J-A07026-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ANTHONY TARLI, AS ADMINISTRATOR                 IN THE SUPERIOR COURT OF
FOR THE ESTATE OF DOLLY I. TARLI,                     PENNSYLVANIA
DECEASED

                            Appellee

                       v.

GRANE HEALTHCARE COMPANY,
RIVERSIDE CARE CENTER, LLC D/B/A
RIVERSIDE CARE CENTER, AND
RIVERSIDE NURSING CENTERS, INC.

                            Appellants               No. 1434 WDA 2014


                    Appeal from the Order August 20, 2014
              In the Court of Common Pleas of Allegheny County
                     Civil Division at No(s): GD 14-003221


BEFORE: BENDER, P.J.E., LAZARUS, J., and MUNDY, J.

JUDGMENT ORDER BY LAZARUS, J.:                         FILED JULY 16, 2015

       We affirm the order overruling Appellants’ preliminary objections in the

nature of a petition to compel arbitration based on our recent decision in

Taylor v. Extendicare Health Facilities, Inc., 113 A.3d 317 (Pa. Super.

2015).

       As we originally set forth in Pisano v. Extendicare Homes, Inc., 77

A.3d 651 (Pa. Super. 2013), non-signatory wrongful death beneficiaries are

not bound by arbitration agreements signed by or on behalf of a decedent.1
____________________________________________


1
  Riverside attempts to distinguish Pisano on the basis that here, the
individual who signed the arbitration agreement as an agent under a power
of attorney, Anthony Tarli, is also a wrongful death beneficiary. Riverside
(Footnote Continued Next Page)
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In Taylor, we further held that Pa.R.C.P. 213(e) and the wrongful death

statute, 42 Pa.C.S.A. § 8301(a), require that a survival act claim otherwise

subject to the terms of an arbitration agreement be consolidated with a

wrongful death claim where the wrongful death beneficiaries are not bound

by the arbitration agreement and do not consent to arbitration.2     In doing

so, we stated as follows:

      The issues are identical in the two actions. Litigation in two
      forums increases the potential for inconsistent liability findings
      between the wrongful death and survival actions. Furthermore,
                       _______________________
(Footnote Continued)

asserts that “[i]t would be inequitable to enforce a legal fiction allowing
[Tarli] to claim [he]could bind [his] mother but not [him]self. Brief of
Appellant, at 10. This argument ignores the distinction between fiduciary
and individual capacities.    Tarli clearly executed the agreement in his
fiduciary capacity as agent for his mother and not in his individual capacity.
See Agreement to Arbitrate, 3/24/11, at 2. Thus, Tarli, individually, was not
a party to the agreement and, as such, is not bound by its terms.
2
  Appellants also argue that appellant Grane Healthcare, although not a
signatory to the arbitration agreement, was nonetheless a third-party
beneficiary of the agreement and, thus, may compel arbitration. However,

      a party becomes a third party beneficiary only where both
      parties to the contract express an intention to benefit the third
      party in the contract itself, unless, the circumstances are so
      compelling that recognition of the beneficiary’s right is
      appropriate to effectuate the intention of the parties, and the
      performance satisfies an obligation of the promisee to pay
      money to the beneficiary or the circumstances indicate that the
      promisee intends to give the beneficiary the benefit of the
      promised performance.

Scarpitti v. Weborg, 609 A.2d 147, 150-51 (Pa. 1992).             Here, the
agreement itself evidences no intention that Grane be included within its
scope and Appellants have offered no other evidence of such intent.




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      the damages overlap. Although lost earnings are generally
      recoverable in the survival action, they may take the form of lost
      contributions to the decedent’s family, which are wrongful death
      damages. Lost earnings includes loss of retirement and social
      security income.     Generally, hospital, nursing, and medical
      expenses are recoverable under either the wrongful death or
      survival act.

Taylor, 113 A.3d at 327 (citation omitted).

      We also considered the application of the Federal Arbitration Act

(“FAA”) and the impact of the U.S. Supreme Court’s decision in Marmet

Health Care Ctr., Inc. v. Brown, 132 S.Ct 1201 (2012), concluding:

      The [wrongful death] statute and rule at issue are not aimed at
      destroying arbitration and do not demand procedures
      incompatible with arbitration. Nor are they so incompatible with
      arbitration as to wholly eviscerate arbitration agreements. On
      the facts herein, 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. In so holding, we are promoting
      one of the two primary objectives of arbitration, which is to
      achieve streamlined proceedings and expeditious results.

Taylor, 113 A.3d at 327-28 (citations and quotation marks omitted).

      In sum, the consolidation of the wrongful death and survival claims

does not offend the stated goals of the FAA. Moreover, it promotes judicial

economy and public policy interests, which are best served by allowing for

the resolution of all claims with all parties present and avoiding inconsistent

verdicts and duplicative damages. Accordingly, the trial court did not err in

declining to compel arbitration of either the wrongful death or survival act

claims and requiring the two actions to proceed together in court.

      Order affirmed; motion to quash denied.



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J-A07026-15


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/16/2015




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