Wrongful death and survival actions do not have to be bifurcated to permit arbitration of the survival action, the Superior Court held in Taylor v. Extendicare Health Facilities, Inc., __ A.3d __ (No. 2028 WDA 2013, filed April 2, 2015). The co-executors of the decedent’s estate asserted wrongful death and survival claims against several nursing and skilled care facilities. One of the facilities, Extendicare, filed preliminary objections averring that the claims were subject to binding arbitration pursuant to an arbitration agreement executed on decedent’s behalf by her power of attorney. The trial court overruled the objections and Extendicare appealed.
In a unanimous opinion written by Judge Bowes, the Superior Court affirmed. Citing its recent decision in Pisano v. Extendicare Homes, Inc., 77 A.3d 651 (Pa. Super. 2013), as controlling, the Court reiterated that “an arbitration agreement signed by the decedent or his or her authorized representative is not binding upon non-signatory wrongful death beneficiaries.” The Court then considered Extendicare’s issue of first impression: whether the wrongful death and survivor actions had to be bifurcated to allow arbitration of the survival action pursuant to the arbitration agreement. Extendicare argued that the Federal Arbitration Act preempted Pa. R.C.P. 213(e) (requiring consolidation of wrongful death and survival actions) and 42 Pa. C.S. §8301(a) (same), which it viewed as in conflict with enforcement of an arbitration agreement. The Court found no conflict preemption, holding that the rule and statute are not “aimed at destroying arbitration,” do not demand “procedures incompatible with arbitration,” and are not so incompatible with arbitration as to “wholly eviscerate arbitration agreements.” The Court also noted that Extendicare’s desired piecemeal litigation of identical issues in different forums would increase the potential for inconsistent liability findings and overlapping damages.