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.*

OPINION BY OTT, J.:                                       FILED JANUARY 25, 2016

        St.   Francis   Country     House,     Catholic   Healthcare   Services   and

Archdiocese of Philadelphia (collectively, “St. Francis”) appeal from the order

of the Philadelphia County Court of Common Pleas, dated August 16, 2013,

denying St. Francis’s motion to compel arbitration of the professional liability

action which was filed against St. Francis by Roy J. Burkett, Jr.,

Administrator of the Estate of Nannie Burkett, deceased, and in his own right

as son (collectively, “Burkett”).          St. Francis raises the following three

arguments: (1) the trial court erred as a matter of law in refusing to order
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-A21017-14




all of Burkett’s claims to arbitration; (2) in the alternative, the court erred in

refusing to sever and refer Burkett’s Survival Action claims to arbitration

(made on behalf of the Decedent’s Estate), when the Federal Arbitration Act

(“FAA”)1 required it to do so; and (3) the court’s reliance on Pisano v.

Extendicare Homes, Inc., 77 A.3d 651 (Pa. Super. 2013), appeal denied,

86 A.3d 233 (Pa. 2014), cert. denied, 134 S. Ct. 2890 (U.S. 2014), is

misplaced as that case was improperly decided and should be overturned.2

Because this Court’s recent decision in Taylor v. Extendicare Health

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

A.3d 1036 (Pa. Sept. 23, 2015), controls this matter, we are constrained to

affirm the trial court’s order.

       The facts and procedural history are as follows. 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.

Upon admission to the facility on June 14, 2010, Burkett executed a Nursing

Facility Admission Agreement (“Admission Agreement”) provided by St.

Francis on behalf of Decedent.            Pursuant to the Admission Agreement,

____________________________________________


1
    See 9 U.S.C. § 1 et seq.
2
   We note St. Francis separated this third issue into two arguments.
However, based on the nature of the claims, we have addressed them
together.



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J-A21017-14




Burkett was designated as a “Responsible Person.”                See Admission

Agreement, 6/14/2010.      The Admission Agreement contains a mandatory

arbitration clause (“Arbitration Clause”), which reads, in pertinent part:

      (b) Personal Injury or Medical Malpractice. Unless resolved
      or settled by mediation, any claim that the Resident may have
      against the Facility for any personal injuries sustained by the
      Resident arising from or relating to any alleged medical
      malpractice, inadequate care, or any other cause or reason while
      residing in the Facility, shall be settled exclusively by arbitration.
      This means that the Resident will not be able to file a lawsuit in
      any court to bring any claims that the Resident may have
      against the Facility for personal injuries incurred while residing in
      the Facility. It also means that the Resident is relinquishing or
      giving up all rights that the Resident may have to a jury trial to
      litigate any claims for damages or losses allegedly incurred as a
      result of personal injuries sustained while residing in the Facility.

Id. at ¶19.4(b).      Burkett also signed a St. Francis Country House

Responsible Person Agreement, indicating he was Decedent’s representative.

See St. Francis Country House Responsible Person Agreement, 6/14/2010.

Decedent subsequently passed away on November 24, 2010.

      On October 18, 2012, 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. The complaint included counts of negligence, vicarious liability,

wrongful death, and survival action.     St. Francis filed an answer and new

matter on February 8, 2013.        Seven days later, St. Francis also filed a

motion to compel arbitration pursuant to 42 Pa.C.S. § 7304 (“Court


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J-A21017-14




proceedings to compel or stay arbitration”).         Burkett responded with an

opposition to the motion to compel arbitration, arguing inter alia, St. Francis

was precluded from relying on the right to arbitrate, as it had failed to

properly plead it as an affirmative defense as required by Pennsylvania Rule

of Civil Procedure 1030. Oral argument was held on June 6, 2013.

       Subsequently, on August 21, 2013, the trial court entered an order

denying St. Francis’s motion to compel arbitration. St. Francis then filed a

motion for reconsideration, which was denied on September 23, 2013. St.

Francis filed this timely appeal.3

       Initially, we begin with two procedural matters. First, Burkett claims

St. Francis has waived the right to arbitration because it did not so plead

pursuant to Pa.R.C.P. 1030.4             Rule 1030, with certain exceptions not

relevant here, provides: “[A]ll affirmative defenses including but not limited

to the defense[] of . . . arbitration and award . . . shall be pleaded in a

responsive pleading under the heading ‘New Matter[.]’” Pa.R.C.P. 1030(a).

____________________________________________


3
   The trial court ordered St. Francis to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). St. Francis filed a
concise statement on October 9, 2013. The trial court issued an opinion
pursuant to Pa.R.A.P. 1925(a) on March 26, 2014.
4
  See Burkett’s Brief at 5-10. The trial court did not explicitly address this
issue in its Rule 1925(a) opinion.         Nevertheless, by addressing the
substantive claim, we can reasonably infer the court did not find the motion
to compel waived for failure to properly plead.



                                           -4-
J-A21017-14




Furthermore, Pa.R.C.P. 1032 requires that, subject to certain exceptions not

relevant to the present matter, “[a] party waives all defenses and objections

which are not presented either by preliminary objection, answer or reply[.]”

