J-A04019-15

2015 PA Super 142

DONALD E. TUOMI, ADMINISTRATOR OF 

THE ESTATE OF MARGARET C. TUMOI, 

DECEASED,

IN THE SUPERIOR COURT OF

PENNSYLVANIA

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

- 2 -

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. 
J-A04019-15

- 3 -

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. 
J-A04019-15

- 4 -

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 
J-A04019-15

- 5 -

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 preempted West Virginia's prohibition against pre-dispute agreements to 
J-A04019-15

- 6 -

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, 
J-A04019-15

- 7 -

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. 
J-A04019-15

- 8 -

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 
J-A04019-15

- 9 -

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. 
J-A04019-15

- 10 -

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/18/2015