J-A21017-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ROY J. BURKETT JR., ADMINISTRATOR IN THE SUPERIOR COURT OF OF THE ESTATE OF NANNIE BURKETT, PENNSYLVANIA DECEASED AND IN HIS OWN RIGHT
Appellee
v.
ST. FRANCIS COUNTRY HOUSE, CATHOLIC HEALTHCARE SERVICES AND ARCHDIOCESE OF PHILADELPHIA
Appellant No. 2633 EDA 2013
Appeal from the Order Dated August 16, 2013 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): October Term, 2012, No. 002585
BEFORE: BOWES, J., OTT, J., and STRASSBURGER, J.*
MEMORANDUM BY OTT, J.: FILED JULY 11, 2017
This case returns to us on remand following the Pennsylvania Supreme
Court’s decision in Taylor v. Extendicare, 147 A.3d 490 (Pa. Sept. 28,
2016), cert. denied, 137 S. Ct. 1375 (U.S. 2017) (“Taylor II”).1 Upon
____________________________________________
* Retired Senior Judge assigned to the Superior Court. 1 In Taylor II, the sole issue before the Supreme Court was whether a non- arbitrable wrongful death cause of action could be severed from a survival action to allow the survival claim to proceed to arbitration pursuant to an agreement. As will be discussed in more detail infra, the central question was whether the Federal Arbitration Act (“FAA”), 9 U.S.C. § 1 et seq., preempted Pennsylvania Rule of Civil Procedure 213(e). Accordingly, our disposition will be limited to that determination as it is the only outstanding contention following the remand. See Burkett v. St. Francis Country (Footnote Continued Next Page) J-A21017-14
review, we affirm in part, reverse in part, and remand for further
proceedings.
The relevant history of this nursing home facility wrongful death and
survival lawsuit was set forth in this Court’s January 25, 2016, opinion
affirming the trial court’s order denying a motion to compel arbitration
brought by St. Francis Country House, Catholic Healthcare Services, and
Archdiocese of Philadelphia (collectively, “St. Francis”).2 See Burkett v. St.
Francis Country House, 133 A.3d 22 (Pa. Super. 2016), reversed, 162 EAL
2016, 2016 Pa. LEXIS 2308 (Pa. Oct. 17, 2016) (per curiam).
Relying on this Court’s decision in Pisano v. Extendicare Homes,
Inc., 77 A.3d 651 (Pa. Super. 2013), the trial court determined that Burkett
was a non-intended third party, in his capacity as administrator of the Estate
and in his own right. Moreover, the court concluded Burkett was not bound
under the Arbitration Clause to arbitrate either the wrongful death or _______________________ (Footnote Continued)
House, 162 EAL 2016, 2016 Pa. LEXIS 2308 (Pa. Oct. 17, 2016) (per curiam) (“AND NOW, this 17th day of October, 2016, the Petition for Allowance of Appeal is GRANTED. The Superior Court's order is VACATED. The matter is REMANDED for proceedings consistent with the decision in Taylor v. Extendicare, 147 A.3d 490, No. 19 WAP 2015, 2016 Pa. LEXIS 2166 (Pa. filed September 28, 2016).”). 2 We briefly note St. Francis owned and operated St. Francis Country House, a nursing home facility where the decedent, Nannie Burkett (“Decedent”), resided at the time of her death. Roy J. Burkett, Jr., Administrator of the Estate of Nannie Burkett, deceased, and in his own right as son (collectively, “Burkett”) filed a complaint, alleging that while Decedent was a resident at the facility, she sustained serious and permanent injuries, which were directly and proximately caused by the negligence of the facility.
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survival claims. Consequently, on August 21, 2013, the trial court entered
an order denying St. Francis’s motion to compel arbitration.
On appeal, we concluded that in accordance with Pisano and contrary
to St. Francis’s argument, the trial court did not abuse its discretion in failing
to compel arbitration of Burkett’s wrongful death claim. See Burkett, 133
A.3d at 28-31.
With respect to the survival action, however, we were constrained to
rely on this Court’s decision in Taylor v. Extendicare Health Facilities,
Inc., 113 A.3d 317, 319 (Pa. Super. 2015) (“Taylor I”), which held that
Pa.R.C.P. 213(e)3 required consolidation of wrongful death and survival
actions for trial. Further, the panel determined Rule 213 and the Wrongful
Death Act4 were not preempted by the Federal Arbitration Act (“FAA”).5
Therefore, we were compelled to conclude the trial court did not abuse its
3 Pa.R.C.P. 213(e) provides: “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). 4 The panel found additional support for consolidation in the final clause of the Wrongful Death Act, which states: “… and any prior actions for the same injuries are consolidated with the wrongful death claim so as to avoid a duplicate recovery.” 42 Pa.C.S. § 8301(a); see Taylor I, 113 A.3d at 322. 5 See 9 U.S.C. § 1 et seq. The FAA provides that arbitration agreements “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2.