Pa.R.C.P. 1032(a). We find that although Burkett is accurate in stating that,

generally, a defense of arbitration should be pled as new matter, “our Rules

of Civil Procedure must be liberally construed so that actions are resolved in

a just, speedy and inexpensive manner consistent with [Pa.R.C.P.] 126.”

Blumenstock v. Gibson, 811 A.2d 1029, 1039 (Pa. Super. 2002).               Rule

126 provides:

      The rules shall be liberally construed to secure the just, speedy
      and inexpensive determination of every action or proceeding to
      which they are applicable. The court at every stage of any such
      action or proceeding may disregard any error or defect of
      procedure which does not affect the substantial rights of the
      parties.

Pa.R.C.P. 126.

      Here, St. Francis did not plead the right to arbitration in its answer and

new matter, filed on February 8, 2013.       However, within seven days, St.

Francis did file a motion to compel arbitration.       A review of the docket

reveals that with the exception of Burkett’s reply to new matter, no other

pleadings or motions were exchanged during this time. Therefore, while we

find St. Francis’s assertion of arbitration was nominally belated and

procedurally inaccurate, it did not affect the substantial rights of the parties,




                                      -5-
J-A21017-14




and therefore, the facility did not waive its right to compel arbitration by

failing to set forth the assertion in new matter or preliminary objection.

       Turning to the second procedural matter, which concerns appealability,

we note the following:

       “As a general rule, an order denying a party’s preliminary
       objections is interlocutory and, thus, not appealable as of right.
       There exists, however, a narrow exception to this oft-stated rule
       for cases in which the appeal is taken from an order denying a
       petition to compel arbitration.” Shadduck v. Christopher J.
       Kaclik, Inc., 713 A.2d 635, 636 (Pa. Super. 1998) (citations
       omitted). See also 42 Pa.C.S. § 7320(a)(1) (stating appeal
       may be taken from court order denying application to compel
       arbitration); Pa.R.A.P. 311(a)(8) (stating appeal may be taken
       as of right and without reference to Pa.R.A.P. 341(c) from order
       “which is made appealable by statute or general rule.”).

Elwyn v. DeLuca, 48 A.3d 457, 460 (Pa. Super. 2012). Accordingly, the

present appeal is properly before us.

       Based on the nature of St. Francis’s first two claims, we will address

them together. First, St. Francis contends the trial court erred in denying its

motion to compel arbitration because this dispute is governed by the FAA 5

and all of Burkett’s claims should be submitted to arbitration based on the

following:     (1) a valid agreement to arbitrate exists in the Admission

Agreement; and (2) all claims made against St. Francis, including those
____________________________________________


5
    The FAA provides that a written arbitration agreement “shall be valid,
irrevocable, and enforceable, save upon such grounds as exist at law or in
equity for the revocation of any such contract.” 9 U.S.C. § 2.




                                           -6-
J-A21017-14




pursuant to the Survival Act6 and the Wrongful Death Act,7 fall within the

scope of the Arbitration Clause. See St. Francis’s Brief at 9-13. St. Francis

argues the court improperly focused on one aspect of the Arbitration Clause,

that it referred to the “Resident” and not to a “third party.”           Id. at 12.

Therefore, it claims the court mistakenly concluded Burkett was not a party

to or bound by the provision.          Id. at 12.   Further, St. Francis states that

“[e]ven if this Court were to conclude that Pennsylvania law does not require

such a result, federal law unquestionably does” pursuant to the FAA. Id. at

13.    Second, St. Francis alleges that regardless of whether the claims

Burkett makes on his behalf fall outside of the Arbitration Clause, the FAA

requires the survival action be severed from the wrongful death action and

referred to arbitration. Id. at 14-17.

       We are guided by the relevant standard of review:
____________________________________________


6
    See 42 Pa.C.S. § 8302. Specifically, with respect to the Survival Act
claims, St. Francis asserts “the law is clear that claims brought on behalf of
an estate are limited to the rights of the decedent, and go no further” and
because Decedent “could have brought her personal injury claims while
alive, and would have been contractually required to bring them in
arbitration, [Burkett] cannot avoid arbitration by bringing those same
personal injury claims into court after her death when he does so on behalf
of the estate.” St. Francis’s Brief at 11.
7
  See 42 Pa.C.S. § 8301. With regard to the Wrongful Death Act claims, St.
Francis asserts those contentions arose out of an indistinguishable set of
operative facts and therefore, Burkett is bound by the Arbitration Clause
because he is a party to the agreement in his personal capacity as the
Responsible Person. Id. at 12-13.



                                           -7-
J-A21017-14




           We review a trial court’s denial of a motion to compel
     arbitration for an abuse of discretion and to determine whether
     the trial court’s findings are supported by substantial evidence.
     In doing so, we employ a two-part test to determine whether the
     trial court should have compelled arbitration.          The first
     determination is whether a valid agreement to arbitrate exists.
     The second determination is whether the dispute is within the
     scope of the agreement.

Smay v. E.R. Stuebner, Inc., 864 A.2d 1266, 1270 (Pa. Super. 2004)

(citations omitted).   With regard to the first element, Burkett does not

dispute that he entered into an agreement on the behalf of the Decedent

with St. Francis.      Therefore, we need not examine whether a valid

agreement to arbitrate exists.

