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NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COLLEEN M. BAUER, AS EXECUTRIX FOR THE ESTATE OF IRENE C. KARLOWICZ, DECEASED IN THE SUPERIOR COURT OF PENNSYLVANIA
Appellee

v. GOLDEN GATE NATIONAL SENIOR CARE, LLC; GGNSC UNIONTOWN , LP D/B/A GOLDEN LIVING CENTER

- UNIONTOWN; GPH UNIONTOWN, LP; G GNSC UNIONTOWN GP, LLC; G GNSC HOLDINGS, LLC; GGNSC EQUITY HOLDINGS, LLC; GGNSC ADMINISTRATIVE SERVI CES, LLC; GGNSC CLINICAL SERVI CES, LLC; GOLDEN GATE ANCILLAR Y, LLC; JOYCE HOCH, NHA; AND DENIS E CURRY, RVP, Appellant s No. 1252 WDA 2015 Appeal from the Order Entered July 30 , 2015 In the Court of Common Pleas of Fayette County Civil Division at No(s): 2473 OF 2014 GD

BEFORE: BOWES, DUBOW AND MUSMANNO, JJ. MEMORANDUM BY BOWES, J: FILED NOVEMBER 07, 2016 Golden Gate National Senior Care, LLC, GGNSC Uniontown, LP d/b/a Golden Living Center

- Uniontown, GPH Uniontown, LP, GGNSC Uniontown GP, LLC; GGNSC Holdings, LLC, GGNSC Equity Holdings, LLC, GGNSC Administrative Services, LLC, GGNSC Clinical Services, LLC, Golden Cate Ancillary, LLC, Joyce Hoch, NHA, and Denise Curry, RVP (collectively “GoldenJ

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Gate”) appeal from the July 30, 2015 order overruling their preliminary objections seeking to compel arbitration. We reverse the order based on the Supreme Court’s recent decision in Taylor v. Extendicare Healt h Facilities, Inc. , 2016 Pa. LEXIS 2166 (Pa. September 28, 2016), and remand to permit the parties to engage in discovery necessary to enable the trial court to determine the validity and enforceability of the alternative dispute resolution (“ADR”) Agreeme nt. Appellee Colleen M. Bauer (“Executrix”) commenced this wrongful death and survival action against Golden Gate by writ of summons on December 1, 2014. She subsequently filed a complaint seeking both compensatory and punitive damages for the injuries and death of Irene C. Karlowicz (“Decedent”). Golden Gate filed preliminary objections challenging, inter alia , the court’s subject matter jurisdiction and seeking to transfer the case to arbitration pursuant to an arbitration agreement (“Agreement”) sig ned by Decedent when she was admitted to the facility. 1 Executrix filed a response in opposition in which she maintained that the Agreement was unenforceable and/or unconscionable under state contract law principles. Specifically, she alleged that the De cedent lacked the legal

____________________________________________ 1 On July 30, 2015, at the hearing on preliminary objections, Golden Gate withdrew all preliminary objections except those related to arbitration, reserving the right to present them later as motions in limine or summary judgment.J

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capacity to act when she signed the agreement; that she did so unknowingly and involuntarily; that it was not binding on wrongful death claimants; that it was void a) as against public policy, b) lacked consideration, c) was
procure d by fraud, d) was signed under duress, e) was the product of undue influence, and numerous other contract defenses. Shortly thereafter, this Court decided Taylor v. Extendicare Health Facilities, Inc. , 113 A.3d 317 (Pa.Super. 2015). The trial court her ein applied Pisano v. Extendicare , 77 A.3d 651 (Pa.Super. 2013), and held that wrongful death beneficiaries were not bound by Decedent’s agreement to arbitrate. Then, acknowledging the potential for inconsistent liability and duplicative damages determina tions if the survival action was severed and sent to arbitration, the court applied Taylor , overruled the preliminary objections, and held that the wrongful death and survival actions had to be consolidated in court. Golden Gate timely appealed and presents two issues for our review:

1. Whether the trial court erred by refusing to sever Appellee’s survival action from her wrongful death action and compel arbitration of Appellee’s survival action? 2. Whether the trial court erred by refusing to compel all o f Plaintiff’s claims against Appellants to arbitration? Appellants’ brief at 4. Appellants’ first issue is a challenge to this Court’s holding in Taylor v. Extendicare Health Facilities, Inc , 113 A.3d 317 (Pa.Super. 2015),J

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allowance of appeal granted 122 A.3d 1036 (Pa. 2015), rev’d 2016 Pa.LEXIS 2166 (Pa. 2016), that the Federal Arbitration Act (“FAA”) does not pre

