J-A21017-14
2016 PA Super 15
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.*
CONCURRING STATEMENT BY BOWES, J.: FILED JANUARY 25, 2016
I agree with the learned majority that Taylor v. Extendicare Health
Facilities, Inc., 113 A.3d 317 (Pa.Super. 2015), allocatur granted 122 A.3d
1036 (Pa. 2015), is controlling herein. However, unlike my colleagues, I am
not constrained to apply this decision as I do not believe our law requiring
consolidation of wrongful death and survival actions is pre-empted by the
Federal Arbitration Act (“FAA”). Furthermore, I wish to address my
colleagues’ belief that, contrary to our statement in Taylor, wrongful death
and survival actions do not involve the same issues because they are distinct
claims.
*Retired Senior Judge assigned to the Superior Court
J-A21017-14
The majority views Taylor as a bright-line rule requiring consolidation
that will operate to preclude arbitration of all wrongful death and survival
actions. It suggests, without expressly so stating, that it is no different than
the categorical prohibition of arbitration of wrongful death and survival
actions held pre-empted in Marmet Health Care Ctr, Inc. v. Brown, 132
S.Ct 1201 (U.S. 2012). I submit that one need look no further that this
Court’s recent decision in MacPherson v. Magee Mem. Hosp. for
Convalescence, 2015 PA Super 248 (Pa.Super. 2015) (en banc), to see the
fallacy in that reasoning. Therein, the wrongful death and survival actions
against the nursing home were consolidated in arbitration. Thus, I submit
that Pa.R.C.P. 213(e) and the Wrongful Death Act, 42 Pa.C.S. § 8301, do not
categorically prohibit the arbitration of such claims, are not anti-arbitration,
and do not invalidate arbitration agreements under state law contract
principles applicable only to arbitration. They are arbitration neutral for the
reasons cited in Taylor and are not pre-empted by the FAA.
The majority also takes issue with the statement in Taylor that the
issues in the wrongful death and survival actions are identical. In support
thereof, it points out that they are distinct claims belonging to and
benefitting different persons. I do not disagree that the claims are distinct.
However, as we recognized in Pisano v. Extendicare Homes, Inc., 77
A.3d 651, 654 (Pa.Super. 2013), “a wrongful death action ‘lies in the
tortious act which would support a survival action.’” Hence, the underlying
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liability is derived from the same tortious acts. In deciding wrongful death
as well as survival claims, the factfinder must determine whether the
conduct of a defendant was wrongful, and, if so, whether that negligent or
intentional conduct was the factual cause of the decedent’s injury and/or
death. In the case of negligence asserted against multiple defendants, the
factfinder may be required to apportion liability among the defendants.
There is a potential for factfinders operating in different forums to arrive at
inconsistent findings of negligence or causation.
Even if liability determinations are consistent, duplicative damages
may be awarded in the separate actions. Although the majority dismisses
that risk as de minimis because an elderly decedent would not likely have a
significant claim for lost earnings, this rationale is shortsighted. Wrongful
death and survival actions are not restricted to the elderly. Furthermore, as
we noted in Taylor, supra at 327, the potential for duplication also extends
to “hospital, nursing, and medical expenses” that are “[g]enerally . . .
recoverable under either the wrongful death or survival act.”
As the majority notes, allocatur has been granted to review our
decision in Taylor. Thus, our High Court is poised to answer the question
whether Pennsylvania law requiring consolidation of wrongful death and
survival actions is in conflict with the FAA, and hence, pre-empted by that
statute.
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