     With respect to the second element, we note that “[w]hether a claim is

within the scope of an arbitration provision is a matter of contract, and as

with all questions of law, our review of the trial court’s conclusion is

plenary.” Elwyn, 48 A.3d at 461. Moreover,

     [i]n general, only parties to an arbitration agreement are subject
     to arbitration.    See Cumberland-Perry Area Vocational-
     Technical School v. Bogar & Bink, 261 Pa. Super. 350, 396
     A.2d 433 (Pa. Super. 1978) (parties cannot be compelled to
     arbitrate disputes absent agreement to arbitrate). However, a
     nonparty, such as a third-party beneficiary, may fall within the
     scope of an arbitration agreement if that is the parties’ intent.
     Cf. Highmark Inc. v. Hospital Service Association of
     Northeastern Pennsylvania, 2001 PA Super 278, 785 A.2d 93
     (Pa. Super. 2001) (third-party beneficiary may enforce
     arbitration clause even though it is not a signatory to the
     contract).




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J-A21017-14




Smay, 864 A.2d at 1271. While “the courts of this Commonwealth strongly

favor the settlement of disputes by arbitration,”8 “arbitration agreements are

to be strictly construed and such agreement[s] should not be extended by

implication.”9

        Here, relying on this Court’s decision in Pisano, supra, cert. denied,

134 S. Ct. 2890 (U.S. 2014), the court concisely found the following:

        The issue before this court was whether the mandatory
        arbitration clause extended to a third party.

              A plain reading of the Agreement and the arbitration
        proviso results in the clear determination that the Agreement
        was intended to bind only the resident as to personal
        injury and medical malpractice actions, and was not
        intended to extend to any third party such as the plaintiff
        in this action.

Trial Court Opinion, 3/26/2014, at 2 (emphasis added). In applying Pisano,

the court determined that Burkett, as administrator of the Estate and in his

own right, was a non-intended third party, in either capacity. Moreover, the

court concluded Burkett was not bound by the Arbitration Clause to arbitrate

either the wrongful death or survival claims.

        We find that a closer review of Pisano is necessary in considering this

matter. In Pisano, a nursing facility appealed from the trial court’s order
____________________________________________


8
  Smith v. Cumberland Group, Ltd., 687 A.2d 1167, 1171 (Pa. Super.
1997).
9
    Elwyn, 48 A.3d at 461.



                                           -9-
J-A21017-14




denying its preliminary objections to the trial court’s jurisdiction over a

wrongful death suit by the plaintiff, the son and administrator of the

estate of the decedent, based upon the existence of an alternative dispute

resolution (“ADR”) agreement between the nursing home and the decedent.

Pisano, 77 A.3d at 653.     The nursing home sought to compel arbitration

based on the ADR agreement, which the decedent’s daughter had signed on

his behalf upon his admission to the nursing home. The trial court in Pisano

overruled the nursing home’s preliminary objections, and determined that

while “a wrongful death action ‘lies in the tortious act which would support a

survival action,’ [the wrongful death claim] ‘is independent of the decedent’s

estate’s rights to an action against the tortfeasor.’”   Id. at 654 (citation

omitted).   The issue on appeal was whether the trial court committed “an

error of law by refusing to compel arbitration of [plaintiff’s] wrongful death

action where, under Pennsylvania law, a wrongful death plaintiff’s right of

action is derivative of, and therefore limited by, the decedent’s rights

immediately preceding death[.]” Id. at 653-654.

      After analyzing the nature of wrongful death claims and the definition

of “derivative,” a panel of this Court concluded the plaintiff’s wrongful death

claim was not derivative of and defined by the decedent’s rights, stating:

      [W]rongful death actions are derivative of decedents’ injuries but
      are not derivative of decedents’ rights. This conclusion aligns
      with the proper use of the term “derivative action” and is
      consistent with the Supreme Court’s pronouncement in

                                    - 10 -
J-A21017-14




     Kaczorowski [v. Kalkosinsk, 184 A. 663 (Pa. 1936)], which
     explained:

        We have announced the principle that the [wrongful death]
        statutory action is derivative [of the survival action]
        because it has as its basis the same tortious act which
        would have supported the injured party’s own cause of
        action. Its derivation, however, is from the tortious act,
        and not from the person of the deceased, so that it comes
        to the parties named in the statute free from personal
        disabilities arising from the relationship of the injured
        party and tort-feasor.

     Kaczorowski, 184 A. at 664.

Pisano, 77 A.3d at 660.    Furthermore, the Pisano Court determined the

plaintiff was not bound under the agreement to arbitrate the wrongful death

action, acknowledging the following:

           [The nursing home]’s agreement is between it and
     Decedent alone. Regardless of [the nursing home]’s intent,
     Pennsylvania’s wrongful death statute … does not characterize
     [the plaintiff] and other wrongful death claimants as third-party
     beneficiaries. It is, therefore, clear under relevant contract law
     that the trial court herein properly refused to compel arbitration.
     As this Court stated previously, “[T]he existence of an arbitration
     provision and a liberal policy favoring arbitration does not
     require the rubber stamping of all disputes as subject to
     arbitration.” McNulty v. H&R Block, Inc., 2004 PA Super 45,
     843 A.2d 1267, 1271 (Pa. Super. 2004). This is especially true
     where, as here, holding otherwise would operate against
     principles of Pennsylvania contract law and the FAA. Gaffer
     [Insurance Company, Ltd. v. Discover Reinsurance
     Company], 936 A.2d at 1113 (quoting E.E.O.C. [v. Waffle
     House, Inc., 534 U.S. 279, 293 (2002)]) (“Notwithstanding this
     favorable federal policy towards arbitration agreements, the
     Federal Arbitration Act ‘does not require parties to arbitrate
     when they have not agreed to do so.’”).




