Taylor v. Extendicare Health Facilities, Inc.

• Decision Date: 02 April 2015
• Docket Number: No. 2028 WDA 2013,2028 WDA 2013
• Citation: 2015 PA Super 64,113 A.3d 317
• Parties: Daniel E. TAYLOR and William Taylor, as Co–Executors of the Estate of Anna Marie Taylor, Deceased, Appellees v. EXTENDICARE HEALTH FACILITIES, INC. d/b/a Havencrest Nursing Center ; Extendicare Holdings, Inc.; Extendicare Health Facility Holdings, Inc., Extendicare Health Services, Inc., Extendicare Reit; Extendicare, L.P.; Extendicare, Inc., Mon–Vale Non Acute Care Service, Inc. d/b/a The Residence at Hilltop; Mon–Vale Health Resources, Inc.; Jefferson Health Services, d/b/a Jefferson Regional Medical Center, Appeal of Extendicare Health Facilities, Inc., d/b/a Havencrest Nursing Center, Extendicare Holdings, Inc., Extendicare Health Facility Holdings, Inc., Extendicare Health Services, Inc., Extendicare Reit, Extendicare, L.P. and Extendicare, Inc.
• Court: Pennsylvania Superior Court

113 A.3d 317

2015 PA Super 64

Daniel E. TAYLOR and William Taylor, as Co–Executors of the Estate of Anna Marie Taylor, Deceased, Appellees

v. EXTENDICARE HEALTH FACILITIES, INC. d/b/a Havencrest Nursing Center ; Extendicare Holdings, Inc.; Extendicare Health Facility Holdings, Inc., Extendicare Health Services, Inc., Extendicare Reit; Extendicare, L.P.; Extendicare, Inc., Mon–Vale Non Acute Care Service, Inc. d/b/a The Residence at Hilltop; Mon–Vale Health Resources, Inc.; Jefferson Health Services, d/b/a Jefferson Regional Medical CenterAppeal of Extendicare Health Facilities, Inc., d/b/a Havencrest Nursing Center, Extendicare Holdings, Inc., Extendicare Health Facility Holdings, Inc., Extendicare Health Services, Inc., Extendicare Reit, Extendicare, L.P. and Extendicare, Inc.

No. 2028 WDA 2013

Superior Court of Pennsylvania.

Argued Dec. 9, 2014.

Filed April 2, 2015.

Mark J. Golen, II, Pittsburgh, for appellants.

Stephen Trzcinski, Philadelphia, for appellees.

BEFORE: BENDER, P.J.E., BOWES, and ALLEN, JJ.

Opinion

OPINION BY BOWES, J.:

Extendicare Health Facilities, Inc., d/b/a Havencrest Nursing Center, together with the other Extendicare entities (collectively “Extendicare”), appeals from the November 20, 2013 order overruling preliminary objections in the nature of a motion to compel arbitration of Co–Executors' wrongful death and survival claims.¹ After thorough review, we affirm.

The underlying case involves negligence claims against Extendicare, Mon–Vale Non–Acute Care Service, Inc. d/b/a The Residence at Hilltop (“The Residence”), and Jefferson Health Services d/b/a Jefferson Regional Medical Center (“Jefferson Medical Center”), for injuries culminating in the April 3, 2012 death of Co–Executors' decedent, Anna Marie Taylor (“Decedent”). According to the complaint, on June 30, 2011, while the Decedent resided at The Residence, she became unresponsive and required a brief hospitalization. One month later, she was treated for dehydration. On February 1, 2012, she fell at The Residence, fractured her right hip, and underwent surgery to repair the fracture at Jefferson Medical Center. During that hospitalization, the Decedent was noted to have a skin tear and redness on her coccyx, but no pressure ulcer.

Upon her release from Jefferson Medical Center on February 9, 2012, the Decedent was admitted to the Extendicare skilled nursing facility known as Havencrest Nursing Center. A skin assessment upon admission noted three pressure ulcers. Within a week, the Decedent gained approximately fifteen pounds, and a subsequent chest x-ray revealed cardiac issues. Her pressure ulcer on her coccyx had increased in size and the drainage was purulent. By March, the wound was a Stage IV and the Decedent was noted to have pitting edema in her lower extremities. The Decedent was admitted to the Monongahela Valley Hospital on March 9, 2012, treated, and discharged to home with continuing wound care. She was subsequently transferred to the Cedars of Monroeville for hospice care, where she died.

On October 15, 2012, Co–Executors filed a praecipe for writ of summons against Extendicare, Jefferson Medical Center, and The Residence, and subsequently, a complaint asserting wrongful death and survival claims. Co–Executors alleged therein that the combined negligence of the Defendants caused or contributed to the injuries and death of Decedent. Extendicare filed preliminary objections to the complaint averring that the claims against it should be submitted to binding arbitration governed by the Pennsylvania Uniform Arbitration Act, 42 Pa.C.S. § 7301 et seq., as provided in an arbitration agreement executed on Decedent's behalf by William Taylor pursuant to a power of attorney. The trial court overruled the preliminary objections, and relied upon Pisano v. Extendicare Homes, Inc., 77 A.3d 651 (Pa.Super.2013), for the proposition that the arbitration agreement did not bind the wrongful death beneficiaries. The court also refused to sever the survival action against Extendicare and send it to arbitration, finding that Pa.R.C.P. 213(e) required consolidation of wrongful death and survival actions for trial and that severance would not advance the stated purpose of the Federal Arbitration Act, “that being to ease the burden of litigation on the parties and this Court's docket.” Trial Court Opinion, 1/29/14, at 3–4.

