J-A21017-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

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.*

MEMORANDUM BY OTT, J.: FILED JULY 11, 2017

This case returns to us on remand following the Pennsylvania Supreme 

Court’s decision in Taylor v. Extendicare, 147 A.3d 490 (Pa. Sept. 28, 

2016), cert. denied, 137 S. Ct. 1375 (U.S. 2017) (“Taylor II”).1 Upon 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1

 In Taylor II, the sole issue before the Supreme Court was whether a nonarbitrable wrongful death cause of action could be severed from a survival 

action to allow the survival claim to proceed to arbitration pursuant to an 

agreement. As will be discussed in more detail infra, the central question 

was whether the Federal Arbitration Act (“FAA”), 9 U.S.C. § 1 et seq., 

preempted Pennsylvania Rule of Civil Procedure 213(e). Accordingly, our 

disposition will be limited to that determination as it is the only outstanding 

contention following the remand. See Burkett v. St. Francis Country 

(Footnote Continued Next Page)
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review, we affirm in part, reverse in part, and remand for further 

proceedings.

The relevant history of this nursing home facility wrongful death and 

survival lawsuit was set forth in this Court’s January 25, 2016, opinion 

affirming the trial court’s order denying a motion to compel arbitration 

brought by St. Francis Country House, Catholic Healthcare Services, and 

Archdiocese of Philadelphia (collectively, “St. Francis”).

2

 See Burkett v. St. 

Francis Country House, 133 A.3d 22 (Pa. Super. 2016), reversed, 162 EAL

2016, 2016 Pa. LEXIS 2308 (Pa. Oct. 17, 2016) (per curiam).

Relying on this Court’s decision in Pisano v. Extendicare Homes, 

Inc., 77 A.3d 651 (Pa. Super. 2013), the trial court determined that Burkett 

was a non-intended third party, in his capacity as administrator of the Estate 

and in his own right. Moreover, the court concluded Burkett was not bound 

under the Arbitration Clause to arbitrate either the wrongful death or 

(Footnote Continued) _______________________

House, 162 EAL 2016, 2016 Pa. LEXIS 2308 (Pa. Oct. 17, 2016) (per 

curiam) (“AND NOW, this 17th day of October, 2016, the Petition for 

Allowance of Appeal is GRANTED. The Superior Court's order is VACATED. 

The matter is REMANDED for proceedings consistent with the decision in 

Taylor v. Extendicare, 147 A.3d 490, No. 19 WAP 2015, 2016 Pa. LEXIS 

2166 (Pa. filed September 28, 2016).”).

2

 We briefly note St. Francis owned and operated St. Francis Country House, 

a nursing home facility where the decedent, Nannie Burkett (“Decedent”), 

resided at the time of her death. Roy J. Burkett, Jr., Administrator of the 

Estate of Nannie Burkett, deceased, and in his own right as son (collectively, 

“Burkett”) filed a complaint, alleging that while Decedent was a resident at 

the facility, she sustained serious and permanent injuries, which were 

directly and proximately caused by the negligence of the facility.
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survival claims. Consequently, on August 21, 2013, the trial court entered 

an order denying St. Francis’s motion to compel arbitration.

On appeal, we concluded that in accordance with Pisano and contrary 

to St. Francis’s argument, the trial court did not abuse its discretion in failing 

to compel arbitration of Burkett’s wrongful death claim. See Burkett, 133 

A.3d at 28-31. 

With respect to the survival action, however, we were constrained to 

rely on this Court’s decision in Taylor v. Extendicare Health Facilities, 

Inc., 113 A.3d 317, 319 (Pa. Super. 2015) (“Taylor I”), which held that 

Pa.R.C.P. 213(e)3required consolidation of wrongful death and survival 

actions for trial. Further, the panel determined Rule 213 and the Wrongful 

Death Act4 were not preempted by the Federal Arbitration Act (“FAA”).5 

Therefore, we were compelled to conclude the trial court did not abuse its 

____________________________________________

3

 Pa.R.C.P. 213(e) provides: “A cause of action for the wrongful death of a 

decedent and a cause of action for the injuries of the decedent which 

survives his or her death may be enforced in one action, but if independent 

actions are commenced they shall be consolidated for trial.” Pa.R.C.P. 

