                        [J-43-2016] [M.O. - Wecht, J.]
                IN THE SUPREME COURT OF PENNSYLVANIA
                            WESTERN DISTRICT


DANIEL E. TAYLOR AND WILLIAM         :   No. 19 WAP 2015
TAYLOR, AS CO-EXECUTORS OF THE       :
ESTATE OF ANNA MARIE TAYLOR,         :   Appeal from the Order of the Superior
DECEASED                             :   Court entered April 2, 2015 at No. 2028
                                     :   WDA 2013, affirming the Order of the
                                     :   Court of Common Pleas of Washington
           v.                        :   County entered November 20, 2013 at
                                     :   No. 2012-6878.
                                     :
EXTENDICARE HEALTH FACILITIES,       :   ARGUED: April 5, 2016
INC. D/B/A HAVENCREST NURSING        :
CENTER; EXTENDICARE HOLDINGS,        :
INC.; EXTENDICARE HEALTH FACILITY    :
HOLDINGS, INC.; EXTENDICARE          :
HEALTH SERVICES, INC.;               :
EXTENDICARE REIT; EXTENDICARE,       :
L.P.; EXTENDICARE, INC.; MON VALE    :
NON ACUTE CARE SERVICE, INC.         :
D/B/A THE RESIDENCE AT HILLTOP;      :
MON-VALE HEALTH RESOURCES, INC;      :
JEFFERSON HEALTH SERVICES, D/B/A     :
JEFFERSON REGIONAL MEDICAL           :
CENTER                               :
                                     :
                                     :
APPEAL OF: EXTENDICARE HEALTH        :
FACILITIES, INC., D/B/A HAVENCREST   :
NURSING CENTER, EXTENDICARE          :
HOLDINGS, INC., EXTENDICARE          :
HEALTH FACILITY HOLDINGS, INC.,      :
EXTENDICARE HEALTH SERVICES,         :
INC., EXTENDICARE REIT,              :
EXTENDICARE, L.P. AND                :
EXTENDICARE, INC.                    :
                                   DISSENTING OPINION


JUSTICE DONOHUE                                   DECIDED: SEPTEMBER 28, 2016

          I respectfully dissent from the Majority’s conclusion that the Federal Arbitration

Act (“FAA”), 9 U.S.C. §§ 1-16, mandates the severance of the wrongful death action in

this case from the survival action so as to allow the latter to proceed to arbitration. For

the reasons that follow, I conclude that it is incorrect to focus the analysis on the

dispensability of Pennsylvania Rule of Civil Procedure 213(e) under the pressure of the

herculean FAA. Instead, the pinpoint question is whether the FAA can divest wrongful

death heirs of their statutorily created right to bring a wrongful death action in this

Commonwealth.          Because 42 Pa.C.S.A. § 8301 (the “Wrongful Death Act”)

preconditions the maintenance of heirs’ claims on their joinder with any claim pursuant

to 42 Pa.C.S.A. § 8302 (the “Survival Act”), severance defeats the heirs’ right to recover

under the statutorily created cause of action. Although the Majority may be correct in its

apocalyptic recitation of existing United States Supreme Court precedent, the FAA does

not and cannot deprive a citizen of this Commonwealth of the right to pursue a cause of

action.

          If no recovery for personal injuries is obtained by an injured person during her

life, Pennsylvania law allows for the bringing of two distinct actions after her death. The

Pennsylvania legislature created the first of these actions by enacting what is now

42 Pa.C.S.A. § 8301, authorizing certain enumerated relatives of a person killed by

another’s negligence to sue for damages. Tulewicz v. Se. Pa. Transp. Auth., 606 A.2d

427, 431 (Pa. 1992) (explaining that a wrongful death action was unknown at common




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law); see 42 Pa.C.S.A. § 8301.1 The second of these actions “merely continues in the

[decedent’s] personal representative the right of action which accrued to the deceased

at common law because of the tort.” Tulewicz, 606 A.2d at 431; see 42 Pa.C.S.A.

