux of [Appellee’s]
      complaint is that [Appellants] operated Manor Care Health

      On September 6, 2013, the trial court overruled Appellants’
preliminary objection in the nature of a motion to compel arbitration. That
order was an appealable order. See Taylor v. Extendicare, 113 A.3d 317
n.1 (Pa. Super. 2015) (“In Midomo Co. v. Presbyterian Hous. Dev. Co.,
739 A.2d 180, 183 (Pa. Super. 1999), this Court noted that Pa.R.A.P.
311(a)(8) permits an interlocutory appeal from any order that is made
appealable by statute. The Uniform Arbitration Act, 42 Pa.C.S. §§ 7301 et
seq., provides that an appeal may be taken from ‘[a] court order denying an
application to compel arbitration....’ 42 Pa.C.S. § 7320(a)(1).”).

       On September 24, 2013, Appellants filed a motion for reconsideration
of that order. On October 4, 2013, the trial court vacated the September 6,
2013 order pending a ruling on the motion for reconsideration, which it took
under advisement. On October 7, 2013, Appellants filed a notice of appeal
to this Court. By order entered on November 1, 2013, this Court dismissed
that appeal concluding that the October 4, 2013 order was an order
“expressly granting consideration” consistent with Jackson v. Hendrick,
746 A.2d 574, 579 (Pa. 2000) (holding that where the trial court
simultaneously vacates its order and takes a motion for consideration under
advisement, it was “expressly granting reconsideration”). Order, 1812 MDA
2013, filed on 11/1/2013.

      Nothing further happened in this case until 2015, when new counsel
for Appellee entered an appearance. Thereafter, on June 18, 2015, the trial
court entered an order denying the motion for reconsideration that it had
taken under advisement previously.       The denial of reconsideration is
essentially the reinstatement of the September 6, 2013 order overruling
Appellants’ preliminary objection. Because Appellants filed their notice of
appeal within 30 days of the June 18, 2015 order, this appeal is timely. We
have amended the caption accordingly.


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J-S39033-16


     Services - Carlisle (hereinafter “Manor Care Carlisle”) in a
     manner which emphasized maximizing profits at the expense of
     providing quality care to its residents, including the Decedent.

                                          ***

           In response to the complaint, preliminary objections of
     Appellants to Appellee’s complaint [] were filed on January 7,
     2013, seeking to enforce the arbitration agreement which was
     signed upon the Decedent’s admission to Manor Care Carlisle.
     The arbitration agreement was not signed by the [Decedent]
     herself, but by [Appellee, the Decedent’s daughter,] who acted
     under a power of attorney.

           In an order dated September 6, 2013, th[e trial court]
     overruled [Appellants’] preliminary objections seeking to enforce
     the arbitration agreement.

Trial Court Opinion, 9/25/2015, at 1-2.

     Appellants filed a notice of appeal. Both Appellants and the trial court

complied with Pa.R.A.P. 1925.

     Appellants, Appellee, and the trial court all agree that this case is

governed by this Court’s ruling in Taylor v. Extendicare, 113 A.3d 317 (Pa.

Super. 2015), appeal granted, 122 A.3d 1036 (Pa. 2015). See Trial Court

Opinion, 9/25/2015, at 3; Appellants’ Brief at 10; Appellee’s Brief at 3. In

Taylor, a panel of this Court held that “the wrongful death beneficiaries’

constitutional right to a jury trial and the state’s interest in litigating

wrongful death and survival claims together require that they all proceed in

court rather than arbitration.” 113 A.3d at 328. Accordingly, we affirm the

order of the trial court overruling Appellants’ preliminary objection in the




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J-S39033-16


nature of a motion to compel arbitration, which kept both the wrongful death

and survival actions in court to be litigated.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 6/28/2016




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