J-A04019-15


                                  2015 PA Super 142

DONALD E. TUOMI, ADMINISTRATOR OF                 IN THE SUPERIOR COURT OF
THE ESTATE OF MARGARET C. TUMOI,                        PENNSYLVANIA
DECEASED,



                       v.

EXTENDICARE, INC., EXTENDICARE
HEALTH FACILITIES, INC., D/B/A
HAVENCREST NURSING CENTER,
EXTENDICARE HEALTH FACILITY
HOLDING, INC., EXTENDICARE HEALTH
SERVICES, INC., EXTENDICARE HEALTH
NETWORK, INC., EXTENDICARE
HOLDINGS, INC., KATHLEEN GASTAN,
AN INDIVIDUAL; KENRIC MANOR FAMILY
LIMITED PARTNERSHIP D/B/A KENRIC
MANOR,

APPEAL OF: EXTENDICARE, INC.,
EXTENDICARE HEALTH FACILITIES,
INC., D/B/A HAVENCREST NURSING
CENTER, EXTENDICARE HEALTH
FACILITY HOLDING, INC., EXTENDICARE
HEALTH SERVICES, INC., EXTENDICARE
HEALTH NETWORK, INC., EXTENDICARE
HOLDINGS, INC.,

                            Appellants                No. 865 WDA 2014


                  Appeal from the Order Entered April 24, 2014
              In the Court of Common Pleas of Washington County
                       Civil Division at No(s): 2013-1583


BEFORE: BOWES, WECHT, and STRASSBURGER,* JJ.

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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OPINION BY BOWES, J.:                                          FILED JUNE 18, 2015

       Extendicare, Inc., Extendicare Health Facilities, Inc., d/b/a Havencrest

Nursing     Center,     and     the    other     Extendicare    entities   (collectively

“Extendicare”), appeal from the April 24, 2014 order overruling preliminary

objections in the nature of a petition to compel arbitration. 1              We affirm

based upon our recent decision in Taylor v. Extendicare, 2015 PA Super

64 (Pa.Super. April 2, 2015), which is controlling.

       The facts pertinent to our analysis are as follows. Margaret C. Tuomi

(“Ms. Tuomi” or “Decedent”) was a resident of Kenric Manor, an assisted

living facility, for a period of time ending on May 31, 2011.              It is alleged

that, while she was a resident at that facility, Kenric failed to provide the

necessary staffing and resources to provide quality care for Ms. Tuomi.

Specifically, the staff failed to prevent, diagnose and treat Ms. Tuomo’s

illnesses including urinary tract infections and cellulitis, and permitted

multiple pressure sores to develop and progress.               This negligence led to

malnutrition, pain, hospitalization and death.

       On May 31, 2011, Ms. Tuomi was transferred to Monongahela Valley

Hospital for treatment of contractures in her extremities, a urinary tract

infection, pneumonia and cellulitis in her left knee. Following her discharge

____________________________________________


1
   Defendant Kenric Manor, a non-signatory to the Arbitration Agreement, has
filed a brief in opposition to bifurcation.     Kathleen Gaston has been
dismissed from the case.



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on June 3, 2011, she was admitted to Havencrest Nursing Center, an

Extendicare nursing home facility, where she was noted to have Stage II, III

and IV pressure wounds.      According to the allegations in the complaint,

Extendicare’s negligent understaffing and the neglect of its agents and

employees resulted in the aggravation of her pressure ulcers, pneumonia,

Staph and E. coli infections, deterioration and death.     Ms. Tuomi was

discharged on September 14, 2011 and died on October 16, 2011.

      The Decedent’s husband, Donald (“Administrator”), was subsequently

appointed Administrator of her Estate. He commenced the within negligence

actions for wrongful death on behalf of the beneficiaries, as well survival

actions premised on negligence and negligence per se based upon violations

of the Neglect of Care-Dependent Persons Statute, 18 Pa.C.S. § 2713, and

the Older Adult Protective Services Act, 35 P.S. § 10225.101. Administrator

maintained that the negligent conduct of Kenric and Extendicare collectively

caused Decedent’s injuries and death.