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discretion in refusing to sever and refer Burkett’s survival action claims to
arbitration. See Burkett, 133 A.3d at 31-36.6
However, subsequently, the Pennsylvania Supreme Court reversed the
decision in Taylor I, holding that Rule 213(e) conflicts with the FAA and
therefore, is preempted. Taylor II, 147 A.3d at 510 (“The Supreme Court
has made clear that bifurcation and piecemeal litigation is the tribute that
must be paid to Congressional intent.”).7
The Supreme Court in Taylor II also opined:
The only exception to a state’s obligation to enforce an arbitration agreement is provided by the savings clause, which permits the application of generally applicable state contract law defenses such as fraud, duress, or unconscionability, to ____________________________________________
6 In our analysis, we expressed our “hesitation in the matter with respect to Taylor [I] as it appears to provide for a bright-line rule regarding consolidation of wrongful death and survival actions in these skilled nursing facility arbitration agreement disputes.” Burkett, 133 A.3d at 34. Moreover, we noted case law has permitted “that application of a valid arbitration clause may produce piecemeal litigation” and the FAA preempted Rule 213. Id. at 34-35 (citations omitted). 7 The Supreme Court also stated:
We recognize that Rule 213(e) is a procedural mechanism to control case flow, and does not substantively target arbitration. However, the Supreme Court directed … that state courts may not rely upon principles of general law when reviewing an arbitration agreement if that law undermines the enforcement of arbitration agreements.
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J-A21017-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ROY J. BURKETT JR., ADMINISTRATOR IN THE SUPERIOR COURT OF OF THE ESTATE OF NANNIE BURKETT, PENNSYLVANIA DECEASED AND IN HIS OWN RIGHT
Appellee
v.
ST. FRANCIS COUNTRY HOUSE, CATHOLIC HEALTHCARE SERVICES AND ARCHDIOCESE OF PHILADELPHIA
Appellant No. 2633 EDA 2013
Appeal from the Order Dated August 16, 2013 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): October Term, 2012, No. 002585
BEFORE: BOWES, J., OTT, J., and STRASSBURGER, J.*
MEMORANDUM BY OTT, J.: FILED JULY 11, 2017
This case returns to us on remand following the Pennsylvania Supreme
Court’s decision in Taylor v. Extendicare, 147 A.3d 490 (Pa. Sept. 28,
2016), cert. denied, 137 S. Ct. 1375 (U.S. 2017) (“Taylor II”).1 Upon
____________________________________________
* Retired Senior Judge assigned to the Superior Court. 1 In Taylor II, the sole issue before the Supreme Court was whether a non- arbitrable wrongful death cause of action could be severed from a survival action to allow the survival claim to proceed to arbitration pursuant to an agreement. As will be discussed in more detail infra, the central question was whether the Federal Arbitration Act (“FAA”), 9 U.S.C. § 1 et seq., preempted Pennsylvania Rule of Civil Procedure 213(e). Accordingly, our disposition will be limited to that determination as it is the only outstanding contention following the remand. See Burkett v. St. Francis Country (Footnote Continued Next Page) J-A21017-14
review, we affirm in part, reverse in part, and remand for further
proceedings.
The relevant history of this nursing home facility wrongful death and
survival lawsuit was set forth in this Court’s January 25, 2016, opinion
affirming the trial court’s order denying a motion to compel arbitration
brought by St. Francis Country House, Catholic Healthcare Services, and
Archdiocese of Philadelphia (collectively, “St. Francis”).2 See Burkett v. St.
Francis Country House, 133 A.3d 22 (Pa. Super. 2016), reversed, 162 EAL
2016, 2016 Pa. LEXIS 2308 (Pa. Oct. 17, 2016) (per curiam).
Relying on this Court’s decision in Pisano v. Extendicare Homes,
Inc., 77 A.3d 651 (Pa. Super. 2013), the trial court determined that Burkett
was a non-intended third party, in his capacity as administrator of the Estate
and in his own right. Moreover, the court concluded Burkett was not bound
under the Arbitration Clause to arbitrate either the wrongful death or _______________________ (Footnote Continued)
House, 162 EAL 2016, 2016 Pa. LEXIS 2308 (Pa. Oct. 17, 2016) (per curiam) (“AND NOW, this 17th day of October, 2016, the Petition for Allowance of Appeal is GRANTED. The Superior Court's order is VACATED. The matter is REMANDED for proceedings consistent with the decision in Taylor v. Extendicare, 147 A.3d 490, No. 19 WAP 2015, 2016 Pa. LEXIS 2166 (Pa. filed September 28, 2016).”). 2 We briefly note St. Francis owned and operated St. Francis Country House, a nursing home facility where the decedent, Nannie Burkett (“Decedent”), resided at the time of her death. Roy J. Burkett, Jr., Administrator of the Estate of Nannie Burkett, deceased, and in his own right as son (collectively, “Burkett”) filed a complaint, alleging that while Decedent was a resident at the facility, she sustained serious and permanent injuries, which were directly and proximately caused by the negligence of the facility.
