J-A25045-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ELIZABETH LIPSHUTZ AND SUSAN SMIT,                    IN THE SUPERIOR COURT OF
EXECUTORS OF THE ESTATE OF                                  PENNSYLVANIA
CATHERINE FITZSIMMONS, DECEASED,

                            Appellees

                       v.

ST. MONICA MANOR, CATHOLIC
HEALTHCARE SERVICES, AND
ARCHDIOCESE OF PHILADELPHIA,

                            Appellants                       No. 3400 EDA 2013


                Appeal from the Order Entered October 16, 2013
              in the Court of Common Pleas of Philadelphia County
                Civil Division at No.: 00614 February Term, 2013


BEFORE: DONOHUE, J., WECHT, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                              FILED FEBRUARY 03, 2015

        Appellants, St. Monica Manor, Catholic Healthcare Services, and the

Archdiocese     of   Philadelphia,    appeal,   in   part,   from   the   trial   court’s

interlocutory order disposing of their preliminary objections in this wrongful

death and survival action. We affirm.

        The trial court summarized the factual history of this case as follows:

              In 1993, [Appellees, Elizabeth Lipshutz and Susan Smit’s,]
        decedent[,] [Catherine Fitzsimmons,] executed a power of
        attorney (“1993 POA”)[,] which appointed her two daughters as
        attorneys-in-fact. The 1993 POA stated, “This power of attorney
        shall become effective only upon my disability as certified in
        writing by two physicians. I would be disabled if I were unable
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*
    Retired Senior Judge assigned to the Superior Court.
J-A25045-14


      to manage my property and affairs effectively for reasons such
      as mental illness, mental deficiency, physical illness or disability,
      advanced age, chronic use of drugs, chronic intoxication,
      confinement, detention by a foreign power, or disappearance.”

             On November 4, 2011, [Appellees’] decedent suffered a
      stroke and was admitted to Jefferson University Hospital
      (“Jefferson Hospital”). After the stroke, [Appellee,] Ms. Lipshutz,
      [Appellees’] decedent’s daughter and executor of the estate,
      obtained a letter from [Appellees’] decedent’s physician
      explaining that the patient’s stroke left her “physically unable to
      care for her son.” [Appellees’] decedent remained at Jefferson
      Hospital for two weeks before she was transferred to [Appellant,]
      St. Monica Manor’s facility. The Jefferson Hospital discharge
      records state that [Appellees’] decedent had an “impaired
      mental status.” They also demonstrate that she was unable to
      feed herself.

            [Appellees’] decedent entered [Appellant,] St. Monica
      Manor[,] on November 11, 2011.           [Appellees’] decedent’s
      records demonstrate that upon admission she was confused.
      Some days later, as part of the formal admission process,
      [Appellee,] Ms. Lipshutz[,] signed an admission agreement.
      That agreement contained a mandatory arbitration clause.
      [Appellant,] St. Monica Manor[,] accepted [Appellee,] Ms.
      Lipshutz’s[,] signature pursuant to her power under the 1993
      POA[,] which was made part of the nursing home records. She
      was the only one of [Appellees’] decedent’s four surviving
      children to sign the arbitration agreement.

(Trial Court Opinion, 11/13/13, at 2) (footnotes omitted).

      After Catherine Fitzsimmons’ death, Appellees brought a wrongful

death and survival action against Appellants on February 7, 2013, alleging

substandard care at St. Monica Manor.             Appellants filed preliminary

objections on April 23, 2013.

      On May 16, 2013, Appellees filed an amended complaint. Appellants

filed preliminary objections on June 5, 2013. The trial court, after a hearing,

overruled in part and sustained in part Appellants’ preliminary objections.

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Specifically, the court held that “[t]he wrongful death claims must remain

before this [c]ourt, and the survival claims are remanded to binding

arbitration pursuant to the arbitration agreement.       All other preliminary

objections are denied.”            (Order, 10/16/13, at unnumbered page 1

(capitalization omitted)).       Appellants timely appealed on November 12,

2013.1

       Appellants raise the following issues for our review:

       1.    Assuming arguendo it is applicable, is this Court’s holding
       in Pisano v. Extendicare Homes, Inc., 77 A.3d 651 (Pa.
       Super. 2013), appeal denied, [86 A.3d 233 (Pa. 2014), cert.
       denied, 134 S. Ct. 2890 (2014)], inconsistent with the FAA
       [(Federal Arbitration Act, 9 U.S.C. §§ 1-16)], which is a
       substantive federal law that “includes no exception for personal-
       injury or wrongful-death claims[,]” Marmet Health Care Ctr.,
       Inc. v. Brown, 565 U.S. __, 132 S. Ct. 1201, 1203 (2012),
       such that Pisano (and, in part, the order below) should be
       reversed and all claims in this action submitted to arbitration?

