J-S39033-16

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

MARY J. CHURLICK, EXECUTRIX OF 

THE ESTATE OF MARY J. YOHN, 

DECEASED,

 Appellee

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MANOR CARE OF CARLISLE PA, LLC, 

D/B/A , MANORCARE HEALTH SERVICE, 

CARLISLE, AND HCR MANOR CARE, 

INCL, MANORCARE INC., HCR 

HEALTHCARE LLC, HCR HEALTHCARE 

II, III, AND IV, LLC,

 Appellants

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 

No. 1108 MDA 2015

Appeal from the Order Entered September 6, 2013

in the Court of Common Pleas of Cumberland County,

Civil Division, at No(s): 12-7476

BEFORE: STABILE, PLATT,* and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED JUNE 28, 2016

Manor Care of Carlisle PA, LLC, d/b/a Manorcare Health Service, 

Carlisle, and HCR Manor Care, Inc., Manorcare Inc., HCR Healthcare, LLC, 

HCR Healthcare II, III, and IV, LLC (Appellants) appeal from the order 

entered on September 6, 2013,1 which overruled their preliminary objections 

in the nature of a motion to compel arbitration. Upon review, we affirm.

 

1 Appellants purport to appeal from the order entered on June 18, 2015, 

which denied their motion for reconsideration. It is well-settled that 

“[d]enial of reconsideration is not subject to appellate review.” Erie Ins. 

Exchange v. Larrimore, 987 A.2d 732, 743 (Pa. Super. 2009). However, 

based upon the unusual procedural history of this case, this appeal is timely. 
J-S39033-16

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The trial court summarized the factual and procedural history of this 

case as follows.

On December 13, 2012, [Appellee] Mary J. Churlick, in her 

capacity as Executrix of the Estate of Mary J. Yohn (hereinafter 

the “Decedent”), filed a complaint against [Appellants] in the 

above-captioned matter. The complaint contains claims which 

sound in negligence and negligence per se, as well as claims 

under the Survivor Statute, 42 Pa.C.S. § 8302, and the Wrongful 

Death Statute, 42 Pa.C.S. § 8301. The crux of [Appellee’s] 

complaint is that [Appellants] operated Manor Care Health 

 

On September 6, 2013, the trial court overruled Appellants’ 

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

order was an appealable order. See Taylor v. Extendicare, 113 A.3d 317 

n.1 (Pa. Super. 2015) (“In Midomo Co. v. Presbyterian Hous. Dev. Co., 

739 A.2d 180, 183 (Pa. Super. 1999), this Court noted that Pa.R.A.P. 

311(a)(8) permits an interlocutory appeal from any order that is made 

appealable by statute. The Uniform Arbitration Act, 42 Pa.C.S. §§ 7301 et 

seq., provides that an appeal may be taken from ‘[a] court order denying an 

application to compel arbitration....’ 42 Pa.C.S. § 7320(a)(1).”). 

On September 24, 2013, Appellants filed a motion for reconsideration 

of that order. On October 4, 2013, the trial court vacated the September 6, 

2013 order pending a ruling on the motion for reconsideration, which it took 

under advisement. On October 7, 2013, Appellants filed a notice of appeal 

to this Court. By order entered on November 1, 2013, this Court dismissed 

that appeal concluding that the October 4, 2013 order was an order 

“expressly granting consideration” consistent with Jackson v. Hendrick, 

746 A.2d 574, 579 (Pa. 2000) (holding that where the trial court 

simultaneously vacates its order and takes a motion for consideration under 

advisement, it was “expressly granting reconsideration”). Order, 1812 MDA 

2013, filed on 11/1/2013. 

Nothing further happened in this case until 2015, when new counsel 

for Appellee entered an appearance. Thereafter, on June 18, 2015, the trial 

court entered an order denying the motion for reconsideration that it had 

taken under advisement previously. The denial of reconsideration is

essentially the reinstatement of the September 6, 2013 order overruling 

Appellants’ preliminary objection. Because Appellants filed their notice of 

appeal within 30 days of the June 18, 2015 order, this appeal is timely. We 

have amended the caption accordingly.
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Services - Carlisle (hereinafter “Manor Care Carlisle”) in a 

manner which emphasized maximizing profits at the expense of 

providing quality care to its residents, including the Decedent.

***

In response to the complaint, preliminary objections of 

Appellants to Appellee’s complaint [] were filed on January 7, 

2013, seeking to enforce the arbitration agreement which was 

signed upon the Decedent’s admission to Manor Care Carlisle. 

The arbitration agreement was not signed by the [Decedent] 

herself, but by [Appellee, the Decedent’s daughter,] who acted 

under a power of attorney.

In an order dated September 6, 2013, th[e trial court] 

overruled [Appellants’] preliminary objections seeking to enforce 

the arbitration agreement. 

Trial Court Opinion, 9/25/2015, at 1-2.

Appellants filed a notice of appeal. Both Appellants and the trial court 

complied with Pa.R.A.P. 1925.

Appellants, Appellee, and the trial court all agree that this case is 

governed by this Court’s ruling in Taylor v. Extendicare, 113 A.3d 317 (Pa. 

Super. 2015), appeal granted, 122 A.3d 1036 (Pa. 2015). See Trial Court 

Opinion, 9/25/2015, at 3; Appellants’ Brief at 10; Appellee’s Brief at 3. In 

Taylor, a panel of this Court held that “the wrongful death beneficiaries’ 

constitutional right to a jury trial and the state’s interest in litigating 

wrongful death and survival claims together require that they all proceed in 

court rather than arbitration.” 113 A.3d at 328. Accordingly, we affirm the 

order of the trial court overruling Appellants’ preliminary objection in the 
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nature of a motion to compel arbitration, which kept both the wrongful death 

and survival actions in court to be litigated.

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/28/2016