SIMMONS v. SIMPSON HOUSE, INC. et al

Filing 90

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE GERALD J. PAPPERT ON 4/10/17. 4/11/17 ENTERED AND COPIES E-MAILED.(mbh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JOHN SIMMONS,
Plaintiff,
CIVIL ACTION
No. 15-06636

v.
SIMPSON HOUSE, INC., et al.,
Defendants.
PAPPERT, J.

April 10, 2017
MEMORANDUM

John Simmons filed this lawsuit in his own right and as the administrator of his
mother Ola’s estate. He alleges that Ola Simmons moved into Simpson House Nursing
Home because she was suffering from senile psychosis and episodic incontinence.
During her five-month stay, she developed pressure sores, experienced excessive weight
loss and contracted multiple infections. Ola was transferred to Prime-Roxborough
Hospital where her condition continued to decline. After less than a month at PrimeRoxborough, she moved to Kindred Hospital and died roughly two months later while in
hospice care.
John Simmons asserts claims of negligence, wrongful death and survival, and
violations of the Pennsylvania Unfair Trade Practices and Consumer Protection Law
(“UTPCPL”) against Simpson House and Simpson House, Inc. (“Simpson House”),
Prime Healthcare Services-Roxborough, LLC (“Prime-Roxborough”) and Kindred
Hospital-South Philadelphia and Kindred Healthcare Inc. (“Kindred”).
Kindred filed a motion to dismiss Simmons’s claims and enforce an arbitration
agreement. (ECF No. 82.) The Court grants the motion with respect to claims brought

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on behalf of Ola Simmons, but denies the motion with respect to John Simmons’s
wrongful death claim.
I.
A.
John Simmons filed his Second Amended Complaint on July 28, 2016. (ECF No.
45.) All Defendants filed motions to dismiss the Second Amended Complaint.
Kindred’s motion contended that Simmons’s claims should be dismissed because Ola,
through her legal guardian, agreed to arbitrate any dispute between her and Kindred.
(ECF No. 55.) The Court denied Kindred’s motion without prejudice and ordered
limited discovery on the question of arbitrability. (ECF No. 67, at n.1.) Kindred’s
renewed motion to dismiss is before the Court. (ECF No. 82.)
B.
This case’s factual background is detailed in a prior opinion. See Simmons v.
Simpson House, Inc., ___ F. Supp. 3d ___, No. 15-06636, 2016 WL 7209931, at *1 (E.D.
Pa. Dec. 12, 2016).
On May 7, 2014, Ola’s court-appointed guardian, Yvette Rogers, signed
Kindred’s admissions paperwork. (Def.’s Statement of Facts ¶ 3, ECF No. 82
(hereinafter “SOF”).) The papers included an Alternative Dispute Resolution
Agreement (“the Agreement”). (Def.’s Mot., Ex. B, ECF No. 82-5, at 5, hereinafter
“ADR”.) Rogers, a licensed attorney, had full authority to act on Ola’s behalf. (SOF ¶ 9;
Def.’s Mot., Ex. D., ECF No. 82-7.) By signing the Agreement, Rogers—and therefore

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Ola—agreed to resolve “any and all disputes that might arise between the Patient1 and
the Hospital through alternative dispute resolution methods, including mediation and
arbitration.” (ADR, at 1.) John Simmons did not sign the Agreement. (ADR, at 5.)
When deposed, Simmons acknowledged that Rogers was Ola’s court-appointed
guardian, possessing full legal authority to make decisions on Ola’s behalf. (Simmons
Dep., at 20:9–12; 34:6–9, ECF No. 82-6.) Simmons explained that Rogers was
appointed Ola’s guardian in 2011 or 2012 after a hearing where the court “assumed
that [Ola] wasn’t being properly taken care of and that her funds [were] being misused
by another relative. So, they appointed her as the guardian.” (Id. at 7:5–8:3.)
II.
A.
“When it is apparent, based on the face of the complaint, and documents relied
upon in the complaint, that certain of a party’s claims are subject to an enforceable
arbitration clause, a motion to compel arbitration should be considered under a Rule
12(b)(6) standard without discovery’s delay.” Guidotti v. Legal Helpers Debt Resolution,
716 F.3d 764, 776 (3d Cir. 2013) (quotation and citation omitted). However, “if the
complaint and its supporting documents are unclear regarding the agreement to
arbitrate, or if the plaintiff has responded to a motion to compel arbitration with
additional facts sufficient to place the agreement to arbitrate in issue, then the parties
should be entitled to discovery on the question of arbitrability before a court entertains
further briefing on the question.” Id. (quotation and citation omitted).