                                   - 11 -
J-A21017-14




             Furthermore, … compelling arbitration upon individuals
      who did not waive their right to a jury trial would infringe upon
      wrongful death claimants’ constitutional rights. This right, as
      preserved in the Seventh Amendment of the United States
      Constitution, “is enshrined in the Pennsylvania Constitution,” and
      “the constitutional right to a jury trial, as set forth in Pa. Const.
      art. 1, § 6, does not differentiate between civil cases and
      criminal cases.” Bruckshaw v. Frankford Hospital of City of
      Philadelphia, 58 A.3d 102, 108-109 (Pa. 2012).               Denying
      wrongful death claimants this right where they did not waive it of
      their own accord would amount to this Court placing contract law
      above that of both the United States and Pennsylvania
      Constitutions. Commonwealth v. Gamble, 62 Pa. 343, 349
      (1869) (“But that the legislature must act in subordination to the
      Constitution needs no argument to prove . . . .”).

Pisano, 77 A.3d at 661-662. Accordingly, the Pisano Court held:

      [The] Pennsylvania’s wrongful death statute creates an
      independent action distinct from a survival claim that, although
      derived from the same tortious conduct, is not derivative of the
      rights of the decedent. We conclude, therefore, that the trial
      court did not abuse its discretion in determining that Decedent’s
      contractual agreement with [the nursing home] to arbitrate all
      claims was not binding on the non-signatory wrongful death
      claimants.

Id. at 663.

      Turning to the present matter, we note there are several factual

differences between this case and Pisano. First, in Pisano, the daughter

was the one who signed the ADR agreement but she was not a party to the

lawsuit.   As such, the Pisano Court’s holding focused on non-signatory

beneficiaries not being bound by arbitration agreements. Here, Burkett, who

signed the Arbitration Agreement, is a party.       Furthermore, dissimilar to

Pisano, Burkett presented both wrongful death and survival claims.

                                     - 12 -
J-A21017-14




      Nonetheless, Pisano is instructive for the principle that wrongful death

and survival actions are distinctive claims.    Section 8301, which governs

wrongful death claims, states:

             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 a duplicate recovery.

42 Pa.C.S. § 8301. Section 8302, which governs survival actions, provides:

“All causes of action or proceedings, real or personal, shall survive the death

of the plaintiff or of the defendant, or the death of one or more joint

plaintiffs or defendants.” 42 Pa.C.S. § 8302.

      Likewise, the distinction between the two actions is explained in

Pisano as follows:

      The survival action has its genesis in the decedent’s injury, not
      his death. The recovery of damages stems from the rights of
      action possessed by the decedent at the time of death . . . . In
      contrast, wrongful death is not the deceased’s cause of action.
      An action for wrongful death may be brought only by specified
      relatives of the decedent to recover damages in their own behalf,
      and not as beneficiaries of the estate . . . . This action is
      designed only to deal with the economic effect of the decedent’s
      death upon the specified family members.

Pisano, 77 A.3d at 658-659, quoting Moyer v. Rubright, 651 A.2d 1139,

1141 (Pa. Super. 1994).




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J-A21017-14




       As such, survival and wrongful death claims are separate actions with

distinct plaintiffs asserting separate rights and a different measure of

damages.      Accordingly, when Burkett signed the Admission Agreement,

which included the Arbitration Clause, strictly and only, in his representative

capacity as a “Responsible Person,” he did not modify or disrupt his own

right, or the rights of other family members and/or beneficiaries to bring a

wrongful death claim before the trial court.10     See 42 Pa.C.S. § 8301(b);

see also Lipshutz v. St. Monica Manor, 33 Pa. D. & C.5th 438, 447 (Pa.

C.P. 2013) (Bernstein, J. – Philadelphia County) (signatory claimant was not

bound by arbitration agreement because when she signed the document,

she was acting only in her representative capacity and therefore, “she did

not affect her own right, or the rights of the other beneficiaries, to bring

wrongful death claims”), affirmed, 120 A.3d 367 (Pa. Super. 2015)




____________________________________________


10
     This determination is supported by the language in the Responsible
Person Agreement, which provides: “The Responsible Person(s) shall be
obligated to fulfill the duties on behalf of the Resident imposed by the
Admission Agreement in accordance with the law governing fiduciary duties.”
See St. Francis Country House Responsible Person Agreement, 6/14/2010,
at ¶ 2. Moreover, under the terms of the agreement, the Responsible
Person was accountable for ensuring the facility received payment from
Resident for residence at the home. Id. at ¶¶ 3-4. The language in the
agreement does not bind third-party beneficiaries of a resident’s estate.




