Lead Opinion
OPINION
Thе Federal Arbitration Act (“FAA”) provides that arbitration agreements “shall be valid, irrevocable, and enforceable,
The trial court relied upon Rule 213(e) to deny Extendi-care’s motion to bifurcate, and the Superior Court affirmed. We granted review to determine whether the FAA preempts the lower courts’ application of Rule 213(e) under the facts presented. Upon review, we conclude that the FAA preempts the application of Rule 213(e), and requires arbitration of the survival claim against Extendicare. We therefore reverse the Superior Court, and we remand to the trial court for further proceedings.
In 2010, Decedent was admitted to Mon-Vale Non-Acute Care Service, Inc., d/b/a The Residence at Hilltop (“The Residence”), a nursing home facility where, on February 1, 2012, she fell and fractured her right hip. Decedent underwent surgery at Jefferson Health Services, d/b/a Jefferson Regional Medical Center (“Jefferson Medical Center”). Following surgery, Decedent was admitted to one of Extendicare’s skilled nursing facilities. On February 9, 2012, as part of the admissions paperwork and pursuant to a power of attorney authorizing him to act on Decedent’s behalf, William Taylor executed the Alternative Dispute Resolution Agreement (“ADR Agreement”) that is central to this appeal. The ADR Agreement, to which only Decedent (by William Taylor) and Extendicare are
Voluntary Agreement to Participate in ADR. The Parties agree that the speed, efficiency and cost-effectiveness of the ADR process, together with their mutual undertaking to engage in that process, constitutes good and sufficient consideration for the acceptance and enforcement of this Agreement. The Parties voluntarily agree that any disputes covered by this Agreement ([hereinafter] referred to as “Covered Disputes”) that may arise between the Parties shall be resolved exclusively by an ADR process that shall include mediation and, where mediation does not successfully resolve the dispute, binding arbitration. ... The Parties’ recourse to a court of law shall be limited to an action to enforce a binding arbitration decision or mediation settlement agreement entered in accordance with this Agreement or to vacate such a decision based on the limited grounds set forth in [the Uniform Arbitration Act, 42 Pa.C.S. §§ 7301, et seq.]
Reproduced Record (“R.R.”) at 83a-84a. The ADR Agreement рurported to require the resolution of all disputes in a single arbitral forum as follows:
Covered Disputes. This Agreement applies to any and all disputes arising out of or in any way relating to this Agreement or to [Decedent’s] stay at [Extendicare’s facility] that would constitute a legally cognizable cause of action in a court of law sitting in the Commonwealth of Pennsylvania and shall include, but not be limited to, all claims in law or equity arising from one Party’s failure to satisfy a financial obligation to the other Party; a violation of a right claimed to exist under federal, state, or local law or contractual agreement between the Parties; tort; breach of contract; fraud; misrepresentation; negligence; gross negligence; malpractice; death or wrongful death and any alleged departure from any applicable federal, state, or local medical, health care, consumer or safety standards. ... All claims based in whole or in part on the same incident, transaction or related*171 course of care or services provided by [Extendicare] to [Decedent] shall be addressed in a single ADR process.
R.R. at 84a.
Following her admission into the Extendicare facility, Decedent quickly developed numerous medical complications. She died on April 3, 2012. On October 15, 2012, the Taylors, as co-executors of Decedent’s estate, commenced this litigation, ultimately filing a complaint asserting wrongful death and survival claims against Extendicare, The Residence, and Jefferson Medical Center.
In response, Extendicare filed preliminary objections in the nature of a motion to compel arbitration of the Taylors’ wrongful death and survival claims, arguing that both claims should be submitted to binding arbitration pursuant to the ADR Agreement. In support of its motion, Extendicare asserted that the Taylors’ wrongful death claim was derivative of the survival claim and, because the survival claim was within the scope of the ADR Agreement, both claims must be submitted to arbitration.