      In response, Extendicare filed preliminary objections seeking to have

the case referred to arbitration pursuant to a Voluntary Arbitration

Agreement signed by Administrator upon Ms. Tuomi’s admission to the

Extendicare facility.   Since the preliminary objections presented factual

issues, the parties engaged in discovery.      Following briefing and oral

argument, the trial court overruled Extendicare’s preliminary objections

seeking to compel arbitration.     The trial court relied upon Pisano v.


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Extendicare Homes, Inc., 77 A.3d 651 (Pa.Super. 2013), for the

proposition that wrongful death claimants who were non-signatories to

arbitration agreements could not be compelled to arbitration.           Since

Pa.R.C.P. 213(e) requires the consolidation of wrongful death and survival

actions, the court concluded that the actions would remain together in court.

         Extendicare timely appealed and raises one issue for our review: “Did

the trial court commit an error of law, including a violation of the Federal

Arbitration Act, when it overruled Appellants’ preliminary objection in the

nature of a motion to compel arbitration?” Appellant’s brief at 4.

         We review an allegation that “the trial court improperly overruled a

preliminary objection in the nature 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.” Taylor, supra at *4. “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 factor we examine is whether the dispute is

within the scope of the agreement. Pisano, supra at 654; see also Elwyn

v. DeLuca, 48 A.3d 457, 461 (Pa.Super. 2012) (quoting Smay v. E.R.

Stuebner, Inc., 864 A.2d 1266, 1270 (Pa.Super. 2004)).” Taylor, supra

at *5.

         Extendicare argues first that Pisano is not controlling because the

issue herein is whether the arbitration agreement is enforceable against the


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estate for purposes of the survival action.    It alleges that the trial court

erred in simply concluding that Pa.R.C.P. 213(e), which mandates the

consolidation of wrongful death and survival actions, required the two

actions to proceed together in court. Extendicare maintains that the survival

claims should have been severed and allowed to proceed in arbitration

because a valid agreement existed between the facility and the decedent.

By refusing to compel arbitration of the survival claims, Extendicare charges

that the trial court violated the Federal Arbitration Act (“FAA”), 9 U.S.C. §§

1-16.

        We acknowledged in Taylor that Pisano did not dispose of the

propriety of bifurcating wrongful death and survival actions between court

and arbitration.   Although the Pisano trial court retained jurisdiction over

both the wrongful death and survival actions pursuant to Pa.R.C.P. 213(e),

we found in Taylor that the parties simply acquiesced in that application of

Rule 213 by failing to challenge it on appeal. However, we addressed that

issue in Taylor and held that Pa.R.C.P. 213(e) and the Wrongful Death Act

precluded bifurcation, and further, that the Federal Arbitration Act did not

pre-empt state law. That decision is controlling herein.

        In support of preemption, Extendicare relies upon Marmet Health

Care Ctr., Inc. v. Brown, 132 S.Ct. 1201 (2012) (per curiam), where the

United States Supreme Court held that the Federal Arbitration Act pre-

empted West Virginia's prohibition against pre-dispute agreements to


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arbitrate personal-injury or wrongful-death claims against nursing homes. It

held that the categorical rule prohibiting arbitration of a particular type of

claim was “contrary to the terms and coverage of the FAA.”        Id. at 1204.

The Marmet Court cited numerous cases where state laws that categorically

prohibited arbitration of certain types of claims were held to be pre-empted,

which Extendicare in turn cites herein.     See Mastrobuono v. Shearson

Lehman Hutton, Inc., 514 U.S. 52, 56 (1995) (holding pre-empted New

York’s prohibition against arbitration of punitive damage claims); Preston v.

Ferrer, 552 U.S. 346, 356 (2008) (state law granting state commissioner

exclusive jurisdiction to decide issue subject to arbitration held pre-empted).

