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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JAMES FOX, INDIVIDUALLY AND ON : IN THE SUPERIOR COURT OF BEHALF OF THE ESTATE OF JOANN : PENNSYLVANIA EVANS : : Appellant : : : v. : : No. 1471 EDA 2017 : JEANES HOSPITAL, TEMPLE : UNIVERSITY HEALTH SYSTEM, INC., : KINDRED HOSPITAL-PHILADELPHIA, : SOMERTON CENTER NURSING : HOME, JITHA RAI, M.D. AND PAUL : KARLIN, D.O. :

Appeal from the Order Entered April 25, 2017 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): March Term, 2016 No. 160302193

BEFORE: BOWES, J., OTT, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OTT, J.: FILED JANUARY 11, 2019

James Fox (“Plaintiff James Fox” or “Son”), individually and on behalf of the estate of his late mother, Joann Evans (“Decedent”), (collectively, “Fox”), appeals from the following two orders entered in the Philadelphia County Court of Common Pleas: (1) an April 19, 2017, order, in which the trial court granted

Somerton Center Nursing Home’s (“Somerton”) motion for reconsideration regarding its original denial of Somerton’s petition/motion to compel arbitration in this medical negligence action, and dismissed Somerton from

J-A12022-18 the matter;1 and (2) an April 25, 2017, order, in which the court decreed that

Fox’s motion for reconsideration was marked as moot.^[2] Fox raises the following issues on appeal: (1) the court erred in dismissing Somerton from the lawsuit; (2) the court erred in refusing to sever Fox’s Wrongful Death Act3

claims from its Survival Act4 claims (made on behalf of the Decedent’s Estate), thereby forcing both sets of causes of action to be bound for arbitration; and (3) the court erred in finding the arbitration agreement was enforceable and conscionable. Based on the following, we affirm in part and reverse in part.

The trial court set forth the facts and procedural history as follows:

On December 6, 2013, decedent JoAnn Evans suffered a seizure-like incident and was admitted to Jeanes Hospital via their emergency department. Decedent received treatment at Jeanes Hospital until January 7, 2014 when she was transferred to Kindred Hospital for post-acute care. Finally, on February 20, 2014 decedent was transferred to Somerton Center Nursing Home (“Somerton”). Except for brief transfers to Aria Health Hospital, Decedent Evans remained at Somerton until her death on March 30, 2014.

Upon decedent’s admission to Somerton, decedent’s son Plaintiff James Fox was asked to sign a set of documents, including ____________________________________________

1 We note that while Fox appeals from the order granting Somerton’s motion for reconsideration, it is essentially challenging the underlying order granting Somerton’s petition to compel arbitration and dismissing Somerton from the matter. Therefore, our analysis will be focused on that order.

2 Jeanes Hospital, Temple University Health System, Inc., Kindred Hospital- Philadelphia, Jitha Rai, M.D., and Paul Karlin, D.O., are not parties to this appeal.

3 See 42 Pa.C.S. § 8301.

4 See 42 Pa.C.S. § 8302.

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an Arbitration Agreement (“the Agreement”), entitled “Voluntary Binding Arbitration Agreement.” The Agreement states at the top that even if it is not signed, “the Patient will still be allowed to be cared for in this Center.” Plaintiff Fox signed the Agreement on behalf of his mother as her [p]ower of [a]ttorney and in his individual capacity. In signing this agreement he assented to its terms, affirmed that he had both read all four pages of the Agreement, and had an opportunity to ask questions.

…

On June 8, 2016, following the death of his mother, decedent JoAnn Evans, Plaintiff James Fox filed the instant medical malpractice action against the doctors and facilities involved in the care of decedent prior to her death. Specifically as to Defendant Somerton, Plaintiff James Fox acting on behalf of his mother brings an action for negligence and a survival action. On his own behalf against Defendant Somerton, [Fox] brings a claim for negligent infliction of emotional distress and an action for wrongful death.

On September 23, 2016[,] Defendant Somerton filed a [p]etition to [c]ompel [a]rbitration. In this Petition, Defendant Somerton argued that the Arbitration Agreement was enforceable because: (1) the Agreement was not unconscionable, and (2) [Son]’s [s]tate of [m]ind was not a valid contractual defense so as to invalidate the Agreement. In response, [Fox] alleged that the Agreement was unenforceable because: (1) the Agreement was coercively entered into, and (2) the Agreement is an unconscionable adhesion contract. On November 18, 2016, after supplemental briefing and oral argument on the matter this Court denied [Somerton]’s [p]etition to [c]ompel [a]rbitration. On December 6, 2016 [Somerton] timely filed a [m]otion for [r]econsideration.