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J-A21017-14




(unpublished memorandum).11            Therefore, 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.12

       Turning to the survival action, it is implicit in the distinction made by

the Pisano Court regarding wrongful death and survival claims, that while a

wrongful death claim may fall outside the scope of an arbitration clause, 13 a

survival action is derivative of and defined by the decedent’s rights. Indeed,

       [i]n the survival action, the decedent’s estate sues on behalf of
       the decedent, upon claims the decedent could have pursued but
____________________________________________


11
    We recognize we are not bound by decisions of the Pennsylvania courts of
common pleas. U.S. Bank Nat. Ass’n v. Powers, 986 A.2d 1231, 1234
(Pa. Super. 2009). However, we find the cogent reasoning of the trial court
in the Lipshutz case persuasive.
12
    This case is distinguishable from a recent decision by this Court in
MacPherson v. Magee Mem. Hosp. for Convalescence, __ A.3d __,
2015 PA Super 248 [80 EDA 2013] (Pa. Super. Nov. 25, 2015) (en banc).
In MacPherson, the executor of the estate, as the decedent’s brother, did
not qualify as a wrongful death beneficiary under Section 8301(b), and
therefore, the action was brought solely for the benefit of the estate under
Section 8301(d), which provides:     “If no person is eligible to recover
damages under subsection (b), the personal representative of the deceased
may bring an action to recover damages for reasonable hospital, nursing,
medical, funeral expenses and expenses of administration necessitated by
reason of injuries causing death.” 18 Pa.C.S. § 8301(d). As such, the
executor was determined to be subject to the arbitration agreement. Here,
Burkett, as Decedent’s son, does qualify as a wrongful death beneficiary
under Section 8301(b) and therefore, is not subject to the arbitration
agreement.
13
    We note that this determination is case-specific and is based on the
language of the agreement.



                                          - 15 -
J-A21017-14




       for his or her death. The recovery of damages stems from the
       rights of action possessed by the decedent at the time of death.
       In other words, the survival action simply continues, in the
       decedent’s personal representative, the right of action which
       accrued to the deceased at common law. The measure of
       damages in a survival action is the decedent’s pain and suffering
       prior to death and loss of gross earning power from the date of
       injury until death, less the probable cost of maintenance as
       proved by evidence and any amount awarded for wrongful
       death.

Frey v. Pennsylvania Elec. Co., 607 A.2d 796, 798 (Pa. Super. 1992)

(citations omitted), appeal denied, 614 A.2d 1142 (Pa. 1992). Accordingly,

in the present matter, the Arbitration Agreement, valid through Burkett’s

signature, would be rendered a nullity, and in turn, conflict with the FAA.

Therefore, one could determine the court did abuse its discretion in failing to

compel arbitration of Burkett’s survival claims as these assertions fall within

the scope of the Arbitration Clause because Burkett, as administrator of

Decedent’s estate, was suing on behalf of Decedent.

       However, as indicated above, we are constrained by the recent

decision in Taylor, supra.14            The underlying case in Taylor involved

multiple negligence claims against numerous defendant health care facilities

for incidents that occurred and were alleged to have ultimately caused the



____________________________________________


14
     Accord Tuomi v. Extendicare, Inc., 119 A.3d 1030 (Pa. Super. 2015).




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J-A21017-14




decedent’s death.15 Taylor, 113 A.3d at 319. The skilled nursing facility-

defendant contended the following:

       [T]he wrongful death action is derivative of a tort committed
       during the lifetime of the decedent, and that it is necessarily
       dependent upon the rights that the decedent possessed
       immediately prior to death. It follows then … that since the
       [d]ecedent agreed to arbitrate any disputes, the [d]ecedent’s
       beneficiaries are limited to claims that [d]ecedent could have
       pursued during her lifetime and that all claims must be
       submitted to arbitration.

Id. at 320.

       With respect to the wrongful death claim, the Taylor panel found

Pisano controlled and held “an arbitration agreement signed by the

decedent or his or her authorized representative is not binding upon non-

signatory wrongful death beneficiaries, and they cannot be compelled to

litigate their claims in arbitration.” Id. at 320-321.

       With regard to        the   survival action, the    Taylor   panel applied

Pennsylvania Rule of Civil Procedure 213(e), which provides, in relevant

part: “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). Despite the distinctions
____________________________________________


15
  The co-executors of the estate filed the lawsuit, which included wrongful
death and survival actions. Based on the opinion, it is unclear how the co-
executors were related to the decedent.



                                          - 17 -
J-A21017-14




recognized in Pisano regarding wrongful death and survival claims, the

Taylor panel concluded that pursuant to the Rule, the two claims were to be

litigated together.

       The panel also found 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, 113 A.3d at 322.

       Further, the panel determined Rule 213 and the Wrongful Death Act

were not preempted by the FAA.16                In doing so, the panel rejected the

____________________________________________


16
     In Pisano, this Court explained federal and state policies regarding
arbitration:

       Pennsylvania has a well-established public policy that favors
       arbitration, and this policy aligns with the federal approach
       expressed in the [FAA]. Gaffer, 936 A.2d at 1113; 9 U.S.C.A.
       Ch. 1 §§ 1-16 (West 1990). “[T]he fundamental purpose of the
       Federal Arbitration Act is to relieve the parties from expensive
       litigation and ‘to help ease the current congestion of court
       calendars.’”      Joseph Muller Corporation Zurich v.
       Commonwealth Petrochemicals, Inc., 334 F.Supp. 1013,
       1019 (S.D. N.Y. 1971) (quoting Robert Lawrence Co. v.
       Devonshire Fabrics, Inc., 271 F.2d 402, 410 (2d Cir. 1959)).
       Its passage was “‘a congressional declaration of a liberal federal
       policy favoring arbitration agreements.’” Gaffer, 936 A.2d at
       1113 (quoting Moses H. Cone Memorial Hospital v. Mercury
       Construction Corp., 460 U.S. 1, 24, 103 S. Ct. 927, 74 L. Ed.
       2d 765 (1983)).