Following argument, the trial court overruled Extendicare’s preliminary objections. It agreed with Extendicare and the Taylors that, in accord with Pisano, the Taylors could not be compelled to arbitrate their wrongful death claim against Extendicare because they, as wrongful death beneficiaries, were not parties to the ADR Agreement. Trial Ct. Op., 1/29/2014, at 3; see Pisano,
The trial court also refused Extendicare’s request to sever the survival action from the wrongful death action in order to send the former to arbitration. The trial court explained that it found no authority within the FAA to support severance. To the contrary, the trial court opined that severance would not advance the purpose of the FAA, which, it explained, was “to ease the burden of litigation on the parties and this Court’s docket.” Trial Ct. Op., 1/29/2014, at 3-4 (citing Joseph Muller Corp. Zurich v. Commonwealth Petrochem., Inc.,
Extendicare appealed to the Superior Court, which affirmed.
Turning to Extendicare’s alternative argument that the trial court should have bifurcated the two claims and compelled arbitration of the survival action pursuant to the ADR Agreement, the Superior Court recognized that this was an issue of first impression in Pennsylvania. The court relied upon Rule
Attempting to avoid consolidation, Extendicare relied upon the FAA, which was “intended to foreclose state legislative attempts to undercut the enforceability of arbitration agreements.” Southland Corp. v. Keating,
In this case, however, the Superior Court found no agreement to arbitrate the wrongful death claim, or to arbitrate the survival actions against The Residence or Jefferson Medical Center. Id. at 326. Rather, the court observed, the only claim subject to an agreement to arbitrate is the Taylors’ survival claim against Extendicare. Id. The court observed that the piecemeal disposition Extendicare sought involved “wholly redundant proceedings with a potential for inconsistent verdicts and duplicative damages.” Id. The Superior Court held that the wrongful death beneficiaries’ constitutional right to a jury trial and the state’s interest in litigating wrongful death
Extendicare sought discretionary review in this Court. We granted review as to the following issues:
Does the Superior Court’s decision, which refused to compel arbitration of the arbitrable survival claim, violate the [FAA] requirement 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”?
Does the Superior Court’s conclusion that [Pa.R.C.P. 213(e)] require[s] the consolidation of the otherwise arbitrable survival action with the non-arbitrable wrongful death action on grounds of efficiency violate the [FAA] as it has been interpreted by the United States Supreme Court which has consistently ruled that arbitration is required when there is an agreement to arbitrate even when compelling arbitration results in duplication and piecemeal litigation?
Taylor v. Extendicare Health Facilities, Inc.,
Extendicare concedes that, pursuant to Pisano, the Taylors’ wrongful death claim must be litigated in the trial court. Extendicare contests only the trial court’s refusal to sever the
Extendicare criticizes the Superior Court for premising its decision upon notions of expediency and efficiency. In this respect, Extendicare relies upon a line of cases establishing that the FAA’s pro-arbitration mandate trumps litigation efficienсy. See KPMG LLP v. Cocchi,
Extendicare observes that state and federal court decisions in Pennsylvania currently differ regarding the issue presented herein. While the Superior Court in this case relied upon Rule 213(e) to refuse to compel arbitration of an arbitrable claim, the federal courts sitting in Pennsylvania uniformly have rejected Taylor or its rationale.
In response, the Taylors argue that the trial court’s and Superior Court’s rulings are not contrary to the FAA or any controlling authority. According to the Taylors, the FAA preempts only state laws or rules that expressly prohibit certain arbitration proceedings. See, e.g., Marmet,
With these arguments in mind, we begin our analysis by reviewing federal preemption doctrine, which springs from the Supremacy Clause.
Turning first to the relevant state law, Rule 213(e) is a rule of compulsory joinder, providing that wrongful death and
The FAA is in tension with Rule 213(e). It is neither exaggeration nor hyperbole to characterize the rise of arbitration over the last century as revolutionizing the rule of law and access to justice.