- empt Pa.R.C.P. 213(e) and 42 Pa.C.S. § 8301, and that under Pennsylvania law, wrongful death and survival actions must be consolidated for trial. On September 28, 2016, our Supreme Court agreed with the position advocated by Golden Gate herein, finding Rule 213(e) pre

- empted by the FAA. Consequently, the FAA controls and supersedes the state requirement that the two actions be consolidated , opening the door to bifurcation and resolution in two different forums. However, the Taylor Court stopped short of transferring the survival action to arbitration, recognizing that the plaintiffs had not had the opportunity to challenge the validity and enforceability of the arbitration agreement in accord with generally applicable contract defenses and the FAA’s savings clause. 2 Hence, our High

____________________________________________ 2 Section 2 of the FAA provides: § 2. Validity, irrevocability, and enforcement of agreements to arbitrate A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out o f 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 e nforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. (Footnote Continued Next Page)J

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Court in Taylor remanded the matter to the trial court for the resolution of these issues prior to determinin g if arbitration of the survival claim was mandated. The instant case is in precisely the same procedural posture as Taylor

. As outlined above, Executrix alleged that the ADR Agreement was “unenforceable, void, unconscionable, and/or a contract of ad hesion.” Plaintiff’s Response in Opposition to Defendants’ Preliminary Objections Raising Questions of Fact, 3/13/15, at 4 ¶¶21

- 23. 3 She also raised the unenforceability of the clause on the above

- enumerated contractual grounds. As in Taylor , Executrix d id not have the opportunity to offer proof of these defenses and the trial court did not rule on their viability. Accordingly, we must remand to the trial court for the same inquiry mandated by the Supreme Court in Taylor : whether, under the FAA’s savings clause and generally applicable contract defenses, the ADR Agreement at issue is valid and enforceable.

(Footnote Continued)

_______________________ 9 U.S.C.A. § 2 (emphasis added).

3 We note that the Centers for Medicare and Medicaid Services (“CMS”) issued a final rule effective November 28, 2016, p rohibiting facilities that receive Medicare and Medicaid funding from using pre

- dispute binding arbitration agreements. Such facilities must not enter into an agreement for binding arbitration with a resident or his or her representative until after a dis pute arises between the parties. 42 CFR § 483.70.J

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We turn to Golden Gate’s second issue, which was not present in Taylor . Golden Gate contends that Pisano created a categorical prohibition of arbit ration of wrongful death claims, and hence, that it is pre

- empted by the FAA. This issue is waived. Although Pisano had been decided on August 13, 2013, and the Supreme Court of Pennsylvania denied allowance of appeal on February 25, 2014, which was duly noted by Golden Gate in its brief in support of its preliminary objections in this case, Golden Gate did not argue below that Pisano was pre - empted by the FAA. 4 See also N.T. Oral Argument, 7/28/15, at 5. In fact, Golden Gate acknowledged the holding in Pisano and argued that, “[a]t a minimum, the Court must direct that any survival claims be arbitrated, as the Pisano decision did not preclude the same and severance is required by the Federal Arbitration Act.” Brief in Support of Preliminary Objections to Plaintiff’s Complaint, 2/25/15, at 8 n.2. The trial court overruled the preliminary objections based upon this Court’s decision in Taylor

. In its concise statement of errors complained of on appeal, although Golden Gate charged generally that the tri al court erred in refusing to transfer the claims to arbitration, or at least to sever the survival action from the wrongful death action and transfer it to arbitration in light of Pisano , it

____________________________________________ 4 Such an argument, had it been articulated in the lower court, offered a basis for avoiding the then

- binding effect of our decision in Taylor v. Extendicare Health Services, Inc. , 113 A.3d 317 (Pa.Super. 2015).J

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did not challenge Pisano on the basis that its holding was pre

- e mpted by the FAA. 5 Thus, the preemption issue vis

- à

- vis Pisano is waived on two grounds: Golden Gate did not raise it below, see Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.”), and it did not identify this position as error in its Pa.R.A.P. 1925(b) concise statement. See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the Statement and/or not raised in accordance with the provisions of this paragraph (b)(4) are waived.”). Order reversed; case remanded to the trial court for further proceedings consistent with our Supreme Court’s recent decision in Taylor and this memorandum opinion. Case remanded. Jurisdiction relinquished. Judgment Entered.

Joseph D. Seletyn, Esq. Proth onotary Date: 11/7/2016

____________________________________________ 5 Golden Gate expressly reserved the right to challenge on appeal this Court’s decision in Taylor v. Extendicare Health Facilities, Inc. , 113 A.3d 317 (Pa.Super. 2015). See Concise Statement of Errors Complained of on Appeal, 9/8/15, at 1 n.1. No reservation was made as to our decision in Pisano v. Extendicare , 77 A.3d 651 (Pa.Super. 2013).