HARRISBURG – The state Supreme Court has granted a petition for allowance to appeal in a negligence and wrongful death action against a Carlisle nursing care facility.

On Dec. 1, the Supreme Court granted the petition ordered all further proceedings in the professional liability action filed by Mary J. Churlick (Executrix of the Estate of Mary J. Yohn) against Manor Care of Carlisle PA, HCR Manor Care, Inc., Manor Care Inc., HCR Healthcare and HCR Healthcare II, III, and IV remanded to the Superior Court.

Initially, Mary J. Churlick filed a complaint on Dec. 13, 2012, in the Cumberland County Court of Common Pleas against the defendants containing claims outlining negligence and negligence per se, as well as claims under the Survivor Statute (42 Pa.C.S. Section 8302) and the Wrongful Death Statute (42 Pa.C.S. Section 8301).

According to the original complaint, “Churlick believes the defendants “operated Manor Care Health Services — Carlisle (Manor Care Carlisle) in a manner which emphasized maximizing profits at the expense of providing quality care to its residents, including the decedent (Yohn).”

In response to the complaint, the defendants filed preliminary objections on Jan. 7, 2013, aiming to enforce an arbitration agreement which was signed upon Yohn’s admission to Manor Care Carlisle. The arbitration agreement was not signed by Yohn herself, but by her daughter who acted under power of attorney.

Through a judicial order dated Sept. 6, 2013, the trial court overruled the defendants’ preliminary objections seeking to enforce the arbitration agreement – which led the defendants to appeal to the Superior Court.

On appeal, this same decision was affirmed by the Superior Court on June 28 of this year.

“Defendants, plaintiff, and the trial court all agree that this case is governed by this Court’s ruling in Taylor v. Extendicare. 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,'” Superior Court Judge Eugene B. Strassburger III said.

“Accordingly, we affirm the order of the trial court overruling defendants’ preliminary objection in the nature of a motion to compel arbitration, which kept both the wrongful death and survival actions in court to be litigated,” Strassburger added.

However, a per curiam panel of the Supreme Court felt differently and sent the case back to the Superior Court – consistent with what it said was its own decision in Taylor. In that case, the Supreme Court found one of its own Rules of Civil Procedure was pre-empted by the Federal Arbitration Act.

In Taylor, the patient had signed an arbitration agreement and under Pennsylvania law, the “survival claim” on her behalf had to be arbitrated – but her heirs’ wrongful death claims were not subject to arbitration. However, a rule of state civil procedure required that “survival actions be consolidated with wrongful death actions for trial.”

In following a Supreme Court directive for “enforcement over efficiency," the survival action from Taylor could then proceed in arbitration. In the instant case, the Supreme Court decided to remand the case to the Superior Court.

“The petition for allowance of appeal is granted, the order of the Superior Court is vacated and the case is remanded to the Superior Court for further proceedings,” the Supreme Court’s order read.

The plaintiffs are represented by Andrei Govorov, Stephen Trzcinski and William P. Murray of Wilkes & McHugh, in Philadelphia.

The defendants are represented by Sean P. O’Mahoney, William J. Mundy and John M. Skrocki of Burns White, also in Philadelphia

Supreme Court of Pennsylvania Middle District case 506 MAL 2016

Superior Court of Pennsylvania case 1108 MDA 2015

Cumberland County Court of Common Pleas case 2012-07476

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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