Pisano v. Extendicare Homes, Inc.

Decision Date12 August 2013
PartiesMichael V. PISANO, Individually and as Administrator of the Estate of Vincent F. Pisano, Deceased, Appellee v. EXTENDICARE HOMES, INC., Operating under the Fictitious Name Belair Health and Rehabilitation Center, Appellant.
CourtPennsylvania Superior Court


Thomas T. Frampton, Pittsburgh, for appellant.

Robert F. Daley, Pittsburgh, for appellee.



Appellant, Extendicare Homes, Inc., operating under the fictitious name Belair Health and Rehabilitation Center (“Belair”), appeals from the trial court's order denying its preliminary objection to the trial court's jurisdiction over the wrongful death suit by Appellee, Michael V. Pisano (Appellee), son and administrator of the estate of Vincent F. Pisano (Decedent), filed January 4, 2012. The objection, filed March 7, 2012, was based upon the existence of an Alternative Dispute Resolution Agreement (“the Agreement”) between Belair and Decedent. For the reasons that follow, we affirm.

The trial court summarized the facts and procedural history relevant to this appeal as follows:

Extendicare Homes, Inc. conducting business under the fictitious name Belair Health and Rehabilitation Center, operates a long-term care nursing facility where the decedent Vincent F. Pisano resided at the time of his death. At the time of his admission to the Belair Health facility, on April 24, 2010, [Jamie Pisano],1 the decedent's daughter with a Power of Attorney, executed an Alternative Dispute Resolution Agreement provided by [Belair], agreeing that any dispute covered by the Agreement would be resolved through binding arbitration pursuant to the terms of the Agreement. It is this Agreement that [Belair] seeks to invoke as a basis for dismissal upon a lack of jurisdiction in the trial court.

The decedent died survived by Jamie Pisano, as well as Amanda Ann Pisano, a daughter, and his sons, Michael V. Pisano and James Joseph Pisano. Jamie Pisano has executed a Disclaimer and Renunciation on October 10, 2011, regarding all proceeds in any wrongful death recovery.2

Trial Court Opinion at 1–2.

Belair raises one issue before this Court on appeal:

Did the Court commit an error of law by refusing to compel arbitration of [Appellee's] wrongful death action where, underPennsylvania law, a wrongful death plaintiff's right of action is derivative of, and therefore limited by, the decedent's rights immediately preceding death?

Belair's Brief at 4.

The trial court noted that a wrongful death action is a creature of statute. It determined that the basis of a wrongful death action “lies in the tortious act which would support a survival action,” but concluded that it is “independent of the decedent's estate's rights to an action against the tortfeasor.” Trial Court Opinion, 7/9/12, at 2–3. The trial court explained that a wrongful death action is derivative in only a very limited way: [T]he right to the wrongful death action ... does not depend upon the decedent's estate's rights to a survival action, but depends only upon the occurrence of the tortious act upon which it is based.” Id. at 3. Thus, the trial court denied Belair's preliminary objection seeking to have Appellee's case dismissed for lack of subject matter jurisdiction.

Generally, an order denying preliminary objections is interlocutory and not appealable as of right. Elwyn v. DeLuca, 48 A.3d 457 (Pa.Super.2012). “There exists, however, a narrow exception to this oft-stated rule for cases in which the appeal is taken from an order denying a petition to compel arbitration.” Id. at 460 n. 4 (quoting Shadduck v. Christopher J. Kaclik, Inc., 713 A.2d 635, 636 (Pa.Super.1998)) (citing 42 Pa.C.S.A. § 7320(a)(1); Pa.R.A.P. 311(a)(8)). “Our decisional law has made clear that the issue of whether a party agreed to arbitrate a dispute is a threshold, jurisdictional question that must be decided by the court.” Gaffer Insurance Company, Ltd. v. Discover Reinsurance Company, 936 A.2d 1109, 1112 (Pa.Super.2007) (quoting Smith v. Cumberland Group, Ltd., 455 Pa.Super. 276, 687 A.2d 1167, 1171 (1997)).

Pennsylvania courts have repeatedly distinguished wrongful death claims from survival claims as explained below, and this Court has addressed the application of an arbitration agreement between a nursing home and a decedent to a wrongful death claim. Setlock v. Pinebrook Personal Care and Retirement Center, 56 A.3d 904 (Pa.Super.2012). In Setlock, we affirmed the trial court's denial of a motion to compel arbitration of a survival claim and a wrongful death claim arising from the same tortious conduct. Id. at 912. The basis of this ruling was the narrow scope of the arbitration agreement. We did not address the distinction between survival and wrongful death claims because it was unnecessary therein, where the agreement covered only contract claims. Id.

