J-S48012-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

UNIONTOWN GP, LLC; GGNSC 

HOLDINGS, LLC; GGNSC EQUITY 

HOLDINGS, LLC; GGNSC

ADMINISTRATIVE SERVICES, LLC; 

GGNSC CLINICAL SERVICES, LLC; 

GOLDEN GATE ANCILLARY, LLC; JOYCE 

HOCH, NHA; AND DENISE CURRY, RVP,

Appellants 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 “Golden 
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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 Health 

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”) Agreement. 

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”) signed 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 Decedent lacked the legal 

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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. 
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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 

procured 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 herein 

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 determinations 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 of 

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), 
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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 

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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 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.

(Footnote Continued Next Page)
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Court in Taylor remanded the matter to the trial court for the resolution of 

these issues prior to determining 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 adhesion.” 

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 did 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, prohibiting 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 

dispute arises between the parties. 42 CFR § 483.70. 
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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 arbitration 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 trial 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). 
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did not challenge Pisano on the basis that its holding was pre-empted 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.

Prothonotary

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).