J-A26023-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

SANDRA A. CHRISTMAN,                          IN THE SUPERIOR COURT OF
ADMINISTRATRIX OF THE ESTATE OF                     PENNSYLVANIA
ESTER I. STRAUSE, DECEASED

                        Appellee

                   v.

MANOR CARE OF WEST READING PA,
LLC, D/B/A MANORCARE HEALTH
SERVICES – WEST READING NORTH,
AND MANORCARE HEALTH SERVICES,
INC. AND HCR MANORCARE, INC., AND
MANORCARE INC. AND HCR
HEALTHCARE, LLC, AND HCR II
HEALTHCARE, LLC, AND HCR III
HEALTHCARE, LLC, AND HCR IV
HEALTHCARE, LLC

                        Appellants                 No. 1226 MDA 2013


                   Appeal from the Order June 13, 2013
              In the Court of Common Pleas of Berks County
                      Civil Division at No(s): 12-4389


BEFORE: BOWES, J., MUNDY, J., and JENKINS, J.

CONCURRING MEMORANDUM BY JENKINS, J.:           FILED JANUARY 05, 2016

     I agree with the learned majority that, under Pisano, the wrongful

death beneficiaries cannot be forced to arbitrate this matter.   Unlike the

majority, however, I feel that the survival and wrongful death claims should
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be bifurcated, with the survival claims proceeding to arbitration and the

wrongful death claims proceeding to trial.1

       I acknowledge that this Court has stated:

       [C]ompelling 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 661-62.

       I further acknowledge that Pennsylvania Rule of Civil Procedure 213

requires that wrongful death and survival claims be litigated together. Rule

213 provides, in pertinent 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

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1
  This Court’s recent decision in MacPherson v. Magee Mem’l Hosp. for
Convalescence, ___ A.3d ___, 2015 WL 7571937 (Pa.Super. Nov. 25,
2015) (en banc), addressed many of the same issues present in the instant
appeal, but did not involve any 42 Pa.C.S. § 8301 wrongful death
beneficiaries. Therefore, MacPherson did not reach the bifurcation issue
discussed herein.



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      independent actions are commenced they shall be consolidated
      for trial.

Pa.R.C.P. 213(e).

      Here, however, consolidation in non-arbitration court proceedings

would render the Agreement, valid through Christman’s signature, a nullity,

and would, in turn, conflict with the Federal Arbitration Act (“FAA”).      In

Pisano, this Court explained federal and state policies regarding arbitration

as follows:

      . . . Pennsylvania has a well-established public policy that favors
      arbitration, and this policy aligns with the federal approach
      expressed in the Federal Arbitration Act (“FAA”). Gaffer [Ins.
      Co. v. Discover Reinsurance Co.], 936 A.2d [1109,] 1113
      [(Pa.Super.2007)]; 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
      “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., 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



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       arbitration.”     Gaffer, 936 A.2d at 1114 (internal quotation
       omitted).

Pisano, 77 A.3d at 660-61 (footnotes omitted).2 Furthermore, the Supreme

Court of the United States has recognized and accepted the fact that

application of a valid arbitration clause may produce piecemeal litigation.

See KPMG LLP v. Cocchi, 132 S. Ct. 23, 24, 181 L. Ed. 2d 323 (2011)

(citing Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 217, 105 S.Ct.

1238, 84 L.Ed.2d 158 (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.”).

       Briefly stated, I see no way to both give Manor Care the benefit for

which it bargained regarding the survivor claims and maintain the inviolate

right of statutory wrongful death beneficiaries to a trial by jury on related,

but not derivative, wrongful death claims without bifurcating this matter.

       I find persuasive the federal court’s reasoning in Northern Health

Facilities v. Batz, 993 F.Supp.2d 485 (M.D.Pa.2014), wherein the court

found that a piecemeal resolution to survival and wrongful death claims is

appropriate where necessary to give effect to arbitration agreements.

____________________________________________


2
  “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 at 661 n.7 (quoting Marmet
Health Care Center, Inc. v. Brown, 132 S.Ct. 1201, 1203–1204, 182
L.Ed.2d 42 (2012). Such a prohibition is not at issue here.



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Further, I also find persuasive the cogent reasoning in favor of bifurcation

put forth by one of our Courts of Common Pleas as follows:

       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. However, compensation for loss of earnings is the
       only significant overlap in damages between [42 Pa.C.S. § 8301
       and 42 Pa.C.S. § 8302].          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 joint state and federal
       policy and Federal preemption.

Lipshutz v. St. Monica Manor, 33 Pa. D&C.5th 438, 448 (Pa.C.P.2013)

(footnotes omitted).3

       I feel that, regardless of the judicial economy implications, the fear of

piecemeal litigation must yield to the rights of one party to receive its

bargained-for contractual benefits and another’s right to a trial by jury. For

this reason, I agree with the Batz and Lipshutz courts’ analyses and find

that, in the interest of balancing judicial economy and the public policy

favoring arbitration, the instant matter should be bifurcated, with the

survival claims proceeding to arbitration, and the wrongful death claims

proceeding in state court.
____________________________________________


3
  I acknowledge that “common pleas court decisions are not binding on
appellate courts.” Branham v. Rohm & Haas Co., 19 A.3d 1094, 1103
(Pa.Super.2011). However, I find this analysis both cogent and applicable.




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         In light of the liberal policy favoring arbitration agreements, and for

the reasons stated above, I would reverse and remand this case for referral

to arbitration, with the exception of wrongful death beneficiary claims

brought pursuant to 42 Pa.C.S. § 8301(b), which I would allow to proceed in

court.     However, I acknowledge that this Court’s opinion 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

and found, as did the majority, that the bifurcation of such claims would be

improper. Although our Supreme Court has granted allocatur in Taylor to

determine the bifurcation question upon which I disagree with the majority,

unless and until overturned, Taylor remains the controlling law of the

Commonwealth. 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 remains precedential until it has been

overturned by the Pennsylvania Supreme Court).              Accordingly, I am

constrained to concur with the majority’s determination.




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