The FAA was intended by Congress “first and foremost” to ensure judicial enforcement of arbitration agreements into which parties had entered. Dean Witter,
Originally, the FAA was perceived to be a procedural statute applicable only in federal courts. See Lyra Haas, The Endless Battleground: California’s Continued Opposition to the Supreme Court’s Federal Arbitration Act Jurisprudence, 94 B. U. L. Rev. 1419, 1424 (2014). From these humble origins, however, the FAA has evolved through the Supreme Court’s application of conflict preemption into what one commentator has characterized as “a redefinition of civil justice, a modification of the Bill of Rights, and the implicit emendation of the U.S. Constitution.” Carbonneau, The Revolution,
Beginning with Prima Paint Corp. v. Flood & Conklin Mfg. Co.,
Since federalizing arbitration in Southland, the Supreme Court has continued to reaffirm its commitment to arbitration by striking down conflicting state laws.
By striking down state laws targeting arbitration agreements, the Supreme Court has limited the role of state courts to regulating contracts to arbitrate under general contract law principles in accord with the savings clause, under which it has held that only “generally applicable contract defenses, such as fraud, duress, or unconscionability, may be applied to invalidate arbitration agreements without contravening § 2.” Casarotto,
But the prerogatives of state courts to regulate arbitration agreements even in accord with generally applicable contract defenses such as unconscionability have been called into question. Indeed, in recent years the Supreme Court’s preemption juggernaut has gathered momentum.
The Concepcions had responded to an advertisement by AT & T for a free phone, and had entered into an agreement for the sale and servicing of the phone. When they were billed $30.22 in sales tax based upon the phone’s retail value, they attempted to sue AT & T in federal court. Concepcion,
In a 5-4 decision authored by the late Justice Antonin Scalia, the United States Supreme Court reversed. The Court held that the FAA’s savings clause did not protect the Discover Bank Rule from preemption. According to the Court, “[w]hen state law prohibits outright the arbitration of a particular type of claim, the analysis is straightforward: The conflicting rule is displaced by the FAA.” Concepcion,
The Supreme Court defined the “fundamental attributes of arbitration” as “lower costs, greater efficiency and speed, and the ability to choose expert adjudicators to resolve specialized disputes.” Concepcion,
Justice Clarence Thomas concurred, providing the fifth vote for the Supreme Court’s preemption holding, based not upon
Concepcion is relevant to our analysis not only because it limited application of state law under the savings clause, but also because it defined the “overarching purpose” of the FAA as twofold: to ensure the enforcement of arbitration agreements according to their terms, and to facilitate streamlined proceedings. Although the Court held that the arbitration agreements at issue in Concepcion could be enforced according to their terms, and that doing so would facilitate streamlined proceedings, when these two purposes conflict, the Court has mandated that enforcement trumps efficiency.
In Moses H. Cone, for example, the hospital plaintiff in a state court proceeding, who resisted arbitration, filed claims against two defendants.
That misfortune ... occurs because the relevant federal law requires piecemeal resolution when necessary to give effect to an arbitration agreement. Under the [FAA], an arbitration agreement must be enforced notwithstanding the presence of other persons who are parties to the underlying dispute but not to the arbitration agreement. If the dispute between Mercury and the Hospital is arbitrable under the Act, then the Hospital’s two disputes will be resolved separately—one in arbitration, and the other (if at all) in state-court litigation.
