J-S48012-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COLLEEN M. BAUER, AS EXECUTRIX FOR             IN THE SUPERIOR COURT OF
THE ESTATE OF IRENE C. KARLOWICZ,                    PENNSYLVANIA
DECEASED

                         Appellee

                    v.

GOLDEN GATE NATIONAL SENIOR CARE,
LLC; GGNSC UNIONTOWN, LP D/B/A
GOLDEN LIVING CENTER-UNIONTOWN;
GPH UNIONTOWN, LP; GGNSC
UNIONTOWN GP, LLC; GGNSC
HOLDINGS, LLC; GGNSC EQUITY
HOLDINGS, LLC; GGNSC
ADMINISTRATIVE SERVICES, LLC;
GGNSC CLINICAL SERVICES, LLC;
GOLDEN GATE ANCILLARY, LLC; JOYCE
HOCH, NHA; AND DENISE CURRY, RVP,

                         Appellants                  No. 1252 WDA 2015


                 Appeal from the Order Entered July 30, 2015
               In the Court of Common Pleas of Fayette County
                   Civil Division at No(s): 2473 OF 2014 GD


BEFORE: BOWES, DUBOW AND MUSMANNO, JJ.

MEMORANDUM BY BOWES, J:                        FILED NOVEMBER 07, 2016

       Golden Gate National Senior Care, LLC, GGNSC Uniontown, LP d/b/a

Golden Living Center-Uniontown, GPH Uniontown, LP, GGNSC Uniontown GP,

LLC;   GGNSC     Holdings,   LLC,   GGNSC   Equity   Holdings,   LLC,   GGNSC

Administrative Services, LLC, GGNSC Clinical Services, LLC, Golden Cate

Ancillary, LLC, Joyce Hoch, NHA, and Denise Curry, RVP (collectively “Golden
J-S48012-16



Gate”) appeal from the July 30, 2015 order overruling their preliminary

objections seeking to compel arbitration. We reverse the order based on the

Supreme      Court’s recent decision in          Taylor v. Extendicare Health

Facilities, Inc., 2016 Pa. LEXIS 2166 (Pa. September 28, 2016), and

remand to permit the parties to engage in discovery necessary to enable the

trial court to determine the validity and enforceability of the alternative

dispute resolution (“ADR”) Agreement.

       Appellee Colleen M. Bauer (“Executrix”) commenced this wrongful

death and survival action against Golden Gate by writ of summons on

December 1, 2014.           She subsequently filed a complaint seeking both

compensatory and punitive damages for the injuries and death of Irene C.

Karlowicz     (“Decedent”).         Golden     Gate   filed   preliminary   objections

challenging, inter alia, the court’s subject matter jurisdiction and seeking to

transfer the case to arbitration pursuant to an arbitration agreement

(“Agreement”) signed by Decedent when she was admitted to the facility.1

Executrix filed a response in opposition in which she maintained that the

Agreement was unenforceable and/or unconscionable under state contract

law principles. Specifically, she alleged that the Decedent lacked the legal

____________________________________________


1
  On July 30, 2015, at the hearing on preliminary objections, Golden Gate
withdrew all preliminary objections except those related to arbitration,
reserving the right to present them later as motions in limine or summary
judgment.



                                           -2-
J-S48012-16



capacity to act when she signed the agreement; that she did so unknowingly

and involuntarily; that it was not binding on wrongful death claimants; that

it was void a) as against public policy, b) lacked consideration, c) was

procured by fraud, d) was signed under duress, e) was the product of undue

influence, and numerous other contract defenses.

      Shortly thereafter, this Court decided Taylor v. Extendicare Health

Facilities, Inc., 113 A.3d 317 (Pa.Super. 2015).         The trial court herein

applied Pisano v. Extendicare, 77 A.3d 651 (Pa.Super. 2013), and held

that wrongful death beneficiaries were not bound by Decedent’s agreement

to arbitrate. Then, acknowledging the potential for inconsistent liability and

duplicative damages determinations if the survival action was severed and

sent to arbitration, the court applied Taylor, overruled the preliminary

objections, and held that the wrongful death and survival actions had to be

consolidated in court. Golden Gate timely appealed and presents two issues

for our review:


      1. Whether the trial court erred by refusing to sever Appellee’s
         survival action from her wrongful death action and compel
         arbitration of Appellee’s survival action?

      2. Whether the trial court erred by refusing to compel all of
         Plaintiff’s claims against Appellants to arbitration?

Appellants’ brief at 4.

      Appellants’ first issue is a challenge to this Court’s holding in Taylor v.

Extendicare Health Facilities, Inc, 113 A.3d 317 (Pa.Super. 2015),



                                      -3-
J-S48012-16



allowance of appeal granted 122 A.3d 1036 (Pa. 2015), rev’d 2016 Pa.LEXIS

2166 (Pa. 2016), that the Federal Arbitration Act (“FAA”) does not pre-empt

Pa.R.C.P. 213(e) and 42 Pa.C.S. § 8301, and that under Pennsylvania law,

wrongful death and survival actions must be consolidated for trial.         On

September 28, 2016, our Supreme Court agreed with the position advocated

by Golden Gate herein, finding Rule 213(e) pre-empted by the FAA.