The term “Patient,” is defined as “the Patient, his/her Guardian or Attorney in Fact, or any
person acting as the Patient’s Legal Representative whose claim is derived through or on behalf of
the patient.” (ADR, at 1.)
1

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The Court held it was “not clear based on the face of the complaint and
documents relied upon in the complaint that Simmons’s claims [were] subject to an
enforceable arbitration clause.” (ECF No. 67, at n.1.) Accordingly, the Court ordered
limited discovery. (Id.) Limited discovery on the question of arbitrability is complete;
Kindred’s renewed motion to compel arbitration is now properly reviewed under the
summary judgment standard. See Guidotti, 716 F.3d at 776.
B.
Summary judgment is proper if there is no genuine issue of material fact and if,
viewing the facts in the light most favorable to the non-moving party, the moving party
is entitled to judgment as a matter of law. Smathers v. Multi-Tool, Inc./Multi-Plastics,
Inc. Emp. Health & Welfare Plan, 298 F.3d 191, 194 (3d Cir. 2002); see also Fed. R. Civ.
P. 56(c). A genuine issue of material fact exists when “a reasonable jury could return a
verdict for the nonmoving party.” Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248
(1986). A mere scintilla of evidence in support of the non-moving party will not suffice;
there must be evidence by which a jury could reasonably find for the non-moving party.
Id. at 252. Summary judgment is appropriate where “the nonmoving party has failed to
make a sufficient showing on an essential element of her case with respect to which she
has the burden of proof.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
In reviewing the record, a court “must view the facts in the light most favorable
to the nonmoving party and draw all inferences in that party’s favor.” Prowel v. Wise
Bus. Forms, 579 F.3d 285, 286 (3d Cir. 2009). The court may not, however, make
credibility determinations or weigh the evidence in considering motions for summary

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judgment. See Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150 (2000); see also
Goodman v. Pa. Tpk. Comm’n, 293 F.3d 655, 665 (3d Cir. 2002).
“In the event that summary judgment is not warranted because the party
opposing arbitration can demonstrate, by means of citations to the record, that there is
a genuine dispute as to the enforceability of the arbitration clause, the court may then
proceed summarily to a trial regarding the making of the arbitration agreement or the
failure, neglect, or refusal to perform the same, as Section 4 of the [Federal Arbitration
Act (“FAA”)] envisions.” Guidotti, 716 F.3d at 776 (quotation and citation omitted).
III.
Kindred moved to dismiss all of Simmons’s claims, on the grounds that
arbitration must be compelled because Ola’s legal representative and guardian signed
the Agreement upon Ola’s admission to Kindred’s facility. The Court must first
determine if the Agreement is valid. See Trippe Mfg. Co. v. Niles Audio Corp., 401 F.3d
529, 532 (3d Cir. 2005). If it is, the Court must then decide if Simmons’s Complaint
falls within its scope. Id. “When a dispute consists of several claims, the court must
determine on an issue-by-issue basis whether a party bears a duty to arbitrate.”
Trippe, 401 F.3d at 532 (citing Painewebber Inc. v. Hofmann, 984 F.2d 1372, 1376–77
(3d Cir. 1993)). Moreover, “[w]hen determining both the existence and the scope of an
arbitration agreement, there is a presumption in favor of arbitrability.” Id. Simmons
claims that the Agreement is invalid but argues alternatively that even if it is valid, his
wrongful death claim against Kindred is beyond its scope.

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A.
i.
“The FAA requires district courts to stay judicial proceedings and compel
arbitration of claims covered by a written and enforceable arbitration agreement.”
James v. Global Tellink Corp., ___ F.3d ____, 16-1555, 2017 WL 1160893, at *2 (3d Cir.
Mar. 29, 2017); see also 9 U.S.C. § 3. “Arbitration is a matter of contract between the
parties and a judicial mandate to arbitrate must be predicated upon an agreement to
that effect.” Id. (quoting Par-Knit Mills, Inc. v. Stockbridge Fabrics Co., 636 F.2d 51, 54
(3d Cir. 1980)). “To determine whether a valid arbitration agreement exists” the Court
must “apply ordinary state-law principles that govern the formation of contracts.” Id.
(quoting First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 944 (1995)).
Pennsylvania “has a well-established public policy that favors arbitration, and
this policy aligns with the federal approach expressed in the [FAA]”).” Pisano v.
Extendicare Homes, Inc., 77 A.3d 651, 660 (Pa. Super. Ct. 2013). “In general, to
determine whether a contract was formed under Pennsylvania law, a court must look
to: (1) whether both parties manifested an intention to be bound by the agreement; (2)
whether the terms of the agreement are sufficiently definite to be enforced; and (3)
whether there was consideration.” Century Indem. Co. v. Certain Underwriters at
Lloyd’s, London, 584 F.3d 513, 533 (3d Cir. 2009) (citations omitted). “In determining
whether the parties agreed to arbitrate, courts should . . . adopt[ ] an interpretation
that gives paramount importance to the intent of the parties and ascribes the most
reasonable, probable, and natural conduct to the parties.” Id. (quoting Quiles v. Fin.
Exch. Co., 879 A.2d 281, 287–88 (Pa. Super. Ct. 2005).

