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.
No. unknown
Superior Court of Pennsylvania
Argued Dec. 9, 2014. Filed April 2, 2015.
113 A.3d 317
Stephen Trzcinski, Philadelphia, for appellees.
BEFORE: BENDER, P.J.E., BOWES, and ALLEN, JJ.
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
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 Sys., 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
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
(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.
Although the trial court in Pisano retained jurisdiction over both the wrongful death and survival actions pursuant to
In support of its position that bifurcation is required, Extendicare first argues that the consolidation provision of
Co-Executors counter that
We agree with Co-Executors that jurisdiction does not preclude consolidation of these actions. Nor does
(a) General rule.—An action may be brought, under procedures prescribed by general rules, to recover damages for the death of an individ-ual caused by the wrongful act or neglect or unlawful violence or negligence of another if no recovery for the same damages claimed in the wrongful death action was obtained by the injured individual during his lifetime and any prior actions for the same injuries are consolidated with the wrongful death claim so as to avoid a duplicate recovery.
Extendicare counters that the Federal Arbitration Act (“FAA“), which is “intended to foreclose state legislative attempts to undercut the enforceability of arbitrations agreements,” pre-empts state statutes and rules that conflict with that policy, including
In support of preemption herein, Extendicare relies upon Marmet Health Care Ctr., Inc. v. Brown, — U.S. —, 132 S.Ct. 1201, 182 L.Ed.2d 42 (2012), in which
Co-Executors counter that the FAA does not pre-empt
Preemption stems from the Supremacy Clause of the United States Constitution, Article VI, cl. 2, which provides that federal law is paramount, and that laws in conflict with federal law are without effect. Altria Group, Inc. v. Good, 555 U.S. 70, 129 S.Ct. 538, 172 L.Ed.2d 398 (2008). There are several types of preemption, one being express preemption, where the federal law contains a provision announcing its intention to supplant state law. There is also field preemption, where the federal statute “reflect[s] a Congressional intent to occupy the entire field” of law. Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior University, 489 U.S. 468, 477, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989). The Federal Arbitration Act does not contain an express preemption provision and Congress did not intend to occupy the field of arbitration. Id.
However, as this Court noted in Trombetta v. Raymond James Fin. Servs., 907 A.2d 550, 564 (Pa.Super.2006), “[e]ven when Congress has not completely displaced state regulation in an area,
Pennsylvania applies a presumption against federal preemption of state law. Dooner v. DiDonato, 601 Pa. 209, 971 A.2d 1187 (2009) (citing Altria Group, Inc., supra at 77) (When addressing questions of express or implied preemption, we begin our analysis “with the assumption that the historic police powers of the States [are] not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.“). This presumption flows from the existence of “dual jurisdiction” and arises “from reasons of comity and mutual respect between the two judicial systems that form the framework” of our federalist system. Kiak v. Crown Equipment Corp., 989 A.2d 385, 390 (Pa.Super.2010).
With these principles in mind, we turn to the federal law that Extendicare contends pre-empts state law herein, the FAA. The FAA was promulgated because the judiciary was reluctant to enforce arbitration agreements, and the act was intended to place arbitration agreements on the same footing as other contracts. Volt, supra. The Supreme Court reiterated in Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 219, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985), that “the overriding goal of the Arbitration Act was [not] to promote the expeditious resolution of claims,” but to “ensure judicial enforcement of privately made agreements to arbitrate.” Although the Dean Witter Court downplayed the notion that a desire for efficiency motivated the passage of the FAA, the House Report on the FAA, quoted therein, suggests that efficiency, both temporal and financial, played a role in the passage of the FAA. The Report stated, “It is practically appropriate that the action should be taken at this time when there is so much agitation against the costliness and delays of litigation. These matters can be largely eliminated by agreements for arbitration, if arbitration agreements are made valid and enforceable.” H.R.Rep. No. 96, 68th Cong., 1st Sess., 2 (1924).
Consistent with the goal of ensuring that arbitration agreements are enforced, however, the FAA does not require parties to arbitrate absent an agreement to do so. See Prima Paint Corp. v. Conklin Mfg. Co., 388 U.S. 395, 404 n. 12, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967) (construing the Act as designed “to make arbitration agreements as enforceable as other contracts, but not more so“). Pennsylvania has a well-established public policy that favors arbitration, and this policy aligns with the federal approach expressed in the FAA. Gaffer Ins. Co. v. Discover Reinsurance Co., 936 A.d 1109, 1113 (Pa.Super.2007). However, as this Court stated in Pisano, “compelling arbitration upon individuals who did not waive their right to a jury trial” infringes upon a constitutional right conferred in
Extendicare maintains that the survival claim against it must be severed and enforced in arbitration, and that state law to the contrary is pre-empted. We disagree. Neither
The rule and statute are neutral regarding arbitration generally, and the arbitration of wrongful death and survival actions specifically. They are not anti-arbitration as was the statute in Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 115 S.Ct. 834, 130 L.Ed.2d 753 (1995) (Alabama statute making written, predispute arbitration agreements invalid and unenforceable), nor do they invalidate arbitration agreements under state law contract principles applicable only to arbitration. See Doctor‘s Assocs. v. Casarotto, 517 U.S. 681, 686-87, 116 S.Ct. 1652, 134 L.Ed.2d 902 (1996) (Montana statute that rendered arbitration agreements unenforceable unless they contained bold notice conflicted with the FAA because such a notice requirement was not applicable to contracts generally).
