J-A21017-14

 2016 PA Super 15 

*Retired Senior Judge assigned to the Superior Court

ROY J. BURKETT JR., ADMINISTRATOR 

OF THE ESTATE OF NANNIE BURKETT, 

DECEASED AND IN HIS OWN RIGHT

IN THE SUPERIOR COURT OF

PENNSYLVANIA

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. 
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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.