J-A21017-14
                            2016 PA Super 15



ROY J. BURKETT JR., ADMINISTRATOR              IN THE SUPERIOR COURT OF
OF THE ESTATE OF NANNIE BURKETT,                     PENNSYLVANIA
DECEASED AND IN HIS OWN RIGHT

                        Appellee

                   v.

ST. FRANCIS COUNTRY HOUSE,
CATHOLIC HEALTHCARE SERVICES AND
ARCHDIOCESE OF PHILADELPHIA

                        Appellant                  NO. 2633 EDA 2013


                Appeal from the Order Dated August 16, 2013
           In the Court of Common Pleas of Philadelphia County
          Civil Division at No(s): October Term, 2012, No. 002585


BEFORE: BOWES, J., OTT, J., and STRASSBURGER, J.*

CONCURRING STATEMENT BY BOWES, J.:              FILED JANUARY 25, 2016

     I agree with the learned majority that Taylor v. Extendicare Health

Facilities, Inc., 113 A.3d 317 (Pa.Super. 2015), allocatur granted 122 A.3d

1036 (Pa. 2015), is controlling herein. However, unlike my colleagues, I am

not constrained to apply this decision as I do not believe our law requiring

consolidation of wrongful death and survival actions is pre-empted by the

Federal Arbitration Act (“FAA”).     Furthermore, I wish to address my

colleagues’ belief that, contrary to our statement in Taylor, wrongful death

and survival actions do not involve the same issues because they are distinct

claims.



*Retired Senior Judge assigned to the Superior Court
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      The majority views Taylor as a bright-line rule requiring consolidation

that will operate to preclude arbitration of all wrongful death and survival

actions. It suggests, without expressly so stating, that it is no different than

the categorical prohibition of arbitration of wrongful death and survival

actions held pre-empted in Marmet Health Care Ctr, Inc. v. Brown, 132

S.Ct 1201 (U.S. 2012).     I submit that one need look no further that this

Court’s recent decision in MacPherson v. Magee Mem. Hosp. for

Convalescence, 2015 PA Super 248 (Pa.Super. 2015) (en banc), to see the

fallacy in that reasoning. Therein, the wrongful death and survival actions

against the nursing home were consolidated in arbitration. Thus, I submit

that Pa.R.C.P. 213(e) and the Wrongful Death Act, 42 Pa.C.S. § 8301, do not

categorically prohibit the arbitration of such claims, are not anti-arbitration,

and do not invalidate arbitration agreements under state law contract

principles applicable only to arbitration. They are arbitration neutral for the

reasons cited in Taylor and are not pre-empted by the FAA.

      The majority also takes issue with the statement in Taylor that the

issues in the wrongful death and survival actions are identical. In support

thereof, it points out that they are distinct claims belonging to and

benefitting different persons. I do not disagree that the claims are distinct.

However, as we recognized in Pisano v. Extendicare Homes, Inc., 77

A.3d 651, 654 (Pa.Super. 2013), “a wrongful death action ‘lies in the

tortious act which would support a survival action.’” Hence, the underlying

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liability is derived from the same tortious acts. In deciding wrongful death

as well as survival claims, the factfinder must determine whether the

conduct of a defendant was wrongful, and, if so, whether that negligent or

intentional conduct was the factual cause of the decedent’s injury and/or

death. In the case of negligence asserted against multiple defendants, the

factfinder may be required to apportion liability among the defendants.

There is a potential for factfinders operating in different forums to arrive at

inconsistent findings of negligence or causation.

      Even if liability determinations are consistent, duplicative damages

may be awarded in the separate actions. Although the majority dismisses

that risk as de minimis because an elderly decedent would not likely have a

significant claim for lost earnings, this rationale is shortsighted.   Wrongful

death and survival actions are not restricted to the elderly. Furthermore, as

we noted in Taylor, supra at 327, the potential for duplication also extends

to “hospital, nursing, and medical expenses” that are “[g]enerally . . .

recoverable under either the wrongful death or survival act.”

      As the majority notes, allocatur has been granted to review our

decision in Taylor. Thus, our High Court is poised to answer the question

whether Pennsylvania law requiring consolidation of wrongful death and

survival actions is in conflict with the FAA, and hence, pre-empted by that

statute.




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