-2- J-A21017-14
survival claims. Consequently, on August 21, 2013, the trial court entered
an order denying St. Francis’s motion to compel arbitration.
On appeal, we concluded that in accordance with Pisano and contrary
to St. Francis’s argument, the trial court did not abuse its discretion in failing
to compel arbitration of Burkett’s wrongful death claim. See Burkett, 133
A.3d at 28-31.
With respect to the survival action, however, we were constrained to
rely on this Court’s decision in Taylor v. Extendicare Health Facilities,
Inc., 113 A.3d 317, 319 (Pa. Super. 2015) (“Taylor I”), which held that
Pa.R.C.P. 213(e)3 required consolidation of wrongful death and survival
actions for trial. Further, the panel determined Rule 213 and the Wrongful
Death Act4 were not preempted by the Federal Arbitration Act (“FAA”).5
Therefore, we were compelled to conclude the trial court did not abuse its
3 Pa.R.C.P. 213(e) provides: “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). 4 The panel found additional support for consolidation in the final clause of the Wrongful Death Act, which states: “… and any prior actions for the same injuries are consolidated with the wrongful death claim so as to avoid a duplicate recovery.” 42 Pa.C.S. § 8301(a); see Taylor I, 113 A.3d at 322. 5 See 9 U.S.C. § 1 et seq. The FAA provides that arbitration agreements “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2.
-3- J-A21017-14
discretion in refusing to sever and refer Burkett’s survival action claims to
arbitration. See Burkett, 133 A.3d at 31-36.6
However, subsequently, the Pennsylvania Supreme Court reversed the
decision in Taylor I, holding that Rule 213(e) conflicts with the FAA and
therefore, is preempted. Taylor II, 147 A.3d at 510 (“The Supreme Court
has made clear that bifurcation and piecemeal litigation is the tribute that
must be paid to Congressional intent.”).7
The Supreme Court in Taylor II also opined:
The only exception to a state’s obligation to enforce an arbitration agreement is provided by the savings clause, which permits the application of generally applicable state contract law defenses such as fraud, duress, or unconscionability, to ____________________________________________
6 In our analysis, we expressed our “hesitation in the matter with respect to Taylor [I] as it appears to provide for a bright-line rule regarding consolidation of wrongful death and survival actions in these skilled nursing facility arbitration agreement disputes.” Burkett, 133 A.3d at 34. Moreover, we noted case law has permitted “that application of a valid arbitration clause may produce piecemeal litigation” and the FAA preempted Rule 213. Id. at 34-35 (citations omitted). 7 The Supreme Court also stated:
We recognize that Rule 213(e) is a procedural mechanism to control case flow, and does not substantively target arbitration. However, the Supreme Court directed … that state courts may not rely upon principles of general law when reviewing an arbitration agreement if that law undermines the enforcement of arbitration agreements. We cannot require a procedure that defeats an otherwise valid arbitration agreement, contrary to the FAA, even if it is desirable for the arbitration-neutral goal of judicial efficiency.
Taylor II, 147 A.3d at 510.
-4- J-A21017-14
determine whether a valid contract exists. Pursuant to the savings clause, the compulsory joinder mandate of Rule 213(e) could bar the trial court from bifurcating the Taylors’ arbitrable survival action from its pending litigation in state court only if it qualifies as a generally applicable contract defense.
Taylor II, 147 A.3d at 509 (citations and footnote omitted). As such, the
Supreme Court remanded the matter to the trial court, providing “the parties
will have the opportunity to litigate whether there is a valid and enforceable
arbitration contract in accord with generally applicable contract defenses and
the FAA’s savings clause.” Id. at 513.
Turning to the present matter, pursuant to Pisano, we reiterate the
trial court did not abuse its discretion in failing to compel arbitration of
Burkett’s wrongful death claims. As such, Burkett is entitled to a trial on the
wrongful death cause of action.
However, like the claimants in Taylor II, Burkett argued he was not
bound by the arbitration agreement based on allegations of unconscionability
and lack of consideration. See Burkett’s Brief 16-29. The trial court did not
address these issues due to its finding that the claims fell outside of the
agreement. Furthermore, there was no evidence presented by the parties
with respect to these claims. Therefore, in accordance with Taylor II, we
remand for the parties and the court to address these contract-based
defense claims related to the survival action.
Order affirmed in part and reversed in part. Case remanded for action
consistent with this decision. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 7/11/2017
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