Id. at 20,
Similarly, in Dean Witter,
Subsequently, in KPMG,
Collectively, Moses H. Cone, Dean Witter and KPMG instruct that the prospect of inefficient, piecemeal litigation proceeding in separate forums is no impediment to the arbitration of arbitrable claims. Indeed, where a plaintiff has multiple disputes with separate defendants arising from the same incident, and only one of those claims is subject to an
Moreover, while state courts have attempted to reconcile their state law contract defenses and public policy protections with the preemptive effect of the FAA, see, e,g., Concepcion,
One of the striking consequences of the shift away from the civil justice system and toward private adjudication is that corporations are routinely stripping individuals of their constitutional right to a jury trial. See U.S. Const. amend. VII (preserving the right to a trial by jury); Pa. Const. art. 1, § 6
The West Virginia Supreme Court of Appeals highlighted this constitutional concern in Brown et al. v. Marmet Health Care Ctr. et al.,
On appeal, the Supreme Court was unsympathetic to the state court’s concern for the right to a jury trial. In a cursory per curiam opinion, the Supreme Court reversed, and chastised the West Virginia court for “misreading and disregarding the precedents of this Court interpreting the FAA.” Marmet,
With this Supreme Court jurisprudence in mind, and solicitous of our obligation to consider questions of arbitrability with a “healthy regard for the federal policy favoring arbitration,” Moses H. Cone,
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 determine whether a valid contract exists. Casarotto,
Moreover, even if Rule 213(e) was a generally applicable contract defense, it would fail the test established in Concepcion. There, the Supreme Court instructed that although the savings clause may save a state law from FAA preemption, it will not do so when a state law prohibits outright the arbitration of a particular type of claim, when a generally applicable contract defense is applied in a manner hostile to arbitration, or when the state rule stands as an obstacle to the accomplishment of the FAA’s objectives. Concepcion,
As noted, the FAA’s objectives are to ensure the enforcement of arbitration agreements and facilitate streamlined proceedings. Arbitration of a single claim under the facts presented herein, with multiple plaintiffs and defendants and several causes of action remaining in state court, likely will not lower costs or enhance efficiency. Therefore, the scenario that we are addressing arguably presents a conflict between the two objectives of the FAA, where enforcing the ADR Agreement between Decedent and Extendicare will satisfy the enforcement objective at the expense of efficiency. Under such circumstances, we are bound by the Supreme Court’s directive to favor enforcement over efficiency. See Moses H. Cone,
In reaching this conclusion, we focus upon the application of Rule 213(e) in practice rather than upon its text or its purpose. See Concepcion,
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 in Concepcion 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. See Concepcion,
To the extent the Taylors have presented generally applicable contract defenses to this Court, we decline to address them at this juncture. Because of the trial court’s decision not
Accordingly, we reverse the Superior Court’s order affirming the trial court, and remand to the trial court for the resolution of the Taylors’ outstanding issues. Jurisdiction relinquished.
Chief Justice Saylor and Justices Baer and Dougherty join the opinion.
Chief Justice Saylor files a concurring opinion in which Justice Baer joins.
Justice Donohue files a dissenting opinion in which Justice Todd joins.
Notes
. The Superior Court has explained the distinction between survival and wrongful death causes of action as follows:
The survival action has its genesis in the decedent’s injury, not his death. The recovery of damages stems from the rights of action possessed by the decedent at the time of death. ... In contrast, wrongful death is not the deceased's cause of action. An action for wrongful death may be brought only by specified relatives of the decedent to recover damages on their own behalf, and not as beneficiaries of the estate. ... This action is designed only to deal with the economic effect of the decedent’s death upon the specified family members.
Pisano v. Extendicare Homes, Inc.,
In this case, the survival action against Extendicare was brought on Decedent's behalf by the Taylors as her co-executors, while the wrongful death action against Extendicare was brought on behalf of the Taylors as the statutory wrongful death beneficiaries. See 42 Pa.C.S. § 8301 (providing that a wrongful death action exists only for the benefit of “the spouse, children or parents of the deceased”).
. Rule 213(e) provides as follows:
(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.
(1) If independent actions are commenced or are pending in the same court, the court, on its own motion or the motion of any party, shall order the actions consolidated for trial.
(2) If independent actions are commenced in different courts, the court in which the second action was commenced, on its own motion or the motion of any party, shall order the action transferred to the court in which the first action was commenced.