§ 8302. In the case of the Wrongful Death Act, the current statute requires, in pertinent

part, that the action be brought (1) “under procedures prescribed by general rules” and

(2) only so long as “any prior actions for the same injuries are consolidated with the

wrongful death claim so as to avoid a duplicate recovery.” See 42 Pa.C.S.A. § 8301.

        Wrongful Death Act damages are measured by “the pecuniary loss [the statutory

relatives] have sustained as a result of the death of the decedent” and include “the

present value of the services the deceased would have rendered to the family, had she

lived, as well as funeral and medical expenses.” Kiser v. Schulte, 648 A.2d 1, 4 (Pa.

1994). Survival Act damages are measured by the pecuniary loss sustained by the

decedent, and therefore by her estate, as a result of the negligent act that caused her

death. Id. They also include the decedent’s pain and suffering prior to death. Id. The

potential for overlapping damages is obvious.        In a foundational case involving a

1
    Section 8301 provides, in relevant part:
               (a) General rule -- An action may be brought, under procedures
               prescribed by general rules, to recover damages for the death of an
               individual caused by the wrongful act or neglect or unlawful
               violence or negligence of another if no recovery for the same
               damages claimed in the wrongful death action was obtained by the
               injured individual during his lifetime and any prior actions for the
               same injuries are consolidated with the wrongful death claim so as
               to avoid duplicate recovery.
42 Pa.C.S.A. § 8301. The Editors’ Notes provide that Section 8301 is “substantially a
reenactment of act of April 15, 1851 (P.L. 669), § 19 (12 P.S. § 1601), act of April 26,
1855 (P.L. 309), § 1 (12 P.S. § 1602) and act of May 13, 1927 (P.L. 992)(No. 480), § 1
(12 P.S. § 1604).”



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Wrongful Death Act claim and a Survival Act claim which had been consolidated and

tried together, this Court emphasized that while “there is nothing novel or unusual in the

law giving a right or redress to two or more persons for the infliction of a single personal

injury,” it is imperative that the two actions not “result in a duplication of damages.” See

Pezzulli v. D’Ambrosia, 26 A.2d 659, 661 (Pa. 1942).

        Indeed, in Pezzulli, we recognized that “there is an important limitation on the

right” to bring a wrongful death action, “namely, that it must not work a duplication of

damages” where a survival action is also brought. Id. at 662. We determined that

“whenever [these] two actions are brought L they must be consolidated and tried

together.” Id. Accordingly, we directed the promulgation of Pennsylvania Rule of Civil

Procedure 213(e)2 which reiterates and implements the aforementioned requirement,

2
    Pa.R.C.P. 213 provides:
              (e) A cause of action for the wrongful death of a decedent and a
              cause of action for the injuries of the decedent which survives his or
              her death may be enforced in one action, but if independent actions
              are commenced they shall be consolidated for trial.
              (1) If independent actions are commenced or are pending in the
              same court, the court, on its own motion or the motion of any party,
              shall order the actions consolidated for trial.
              (2) If independent actions are commenced in different courts, the
              court in which the second action was commenced, on its own
              motion or the motion of any party, shall order the action transferred
              to the court in which the first action was commenced.
              (3) If an action is commenced to enforce one cause of action, the
              court, on its own motion or the motion of any party, may stay the
              action until an action is commenced to enforce the other cause of
              action and is consolidated therewith or until the commencement of
              such second action is barred by the applicable statute of limitation.
Pa.R.C.P. 213 (amended on October 1, 1942, just six months after our decision in
Pezzulli, to add paragraph (e)).
(continuedL)

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pursuant to Pezzulli and apparent on the face of the current Wrongful Death Act, that “if

independent wrongful death and survival actions are commenced, they must be

consolidated for trial.” Tulewicz, 606 A.2d at 431 (emphasis in original); Pezzulli v.

