J. S14003/16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

LORRAINE F. BROSIUS, AS EXECUTRIX :          IN THE SUPERIOR COURT OF
FOR THE ESTATE OF WILLIAM B.      :                PENNSYLVANIA
BROSIUS, DECEASED                 :
                                  :
                  v.              :
                                  :
HCR MANORCARE, LLC, MANOR CARE :
OF LANCASTER PA, LLC, D/B/A       :
MANORCARE HEALTH SERVICES-        :
LANCASTER, MANORCARE HEALTH       :
SERVICES, INC. A/K/A MANORCARE    :
HEALTH SERVICES, LLC, MANOR       :
CARE, INC., HCR MANORCARE, INC.,  :
HCR IV HEALTHCARE, LLC, HCR III   :
HEALTHCARE, LLC, HCR II           :
HEALTHCARE, LLC, HCR HEALTHCARE, :
LLC, HCRMC OPERATIONS, LLC,       :
HCR MANORCARE OPERATIONS II,      :
LLC, HEARTLAND EMPLOYMENT         :
SERVICES, LLC, SELECT MEDICAL     :
CORPORATION, SELECT MEDICAL OF    :
PENNSYLVANIA, INC., SELECT        :
SPECIALTY HOSPITALS, INC., SELECT :
SPECIALTY HOSPITAL-CAMP HILL,     :
INC., AND SELECT SPECIALTY        :
HOSPITAL-CENTRAL PENNSYLVANIA,    :
L.P. F/K/A SELECT SPECIALTY       :
HOSPITAL-CAMP HILL LP, D/B/A      :
SELECT SPECIALTY HOSPITAL-YORK,   :                No. 789 MDA 2015
                                  :
                     Appellants   :


               Appeal from the Order Entered April 13, 2015,
             in the Court of Common Pleas of Lancaster County
                      Civil Division at No. CI-14-05498


BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., AND STEVENS, P.J.E.*

JUDGMENT ORDER BY FORD ELLIOTT, P.J.E.:             FILED APRIL 25, 2016



* Former Justice specially assigned to the Superior Court.
J. S14003/16


      Appellants appeal from the order of April 13, 2015, overruling their

preliminary objection in the nature of a motion to compel arbitration.      We

affirm.

      The trial court briefly summarized the history of this case as follows:

                    This case involves negligence claims against
            Manor Care for injuries culminating in the
            December 14, 2013, death of executrix Lorraine F.
            Brosius’ husband and decedent, William B. Brosius
            (Decedent). According to the complaint, Decedent
            was a resident at the Manor Care facility from
            June 27, 2013, through July 15, 2013. Decedent
            was admitted to the facility after undergoing surgery
            at Lancaster General Health to repair his broken
            right femur, an injury he sustained after falling from
            a stepladder at his home. During his residency at
            the Manor Care facility, Brosius alleges that the
            facility was mismanaged, underbudgeted, and
            grossly understaffed to the point that the facility
            failed to provide adequate and appropriate health
            care, failed to provide proper medication, and failed
            to provide sufficient food and water, causing
            Decedent to suffer a Stage III sacral ulcer,
            pneumonia, urinary tract infections, sepsis, C-Diff,
            dehydration, malnutrition, poor hygiene, severe pain,
            and ultimately death.

                  On June 12, 2014, Brosius filed a complaint
            asserting wrongful death and survival claims against
            Manor Care. Brosius alleged therein that Manor
            Care’s professional negligence and reckless conduct
            caused or contributed to the severe injuries and
            death of her Decedent.

                  Manor Care filed preliminary objections to the
            complaint seeking, inter alia, to compel this matter
            to arbitration, as provided in an arbitration
            agreement executed on Decedent’s behalf by his
            wife, Brosius.   [Footnote 2]     (See Manor Care
            Preliminary Objections, Exhibit “B”.)      By Order
            entered April 13, 2015, this Court overruled the


                                     -2-
J. S14003/16


             preliminary objection, relying upon [Taylor v.
             Extendicare Health Facilities, Inc., 113 A.3d 317
             (Pa.Super. 2015), appeal granted, 122 A.3d 1036
             (Pa. 2015)], which held that “the wrongful death
             beneficiaries’ constitutional right to a jury trial and
             the state’s interest in litigating wrongful death and
             survival claims together require that they all proceed
             in court rather than arbitration.” [Id. at 328.]


             [Footnote 2] This agreement provided that any
             claims arising out of or in any way relating to the
             agreement or to Decedent’s stay at the Facility,
             including claims of malpractice, “shall be submitted
             to arbitration.”     (See Manor Care Preliminary
             Objections, Exhibit “B” at ¶ 1.)

Trial court opinion, 6/2/15 at 2-3.

      This    timely    appeal   followed.       Appellants    complied   with

Pa.R.A.P. 1925(b), and the trial court filed a Rule 1925(a) opinion.

      This matter is directly controlled by recent case law from this court,

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

Taylor, supra; and Pisano v. Extendicare Homes, Inc., 77 A.3d 651

(Pa.Super. 2013), appeal denied, 86 A.3d 233 (Pa. 2014), cert. denied,

    U.S.     , 134 S.Ct. 2890 (2014). See Marks v. Nationwide Ins. Co.,

762 A.2d 1098, 1101 (Pa.Super. 2000) (this court continues to follow

controlling precedent as long as the decision has not been overturned by our

supreme court), appeal denied, 788 A.2d 381 (Pa. 2001). These decisions

address the precise points raised in the case sub judice. The trial court did

not err in refusing to compel arbitration of this matter.

      Order affirmed.


                                      -3-
J. S14003/16


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/25/2016




                          -4-