The statute focuses on the consolidation of wrongful death and survival claims as a means to avoid inconsistent verdicts and duplicative damages in overlapping claims. Rule 213 details how and where such claims will be consolidated. There is nothing in either the statute or rule that precludes wrongful death and survival actions from proceeding together in arbitration when all of the parties, including the wrongful death beneficiaries, agree to arbitrate. In 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
In the instant case, the Arbitration Agreement contains a choice of law provision. It expressly provides that Pennsylvania‘s Uniform Arbitration Act,
Pennsylvania‘s wrongful death statute requires that wrongful death and survival actions be consolidated, as does
The appellate courts of this Commonwealth have addressed litigation involving multiple parties and identical claims, and an agreement to arbitrate some of the claims. In Thermal C/M Servs. v. Penn Maid Dairy Prods., 831 A.2d 1189 (Pa.Super.2003), there were multiple actions pending in the same county that involved common questions of law and fact arising from the same construction contract and the same occurrence. Penn Maid was among the plaintiffs in an action filed against Thermal, and Thermal was a named defendant in both that court action and an arbitration proceeding involving the same issue. The contractor‘s motion to compel an owner to join arbitration proceedings brought by subcontractors was denied by the trial court and affirmed on appeal. We recognized that “litigating the two actions at the same time would be a waste of judicial resources, and it would promote a race to judgment[,]” and concluded it was “more efficient to address the issue in a single disposition rather than have parallel actions in independent forums with potentially different results.” Id. at 1193. Despite the fact that some claims were allegedly subject to arbitration, we invoked
Similarly, the dispute in School Dist. of Philadelphia v. Livingston-Rosenwinkel, P.C., 690 A.2d 1321 (Pa.Cmwlth.1997), involved an arbitration provision and some parties who were not subject to the arbitration process, and issues that fell outside the scope of the arbitration agreement. The Commonwealth Court reasoned that requiring the defendant to arbitrate its claims against the additional defendant and relitigate the same liability and damage issues in two separate forums before two different factfinders, would be uneconomical for the court as well as the parties. Our sister court found that arbitration
A federal district court in Scott v. LTS Builders LLC, 2011 WL 6294490 (M.D.Pa.2011), arrived at a similar conclusion. Therein, only one defendant was a signatory to an arbitration agreement; there were ten other defendants, five of whom insisted on a judicial resolution of their claims. The court reasoned, based upon School District of Philadelphia, supra, that sending the case against the sole signatory to arbitration would not satisfy Pennsylvania‘s public policy of enforcing arbitration agreements “as a means of promoting swift and orderly disposition of claims.” Scott, supra at *5.
The propriety of severing wrongful death and survival actions to permit arbitration of the latter was recently considered by a federal district court in Northrn Health Facilities v. Batz, 993 F.Supp.2d 485, 496-497 (M.D.Pa.2014). The district court relied upon United States Supreme Court precedent interpreting the FAA as “requir[ing] piecemeal resolution when necessary to give effect to an arbitration agreement.” Moses, supra at 20. In determining the enforceability of an arbitration agreement similar to the one at issue herein, the court concluded that it was “necessary to divide the wrongful death/survival action Complaint for resolution” where the wrongful death claims were not subject to arbitration under Pisano, and the defendant failed to provide any “colorable reason why the Survival Action claims ... cannot be arbitrated.” Batz, supra at 497. We are not bound by Batz, nor do we find it persuasive as the court did not discuss Pennsylvania‘s wrongful death statute,
Extendicare contends that since the wrongful death and survival actions are distinct, and the damages, claims and potential beneficiaries are different, judicial economy would not be hindered by severing the survival action and submitting it to arbitration. We disagree. The issues are identical in the two actions. Litigation in two forums increases the potential for inconsistent liability findings between the wrongful death and survival actions. Furthermore, the damages overlap. Although 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. Lost earnings includes loss of retirement and social security income. See Thompson v. City of Philadelphia, 222 Pa.Super. 417, 294 A.2d 826 (1972). Generally, hospital, nursing, and medical expenses are recoverable under either the wrongful death or survival act. See Skoda v. West Penn Power Co., 411 Pa. 323, 191 A.2d 822 (1963).7 Given the potential for inconsistent liability and duplicative damage determinations, we do not believe this to be the type of piecemeal, “possibly inefficient” litigation, which the Supreme Court sanctioned in Concepcion, supra at 1758.
The statute and rule at issue are not “aimed at destroying arbitration” and do
Order affirmed.