In the present case, however, the scope of the Agreement is broad, encompassing both contract and tort claims. Thus, the distinction between survival and wrongful death claims and its effect on arbitration agreements is before us. The issue in this case is one of first impression in Pennsylvania.

Validity and Scope of the Agreement

Our standard of review is as follows:

Our review of a claim that the trial court improperly denied the appellant's preliminary objections in the nature of a petition to compel arbitration is limited to determining whether the trial court's findings are supported by substantial evidence and whether the trial court abused its discretion in denying the petition.

Walton v. Johnson, 66 A.3d 782, 787 (Pa.Super.2013) (quoting Gaffer, 936 A.2d at 1112). “In doing so, we employ a two-part test to determine whether the trial court should have compelled arbitration.” Elwyn, 48 A.3d at 461 (quoting Smay v. E.R. Stuebner, Inc., 864 A.2d 1266, 1270 (Pa.Super.2004)). First, we examine whether a valid agreement to arbitrate exists. Second, we must determine whether the dispute is within the scope of the agreement.

Belair asserts that the Agreement is valid and binding, and the survival claim is subject to it. Belair's Brief at 8. Appellee does not dispute this and instead, acknowledges that Decedent “entered into an Arbitration Agreement purporting to waive his Constitutional right to a jury trial and agreeing to submit any claims arising from his residency in Belair's nursing home to binding arbitration.” Appellee's Brief at 3. Therefore, we need not examine further evidence to assess whether a valid agreement to arbitrate exists. Instead, we must focus on the Agreement's scope.

“Whether a claim is within the scope of an arbitration provision is a matter of contract, and as with all questions of law, our review of the trial court's conclusion is plenary.” Elwyn, 48 A.3d at 461. The Agreement's language is clear that “any and all disputes arising out of or in any way relating to this Agreement or to the Resident's stay at the center [including] ... death or wrongful death” are subject to arbitration. Preliminary Objection, 3/7/12, Exhibit A at 2. Therefore, we must determine if the Agreement is binding on Appellee such that his wrongful death claim is subject to arbitration. To that end, we first examine whether wrongful death claims are derivative of decedents' rights under Pennsylvania law.

Nature of Wrongful Death Claims

Belair argues 3 that the Pennsylvania Wrongful Death Act, 42 Pa.C.S.A. § 8301 (1978) (Act), creates a cause of action that is “solely derivative of the underlying tort.” Belair's Brief at 10. Although the Act created a new cause of action separate from a survival claim for certain enumerated claimants, Belair insists that a wrongful death claim in Pennsylvania “is wholly derivative of, and therefore defined by, the decedent's rights immediately preceding death.” Belair's Brief at 10.

Appellee disputes Belair's interpretation of Pennsylvania law, stating, “A wrongful death action and a survival action are not actions derivative of each other, but rather are, at best, actions flowing from the same underlying tortious conduct. The law in Pennsylvania on this point is crystal clear....” Appellee's Brief at 4. Appellee maintains that the rights of Decedent, therefore, cannot limit his rights in his wrongful death action; thus, the action must be adjudicated.4Id. at 7.

In support of its contention that a wrongful death claim is derivative of and defined by a decedent's rights, Belair relies on several cases; the most prominent is our Supreme Court's ruling in Hill v, Pennsylvania Railroad Company, 178 Pa. 223, 35 A. 997 (1896). Belair's Brief at 10. The issue in Hill was whether, under the Act of April 15, 1851, P.L. 669, as amended by the Act of April 26, 1855, P.L. 309, the wife of the decedent had “an independent right of action for the death of the husband, which the husband could not release.” Hill, 35 A. at 997–998.

The Act of 1851 provided as follows:

Section 18. That no action hereafter brought to recover damages for injuries to the person by negligence or default, shall abate by reason of the death of the plaintiff; but the personal representatives of the deceased may be substituted as plaintiff, and prosecute the suit to final judgment and satisfaction.

Section 19. That whenever death shall be occasioned by unlawful violence or negligence, and no suit for damages be brought by the party injured during his or her life, the widow of any such deceased, or if there be no widow the personal representatives, may maintain an action for and recover damages for the death thus occasioned.

Act of April 15, 1851, P.L. 669.

The Hill Court noted that the legislature enacted two sections to allow recovery in the following alternative scenarios:

[T]he one where an action was brought by the injured party during his life, but the plaintiff died pending the action; and the other where no action had been brought at the time of the death of ...

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