J-A18024-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

SUSAN J. COSGROVE AND HOWARD G.                IN THE SUPERIOR COURT OF
ESHLEMAN, AS CO-EXECUTORS OF THE                     PENNSYLVANIA
ESTATE OF IRENE M. ESHLEMAN

                            Appellees

                       v.

MANORCARE OF LANCASTER PA, LLC
D/B/A MANORCARE HEALTH SERVICES
LANCASTER, AND HCR MANORCARE,
INC., AND MANORCARE, INC.

                            Appellants              No. 761 MDA 2014


                   Appeal from the Order Entered April 4, 2014
               In the Court of Common Pleas of Lancaster County
                          Civil Division at No: 12-11713


BEFORE: FORD ELLIOTT, P.J.E., STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                      FILED FEBRUARY 13, 2017

        This case returns to this Court following a remand from our Supreme

Court. On November 15, 2016, the Court granted the petition for allowance

of appeal filed by Appellants (collectively ManorCare), vacated our previous

order affirming the overruling of preliminary objections to compel arbitration

of claims brought under the Wrongful Death and Survival Acts, 1 and

remanded the case to us for further proceedings consistent with Taylor v.

Extendicare Health Facilities, Inc., ___A.3d___, 2016 WL 5630669 (Pa.

Sept. 28, 2016). Upon review, we reverse and remand.
____________________________________________


1
    Respectively, 42 Pa.C.S.A. §§ 8301 and 8302.
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        Briefly, the claims arise from the death of Irene M. Eshleman, after she

was a resident at a nursing home operated by ManorCare.

        We previously noted that wrongful death claims are not subject to

arbitration, because a decedent’s agreement to arbitrate is not enforceable

against     the     decedent’s   wrongful      death   beneficiaries.    Pisano   v.

Extendicare Homes, Inc., 77 A.3d 651, 661 (Pa. Super. 2013).                  In our

previous decision, we relied exclusively on this court’s decision in Taylor v.

Extendicare Homes, Inc., 113 A.3d 317, 320 (Pa. Super. 2015), rev’d,

____A.3d _____, 2016 WL 5630669 (Pa. Sept. 28, 2016).                   We held that

Pa.R.C.P. No. 213(e), requires compulsive joinder of Survival Act claims and

wrongful death claims and such joinder does not violate the Federal

Arbitration Act.2      Unpublished Memorandum, 6/18/2015, at 2.            Following

reversal in Taylor, it is clear that Pa.R.C.P. No. 213(e) does violate the

Federal Arbitration Act, and therefore is preempted.              Taylor, 2016 WL

563069 at 16.          This preemption requires that Appellants’ preliminary

objections to compel arbitration be sustained, and the wrongful death and

Survival Act claims be severed.

        “The only exception to a state’s obligation to enforce an arbitration

agreement is provided by the savings clause, which permits the application

of generally applicable state contract law defenses such as fraud, duress, or


____________________________________________


2
    9 U.S.C. § 2.



                                           -2-
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unconscionability, to determine whether a valid contract exists.”   Taylor,

2016 WL 5630069 at 14 (citations omitted). Appellees also argued that the

arbitration agreement is not enforceable because the designated arbitration

forum (the NAF) never was in a position to administer arbitration, and

further that the arbitration agreement is procedurally and substantively

unconscionable.   Since the trial court did not address these issues, we

remand in accord with Taylor and further, to permit the trial court to

address these contract based defenses.

     Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/13/2017




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