Cosgrove, S. v. Manor Care Lancaster ( 2015 )

J-A18024-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
SUSAN J. COSGROVE AND HOWARD G. IN THE SUPERIOR COURT OF
ESHLEMAN, AS CO-EXECUTORS OF THE PENNSYLVANIA
ESTATE OF IRENE M. ESHLEMAN,
DECEASED
Appellees
v.
MANORCARE OF LANCASTER PA, LLC
D/B/A MANORCARE HEALTH SERVICES
LANCASTER, AND HCR MANORCARE,
INC., AND MANORCARE, INC.
Appellants No. 761 MDA 2014
Appeal from the Order entered April 4, 2014
In the Court of Common Pleas of Lancaster County
Civil Division at No: 12-11713
BEFORE: FORD ELLIOTT, P.J.E., STABILE, and MUSMANNO, JJ.
JUDGMENT ORDER BY STABILE, J.: FILED JUNE 18, 2015
This appeal is from an order overruling preliminary objections to
compel arbitration of claims brought under the Wrongful Death and Survival
Acts.1 The claims arise from the death of Irene M. Eshleman, after she was
a resident at a nursing home operated by Appellants (collectively,
ManorCare).
____________________________________________
1
Respectively, 42 Pa.C.S.A. §§ 8301 and 8302. Though the order is
interlocutory, we have jurisdiction under 42 Pa.C.S.A. § 7320. See
Pa.R.A.P. 311(a)(8).
J-A18025-15
The wrongful death claims are not subject to arbitration, because a
decedent’s agreement to arbitrate is not enforceable against the decedent’s
wrongful death beneficiaries. Taylor v. Extendicare Homes, Inc., 113
A.3d 317, 320 (Pa. Super. 2015) (citing Pisano v. Extendicare Homes, 77
A.3d 651, 654 (Pa. Super. 2013)). In addition, the Survival Act claims must
be joined with the wrongful death claims, Pa.R.C.P. No. 213(e), and
requiring joinder does not violate the Federal Arbitration Act, 9 U.S.C. § 2.
Taylor, 113 A.3d at 326-28.
We decided Taylor after the principal briefs were filed in this case. In
its Reply Brief,2 ManorCare contends Taylor was wrongly decided, but
concedes that it controls. We agree. See, e.g., Regis, Inc. v. All Am.
Rasthskeller, Inc., 976 A.2d 1157, 1161 n.6 (Pa. Super. 2009) (quotation
omitted) (“It is beyond the power of a Superior Court panel to overrule a
prior decision of the Superior Court.”). Therefore, based on Taylor, we
affirm the order overruling ManorCare’s preliminary objections.
Order affirmed. Jurisdiction relinquished.
____________________________________________
2
The Reply Brief is untimely. Appellee has not objected. We exercise
discretion to excuse the untimely filing. See Pa.R.A.P. 105(a).
-2-
J-A18025-15
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/18/2015
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