Extendicare timely appealed to this Court,² and presents two issues for our review:

I. Did the Trial Court commit an error of law by refusing to submit Appellees' Survival Claim to arbitration where the Federal Arbitration Act, requiring that all arbitrable claims be arbitrated, is controlling?

II. Did the Trial Court commit an error of law by refusing to submit Appellees' Wrongful Death Claim to arbitration where, under Pennsylvania law, a wrongful death plaintiff's right of action is derivative of, and therefore dependent upon, the decedent's rights immediately preceding death?

Appellants' brief at 4. We will address the issues in reverse order, as our disposition of the second issue affects our analysis of the first issue.

We review a claim that the trial court improperly overruled a preliminary objection in the nature of a motion to compel arbitration for an abuse of discretion and to determine whether the trial court's findings are supported by substantial evidence. Pittsburgh Logistics Systems, Inc. v. Professional Transportation and Logistics, Inc., 803 A.2d 776, 779 (Pa.Super.2002). In doing so, we employ a two-part test to determine whether the trial court should have compelled arbitration. The first determination is whether a valid agreement to arbitrate exists. The second factor we examine is whether the dispute is within the scope of the agreement. Pisano, supra at 654; see also Elwyn v. DeLuca, 48 A.3d 457, 461 (Pa.Super.2012) (quoting Smay v. E.R. Stuebner, Inc., 864 A.2d 1266, 1270 (Pa.Super.2004) ).

Extendicare contends that the wrongful death action is derivative of a tort committed during the lifetime of the decedent, and that it is necessarily dependent upon the rights that the decedent possessed immediately prior to death. It follows then, according to Extendicare, that since the Decedent agreed to arbitrate any disputes, the Decedent's beneficiaries are limited to claims that Decedent could have pursued during her lifetime and that all claims must be submitted to arbitration.

This precise contention was addressed and rejected by this Court in Pisano, supra, and it is controlling herein. We held in Pisano that a wrongful death action is a separate action belonging to the beneficiaries. While it is derivative of the same tortious act, it is not derivative of the decedent's rights. Id. Thus, an arbitration agreement signed by the decedent or his or her authorized representative is not binding upon non-signatory wrongful death beneficiaries, and they cannot be compelled to litigate their claims in arbitration.

We turn now to Extendicare's remaining issue: that the trial court erred in refusing to compel arbitration of the survival action. The gist of Extendicare's claim is that, even if the arbitration agreement is not binding upon the wrongful death beneficiaries, it must be enforced against Co–Executors who stand in the shoes of the Decedent for purposes of the survival action. It insists that the trial court should have bifurcated the wrongful death and survival actions and compelled arbitration of the latter.³

Co–Executors respond that Pa.R.C.P. 213(e) and this Court's decision in Pisano require the consolidation of wrongful death and survival actions, and since the wrongful death beneficiaries cannot be compelled to arbitrate the wrongful death actions, both actions must remain in court. Pa.R.C.P. 213 provides in relevant part:

(e) 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 independent actions are commenced they shall be consolidated for trial.

Pa.R.C.P. 213(e). Extendicare counters that the severance issue was not addressed in Pisano.

Although the trial court in Pisano retained jurisdiction over both the wrongful death and survival actions pursuant to Pa.R.C.P. 213(e), Extendicare is correct that this Court did not rule on the propriety of severance in Pisano. The parties simply acquiesced in the trial court's application of Rule 213 by failing to challenge it on appeal. Thus, the issue of whether wrongful death and survival actions must be bifurcated to permit arbitration of the survival action is a question of first impression for the appellate courts of this Commonwealth.

In support of its position that bifurcation is required, Extendicare first argues that the consolidation provision of Pa.R.C.P. 213(e) is inapplicable on the facts herein. It maintains that the issue is jurisdictional and that Pa.R.C.P. 213(e) only speaks to the consolidation of wrongful death and survival actions that are properly pending in court. Furthermore, Extendicare argues that consolidation under that rule is permissive and discretionary. It adds that by construing Pa.R.C.P. 213 as mandating consolidation, one runs afoul of Pa.R.C.P. 128, which provides that in ascertaining the Supreme Court's intent in promulgating a rule, “no rule shall be construed to confer a right to trial by jury where such right does not otherwise exist.” Pa.R.C.P. 128(f).

Co–Executors counter that Pa.R.C.P. 213(e) is applicable as arbitration agreements do not divest a court of jurisdiction over the dispute, as demonstrated by the fact that when a matter is referred to arbitration, the trial action is stayed, not dismissed. See Schantz v. Dodgeland, 830 A.2d 1265, 1266–67 (Pa.Super.2003) ; see also 42 Pa.C.S. § 7304(d) (“An action or proceeding, allegedly involving an issue subject to arbitration, shall be stayed if a court order to proceed with arbitration has been made or an application for such an order has been made under this...