       2.    In the alternative, did the [t]rial [c]ourt err in overruling
       (in part) [Appellants’] preliminary objection that sought to
       compel arbitration by incorrectly determining that [Appellee,]
       Elizabeth Lipshutz[,] signed the agreement only in her
       representative capacity when the express terms of the
       agreement, which she admits to signing, provide otherwise?

(Appellants’ Brief, at 2-3).

       Preliminarily we note that “[a]s a general rule, an order denying a

party’s preliminary objections is interlocutory and, thus, not appealable as of

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1
  The trial court did not order Appellants to file a Rule 1925(b) statement of
errors, but it filed its Rule 1925(a) opinion on November 13, 2013. See
Pa.R.A.P. 1925.



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right. There exists, however, a narrow exception to this oft-stated rule for

cases in which the appeal is taken from an order denying a petition to

compel arbitration.” Elwyn v. DeLuca, 48 A.3d 457, 460 n.4 (Pa. Super.

2012) (citations and quotation marks omitted).

       Our standard of review is well-settled:

       Our review of a claim that the trial court improperly denied the
       appellant’s preliminary objections in the nature of a petition to
       compel arbitration is limited to determining whether the trial
       court’s findings are supported by substantial evidence and
       whether the trial court abused its discretion in denying the
       petition.

Walton v. Johnson, 66 A.3d 782, 787 (Pa. Super. 2013) (citation omitted).

       In their first issue, Appellants argue that this Court should revisit its

decision in Pisano because it “puts Pennsylvania law on a collision course

with the FAA, which includes no exception for personal-injury or wrongful-

death claims.”      (Appellants’ Brief, at 13 (citation and internal quotation

marks omitted)).2 We disagree.

       “[W]e have long held that as long as the decision has not been

overturned by our Supreme Court, a decision by our Court remains binding

precedent.”     Marks v. Nationwide Ins. Co., 762 A.2d 1098, 1101 (Pa.




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2
  Although Appellants did not raise this issue with the trial court in their
preliminary objections, they did make this argument in both their
supplemental brief and at oral argument. (See Appellants’ Supplemental
Brief, 9/17/13, at 14-19; N.T. Argument, 9/17/13, at 43-44, 49).



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Super. 2000), appeal denied, 788 A.2d 381 (Pa. 2001).          Thus, we must

adhere to the holding in Pisano.

      Pisano recognized that both Pennsylvania law and the FAA reflect a

liberal policy of favoring arbitration.     See Pisano, supra at 660-61.

However, “[t]he existence of an arbitration provision and [such] a . . . policy

. . . does not require the rubber stamping of all disputes as subject to

arbitration . . . where . . . holding otherwise would operate against principles

of Pennsylvania contract law and the FAA.” Id. at 661 (citations omitted).

      Therefore, we conclude that the trial court properly determined that

this Court’s holding in Pisano is consistent with the FAA. (See Trial Ct. Op.,

at 4-8). Accordingly, the trial court did not abuse its discretion and properly

denied, in part, Appellants’ preliminary objections. See Walton, supra at

787. Appellants’ first issue does not merit relief.

      Alternatively, in their second claim, Appellants argue that the trial

court erred in finding that Appellee, Elizabeth Lipshutz, signed the admission

agreement only in her representative capacity. Specifically, they argue that

“[Appellant,] St. Monica Manor’s [a]dmission [a]greement makes plain that

[Appellee,] Ms. Lipshutz[,] bound herself both as [Appellees’ decedent,] Ms.

Fitzsimmons’ power of attorney and in her personal capacity.” (Appellants’

Brief, at 16) (emphasis added). We disagree.

      Our independent review of the record reflects that Ms. Lipshutz signed

the admission agreement in her capacity as the resident’s representative.




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(See Admission Agreement, 11/21/11, at 1, 12 (identifying Ms. Lipshutz as

“Resident’s representative (called Responsible Person).”)).

      Therefore, we conclude that the trial court properly determined that

Appellee, Elizabeth Lipshutz, “signed the arbitration agreement strictly, and

only, in her representative capacity[.]” (Trial Ct. Op., at 8). Accordingly,

the trial court did not abuse its discretion and properly denied Appellants’

preliminary objections, in part.   See Walton, supra at 787.      Appellants’

second issue does not merit relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/3/2015




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