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ii.
Simmons does not contend that Rogers lacked the authority to sign the
Agreement, nor does he suggest that the Agreement was not supported by consideration
or that it was unconscionable.2 Instead, relying on Wert v. Manorcare of Carlisle PA,
LLC, 124 A.3d 1248 (Pa. 2015), Simmons argues that the Agreement is invalid because
it provides for the now-defunct National Arbitration Forum (“NAF”) to conduct the
arbitration and also explains that the “conduct of the ADR process shall be in
accordance with the NAF Meditation Rules and NAF Code of Procedure.” (ADR ¶
VI.A.)
Simmons raises two points related to the NAF: First, he claims that because the
NAF “is no longer in operation with respect to consumer claims” it is “impossible for the
arbitration to proceed.”3 (Pl.’s Resp., at 10, ECF No. 83.) Second, Simmons claims that
because the Agreement requires the use of NAF Code of Procedure, and the NAF Code
itself states that only the NAF may administer the code, this provision renders the
Prior to discovery, Simmons did raise these arguments, along with others. Simmons has not
made any such contentions in response to Kindred’s motion. The Court considers these arguments
waived, though they fail in any event. The “Agreement is supported by consideration because the
parties mutually agreed to be bound to utilize alternative dispute resolution measures.” Clouser v.
Golden gate Nat’l Senior Care, LLC, No. 3:15-33, 2016 WL 1179214, at *5 (W.D. Pa. Mar. 23, 2016);
see also Blair v. Scott Specialty Gases, 283 F.3d 595, 603 (3d Cir. 2002). The Agreement is not
procedurally unconscionable. It specifies in multiple locations that it is a voluntary agreement that
need not be signed by the patient (or their representative). While Rogers may have been in a weaker
bargaining position, “[c]ontracts cannot be deemed unconscionable simply because of disparity in
bargaining power . . . [the Court’s] role is to distinguish acceptable bargaining situations from those
which violate strong public policy.” Quilloin v. Tenet HealthSystem Phila., Inc., 673 F.3d 221, 235
(3d Cir. 2012) (internal quotations omitted). The Agreement is not substantively unconscionable
because it does not “unreasonably or grossly favor[ ] one side.” Harris v. Green Tree Fin. Corp., 183
F.3d 173, 181 (3d Cir. 1999); see also Quilloin, 673 F.3d at 230 (“An arbitration agreement cannot be
construed as substantively unconscionable where it does not alter or limit the rights and remedies
available to a party in the arbitral forum.” (quotation omitted)).
2

The NAF “can no longer accept arbitration cases pursuant to a consent decree it entered with
the Attorney General of Minnesota.” See Stewart v. GGNSC-Canonsburg, LP, 9 A.3d 215, 217 (Pa.
Super. Ct. 2010).
3