      We rejected such reliance on Marmet in Taylor, supra.           We held

therein that “[n]either Pa.R.C.P. 213 nor 42 Pa.C.S. § 8301 prohibits the

arbitration of wrongful death and survival claims[,]” and thus, our state law

did 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.” Taylor, supra at *16. We viewed the rule

and statute “as neutral regarding arbitration generally, and the arbitration of

wrongful death and survival actions specifically.” Id. at *17. We recognized

that the purpose of the Wrongful Death Statute and Pa.R.C.P. 213(e) was to

“avoid inconsistent verdicts and duplicative damages in overlapping claims”

and that neither the statute or rule “preclude[d] wrongful death and survival

actions from proceeding together in arbitration when all of the parties,


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including the wrongful death beneficiaries, agree[d] to arbitrate.”          Id. at

**17-18.       Further,   “[i]n   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.” Id. at *18.

      Extendicare argues that the likelihood of overlapping damages is small

in wrongful death/survival actions where, as here, there is no significant

claim for lost earnings.    We rejected a similar argument in Taylor, noting

that damages overlap even in the situation where the Decedent is elderly

and perhaps retired.      Lost earnings includes loss of retirement and social

security income.    See Thompson v. City of Philadelphia, 294 A.2d 826

(Pa.Super. 1972). And, “[a]lthough 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.”               Taylor at *23.

Furthermore,    hospital,   nursing,    and    medical   expenses    are   generally

recoverable in either action. Id. (citing Skoda v. West Penn Power Co.,

191 A.2d 822 (Pa. 1963)).          We also noted that the liability issues are

identical, presenting the potential for inconsistent determinations if litigated

in two different forums.




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      Herein, as in Taylor, there are other defendants unrelated to

Extendicare and who are non-signatories to the Arbitration Agreement. The

Taylor codefendants did not participate in the appeal and took no position

with regard to arbitration.   In the instant appeal, defendant Kenric Manor

has filed a brief and presented oral argument in support of affirmance. It

asks this Court to consider “the interest of a party that is not a signatory to

an arbitration agreement” and argues that bifurcation could negatively affect

its position. Kenric Manor points to the fact that bifurcation might preclude

it from mentioning Extendicare or pointing to Extendicare as the cause of the

Decedent’s condition, or that the determination of the arbitrator could have

an unintended effect on the claims filed against Kenric Manor. It suggests

further that documents and testimony presented at the arbitration might not

be available for use by Kenric Manor in a subsequent court proceeding due

to confidentiality provisions often attendant to arbitration.    Kenric Manor

maintains that its interests are better served if all claims brought by

Administrator remain together in court.

      Extendicare responds that the claims against Kenric Manor are not the

same as those filed against Extendicare and that the policy considerations

underlying Rule 213, i.e., to prevent the litigation of the same claims twice

and the duplication of damages, are not applicable herein.       We disagree.

Administrator has alleged that the negligence of Kenric Manor, Extendicare,

or both caused and contributed to the injuries and death of Decedent. It is


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possible that the defendants will assert cross-claims against each other. The

factfinder will be charged with determining if one or both are liable and, in

the event both parties are found liable, will apportion negligence between

the joint tortfeasors. Hence, these claims and damages are overlapping.

      In light of our disposition, we need not reach Kenric Manor’s concerns.

However, that entity highlights the practical consequences of bifurcating and

splitting causes of action between different forums especially in negligence

cases involving joint tortfeasor liability.   Had we adopted the position

advocated by Extendicare herein, we would be severing the wrongful death

and survival actions as to both defendants, and sending the survival claims

against Extendicare to arbitration.     All wrongful death claims against

Extendicare and Kenric Manor, together with survival claims against Kenric

Manor, would remain in court.

      In Taylor, we acknowledged concerns similar to those identified by

Kenric Manor.   See Taylor at *7 n.3 (“The splitting of the survival claim

between two forums would result in either empty chairs at the arbitration,

where an arbitrator would allocate responsibility for negligence among the

Defendants, or those parties would be pressured to participate in arbitration

to protect their rights.    Either scenario subverts the policies favoring

arbitration.”). In addition, we would anticipate challenging legal questions

involving the collateral estoppel effect, if any, to be given to the first

judgment.


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J-A04019-15


     Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/18/2015




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