       This policy, however, was not intended to render arbitration
       agreements more enforceable than other contracts, and the FAA
(Footnote Continued Next Page)


                                          - 18 -
J-A21017-14




application of the holding in Marmet Health Care Ctr., Inc. v. Brown, 132

S.Ct. 1201 (U.S. 2012), in which the United States Supreme Court

determined     the      FAA    pre-empted        West   Virginia's   policy   precluding

enforcement of pre-dispute arbitration clauses in nursing home cases

involving personal injury or death.

      The Taylor panel explained its rationale in deciding Marmet was not

applicable as follows:

      Neither Pa.R.C.P. 213 nor 42 Pa.C.S. § 8301 prohibits the
      arbitration of wrongful death and survival claims. Thus, the
      instant case does not mirror the categorical prohibition of
      arbitration of wrongful death and survival actions that the
      Marmet Court viewed as a clear conflict between federal and
      state law. See also e.g., Preston v. Ferrer, 552 U.S. 346,
      356, 128 S. Ct. 978, 169 L. Ed. 2d 917 (2008) (FAA pre-empts
                       _______________________
(Footnote Continued)

      “had not been designed to preempt all state law related to
      arbitration.” Gaffer, 936 A.2d at 1113-1114 (citing E.E.O.C. v.
      Waffle House, Inc., 534 U.S. 279, 293-294, 122 S. Ct. 754,
      151 L. Ed. 2d 755 (2002); Thibodeau v. Comcast Corp., 2006
      PA Super 346, 912 A.2d 874, 879-880 (Pa. Super. 2006)).
      “Rather, when addressing the specific issue of whether there is a
      valid agreement to arbitrate, courts generally should apply
      ordinary state-law principles that govern the formation of
      contracts, but in doing so, must give due regard to the federal
      policy favoring arbitration.” Gaffer, 936 A.2d at 1114 (internal
      quotation omitted).

Pisano, 77 A.3d at 660-661 (footnotes omitted). “The FAA, however, does
preempt state law that categorically prohibits arbitration of particular types
of claims, which ‘is contrary to the terms and coverage of the FAA.’”
Pisano, 77 A.3d 651 at 661 n.7, quoting Marmet Health Care Center,
Inc. v. Brown, 132 S.Ct. 1201, 1203-1204 (U.S. 2012). Such prohibition is
not applicable in the present matter.



                                           - 19 -
J-A21017-14




     state law granting state commissioner exclusive jurisdiction to
     decide issue the parties agreed to arbitrate); Mastrobuono v.
     Shearson Lehman Hutton, Inc., 514 U.S. 52, 56, 115 S. Ct.
     1212, 131 L. Ed. 2d 76, (1995) (FAA pre-empts state law
     requiring judicial resolution of claims involving punitive
     damages); Perry v. Thomas, 482 U.S. 483, 491, 107 S. Ct.
     2520, 96 L. Ed. 2d 426 (1987) (FAA pre-empts state-law
     requirement that litigants be provided a judicial forum for wage
     disputes); Southland Corp. [v. Keating, 465 U.S. 1 (1984)]
     (FAA pre-empts state financial investment statute’s prohibition of
     arbitration of claims brought under that statute).

     The rule and statute are neutral regarding arbitration generally,
     and the arbitration of wrongful death and survival actions
     specifically. They are not anti-arbitration as was the statute in
     Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 115 S.
     Ct. 834, 130 L. Ed. 2d 753 (1995) (Alabama statute making
     written, predispute arbitration agreements invalid and
     unenforceable), nor do they invalidate arbitration agreements
     under state law contract principles applicable only to arbitration.
     See Doctor's Assocs. v. Casarotto, 517 U.S. 681, 686-87,
     116 S. Ct. 1652, 134 L. Ed. 2d 902 (1996) (Montana statute that
     rendered arbitration agreements unenforceable unless they
     contained bold notice conflicted with the FAA because such a
     notice requirement was not applicable to contracts generally).

     The statute focuses on the consolidation of wrongful death and
     survival claims as a means to avoid inconsistent verdicts and
     duplicative damages in overlapping claims. Rule 213 details how
     and where such claims will be consolidated. There is nothing in
     either the statute or rule that precludes wrongful death and
     survival actions from proceeding together in arbitration when all
     of the parties, including the wrongful death beneficiaries, agree
     to arbitrate.     In the situation where the decedent or his
     representative has entered an enforceable agreement to
     arbitrate, and the wrongful death action is one brought by the
     personal representative pursuant to 42 Pa.C.S. § 8301(d) for the
     benefit of the decedent’s estate, there would not appear to be
     any impediment to the consolidation of the actions in arbitration.
     The statute and rule are evenhanded and designed to promote
     judicial efficiency and avoid conflicting rulings on common issues
     of law and fact.