(3) If an action is commenced to enforce one cause of action, the court, on its own motion or the motion of any party, may stay the action until an action is commenced to enforce the other cause of action and is consolidated therewith or until the commencement of such second action is barred by the applicable statute of limitation.
Pa.R.C.P. 213(e).
. See 42 Pa.C.S. § 7320(a)(1) (providing that an appeal may be taken from "[a] court order denying an application to compel arbitration”).
. Neither Jefferson Medical Center nor The Residence participated in the appeal, because they were not parties to the ADR Agreement.
. Section 8301(a) provides as follows:
(a) General rule.—An action may be brought, under procedures prescribed by general rules, to recover damages for the death of an individual 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.
42 Pa.C.S. § 8301(a).
. As the Superior Court recognized, there are several types of preemption. Express preemption is implicated when the federal law contains a provision expressly preempting state law. Pac, Gas & Elec. Co. v. State Energy Res. Conservation & Dev, Comm.,
. Neither the trial court nor the Superior Court addressed the Taylors’ alternative arguments against the ADR Agreement’s enforcement, including mistake, lack of consideration, frustration of purpose, impracticability, and unconscionability, These arguments were raised before the trial court in response to Extendicare’s request for bifurcation. Because the trial court denied Extendicare’s motion to bifurcate, it was unnecessary for it to resolve these alternative arguments.
. See, e.g., Marmet,
. See, e.g., Golden Gate Nat’l Senior Care LLC v. Sulpizio,
. The Supremacy Clause of the United States Constitution provides as follows:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
U.S. Const, art. VI, cl. 2.
. Both of the parties have, at this juncture, confined their arguments solely to the application of Rule 213(e).
. See, e.g., Thomas E. Carbonneau, The Revolution in Law Through Arbitration, 56 Clev. St. L. Rev. 233, 233 (2008) (opining that “[t]he development of a 'strong federal policy favoring arbitration’ cast aside traditional acceptations about law and adjudication,” and arguing that the rule of law which the human civilization has associated with law and the legal process "has been profoundly, perhaps irretrievably, altered by the rise of arbitration”) (citing E.E.O.C. v. Waffle House, Inc.,
[W]e are now at a unique point in our legal history: one that portends, quite literally, the end of doctrinal development in entire areas of the law, Companies, anxious to avoid ... exposure ... are highly motivated to insert confidential, one-on-one arbitration mandates into the standard form agreements that, over these same thirty years, have come to govern their relationships with employees, consumers, direct purchasers, and all manner of counterparties. As a result, all disputes under these agreements—whether they would have otherwise been brought as class or individual claims—will now be shunted into the hermetically-sealed vault of private arbitration, where there is no public, transparent decision-making process, much less stare decisis, or common law development. For entire categories of cases that are ushered into this vault—from consumer law, to employment law, to much of antitrust law—common law doctrinal development will cease. This, quite literally, represents the end of law.
Myriam Gilíes, The Day Doctrine Died: Private Arbitration and the End of Law, 2016 U. Ill. L. Rev. 371, 372 (2016).
. See also Concepcion,
. Section 2 provides, in its entirety, as follows;
A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a contrоversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, 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.
. In Southland, the Court elevated the preemptive effect of the FAA above any countervailing concerns for federalism. Southland,
. See Lyra Haas, The Endless Battleground: California's Continued Opposition to the Supreme Court's Federal Arbitration Act Jurisprudence, 94 B, U. L. Rev. 1419, 1425-26 (2014) ("Over time the Court has expanded the reach of these substantive provisions, placing the FAA in a position to preempt a vast swath of state law on arbitration.”); Hayford, A Sea Change,
. See Allied-Bruce,
. See also Borough of Ambridge Water Auth. v. Columbia,
. Consequently, in the realm of arbitration, state law exists solely to determine whether a valid contract exists. Myriam Gilíes, Opting Out of Liability: The Forthcoming, Near-Total Demise of the Modern Class Action, 104 Mich. L. Rev. 373, 394-95 (2005) ("While it remains ... for courts to determine whether a valid contract requiring arbitration exists, all other issues concerning the scope of arbitration agreements are now for arbitrators to decide.”); see Kristopher Kleiner, AT & T Mobility L.L.C. v. Concepcion: The Disappearance of the Presumption Against Preemption in the Context of the FAA, 89 Denv. U. L. Rev. 747, 751 (2012).
