J. S14003/16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

LORRAINE F. BROSIUS, AS EXECUTRIX 

FOR THE ESTATE OF WILLIAM B. 

BROSIUS, DECEASED

:

:

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

:

v. :

:

HCR MANORCARE, LLC, MANOR CARE 

OF LANCASTER PA, LLC, D/B/A 

MANORCARE HEALTH SERVICESLANCASTER, MANORCARE HEALTH 

SERVICES, INC. A/K/A MANORCARE 

HEALTH SERVICES, LLC, MANOR 

CARE, INC., HCR MANORCARE, INC., 

HCR IV HEALTHCARE, LLC, HCR III 

HEALTHCARE, LLC, HCR II 

HEALTHCARE, LLC, HCR HEALTHCARE, 

LLC, HCRMC OPERATIONS, LLC, 

HCR MANORCARE OPERATIONS II, 

LLC, HEARTLAND EMPLOYMENT 

SERVICES, LLC, SELECT MEDICAL 

CORPORATION, SELECT MEDICAL OF 

PENNSYLVANIA, INC., SELECT 

SPECIALTY HOSPITALS, INC., SELECT 

SPECIALTY HOSPITAL-CAMP HILL, 

INC., AND SELECT SPECIALTY 

HOSPITAL-CENTRAL PENNSYLVANIA, 

L.P. F/K/A SELECT SPECIALTY 

HOSPITAL-CAMP HILL LP, D/B/A 

SELECT SPECIALTY HOSPITAL-YORK,

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

: 

:

:

: No. 789 MDA 2015

:

 Appellants :

Appeal from the Order Entered April 13, 2015,

in the Court of Common Pleas of Lancaster County

Civil Division at No. CI-14-05498

BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., AND STEVENS, P.J.E.*

 

* Former Justice specially assigned to the Superior Court.
J. S14003/16

- 2 -

JUDGMENT ORDER BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 05, 2016

This case returns on remand following the Pennsylvania Supreme 

Court’s decision in Taylor v. Extendicare, A.3d , 2016 WL 5630669 

(Pa. September 28, 2016). We reverse and remand for further proceedings.

The relevant history of this nursing home medical malpractice wrongful 

death and survival action was set forth in this court’s April 25, 2016 

judgment order affirming the trial court’s order overruling appellants’ 

preliminary objection in the nature of a motion to compel arbitration. 

Brosius v. HCR ManorCare, LLC, No. 789 MDA 2015 (Pa.Super. filed 

April 25, 2016), reversed, 354 MAL 2016 (Pa. filed October 17, 2016) 

(per curiam). In refusing to compel arbitration, the trial court relied on this 

court’s decision in Taylor v. Extendicare Health Facilities, Inc., 113 A.3d 

317 (Pa.Super. 2015), which held that Pa.R.C.P. 213(e) required that 

wrongful death and survival actions be consolidated for trial. Since, under 

Pisano v. Extendicare Homes, Inc., 77 A.3d 651 (Pa.Super. 2013), 

appeal denied, 86 A.3d 233 (Pa. 2014), cert. denied, U.S. , 134 

S.Ct. 2890 (2014), wrongful death beneficiaries are not bound by an 

arbitration agreement executed by the decedent, the claims cannot be 

severed and must be litigated together in one proceeding. Appellants 

agreed that the trial court and this court were bound by our decision in 

Taylor which was controlling.
J. S14003/16

- 3 -

However, recently the Pennsylvania Supreme Court reversed this 

court’s decision in Taylor, holding that Rule 213(e) conflicts with the Federal 

Arbitration Act (“FAA”) and is preempted. Section 2 of the FAA binds state 

courts to compel arbitration of claims subject to an arbitration agreement, 

even at the expense of judicial efficiency. Taylor, 2016 WL 5630669 at *14 

(“The Supreme Court has made clear that bifurcation and piecemeal 

litigation is the tribute that must be paid to Congressional intent.” (citation 

omitted)). Therefore, our supreme court in Taylor determined that the FAA 

mandated the severance of the non-arbitrable wrongful death action from 

the survival action to allow the latter to proceed to arbitration.

As in Taylor, in this case, appellee raised state law contract defenses 

to appellants’ preliminary objections, including that the arbitration 

agreement was unconscionable. The savings clause of the FAA permits the 

application of generally applicable state contract law defenses such as fraud, 

duress, and unconscionability, to determine whether a valid contract to 

arbitrate exists. Id. at *14. Since the trial court, following this court’s 

decisions in Pisano and Taylor, refused to bifurcate the claims and 

determined that they must be consolidated for trial, the trial court did not 

have the opportunity to address these issues. Therefore, we will remand to 

the trial court to address appellee’s fact-based defenses, including whatever 

further arbitration-related discovery is deemed necessary. See id. at *17 

(“Upon remand to the trial court, the parties will have the opportunity to 
J. S14003/16

- 4 -

litigate whether there is a valid and enforceable arbitration contract in 

accord with generally applicable contract defenses and the FAA’s savings 

clause.”).

Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/5/2016