213(e).

4

 The panel found additional support for consolidation in the final clause of 

the Wrongful Death Act, which states: “... and any prior actions for the same 

injuries are consolidated with the wrongful death claim so as to avoid a 

duplicate recovery.” 42 Pa.C.S. § 8301(a); see Taylor I, 113 A.3d at 322.

5

 See 9 U.S.C. § 1 et seq. The FAA provides that arbitration agreements 

“shall be valid, irrevocable, and enforceable, save upon such grounds as 

exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2.
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discretion in refusing to sever and refer Burkett’s survival action claims to 

arbitration. See Burkett, 133 A.3d at 31-36.6 

However, subsequently, the Pennsylvania Supreme Court reversed the 

decision in Taylor I, holding that Rule 213(e) conflicts with the FAA and 

therefore, is preempted. Taylor II, 147 A.3d at 510 (“The Supreme Court 

has made clear that bifurcation and piecemeal litigation is the tribute that 

must be paid to Congressional intent.”).7

The Supreme Court in Taylor II also opined: 

The only exception to a state’s obligation to enforce an 

arbitration agreement is provided by the savings clause, which 

permits the application of generally applicable state contract law 

defenses such as fraud, duress, or unconscionability, to 

____________________________________________

6

 In our analysis, we expressed our “hesitation in the matter with respect to 

Taylor [I] as it appears to provide for a bright-line rule regarding 

consolidation of wrongful death and survival actions in these skilled nursing 

facility arbitration agreement disputes.” Burkett, 133 A.3d at 34. 

Moreover, we noted case law has permitted “that application of a valid 

arbitration clause may produce piecemeal litigation” and the FAA preempted 

Rule 213. Id. at 34-35 (citations omitted).

7

 The Supreme Court also stated:

We recognize that Rule 213(e) is a procedural mechanism to 

control case flow, and does not substantively target arbitration. 

However, the Supreme Court directed ... that state courts may 

not rely upon principles of general law when reviewing an 

arbitration agreement if that law undermines the enforcement of 

arbitration agreements. We cannot require a procedure that 

defeats an otherwise valid arbitration agreement, contrary to the 

FAA, even if it is desirable for the arbitration-neutral goal of 

judicial efficiency.

Taylor II, 147 A.3d at 510.
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determine whether a valid contract exists. Pursuant to the 

savings clause, the compulsory joinder mandate of Rule 213(e) 

could bar the trial court from bifurcating the Taylors’ arbitrable 

survival action from its pending litigation in state court only if it 

qualifies as a generally applicable contract defense.

Taylor II, 147 A.3d at 509 (citations and footnote omitted). As such, the 

Supreme Court remanded the matter to the trial court, providing “the parties 

will have the opportunity to litigate whether there is a valid and enforceable 

arbitration contract in accord with generally applicable contract defenses and 

the FAA’s savings clause.” Id. at 513.

Turning to the present matter, pursuant to Pisano, we reiterate the 

trial court did not abuse its discretion in failing to compel arbitration of 

Burkett’s wrongful death claims. As such, Burkett is entitled to a trial on the 

wrongful death cause of action.

However, like the claimants in Taylor II, Burkett argued he was not 

bound by the arbitration agreement based on allegations of unconscionability 

and lack of consideration. See Burkett’s Brief 16-29. The trial court did not 

address these issues due to its finding that the claims fell outside of the 

agreement. Furthermore, there was no evidence presented by the parties 

with respect to these claims. Therefore, in accordance with Taylor II, we 

remand for the parties and the court to address these contract-based 

defense claims related to the survival action.

Order affirmed in part and reversed in part. Case remanded for action 

consistent with this decision. Jurisdiction relinquished.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/11/2017