. See, e.g., Myriam Gilles, Individualized Injunctions and No-Modification Terms: Challenging "Anti-Reform” Provisions in Arbitration Clauses, 69 U. Miami L. Rev. 469 (2015) (providing that “the United States Supreme Court has been on a bit of a pro-arbitration tear recently, upholding ever-more draconian dispute resolution clauses inserted in standard-form contracts against all sorts of legal and policy-based challenges”).
. The Discover Bank court explained the rule as follows:
[W]hen the [class action] waiver is found in a consumer contract of adhesion in a setting in which disputes between the contracting parties predictably involve small amounts of damages, and when it is alleged that the party with the superior bargaining power has carried*187 out a scheme to deliberately cheat large numbers of consumers out of individually small sums of money, then, at least to the extent the obligation at issue is governed by California law, the waiver becomes in practice the exemption of the party "from responsibility for [its] own fraud, or willful injury to the person or property of another,” (Civ.Code, § 1668.) Under these circumstances, such waivers are unconscionable under California law and should not be enforced.
, Justice Thomas explained that although he preferred to engage in a textual analysis of the savings clause, the parties did not develop arguments along those lines. He therefore joined the Majority opinion, but took the opportunity to explain his preferred approach. Moreover, any suggestion that Concepcion resulted in a plurality decision was put to rest in DIRECTV, Inc. v. Imburgia, — U.S.-,
. See also Nationwide Mut. Ins. Co. v. George V. Hamilton, Inc.,
. See Hayford, A Sea Change,
. "Frequently, one cannot purchase a car, apply for a credit card, open a checking or savings account in a bank, purchase stock on a major stock exchange, or take a cruise trip on a major cruise line without having to accept a non-negotiable contract that contains an arbitration clause mandating the arbitration of any and all disputes arising out of diat contract.” Larry J. Pittman, The Federal Arbitration Act: The Supreme Court's Erroneous Statutory Interpretation, Stare Decisis, and A Proposal for Change, 53 Ala. L. Rev, 789, 791 (2002); see Myriam Gilíes, Operation Arbitration: Privatizing Medical Malpractice Claims, 15 Theoretical Inquiries L, 671, 678 (2014). Indeed, as Justice Scalia observed in Concepcion, “the times in which consumer contracts were anything other than adhesive are long past.” Concepcion,
. See, e.g„ Christine M. Reilly, Achieving Knowing and Voluntаry Consent in Pre-Dispute Mandatory Arbitration Agreements at the Contracting Stage of Employment, 90 Cal. L. Rev. 1203, 1208 (2002).