Consequently, the FAA controls and supersedes the state requirement that

the two actions be consolidated, opening the door to bifurcation and

resolution in two different forums. However, the Taylor Court stopped short

of transferring the survival action to arbitration, recognizing that the

plaintiffs had not had the opportunity to challenge the validity and

enforceability    of the     arbitration agreement in accord   with   generally

applicable contract defenses and the FAA’s savings clause.2 Hence, our High

____________________________________________


2
    Section 2 of the FAA provides:

        § 2. Validity, irrevocability,           and   enforcement     of
        agreements to arbitrate

        A written provision in any maritime transaction or a contract
        evidencing a transaction involving commerce to settle by
        arbitration a controversy thereafter arising out of such contract
        or transaction, or the refusal to perform the whole or any part
        thereof, or an agreement in writing to submit to arbitration an
        existing controversy arising out of such a contract, transaction,
        or refusal, shall be valid, irrevocable, and enforceable, save
        upon such grounds as exist at law or in equity for the
        revocation of any contract.
(Footnote Continued Next Page)


                                           -4-
J-S48012-16



Court in Taylor remanded the matter to the trial court for the resolution of

these issues prior to determining if arbitration of the survival claim was

mandated.

      The instant case is in precisely the same procedural posture as Taylor.

As outlined above, Executrix alleged that the ADR                  Agreement was

“unenforceable, void, unconscionable, and/or a contract of adhesion.”

Plaintiff’s Response in Opposition to Defendants’ Preliminary Objections

Raising Questions of Fact, 3/13/15, at 4 ¶¶21-23.3              She also raised the

unenforceability       of   the   clause   on    the   above-enumerated   contractual

grounds. As in Taylor, Executrix did not have the opportunity to offer proof

of these defenses and the trial court did not rule on their viability.

Accordingly, we must remand to the trial court for the same inquiry

mandated by the Supreme Court in Taylor: whether, under the FAA’s

savings clause and generally applicable contract defenses, the ADR

Agreement at issue is valid and enforceable.

                       _______________________
(Footnote Continued)


9 U.S.C.A. § 2 (emphasis added).
3
   We note that the Centers for Medicare and Medicaid Services (“CMS”)
issued a final rule effective November 28, 2016, prohibiting facilities that
receive Medicare and Medicaid funding from using pre-dispute binding
arbitration agreements. Such facilities must not enter into an agreement for
binding arbitration with a resident or his or her representative until after a
dispute arises between the parties. 42 CFR § 483.70.



                                            -5-
J-S48012-16



       We turn to Golden Gate’s second issue, which was not present in

Taylor. Golden Gate contends that Pisano created a categorical prohibition

of arbitration of wrongful death claims, and hence, that it is pre-empted by

the FAA.     This issue is waived.        Although Pisano had been decided on

August 13, 2013, and the Supreme Court of Pennsylvania denied allowance

of appeal on February 25, 2014, which was duly noted by Golden Gate in its

brief in support of its preliminary objections in this case, Golden Gate did not

argue below that Pisano was pre-empted by the FAA.4 See also N.T. Oral

Argument, 7/28/15, at 5. In fact, Golden Gate acknowledged the holding in

Pisano and argued that, “[a]t a minimum, the Court must direct that any

survival claims be arbitrated, as the Pisano decision did not preclude the

same and severance is required by the Federal Arbitration Act.”          Brief in

Support of Preliminary Objections to Plaintiff’s Complaint, 2/25/15, at 8 n.2.

The trial court overruled the preliminary objections based upon this Court’s

decision in Taylor.

       In its concise statement of errors complained of on appeal, although

Golden Gate charged generally that the trial court erred in refusing to

transfer the claims to arbitration, or at least to sever the survival action from

the wrongful death action and transfer it to arbitration in light of Pisano, it
____________________________________________


4
  Such an argument, had it been articulated in the lower court, offered a
basis for avoiding the then-binding effect of our decision in Taylor v.
Extendicare Health Services, Inc., 113 A.3d 317 (Pa.Super. 2015).



                                           -6-
J-S48012-16



did not challenge Pisano on the basis that its holding was pre-empted by

the FAA.5

       Thus, the preemption issue vis-à-vis Pisano is waived on two

grounds: Golden Gate did not raise it below, see Pa.R.A.P. 302(a) (“Issues

not raised in the lower court are waived and cannot be raised for the first

time on appeal.”), and it did not identify this position as error in its Pa.R.A.P.

1925(b) concise statement.           See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not

included in the Statement and/or not raised in accordance with the

provisions of this paragraph (b)(4) are waived.”).

       Order reversed; case          remanded to   the   trial court   for   further

proceedings consistent with our Supreme Court’s recent decision in Taylor

and this memorandum opinion.

       Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/7/2016
____________________________________________


5
   Golden Gate expressly reserved the right to challenge on appeal this
Court’s decision in Taylor v. Extendicare Health Facilities, Inc., 113 A.3d
317 (Pa.Super. 2015). See Concise Statement of Errors Complained of on
Appeal, 9/8/15, at 1 n.1. No reservation was made as to our decision in
Pisano v. Extendicare, 77 A.3d 651 (Pa.Super. 2013).



                                           -7-
