J-A04019-15
2015 PA Super 142
DONALD E. TUOMI, ADMINISTRATOR OF IN THE SUPERIOR COURT OF
THE ESTATE OF MARGARET C. TUMOI, PENNSYLVANIA
DECEASED,
v.
EXTENDICARE, INC., EXTENDICARE
HEALTH FACILITIES, INC., D/B/A
HAVENCREST NURSING CENTER,
EXTENDICARE HEALTH FACILITY
HOLDING, INC., EXTENDICARE HEALTH
SERVICES, INC., EXTENDICARE HEALTH
NETWORK, INC., EXTENDICARE
HOLDINGS, INC., KATHLEEN GASTAN,
AN INDIVIDUAL; KENRIC MANOR FAMILY
LIMITED PARTNERSHIP D/B/A KENRIC
MANOR,
APPEAL OF: EXTENDICARE, INC.,
EXTENDICARE HEALTH FACILITIES,
INC., D/B/A HAVENCREST NURSING
CENTER, EXTENDICARE HEALTH
FACILITY HOLDING, INC., EXTENDICARE
HEALTH SERVICES, INC., EXTENDICARE
HEALTH NETWORK, INC., EXTENDICARE
HOLDINGS, INC.,
Appellants No. 865 WDA 2014
Appeal from the Order Entered April 24, 2014
In the Court of Common Pleas of Washington County
Civil Division at No(s): 2013-1583
BEFORE: BOWES, WECHT, and STRASSBURGER,* JJ.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-A04019-15
OPINION BY BOWES, J.: FILED JUNE 18, 2015
Extendicare, Inc., Extendicare Health Facilities, Inc., d/b/a Havencrest
Nursing Center, and the other Extendicare entities (collectively
“Extendicare”), appeal from the April 24, 2014 order overruling preliminary
objections in the nature of a petition to compel arbitration. 1 We affirm
based upon our recent decision in Taylor v. Extendicare, 2015 PA Super
64 (Pa.Super. April 2, 2015), which is controlling.
The facts pertinent to our analysis are as follows. Margaret C. Tuomi
(“Ms. Tuomi” or “Decedent”) was a resident of Kenric Manor, an assisted
living facility, for a period of time ending on May 31, 2011. It is alleged
that, while she was a resident at that facility, Kenric failed to provide the
necessary staffing and resources to provide quality care for Ms. Tuomi.
Specifically, the staff failed to prevent, diagnose and treat Ms. Tuomo’s
illnesses including urinary tract infections and cellulitis, and permitted
multiple pressure sores to develop and progress. This negligence led to
malnutrition, pain, hospitalization and death.
On May 31, 2011, Ms. Tuomi was transferred to Monongahela Valley
Hospital for treatment of contractures in her extremities, a urinary tract
infection, pneumonia and cellulitis in her left knee. Following her discharge
____________________________________________
1
Defendant Kenric Manor, a non-signatory to the Arbitration Agreement, has
filed a brief in opposition to bifurcation. Kathleen Gaston has been
dismissed from the case.
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on June 3, 2011, she was admitted to Havencrest Nursing Center, an
Extendicare nursing home facility, where she was noted to have Stage II, III
and IV pressure wounds. According to the allegations in the complaint,
Extendicare’s negligent understaffing and the neglect of its agents and
employees resulted in the aggravation of her pressure ulcers, pneumonia,
Staph and E. coli infections, deterioration and death. Ms. Tuomi was
discharged on September 14, 2011 and died on October 16, 2011.
The Decedent’s husband, Donald (“Administrator”), was subsequently
appointed Administrator of her Estate. He commenced the within negligence
actions for wrongful death on behalf of the beneficiaries, as well survival
actions premised on negligence and negligence per se based upon violations
of the Neglect of Care-Dependent Persons Statute, 18 Pa.C.S. § 2713, and
the Older Adult Protective Services Act, 35 P.S. § 10225.101. Administrator
maintained that the negligent conduct of Kenric and Extendicare collectively
caused Decedent’s injuries and death.