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Agreement invalid. The Pennsylvania Superior Court and the Third Circuit Court of
Appeals have already rejected these arguments.
1.
Courts agree that “an arbitration agreement will not fail because of the
unavailability of a chosen arbitrator unless the parties’ choice of forum is an ‘integral
part’ of the agreement to arbitrate, rather than ‘an ancillary logistical concern.’”
Stewart v. GGNSC-Canonsburg, L.P., 9 A.3d 215, 218–19 (Pa. Super. Ct. 2010); see also
Khan v. Dell Inc., 669 F.3d 350, 354 (3d Cir. 2012). “In other words, a court will decline
to appoint a substitute arbitrator . . . only if the parties’ choice of forum is so central to
the arbitration agreement that the unavailability of that arbitrator brings the
agreement to an end.” Khan, 669 F.3d at 354 (quotation and citation omitted). Courts
use this standard when interpreting the applicability of § 5 of the FAA, which provides
for court appointment of an arbitrator in the event of a vacancy. 9 U.S.C. § 5.
In Wert, the Supreme Court of Pennsylvania invalidated an arbitration
agreement because the NAF’s “participation was integral” to the agreement,
notwithstanding the agreement’s severability clause or § 5 of the FAA. Wert, 124 A.3d
at 1260. Key to the court’s reasoning was language in the agreement that any disputes
“shall be resolved exclusively by binding arbitration to be conducted . . . in accordance
with the NAF Code of Procedure.” Id. at 1263. The court held that “post-consent
decree, Section five of the FAA cannot preserve NAF-incorporated arbitration
agreements unless the parties made the NAF’s availability non-essential by specifically
varying the terms of its procedure. Regardless of whether Section five may apply
where there is a lapse by the administrator, by its own rules, the NAF must administer

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its code unless the parties agree to the contrary.” Id. at 1263; but see Khan v. Dell, 669
F.3d 350, 353–55 (3d Cir. 2012) (finding a similar arbitration provision, which required
all disputes to be “RESOLVED EXCLUSIVELY AND FINALLY BY BINDING
ARBITRATION ADMINISTERED BY THE NATIONAL ARBITRATION FORUM,”
ambiguous and thus holding the arbitration agreement valid).
2.
The Pennsylvania Superior Court subsequently criticized Wert. See MacPherson
v. Magee Mem’l Hosp. for Convalescence, 128 A.3d 1209 (Pa Super. Ct. 2015) (en banc),
appeal denied No. 700 EAL 2015, 2016 WL 6808116 (Table) (Pa. Nov. 17, 2016).
MacPherson explained that Wert “was a memorandum decision devoid of precedential
value.” Id. at 1222 n.6. It then distinguished the agreement in its case from the
agreement in Wert. “Since the parties [in Wert] . . . expressly agreed that any disputes
would be resolved exclusively through arbitration with the NAF, [Wert] found the
exclusive forum selection clause to be an integral part of the arbitration agreement.”
Id. The agreement in MacPherson, however, was “glaringly distinct due to the absence
of any reference to the exclusivity of NAF.” Id. at 1223.
That agreement stated that “[i]f the Parties mutually agree in writing not to
select NAF or if the NAF is unwilling or unable to serve as the Administrator, the
Parties shall agree upon another independent entity to serve as the Administrator,
unless the Parties mutually agree to not have an Administrator.” Id. 1223–24. This
language was “permissive, not mandatory” and provided for an alternative to the NAF.
Id. at 1224. No such provision existed in the agreements in Wert. Id.

