J-S13022-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

NANCY D. MARTZ, EXECUTRIX OF THE                  IN THE SUPERIOR COURT OF
ESTATE OF HARRY L. OTTO, DECEASED                       PENNSYLVANIA

                            Appellee

                       v.

GOLDEN GATE NATIONAL SENIOR CARE,
LLC, GGNSC ALTOONA HILLVIEW LP,
D/B/A     GOLDEN       LIVINGCENTER-
HILLVIEW           GP           LLC,
GGNSC HOLDINGS LLC, GGNSC EQUITY
HOLDINGS,         LLC,        GGNSC
ADMINISTRATIVE     SERVICES,    LLC,
GGNSC    CLINICAL   SERVICES,   LLC,
DENISE CURRY, AN INDIVIDUAL, AND
ROBERT ETCHELLS, NHA,

                            Appellants                 No. 855 WDA 2015


                   Appeal from the Order Dated May 12, 2015
                  In the Court of Common Pleas of Blair County
                         Civil Division at No: 2014-01657


BEFORE: LAZARUS, STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY STABILE, J.:                         FILED JANUARY 12, 2017

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

Court. On November 17, 2016, the Court granted the petition for allowance

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

order affirming the overruling of preliminary objections to compel arbitration


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-S13022-16



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.

        Briefly, the claims arise from the death of Harry L. Otto, after he was a

resident at a nursing home operated by Golden Gate.

        We have 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) and Tuomi v.

Extendicare, Inc., 119 A.3d 1030 (Pa. Super. 2015).                  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, 6/3/2015, at 2. Following the

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

____________________________________________


1
    Respectively, 42 Pa.C.S.A. §§ 8301 and 8302.
2
    9 U.S.C. § 2.




                                           -2-
J-S13022-16



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 unless the Arbitration Agreement is

unenforceable.    “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 unconscionability, to determine whether a valid contract exists.”

Taylor, 2016 WL 5630069 at 14 (citations omitted).            To the extent

Appellees raised contract law defenses, including but not limited to

unconscionability, this matter is hereby remanded to the trial court in accord

with Taylor, and further to permit the trial court to address any contract

based defenses.

      Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/12/2017




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