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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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



* Former Justice specially assigned to the Superior Court.
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JUDGMENT ORDER BY FORD ELLIOTT, P.J.E.:         FILED DECEMBER 05, 2016

      This case returns on remand following the Pennsylvania Supreme

Court’s decision in Taylor v. Extendicare,       A.3d     , 2016 WL 5630669

(Pa. September 28, 2016). We reverse and remand for further proceedings.

      The relevant history of this nursing home medical malpractice wrongful

death and survival action was set forth in this court’s April 25, 2016

judgment order affirming the trial court’s order overruling appellants’

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

Brosius v. HCR ManorCare, LLC, No. 789 MDA 2015 (Pa.Super. filed

April 25, 2016), reversed, 354 MAL 2016 (Pa. filed October 17, 2016)

(per curiam). In refusing to compel arbitration, the trial court relied on this

court’s decision in Taylor v. Extendicare Health Facilities, Inc., 113 A.3d

317 (Pa.Super. 2015), which held that Pa.R.C.P. 213(e) required that

wrongful death and survival actions be consolidated for trial. Since, under

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), wrongful death beneficiaries are not bound by an

arbitration agreement executed by the decedent, the claims cannot be

severed and must be litigated together in one proceeding.           Appellants

agreed that the trial court and this court were bound by our decision in

Taylor which was controlling.




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      However, recently the Pennsylvania Supreme Court reversed this

court’s decision in Taylor, holding that Rule 213(e) conflicts with the Federal

Arbitration Act (“FAA”) and is preempted. Section 2 of the FAA binds state

courts to compel arbitration of claims subject to an arbitration agreement,

even at the expense of judicial efficiency. Taylor, 2016 WL 5630669 at *14

(“The Supreme Court has made clear that bifurcation and piecemeal

litigation is the tribute that must be paid to Congressional intent.” (citation

omitted)). Therefore, our supreme court in Taylor determined that the FAA

mandated the severance of the non-arbitrable wrongful death action from

the survival action to allow the latter to proceed to arbitration.

      As in Taylor, in this case, appellee raised state law contract defenses

to   appellants’    preliminary    objections,   including   that   the   arbitration

agreement was unconscionable. The savings clause of the FAA permits the

application of generally applicable state contract law defenses such as fraud,

duress, and unconscionability, to determine whether a valid contract to

arbitrate exists.    Id. at *14.     Since the trial court, following this court’s

decisions in Pisano and Taylor, refused to bifurcate the claims and

determined that they must be consolidated for trial, the trial court did not

have the opportunity to address these issues. Therefore, we will remand to

the trial court to address appellee’s fact-based defenses, including whatever

further arbitration-related discovery is deemed necessary.          See id. at *17

(“Upon remand to the trial court, the parties will have the opportunity to



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litigate whether there is a valid and enforceable arbitration contract in

accord with generally applicable contract defenses and the FAA’s savings

clause.”).

      Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/5/2016




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