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MacPherson also rejected the argument that the agreement’s reference to use of
the NAF Code of Procedure rendered the agreement unenforceable. Id. “Where the
arbitration clause selects merely the rules of a specific arbitral forum, as opposed to the
forum itself, and another arbitral forum could apply those rules, the unavailability of
the implicitly intended arbitral forum will not require the court to condemn the
arbitration clause.” Id. at 1225 (quoting Stewart, 9 A.3d at 219.) The court concluded
that references to the NAF Code of Procedure were not integral to the agreement and
could be severed in accordance with the agreement’s severability clause. Id.; see also
Khan, 669 F.3d at 356 (dismissing a similar argument because the NAF rules
requirement was “ambiguous . . . [because] [t]he NAF’s rules provide that they shall be
interpreted in a manner consistent with the FAA and that, if any portion of the NAF
rules are found to be enforceable, that portion shall be severed and the remainder of the
rules shall continue to apply,” and notwithstanding disagreement among courts on this
question, “liberal federal policy in favor of arbitration” supported its outcome).
3.
The Agreement in this case is similar to that in MacPherson:
Conduct of Alternative Dispute Resolution (“ADR”). The ADR process will
be conducted by an independent impartial entity that is regularly engaged
in providing mediation and arbitration services. The National Arbitration
Forum (NAF) may serve as this independent entity. In the event that
NAF is unwilling or unable to conduct the mediation or arbitration, or
the parties mutually agree that NAF should not conduct the
mediation or arbitration, then by mutual agreement the parties shall
select another independent impartial entity that is regularly engaged
in providing mediation and arbitration services. Requests for ADR and
the conduct of the ADR process shall be in accordance with the NAF
Mediation Rules and NAF Code of Procedure (hereinafter, collectively, the
“NAF Rules of Procedure”).
(ADR ¶ VI.A. (emphasis added).)
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The Agreement contains “permissive, not mandatory” language akin to the
agreement in MacPherson; it is not the exclusive language found in Wert. See
MacPherson, 128 A.3d at 1224. Because the NAF is not the exclusive arbitrator under
the Agreement, this term is not integral to the Agreement.
Moreover, while paragraph VI.A suggests mandatory use of NAF rules and
procedure, other sections of the Agreement cast doubt on that conclusion. Paragraph
VI.C says: “Unless the parties agree otherwise, the mediator will be selected as described
in the NAF Rules of Procedure . . . [and] [u]nless the parties agree otherwise, the
arbitrator(s) shall be selected as described in the NAF Rules of Procedure.” (ARD ¶
VI.C (emphasis added).) Indeed, the Agreement demonstrates that the “NAF’s
availability [was] non-essential” because it “specifically var[ies] the terms of its
procedure.” Wert, 124 A.3d at 1263. Accordingly, it is not integral to the Agreement
and, as in MacPherson, because another arbitral forum could apply the NAF rules and
procedure, the Agreement is valid. MacPherson, 128 A.3d at 1225 (quoting Stewart, 9
A.3d at 219); see also Khan, 669 F.3d at 355.
B.
In the alternative, Simmons argues that because he was not a party to the
Agreement, his wrongful death claim—unlike those claims brought on behalf of Ola’s
estate—is beyond its scope.
i.
The purpose of a wrongful death claim is to compensate a spouse, parent or child
for “pecuniary loss they have sustained as a result of the death of the decedent.” Kiser
v. Schulte, 648 A.2d 1, 4 (Pa. 1994). A survival claim, in contrast, is “brought by the

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administrator of the decedent’s estate in order to recover the loss to the estate of the
decedent resulting from the tort.” Id. (emphasis added). Simmons alleges both types of
claims against Kindred; he correctly argues that the Agreement does not preclude the
former.
“The Pennsylvania Wrongful Death and Survival Act . . . [was] enacted to allow
the survival of viable causes of action for bodily injury to a deceased beyond the life of
the victim.” Bright v. Westmoreland Cty., 380 F.3d 729, 741 (3d Cir. 2004). The Act
“did not create a new theory of liability but merely allowed a tort claim of the decedent
to be prosecuted.” Id. “Thus, if the underlying tort theory [fails], then the wrongful
death or survival claim will fail.” Id.; see also Becker v. Carbon Cty., 117 F. Supp. 841,
847 (M.D. Pa. 2016) (“As a result, a plaintiff must state all the elements of a valid tort
in order to maintain a claim under those statutes and such theory is subject to
defenses.” (quotation omitted)).
Under Pennsylvania law, an action for wrongful death may be brought by the
personal representative of those persons entitled to receive damages for wrongful death
under the statute. Kiser v. Schulte, 648 A.2d 1, 4 (Pa. 1994); see also Pisano, 77 A.3d at
656. Thus, “two separate and distinct causes of action arise from a single injury, one
dependent on the rights of action which the decedent possessed at the time of her
death, and the other dependent on the rights of action that the claimants, as named by
statute, possess.” Pisano, 77 A. 3d at 656.
ii.
The Agreement does not bind Simmons personally and his wrongful death claim
is not subject to arbitration. See Pisano, 77 A.3d at 663. In Pisano, a nursing home

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resident signed a contract upon his admission to the home in which he agreed to
binding arbitration of any disputes. Pisano, 77 A.3d at 653. The Pisano court held that
the arbitration agreement was not binding against the decedent’s children, id at 663,
because they possessed a “separate and distinct” cause of action. Id. at 656; see also
Valentino v. Phila. Triathlon, LLC, 150 A.3d 483, 492 (Pa. Super. Ct. 2016); see id. at
494 (“Thus, to enforce an arbitration clause in the wrongful death context, the
claimant’s signature is necessary to demonstrate that she agreed to submit her claim to
binding arbitration.”).4
IV.
The FAA “requires piecemeal resolution when necessary to give effect to an
arbitration agreement.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S.
1, 20, (1983). “Accordingly, the United States Supreme Court has held that, when a
defendant has two substantive disputes with separate plaintiffs arising from the same
incident, and only one of those plaintiffs is subject to an arbitration agreement, then, as
a matter of law under the FAA, the two claims must be heard in separate forums.” N.