. Interestingly, upon remand from the Supreme Court, the West Virginia Supreme Court of Appeals again declared that the arbitration agreements at issue could be invalid, this time based upon common-law grounds of unconscionability, and remanded for the development of a record to assess these common-law arguments. Brown et al. v. Marmet Health Care Ctr. et al.,
. The Supreme Court’s case law, though, provides little guidance as to what state laws might survive a preemption challenge, because it consistently has held that the FAA preempts state law. See Concepcion,
. The dissent speculates that we have interpreted the FAA to divest wrongful death beneficiaries of their statutorily created right to bring a claim in this Commonwealth. The dissent asserts that, under our analysis, a wrongful death action based upon facts which also led to an arbitrable survival action cannot be maintained in court because the wrongful death beneficiaries will not be able to establish that “any prior actions for the same injuries are consolidated with the wrongful death claim so as to avoid a duplicate recovery.” Dissenting Opinion at 201-02,
Moreover, we differ with the dissent’s reading of Subsection 8301(a). First, once there is a valid arbitration agreement, the claims that are encompassed within that agreement are transferred to a private arbitration forum for deliberation, and no longer are pending in court. Thеre is, therefore, no legal action for the plaintiff to consolidate with the wrongful death claim. Second, once an issue has been referred to
The dissent’s interpretation of Subsection 8301(a) to bar the arbitration of a claim subject to a valid arbitration agreement is precisely the sort of obstacle to the accomplishment of the FAA's objectives that the United States Supreme Court has repeatedly rejected. In the face of this controlling authority, the dissent would nonetheless permit a party to avoid a contractual agreement to arbitrate a survival action by adding a wrongful death claim under Subsection 8301(a). The dissent’s novel jurisprudence would allow state legislatures to invalidate or nullify federal law simply by including a requirement that is inconsistent with arbitration as an element of a statutory cause of action by, for example, requiring all related issues to be filed in the court of common pleas. The Supreme Court of the United States repeatedly has struck down attempts by state courts to relieve parties of their obligation to arbitrate by relying upon state substantive and procedural laws. We need not like this result. It is what the Supremacy Clause commands.
. As we have explained, collateral estoppel, or issue preclusion, "forecloses re-litigation in a later action, of an issue of fact or law which was actually litigated and which was necessary to the original judgment.” Hebden v. W.C.A.B. (Bethenergy Mines, Inc.),
(1) the issue decided in the prior case is identical to the one presented in the later action; (2) there was a final adjudication on the merits; (3) the party against whom the plea is asserted was a party or in privity with a party in the prior case; (4) the party or person privy to the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the prior proceeding; and (5) the determination in the prior proceeding was essential to the judgment.*198 Office of Disciplinary Counsel v. Kiesewetter,585 Pa. 477 ,889 A.2d 47 , 50-51 (2005).
. See also Dyer v. Travelers,
. One academic has observed that special problems arise when arbi-tral collateral estoppel is applied in cases involving non-arbitrable claims. G. Richard Shell, Res Judicata and Collateral Estoppel Effects of Commercial Arbitration, 35 UCLA L. Rev. 623, 655 (1988) ("Even if all the requisites of collateral estoppel are met in such cases, there still
. See, e.g., Myriam Gilíes, Operation Arbitration: Privatizing Medical Malpractice Claims, 15 Theoretical Inquiries L. 671, 673-74 (2014) (examining studies to conclude that long-term-care facilities generally fare better in arbitration than in litigation).
Dissenting Opinion
DISSENTING
I respectfully dissent from the Majority’s conclusion that the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1-16, mandates the severance of the wrongful death action in this case from the survival action so as to allow the latter to proceed to arbitration. For the reasons that follow, I conclude that it is incorrect to focus the analysis on the dispensability of Pennsylvania Rule of Civil Procedure 213(e) under the pressure of the herculean FAA. Instead, the pinpoint question is whether the FAA can divest wrongful death heirs of their statutorily
If no recovery for personal injuries is obtained by an injured person during her life, Pennsylvania law allows for the bringing of two distinct actions after her death. The Pennsylvania legislature created the first of these actions by enacting what is now 42 Pa.C.S.A. § 8301, authorizing certain enumerated relatives of a person killed by another’s negligence to sue for damages. Tulewicz v. Se. Pa. Transp. Auth.,
Wrongful Death Act damages are measured by “the pecuniary loss [the statutory relatives] have sustained as a result of the death of the decedent” and include “the present value of the services the deceased would have rendered to the family, had she lived, as well as funeral and medical expenses.” Kiser v. Schulte,
Indeed, in Pezzulli, we recognized that “there is an important limitation on the right” to bring a wrongful death action, “namely, that it must not work a duplication of damages” where a survival action is also brought. Id. at 662. We determined that “whenever [these] two actions are brought ... they must be consolidated and tried together.” Id Accordingly, we directed the promulgation of Pennsylvania Rule of Civil Procedure 213(e)
I do not dispute that United States Supreme Court precedent mandates FAA preemption with respect to “state substantive or procedural policies” that disfavor arbitration. See Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp,
To my knowledge, the United States Supreme Court has never concluded that the FAA is powerful enough to deprive a state court plaintiff of the substantive right to bring a statutory cause of action, nor would it. To the contrary, the Supreme Court has repeatedly recognized that a statutory cause of action is a property right protected by the Due Process Clause.