                                   - 20 -
J-A21017-14




Taylor, 113 A.3d at 325. The panel held Rule 213 and the Wrongful Death

Act precluded bifurcation, and moreover, the FAA did not pre-empt these

state laws.

      Lastly, in support of consolidation, the Taylor panel pointed to the

following:

      The issues are identical in the two actions. Litigation in two
      forums increases the potential for inconsistent liability findings
      between the wrongful death and survival actions. Furthermore,
      the damages overlap. Although lost earnings are generally
      recoverable in the survival action, they may take the form of lost
      contributions to the decedent’s family, which are wrongful death
      damages. Lost earnings includes loss of retirement and social
      security income.     Generally, hospital, nursing, and medical
      expenses are recoverable under either the wrongful death or
      survival act.

Id. at 327 (citations omitted).

      As such, we are bound by the Taylor decision in this matter that

pursuant to Rule 213, the wrongful death and survival actions should be

consolidated for trial.

      Nevertheless, we do note our hesitation in the matter with respect to

Taylor 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.

      First, it is important to note the United States Supreme Court has

recognized and accepted the fact that application of a valid arbitration clause


                                    - 21 -
J-A21017-14




may produce piecemeal litigation. See KPMG LLP v. Cocchi, 132 S.Ct. 23

(U.S. 2011) (per curiam), citing Dean Witter Reynolds Inc. v. Byrd, 470

U.S. 213, 217 (1985) (“The Act has been interpreted to require that if a

dispute presents multiple claims, some arbitrable and some not, the former

must be sent to arbitration even if this will lead to piecemeal litigation.”).

       Moreover, fellow Pennsylvania courts have permitted the bifurcation of

the two actions. For example, in Northern Health Facilities v. Batz, 993

F.Supp.2d 485 (M.D. Pa. 2014), a federal district court found that a

piecemeal resolution to survival and wrongful death claims is appropriate

where necessary to give effect to arbitration agreements.17            See also

Lipshutz, supra (common pleas court determined survival claims were

subject to arbitration agreement under the FAA; whereas, wrongful death

claims remained before the court because the agreement was signed in the
____________________________________________


17
     The court emphasized: “[T]he United States Supreme Court has held
that, when a defendant has two substantive disputes with separate plaintiffs
arising from the same incident, and only one of those plaintiffs is subject to
an arbitration agreement, then, as a matter of law under the FAA, the two
claims must be heard in separate forums.” Batz, 993 F.Supp.2d at 496
(citation omitted).

      We note the Taylor panel stated it was “not bound by Batz, nor [did
the panel] find it persuasive as the court did not discuss Pennsylvania's
wrongful death statute, Pa.R.C.P. 213, or the consequences of severing
these actions.” Taylor, 113 A.3d at 327. However, we find Batz persuasive
and based on its decision, one can infer the Batz court determined the FAA
does preempt the two state statutes and the consequences do not outweigh
the parties’ right to arbitrate pursuant to a private contract.



                                          - 22 -
J-A21017-14




daughter’s    representative      capacity     and   did   not   affect   her   or   other

beneficiaries’ rights to bring wrongful death action before the court); Golden

Gate Nat’l Senior Care, LLC v. Beavens, __ F.Supp.2d __, 2015 U.S.

Dist. LEXIS 110673, 26-27 (E.D. Pa. Aug. 20, 2015) (“Rule 213 is an

expression of the Commonwealth’s interests in the streamlined resolution of

survival and wrongful death claims, but this policy must give way to the

FAA’s overriding goal to ‘ensure judicial enforcement of privately made

agreements to arbitrate.’       AT&T Mobility LLC, 131 S. Ct. at 1749 (citing

Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 219, 105 S. Ct. 1238,

84 L. Ed. 2d 158 (1985)). ‘While Congress was no doubt aware that the Act

would encourage the expeditious resolution of disputes, its passage ‘was

motivated, first and foremost, by a congressional desire to enforce

agreements into which parties had entered.’ Volt Info. Sciences, Inc. [v.

Bd. of Trustees of Leland Stanford Junior Univ., 489 U.S. 468,

478(1989)] (quoting Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213,

220, 105 S. Ct. 1238, 84 L. Ed. 2d 158 (1985)).”).18


____________________________________________


18
    We note “decisions of the federal district courts . . . are not binding on
Pennsylvania courts, even when a federal question is involved.” Kubik v.
Route 252, Inc., 762 A.2d 1119, 1124 (Pa. Super. 2000) (citation
omitted). Nevertheless, these decisions are persuasive authority and helpful
in our review of the issue presented.



                                          - 23 -
J-A21017-14




      Likewise, Taylor opines the issues in the wrongful death and survival

actions are identical.   We are compelled to disagree.    We would find that

generally, claims, which stem from the two actions, are distinct as evidenced

by the following:

            In contrast [to a survival action], wrongful death is not the
      deceased’s cause of action.... Wrongful death damages are
      implemented to compensate the spouse, children, or parents of
      the deceased for the pecuniary loss they have sustained by the
      denial of future contributions decedent would have made in his
      or her lifetime.

