J-A21017-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

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.*

MEMORANDUM BY OTT, J.:                                 FILED JULY 11, 2017

        This case returns to us on remand following the Pennsylvania Supreme

Court’s decision in Taylor v. Extendicare, 147 A.3d 490 (Pa. Sept. 28,

2016), cert. denied, 137 S. Ct. 1375 (U.S. 2017) (“Taylor II”).1         Upon

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*
    Retired Senior Judge assigned to the Superior Court.
1
  In Taylor II, the sole issue before the Supreme Court was whether a non-
arbitrable wrongful death cause of action could be severed from a survival
action to allow the survival claim to proceed to arbitration pursuant to an
agreement. As will be discussed in more detail infra, the central question
was whether the Federal Arbitration Act (“FAA”), 9 U.S.C. § 1 et seq.,
preempted Pennsylvania Rule of Civil Procedure 213(e). Accordingly, our
disposition will be limited to that determination as it is the only outstanding
contention following the remand. See Burkett v. St. Francis Country
(Footnote Continued Next Page)
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review, we affirm in part, reverse in part, and remand for further

proceedings.

      The relevant history of this nursing home facility wrongful death and

survival lawsuit was set forth in this Court’s January 25, 2016, opinion

affirming the trial court’s order denying a motion to compel arbitration

brought by St. Francis Country House, Catholic Healthcare Services, and

Archdiocese of Philadelphia (collectively, “St. Francis”).2 See Burkett v. St.

Francis Country House, 133 A.3d 22 (Pa. Super. 2016), reversed, 162 EAL

2016, 2016 Pa. LEXIS 2308 (Pa. Oct. 17, 2016) (per curiam).

      Relying on this Court’s decision in Pisano v. Extendicare Homes,

Inc., 77 A.3d 651 (Pa. Super. 2013), the trial court determined that Burkett

was a non-intended third party, in his capacity as administrator of the Estate

and in his own right. Moreover, the court concluded Burkett was not bound

under the Arbitration Clause to arbitrate either the wrongful death or
                       _______________________
(Footnote Continued)

House, 162 EAL 2016, 2016 Pa. LEXIS 2308 (Pa. Oct. 17, 2016) (per
curiam) (“AND NOW, this 17th day of October, 2016, the Petition for
Allowance of Appeal is GRANTED. The Superior Court's order is VACATED.
The matter is REMANDED for proceedings consistent with the decision in
Taylor v. Extendicare, 147 A.3d 490, No. 19 WAP 2015, 2016 Pa. LEXIS
2166 (Pa. filed September 28, 2016).”).
2
   We briefly note St. Francis owned and operated St. Francis Country House,
a nursing home facility where the decedent, Nannie Burkett (“Decedent”),
resided at the time of her death. Roy J. Burkett, Jr., Administrator of the
Estate of Nannie Burkett, deceased, and in his own right as son (collectively,
“Burkett”) filed a complaint, alleging that while Decedent was a resident at
the facility, she sustained serious and permanent injuries, which were
directly and proximately caused by the negligence of the facility.



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survival claims. Consequently, on August 21, 2013, the trial court entered

an order denying St. Francis’s motion to compel arbitration.

       On appeal, we concluded that in accordance with Pisano and contrary

to St. Francis’s argument, the trial court did not abuse its discretion in failing

to compel arbitration of Burkett’s wrongful death claim. See Burkett, 133

A.3d at 28-31.

       With respect to the survival action, however, we were constrained to

rely on this Court’s decision in Taylor v. Extendicare Health Facilities,

Inc., 113 A.3d 317, 319 (Pa. Super. 2015) (“Taylor I”), which held that

Pa.R.C.P. 213(e)3 required consolidation of wrongful death and survival

actions for trial. Further, the panel determined Rule 213 and the Wrongful

Death Act4 were not preempted by the Federal Arbitration Act (“FAA”).5

Therefore, we were compelled to conclude the trial court did not abuse its


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3
  Pa.R.C.P. 213(e) provides: “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.” Pa.R.C.P.
213(e).
4
   The panel found additional support for consolidation in the final clause of
the Wrongful Death Act, which states: “… and any prior actions for the same
injuries are consolidated with the wrongful death claim so as to avoid a
duplicate recovery.” 42 Pa.C.S. § 8301(a); see Taylor I, 113 A.3d at 322.
5
   See 9 U.S.C. § 1 et seq. The FAA provides that arbitration agreements
“shall be valid, irrevocable, and enforceable, save upon such grounds as
exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2.



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discretion in refusing to sever and refer Burkett’s survival action claims to

arbitration. See Burkett, 133 A.3d at 31-36.6

       However, subsequently, the Pennsylvania Supreme Court reversed the

decision in Taylor I, holding that Rule 213(e) conflicts with the FAA and

therefore, is preempted. Taylor II, 147 A.3d at 510 (“The Supreme Court

has made clear that bifurcation and piecemeal litigation is the tribute that

must be paid to Congressional intent.”).7

       The Supreme Court in Taylor II also opined:

       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
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6
  In our analysis, we expressed our “hesitation in the matter with respect to
Taylor [I] as it appears to provide for a bright-line rule regarding
consolidation of wrongful death and survival actions in these skilled nursing
facility arbitration agreement disputes.”      Burkett, 133 A.3d at 34.
Moreover, we noted case law has permitted “that application of a valid
arbitration clause may produce piecemeal litigation” and the FAA preempted
Rule 213. Id. at 34-35 (citations omitted).
7
    The Supreme Court also stated:

       We recognize that Rule 213(e) is a procedural mechanism to
       control case flow, and does not substantively target arbitration.
       However, the Supreme Court directed … that state courts may
       not rely upon principles of general law when reviewing an
       arbitration agreement if that law undermines the enforcement of
       arbitration agreements. We cannot require a procedure that
       defeats an otherwise valid arbitration agreement, contrary to the
       FAA, even if it is desirable for the arbitration-neutral goal of
       judicial efficiency.

Taylor II, 147 A.3d at 510.



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      determine whether a valid contract exists. Pursuant to the
      savings clause, the compulsory joinder mandate of Rule 213(e)
      could bar the trial court from bifurcating the Taylors’ arbitrable
      survival action from its pending litigation in state court only if it
      qualifies as a generally applicable contract defense.

Taylor II, 147 A.3d at 509 (citations and footnote omitted). As such, the

Supreme Court remanded the matter to the trial court, providing “the parties

will have the opportunity to litigate whether there is a valid and enforceable

arbitration contract in accord with generally applicable contract defenses and

the FAA’s savings clause.” Id. at 513.

      Turning to the present matter, pursuant to Pisano, we reiterate the

trial court did not abuse its discretion in failing to compel arbitration of

Burkett’s wrongful death claims. As such, Burkett is entitled to a trial on the

wrongful death cause of action.

      However, like the claimants in Taylor II, Burkett argued he was not

bound by the arbitration agreement based on allegations of unconscionability

and lack of consideration. See Burkett’s Brief 16-29. The trial court did not

address these issues due to its finding that the claims fell outside of the

agreement. Furthermore, there was no evidence presented by the parties

with respect to these claims. Therefore, in accordance with Taylor II, we

remand for the parties and the court to address these contract-based

defense claims related to the survival action.

      Order affirmed in part and reversed in part. Case remanded for action

consistent with this decision. Jurisdiction relinquished.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/11/2017




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