D’Ambrosia, 26 A.2d at 662. As Appellees argue, “the mandatory consolidation and

joint trial of wrongful death and survival actions in Pennsylvania has not only been an

unshakeable procedural rule for the better part of a century,” but is also a requirement

of the cause of action codified at Section 8301. See Appellees’ Brief at 33.3 It is

incorrect to label the consolidation requirement embedded in the Wrongful Death Act

(as implemented in Rule 213(e)) as a procedure to promote judicial efficiency. The

mandate is a substantive requirement imposed by the legislature to prevent a

duplication of damages as a result of the statutorily created cause of action.




(Lcontinued)
This Court’s power to promulgate rules of procedure is derived from Article V, Section
10 of the Pennsylvania Constitution which provides, in relevant part, that “the Supreme
Court shall have the power to prescribe general rules governing practice, procedure and
the conduct of all courts, if such rules are consistent with this Constitution and neither
abridge, enlarge nor modify the substantive rights of any litigant, nor affect the right of
the General Assembly to determine the jurisdiction of any court or justice of the peace,
nor suspend nor alter any statute of limitation or repose.” Pa. Const. art. V, § 10.
3
   The Majority states that both parties “have, at this juncture, confined their arguments
solely to the application of Rule 213(e).” Majority Op. at n. 11. This is incorrect. As
noted, supra, Appellees explicitly posit that both Rule 213(e) and the Wrongful Death
Act require consolidation and argue that the Superior Court’s decision, which also
discussed both the rule and the statute, does not offend the Federal Arbitration Act. See
Appellees’ Brief at 18, 33. As Appellees point out, only Appellants have confined their
arguments solely to the application of Rule 213(e): “despite the Superior Court’s
reliance upon both procedural and statutory law, [Appellants] completely ignore the
Wrongful Death Act’s application to this case. See Taylor v. Extendicare Health
Facilities, Inc., 113 A.3d 317, 322 (Pa. Super. 2015). Accordingly, they have waived any
argument regarding the same.” Id. at n. 26.



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       As a general and indisputable proposition, in order to maintain a cause of action,

a plaintiff must comply with the dictates of the statute setting forth his right to sue. Cf.

Frazier v. Oil Chem. Co., 179 A.2d 202, 204–05 (Pa. 1962) (acknowledging that the

right to sue under the Wrongful Death Act is cabined by the terms granted by the

legislature, because no such right existed at common law); accord Rich v. Keyser,

54 Pa. 86, 90 (1867) (explaining that for a landlord “to obtain the statutory remedy [of

possession], performance of the statutory conditions is necessary, and hence the three

months' notice.   And as it is a necessity that grows out of the statute it must be

regulated by the very terms of the statute”). Yet in holding that the FAA preempts Rule

213(e) – because the Rule “was applied in this case to defeat arbitration of the survival

claim” and therefore “stands as an obstacle to achieving the objectives of Congress in

enacting the FAA, as interpreted by the United States Supreme Court” – the Majority

makes it impossible for the wrongful death beneficiaries to comply with a core statutory

condition, i.e. the consolidation requirement, and effectively deprives them of their

cause of action. See 42 Pa.C.S.A. § 8301; Tulewicz, 606 A.2d at 431; Pezzulli, 26 A.2d

at 662. This result is absurd.

       I do not dispute that United States Supreme Court precedent mandates FAA

preemption with respect to “state substantive or procedural policies” that disfavor

arbitration. See Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp, 460 U.S. 1, 24

(1983). And I do not dispute that the FAA pre-empts “state laws which require a judicial

forum for the resolution of claims which the contracting parties agreed to resolve by

arbitration,” see Volt Info. Scis., Inc. v. Bd. of Trustees of Leland Stanford Junior Univ.,

489 U.S. 468, 478–79 (1989) (citing Southland Corp. v. Keating, 465 U.S. 1, 10 (1984)),




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or which stand as an obstacle to the accomplishment of the FAA’s objectives. See

AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 343 (2011) (holding that FAA

preempted California’s common law unconscionability rule). But Rule 213(e) does none

of these things. To the extent it is procedural at all, see Majority Op. at 14, 32, Rule

213(e) is procedural in name only. In substance, it is a surrogate for the Wrongful

Death Act, a cause of action through which the legislature chose to vest a legal right in

certain statutory relatives to bring suit, but only so long as their action is consolidated

with any survival action that has also been initiated. See 42 Pa.C.S.A. § 8301; see also

Pezzulli, 26 A.2d at 662.