Frey, 607 A.2d at 798. “As distinguished from the wrongful death statutes,

the survival statutes do not create a new cause of action; they simply permit

a personal representative to enforce a cause of action which had already

accrued to the deceased before his death.” Anthony v. Koppers Co., Inc.,

436 A.2d 181, 185 (Pa. 1981). Moreover,

      [survival and wrongful death actions] are entirely dissimilar in
      nature. The one represents a cause of action unknown to the
      common law and is for the benefit of certain enumerated
      relatives of the person killed by another’s negligence.... The
      other is not a new cause of action at all, but merely continues in
      his personal representative the right of action which accrued to
      the deceased at common law because of the tort[.]

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

As such, the issues raised by the two parties (the estate and the decedent’s

beneficiaries) are different from one another.




                                    - 24 -
J-A21017-14




       Additionally, with respect to the Taylor panel’s concern regarding

overlapping     damages,19      we   find the      reasoning in   Lipshutz, supra,

persuasive:

       Although bifurcation of wrongful death claims from the survival
       claims runs afoul of the clear import and intent of Pa.R.C.P.
       213(e), the main policy considerations underlying this Rule are
       to prevent the duplication of damages and thus promote judicial
       economy.25 However, compensation for loss of earnings is the
       only significant overlap in damages between the two statutes.26
       Here, there can be virtually no significant claim for lost earnings.
       Therefore, this concern is insufficient to override shared state
       and federal policy promoting arbitration. Similarly, an interest in
       promoting judicial economy is insufficient, standing alone, to
       override a joint state and federal policy and Federal preemption.



____________________________________________


19
     We note that:

       Damages for wrongful death are the value of the decedent’s life
       to the family, as well as expenses caused to the family by reason
       of the death.       Thus, members of the decedent’s family
       enumerated in the Wrongful Death Act, see 42 Pa.C.S. §
       8301(b), may recover not only for medical, funeral, and estate
       administration expenses they incur, but also for the value of his
       services, including society and comfort.

Rettger v. UPMC Shadyside, 991 A.2d 915, 932 (Pa. Super. 2010)
(citations and quotation marks omitted). Whereas,

       survival damages are essentially those for pain and suffering
       endured by the decedent between the time of injury and death.
       The survival action has its genesis in the decedent’s injury, not
       his death and, as such, the recovery of damages stems from the
       rights of action possessed by the decedent at the time of death.

Amato v. Bell & Gossett, 116 A.3d 607, 625 (Pa. Super. 2015).



                                          - 25 -
J-A21017-14




          25
               Pezzulli v. D'Ambrosia, 26 A.2d [659, 662 (Pa.
          1942)]. (“There is an important limitation on the right to
          bring actions under both the death act and survival
          statute, namely, that it must not work a duplication of
          damages.”).
          26
               42 Pa.S.C.A. § 8301; 42 Pa.S.C.A. § 8302.

Lipshutz, 33 Pa. D. & C.5th at 448.

       The same conclusion can be applied to the present matter where,

based on a review of the complaint and allegations,20 there can be virtually

no significant claim for lost earnings.            Accordingly, there would be no

overriding concern for either judicial economy or promoting arbitration, and

the claims could be bifurcated.         However, until the Pennsylvania Supreme

Court has ruled on the bifurcation question, we are bound by the holding in

Taylor.21 Accordingly, we are compelled to conclude the trial court did not

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

claims to arbitration.

       In St. Francis’s third argument, it asserts the court’s reliance on

Pisano, supra, in finding Burkett was not bound by the Arbitration Clause,

____________________________________________


20
     See Complaint in Civil Action, 10/18/2012.
21
   See Marks v. Nationwide Ins. Co., 762 A.2d 1098, 1101 (Pa. Super.
2000) (noting that, despite having been granted a petition for allowance of
appeal, a decision of a three-judge panel remains precedential until it has
been overturned by the Pennsylvania Supreme Court), appeal denied, 788
A.2d 381 (Pa. 2001).



                                          - 26 -
J-A21017-14




is misplaced and if Pisano does control, it was incorrectly decided and

should be overturned because the ruling “makes it all but impossible to form

a pre-dispute agreement to arbitrate a wrongful death claim.” St. Francis’s

Brief at 19. Similarly, in its fourth issue, St. Francis contends that because

Pisano effectively prohibits the arbitration of wrongful death claims, it

creates a disproportionate impact on arbitration agreements. Id. at 19-22.

       A review of the record reveals St. Francis did not raise these

arguments in its Rule 1925(b) statement.            Such an omission constitutes

waiver. See Pa.R.A.P. 1925(b)(4)(vii); Lance v. Wyeth, 85 A.3d 434, 462

(Pa. 2014).      Therefore, these issues were not preserved for our review.

Moreover, to the extent St. Francis asks this Court to overrule Pisano, we

cannot do so. See Commonwealth v. Prout, 814 A.2d 693, 695 n.2 (Pa.

Super. 2002) (stating Superior Court is constitutionally bound by prior

Superior Court panel decisions).          Accordingly, we need not address these

claims further.

       In conclusion, because we are constrained to find the trial court did

not abuse its discretion in denying St. Francis’s motion to compel arbitration,

we affirm.22

____________________________________________


22
     It bears remarking that Burkett argues 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
(Footnote Continued Next Page)


                                          - 27 -
J-A21017-14




      Order affirmed. Jurisdiction relinquished.

      Judge Strassburger joins the opinion. Judge Bowes files a concurring

statement.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/25/2016




                       _______________________
(Footnote Continued)

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.



                                           - 28 -