Prior district courts incorrectly perceived a conflict between Pisano and the Third Circuit’s
decision in Grbac v. Reading Fair Co., 688 F.2d 215 (3d Cir. 1982). Grbac held that a release for
personal injuries and death signed by a husband before his death barred his widow’s wrongful death
suit. Id. at 215–16. In Valentino v. Phila. Triathlon, LLC, 150 A.3d 483 (Pa. Super. Ct. 2016), the
Superior Court explained that Pisano’s holding is narrow. See Valentino, 150 A.3d at 492. “[W]hile a
third party’s wrongful death claim is not derivative of the decedent’s right of action, a wrongful death
claim still requires a tortious injury to succeed.” Id. at 493. “Pennsylvania case law has long held
that a wrongful death claimant’s substantive right to recover is derivative of and dependent upon a
tortious act that resulted in the decedent’s death.” Id. Thus, if the decedent signed a liability
waiver, there are no underlying tortious actions on which to base the wrongful death claim. A
broader reading of Pisano would “conflate[ ] the concept of a right of action under Pennsylvania’s
Wrongful Death Act . . . with the principle that a claimant’s substantive right to obtain recovery
always remains, even in the wake of Pisano, ‘depend[ent] upon the occurrence of a tortious act.’” Id.
at 493–94 (quoting Pisano, 77 A.3d at 654).
Thus, a liability waiver signed by the decedent does bar a wrongful death claim; the
arbitration agreement in Pisano, in contrast, raises a “uniquely procedural issue that differs greatly
from the enforcement of a valid liability.” Valentino, 150 A.3d at 484. Accordingly, there is no
conflict between the Third Circuit’s decision in Grbac and the Superior Court’s decision in Pisano.
4

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Health Facilities, 993 F. Supp 2d at 496 (citing Moses H., at 19–20). This piecemeal
litigation is required “irrespective of any concomitant decline in judicial efficiency.”
Nationwide Mut. Fire Ins. Co. v. George v. Hamilton, Inc., 571 F.3d 299, 309 (3d
Cir.2009).
Courts in this Circuit have “encountered cases where a nursing home or skilled
nursing facility executed an arbitration agreement with the decedent or the decedent’s
agent/personal representative, and have decided to sever the decedent’s survival claims
from the heirs’ wrongful death claims.” See Grkman v. 890 Weatherwood Lane
Operating Co., LLC, 189 F. Supp. 3d 513, 525 (W.D. Pa. 2016) (collecting cases).
However, until recently, district courts recognized a split between Pennsylvania state
courts and federal courts regarding whether a survival claim subject to arbitration
could be severed from a wrongful death claim in light of Pennsylvania Rule of Civil
Procedure 213(e). See e.g., Clouser v. Golden Gate Nat’l Senior Care, LLC, No. CV 3:1533, 2016 WL 1179214, at *8 (W.D. Pa. Mar. 23, 2016). While federal courts had severed
the survival and wrongful death claims, the Pennsylvania Superior Court in Taylor v.
Extendicare Health Facilities, Inc. 113 A.3d 317, 321-28 (Pa. Super. Ct. 2015) held that
Rule 213(e) controlled and barred severance.
Rule 213(e) “is a rule of compulsory joinder, providing that wrongful death and
survival actions ‘may be enforced in one action, but if independent actions are
commenced they shall be consolidated for trial.” Taylor v. Extendicare Health
Facilities, Inc., 147 A.3d 490, 500 (Pa. 2016). The Pennsylvania Supreme Court,
however, recently reversed the Superior Court’s decision in Taylor. See id. The court

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concluded that “Rule 213(e) conflicts with the FAA, and is preempted.” Id. at 510.
Simmons’s wrongful death claim must be severed from the survival claim.
The FAA provides that “the court . . . upon being satisfied that the issue involved
in such suit or proceeding is referable to arbitration under such an agreement, shall on
application of one of the parties, stay the trial of the action until such arbitration has
been had in accordance with the terms of the agreement.” 9 U.S.C. § 3 (emphasis
added). No party has requested a stay, so the Court will dismiss without prejudice
those claims against Kindred that are subject to arbitration. See Ricci v. Sears Holding
Corp., No. 14-3136, 2015 WL 333312, at *6 (D.N.J. Jan. 23, 2015). Kindred’s motion is
granted with respect to the survival claim and denied with respect to the wrongful
death claim.
An appropriate order follows.

BY THE COURT:
/s/ Gerald J. Pappert
GERALD J. PAPPERT, J.

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