In response, Extendicare filed preliminary objections seeking to have
the case referred to arbitration pursuant to a Voluntary Arbitration
Agreement signed by Administrator upon Ms. Tuomi’s admission to the
Extendicare facility. Since the preliminary objections presented factual
issues, the parties engaged in discovery. Following briefing and oral
argument, the trial court overruled Extendicare’s preliminary objections
seeking to compel arbitration. The trial court relied upon Pisano v.
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Extendicare Homes, Inc., 77 A.3d 651 (Pa.Super. 2013), for the
proposition that wrongful death claimants who were non-signatories to
arbitration agreements could not be compelled to arbitration. Since
Pa.R.C.P. 213(e) requires the consolidation of wrongful death and survival
actions, the court concluded that the actions would remain together in court.
Extendicare timely appealed and raises one issue for our review: “Did
the trial court commit an error of law, including a violation of the Federal
Arbitration Act, when it overruled Appellants’ preliminary objection in the
nature of a motion to compel arbitration?” Appellant’s brief at 4.
We review an allegation 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.” Taylor, supra at *4. “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)).” Taylor, supra
at *5.
Extendicare argues first that Pisano is not controlling because the
issue herein is whether the arbitration agreement is enforceable against the
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estate for purposes of the survival action. It alleges that the trial court
erred in simply concluding that Pa.R.C.P. 213(e), which mandates the
consolidation of wrongful death and survival actions, required the two
actions to proceed together in court. Extendicare maintains that the survival
claims should have been severed and allowed to proceed in arbitration
because a valid agreement existed between the facility and the decedent.
By refusing to compel arbitration of the survival claims, Extendicare charges
that the trial court violated the Federal Arbitration Act (“FAA”), 9 U.S.C. §§
1-16.
We acknowledged in Taylor that Pisano did not dispose of the
propriety of bifurcating wrongful death and survival actions between court
and arbitration. Although the Pisano trial court retained jurisdiction over
both the wrongful death and survival actions pursuant to Pa.R.C.P. 213(e),
we found in Taylor that the parties simply acquiesced in that application of
Rule 213 by failing to challenge it on appeal. However, we addressed that
issue in Taylor and held that Pa.R.C.P. 213(e) and the Wrongful Death Act
precluded bifurcation, and further, that the Federal Arbitration Act did not
pre-empt state law. That decision is controlling herein.
In support of preemption, Extendicare relies upon Marmet Health
Care Ctr., Inc. v. Brown, 132 S.Ct. 1201 (2012) (per curiam), where the
United States Supreme Court held that the Federal Arbitration Act pre-
empted West Virginia's prohibition against pre-dispute agreements to
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arbitrate personal-injury or wrongful-death claims against nursing homes. It
held that the categorical rule prohibiting arbitration of a particular type of
claim was “contrary to the terms and coverage of the FAA.” Id. at 1204.
The Marmet Court cited numerous cases where state laws that categorically
prohibited arbitration of certain types of claims were held to be pre-empted,
which Extendicare in turn cites herein. See Mastrobuono v. Shearson
Lehman Hutton, Inc., 514 U.S. 52, 56 (1995) (holding pre-empted New
York’s prohibition against arbitration of punitive damage claims); Preston v.
Ferrer, 552 U.S. 346, 356 (2008) (state law granting state commissioner
exclusive jurisdiction to decide issue subject to arbitration held pre-empted).
We rejected such reliance on Marmet in Taylor, supra. We held
therein that “[n]either Pa.R.C.P. 213 nor 42 Pa.C.S. § 8301 prohibits the
arbitration of wrongful death and survival claims[,]” and thus, our state law
did not “mirror the categorical prohibition of arbitration of wrongful death
and survival actions that the Marmet Court viewed as a clear conflict
between federal and state law.” Taylor, supra at *16. We viewed the rule
and statute “as neutral regarding arbitration generally, and the arbitration of
wrongful death and survival actions specifically.” Id. at *17. We recognized
that the purpose of the Wrongful Death Statute and Pa.R.C.P. 213(e) was to
“avoid inconsistent verdicts and duplicative damages in overlapping claims”
and that neither the statute or rule “preclude[d] wrongful death and survival
actions from proceeding together in arbitration when all of the parties,
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including the wrongful death beneficiaries, agree[d] to arbitrate.” Id. at
**17-18. Further, “[i]n the situation where the decedent or his
representative has entered an enforceable agreement to arbitrate, and the
wrongful death action is one brought by the personal representative
pursuant to 42 Pa.C.S. § 8301(d) for the benefit of the decedent’s estate,
there would not appear to be any impediment to the consolidation of the
actions in arbitration.” Id. at *18.