      To my knowledge, the United States Supreme Court has never concluded that

the FAA is powerful enough to deprive a state court plaintiff of the substantive right to

bring a statutory cause of action, nor would it. To the contrary, the Supreme Court has

repeatedly recognized that a statutory cause of action is a property right protected by

the Due Process Clause.4        See, e.g., Societe Internationale Pour Participations

Industrielles Et Commerciales, S. A. v. Rogers, 357 U.S. 197, 209 (1958) (reading a

Federal Rule of Civil Procedure in light of the “property” protections of the Due Process

Clause and concluding that there are “constitutional limitations upon the power of courts



4
    The Due Process Clause, found in the Fifth and Fourteenth Amendments of the
United States Constitution, establishes that “[n]o person shall . . . be deprived of life,
liberty, or property, without due process of law.” See 10 U.S. Const. amend. V; see id.
amend. XIV, §1 (“[N]o state shall ... deprive any person of life, liberty, or property,
without due process of law.”). The Pennsylvania Constitution additionally provides that
“[a]ll courts shall be open; and every man for an injury done him in his lands, goods,
person or reputation shall have remedy by due course of law, and right and justice
administered without sale, denial or delay.” Pa. Const. art. I, § 11.




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L to dismiss an action without affording a party the opportunity for a hearing on the

merits of his cause”); Martinez v. State of Cal., 444 U.S. 277, 281–82 (1980)

(acknowledging the likelihood that a state’s statutorily created cause of action for

wrongful death is a constitutionally protected “species of ‘property’”); Logan v.

Zimmerman Brush Co., 455 U.S. 422, 428 (1982) (recognizing that "a cause of action is

a species of property protected by the Fourteenth Amendment's Due Process Clause");

Tulsa Prof'l Collection Servs. v. Pope, 485 U.S. 478, 485 (1988) (noting, in reference to

a cause of action for an unpaid bill, that “[l]ittle doubt remains that such an intangible

interest is property protected by the Fourteenth Amendment"). Accordingly, I would

hold that the FAA does not, indeed cannot, preempt Rule 213(e). The Majority’s

conclusion to the contrary amounts to an unconstitutional deprivation of the wrongful

death beneficiaries’ property rights.

       In addition, it bears noting that the law is clear that when a party agrees to

arbitrate a statutory claim, it “does not forgo the substantive rights afforded by the

statute; it only submits to their resolution in an arbitral ... forum.” Preston v. Ferrer, 552

U.S. 346, 359 (2008). The Majority, in an overzealous effort to give the FAA its due

force, instead produces this patently improper outcome, i.e., that the wrongful death

beneficiaries, who did not agree to arbitrate at all, are themselves forced to forgo a

substantive right, because, absent joinder with the survival action, their claim for

wrongful death cannot be maintained.

       Finally, in the alternative, I would conclude that even if Rule 213(e) is preempted,

bifurcation of the Wrongful Death Act claims and the Survival Act claims is unwarranted.

Absent Rule 213(e), the Wrongful Death Act’s consolidation requirement would remain




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intact on the face of Section 8301. As there is simply no support in the FAA preemption

cases to conclude that the federal policy favoring arbitration agreements can supplant a

statutory cause of action, consolidation of the claims in a single judicial proceeding

should nonetheless be ordered.

      I respectfully dissent.

      Justice Todd joins this dissenting opinion.




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