In addition, it bears noting that the law is clear that when a party agrees to arbitrate a statutory claim, it “does not forgo the substantive rights afforded by the statute; it only submits to their resolution in an arbitral ... forum.” Preston v. Ferrer,
Finally, in the alternative, I would conclude that even if Rule 213(e) is preempted, bifurcation of the Wrongful Death Act claims and the Survival Act claims is unwarranted. Absent Rule 213(e), the Wrongful Death Act’s consolidation requirement would remain intact on the face of Section 8301. As there is simply no support in the FAA preemption cases to conclude that the federal policy favoring arbitration agreements can supplant a statutory cause of action, consolidation of the claims in a single judicial proceeding should nonetheless be ordered.
I respectfully dissent.
Justice Todd joins this dissenting opinion.
. Section 8301 provides, in relevant part:
(a) General rule—An action may be brought, under procedures prescribed by general rules, to recover damages for the death of an individual 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 duplicate recovеry.
42 Pa.C.S.A. § 8301. The Editors’ Notes provide that Section 8301 is “substantially a reenactment of act of April 15, 1851 (P.L. 669), § 19 (12 P.S. § 1601), act of April 26, 1855 (P.L. 309), § 1 (12 P.S. § 1602) and act of May 13, 1927 (P.L. 992)(No. 480), § 1 (12 P.S. § 1604).”
. Pa.RX.P. 213 provides:
(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.
(1) If independent actions are commenced or are pending in the same court, the court, on its own motion or the motion of any party, shall order the actions consolidated for trial.
(2) If independent actions are commenced in different courts, the court in which the second action was commenced, on its own motion or the motion of any party, shall order the action transferred to the court in which the first action was commenced.
*203 (3) If an action is commenced to enforce one cause of action, the court, on its own motion or the motion of any party, may stay the action until an action is commenced to enforce the other cause of action and is consolidated therewith or until the commencement of such second action is barred by the applicable statute of limitation.
Pa.R.C.P. 213 (amended on October 1, 1942, just six months after our decision in Pezzulli, to add paragraph (e)).
This Court’s power to promulgate rules of procedure is derived from Article V, Section 10 of the Pennsylvania Constitution which provides, in relevant part, that "the Supreme Court shall have the power to prescribe general rules governing practice, procedure and the conduct of all courts, if such rules are consistent with this Constitution and neither abridge, enlarge nor modify the substantive rights of any litigant, nor affect the right of the General Assembly to determine the jurisdiction of any court or justice of the peace, nor suspend nor alter any statute of limitation or repose.” Pa. Const, art. V, § 10.
. The Majority states that both parties "have, at this juncture, confined their arguments solely to the application of Rule 213(e).” Majority Op. at 180 n. 11,
. The Due Process Clause, found in the Fifth and Fourteenth Amendments of the United States Constitution, establishes that "[n]o person shall ... be deprived of life, liberty, or property, without due process of law.” See 10 U.S. Const, amend. V; see id. amend. XIV, § 1 ("[N]o state shall ... deprive any person of life, liberty, or property, without due process of law.”). The Pennsylvania Constitution additionally provides that "[a]ll courts shall be open; and every man for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law, and right and justice administered without sale, denial or delay.” Pa. Const, art. I, § 11.
Concurrence Opinion
CONCURRING
I join the majority’s holding and analysis, although I do not fully support some of the collateral descriptions suggestive of social policy judgments.
Justice Baer joins this concurring opinion.