Extendicare argues that the likelihood of overlapping damages is small
in wrongful death/survival actions where, as here, there is no significant
claim for lost earnings. We rejected a similar argument in Taylor, noting
that damages overlap even in the situation where the Decedent is elderly
and perhaps retired. Lost earnings includes loss of retirement and social
security income. See Thompson v. City of Philadelphia, 294 A.2d 826
(Pa.Super. 1972). And, “[a]lthough lost earnings are generally recoverable
in the survival action, they may take the form of lost contributions to the
decedent’s family, which are wrongful death damages.” Taylor at *23.
Furthermore, hospital, nursing, and medical expenses are generally
recoverable in either action. Id. (citing Skoda v. West Penn Power Co.,
191 A.2d 822 (Pa. 1963)). We also noted that the liability issues are
identical, presenting the potential for inconsistent determinations if litigated
in two different forums.
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Herein, as in Taylor, there are other defendants unrelated to
Extendicare and who are non-signatories to the Arbitration Agreement. The
Taylor codefendants did not participate in the appeal and took no position
with regard to arbitration. In the instant appeal, defendant Kenric Manor
has filed a brief and presented oral argument in support of affirmance. It
asks this Court to consider “the interest of a party that is not a signatory to
an arbitration agreement” and argues that bifurcation could negatively affect
its position. Kenric Manor points to the fact that bifurcation might preclude
it from mentioning Extendicare or pointing to Extendicare as the cause of the
Decedent’s condition, or that the determination of the arbitrator could have
an unintended effect on the claims filed against Kenric Manor. It suggests
further that documents and testimony presented at the arbitration might not
be available for use by Kenric Manor in a subsequent court proceeding due
to confidentiality provisions often attendant to arbitration. Kenric Manor
maintains that its interests are better served if all claims brought by
Administrator remain together in court.
Extendicare responds that the claims against Kenric Manor are not the
same as those filed against Extendicare and that the policy considerations
underlying Rule 213, i.e., to prevent the litigation of the same claims twice
and the duplication of damages, are not applicable herein. We disagree.
Administrator has alleged that the negligence of Kenric Manor, Extendicare,
or both caused and contributed to the injuries and death of Decedent. It is
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possible that the defendants will assert cross-claims against each other. The
factfinder will be charged with determining if one or both are liable and, in
the event both parties are found liable, will apportion negligence between
the joint tortfeasors. Hence, these claims and damages are overlapping.
In light of our disposition, we need not reach Kenric Manor’s concerns.
However, that entity highlights the practical consequences of bifurcating and
splitting causes of action between different forums especially in negligence
cases involving joint tortfeasor liability. Had we adopted the position
advocated by Extendicare herein, we would be severing the wrongful death
and survival actions as to both defendants, and sending the survival claims
against Extendicare to arbitration. All wrongful death claims against
Extendicare and Kenric Manor, together with survival claims against Kenric
Manor, would remain in court.
In Taylor, we acknowledged concerns similar to those identified by
Kenric Manor. See Taylor at *7 n.3 (“The splitting of the survival claim
between two forums would result in either empty chairs at the arbitration,
where an arbitrator would allocate responsibility for negligence among the
Defendants, or those parties would be pressured to participate in arbitration
to protect their rights. Either scenario subverts the policies favoring
arbitration.”). In addition, we would anticipate challenging legal questions
involving the collateral estoppel effect, if any, to be given to the first
judgment.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/18/2015
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