J-S15002-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

GINA DEBELLIS, CO-EXECUTOR OF THE              IN THE SUPERIOR COURT OF
ESTATE OF PHILIP CANNELLA,                           PENNSYLVANIA
DECEASED, AND MARIANNE BRATTELI,
CO-EXECUTOR OF THE ESTATE OF
PHILIP CANNELLA, DECEASED



                    v.

MERCY/MANOR PARTNERSHIP D/B/A
MANORCARE HEALTH SERVICES-MERCY-
FITZGERALD, AND HCR MANOR CARE
SERVICES, LLC AND MANOR CARE, INC.

                         Appellants                No. 2134 EDA 2016


                  Appeal from the Order Dated June 28, 2016
              In the Court of Common Pleas of Delaware County
                      Civil Division at No(s): 2015-4985


BEFORE:    BOWES, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.

JUDGMENT ORDER BY BOWES, J.:                       FILED MARCH 15, 2017

     Mercy/Manor Partnership d/b/a ManorCare Health Services-Mercy-

Fitzgerald, HCR ManorCare Services, LLC, and ManorCare, Inc., (collectively

“ManorCare”), appeal from the June 28, 2016 order overruling preliminary

objections in the nature of a motion to compel arbitration of the Plaintiffs’
J-S15002-17



wrongful death and survival claims.1 We affirm in part, vacate in part, and

remand for further proceedings consistent herewith.

       This is a wrongful death and survival action.     ManorCare sought to

compel arbitration of the claims pursuant to an Arbitration Agreement

executed by Decedent’s daughter pursuant to a power of attorney. Based on

our decision in Pisano v. Extendicare Homes, Inc., 77 A.3d 652

(Pa.Super. 2013), the trial court overruled the preliminary objections and

declined to compel arbitration of the wrongful death claim. It also refused to

compel arbitration of the survival action predicated upon this Court’s then-

binding decision in Taylor v. Extendicare Health Facilities, Inc., 113

A.3d 317 (Pa.Super. 2015), holding that, since Pa.R.C.P. 213 and 42 Pa.C.S.

§ 8301 mandated consolidation of wrongful death and survival actions, and

only a judicial forum could accommodate the wrongful death beneficiaries

right to a jury trial, the court could not sever the survival claim and send it

to arbitration. The trial court did not rule on Plaintiffs’ alternative argument

that the Arbitration Agreement was an unconscionable contract of adhesion,

and hence, unenforceable.


____________________________________________


1
  This interlocutory appeal is authorized by Pa.R.A.P. 311(a)(8) (permitting
an interlocutory appeal from any order that is made appealable by statute),
and the Uniform Arbitration Act, 42 Pa.C.S. § 7320(a)(1), which provides
that an appeal may be taken from “[a] court order denying an application to
compel arbitration.”



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      ManorCare appealed. While the appeal was pending, but prior to the

filing of briefs, the Pennsylvania Supreme Court overruled this Court’s

decision in Taylor, holding that Pennsylvania’s rule requiring wrongful death

and survival actions to be tried together was pre-empted by the Federal

Arbitration Act to the extent it operated to nullify an agreement to arbitrate.

Taylor v. Extendicare Health Facilities, Inc., 147 A.3d 490 (Pa. 2016).

The Supreme Court remanded the case for a trial court determination on the

alternative grounds asserted for the unenforceability of the arbitration

agreement vis-à-vis the survival claim.

      ManorCare acknowledges that under Pisano, the wrongful death

beneficiaries are entitled to a jury trial.   Thus, we affirm the trial court’s

order refusing to compel arbitration of the wrongful death action. However,

consistent with the Supreme Court’s decision in Taylor, supra, we vacate

that part of the order overruling preliminary objections seeking to compel

arbitration of the survival action and remand for a trial court determination

of whether that Agreement is unenforceable on any of the alternative

grounds asserted by Plaintiffs.

      Order affirmed in part and vacated in part. Case remanded for further

proceedings consistent herewith. Jurisdiction relinquished.




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J-S15002-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/15/2017




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