On January 3, 2017, in response to [Somerton]’s [m]otion for [r]econsideration this Court ordered additional oral argument in the matter and allowed for limited discovery related to the issue of whether the Agreement was enforceable. Ultimately, on April 19, 2017 this Court granted [Somerton]’s [m]otion for [r]econsideration thereby vacating the December 6 Order and dismissing Defendant Somerton entirely from the case.

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Trial Court Opinion, 12/20/2017, at unnumbered 1-2. Fox filed a timely notice of appeal.5

Fox raises the following issues for our review:

A. Did the [t]rial [c]ourt err in dismissing the lawsuit against Defendant Somerton Nursing Home Center rather than referring the arbitrable claims against Somerton to arbitration, and retaining the wrongful death claim, and ordering a stay of judicial proceedings in order for the parties to arbitrate the claims against Somerton pursuant to [42] Pa.C.S.A. § 7304?

B. Whether the trial court erred in its application of Taylor v. Extendicare Health Facilities, Inc., 637 Pa. 163,147 A.3d 490, 509-10 (Pa. 2016), because [Son] is [the] beneficiary and heir who can recover under the Wrongful Death Act, 42 Pa.C.S.A. § 8301(b), therefore, the wrongful death claim should have been bifurcated from the purportedly arbitrable survivor’s claim?

C. Whether the trial court erred in finding that the arbitration agreement was enforceable and conscionable when the Agreement was signed by Decedent’s son, who was neither educated nor sophisticated, was under extreme duress and reasonably believed that there was no alternative to entering into the nursing home’s agreement in order to care for his dying mother?

Fox’s Brief at 5-6.6

____________________________________________ 5 On July 21, 2017, the trial court ordered Fox to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Fox filed a concise statement on August 10, 2017. The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on December 20, 2017. 6 Based on the nature of Fox’s claims, we have reorganized them for ease of disposition.

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In Fox’s first argument, he complains the trial court erred in dismissing

Somerton from judicial proceedings rather than ordering a stay of the judicial proceedings. See Fox’s Brief at 53. Relying on 42 Pa.C.S. § 73047 and Stern v. Prudential Fin., Inc., 836 A.2d 953, 955 n.1 (Pa. Super. 2003), Fox states:

____________________________________________ 7 Section 7304 of the Pennsylvania Arbitration Act provides, in relevant part: (a) Compelling arbitration. — On application to a court to compel arbitration made by a party showing an agreement described in section 7303 (relating to validity of agreement to arbitrate) and a showing that an opposing party refused to arbitrate, the court shall order the parties to proceed with arbitration. If the opposing party denies the existence of an agreement to arbitrate, the court shall proceed summarily to determine the issue so raised and shall order the parties to proceed with arbitration if it finds for the moving party. Otherwise, the application shall be denied. … (d) Stay of judicial proceedings. — An action or proceeding, allegedly involving an issue subject to arbitration, shall be stayed if a court order to proceed with arbitration has been made or an application for such an order has been made under this section. If the issue allegedly subject to arbitration is severable, the stay of the court action or proceeding may be made with respect to the severable issue only. If the application for an order to proceed with arbitration is made in such action or proceeding and is granted, the court order to proceed with arbitration shall include a stay of the action or proceeding. 42 Pa.C.S. § 7304(a), (d). See also 9 U.S.C § 3 (federal provision directing that where a trial court concludes a matter should go to arbitration pursuant an agreement, the court shall stay the action until such arbitration has been completed).

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When referring a matter to arbitration, the trial judge is not to dismiss the case but is to stay the civil action until the arbitration is completed.

Here, the [t]rial [c]ourt’s April 19, 2017 [o]rder granted Somteron’s [p]etition to [c]ompel [a]rbitration and dismissed Somerton from the case entirely. According to [Section] 7304, the [t]rial [c]ourt instead should have stayed this matter pending any arbitration proceeding between these parties.

Fox’s Brief at 54 (citation omitted).

Because this issue touches upon appealability, we must determine whether we have jurisdiction over this appeal. N.A.M. v. M.P.W., 168 A.3d

256, 260 (Pa. Super. 2017) (citation omitted). With respect to jurisdiction, [t]his Court may address the merits of an appeal taken from “(a) a final order or an order certified as a final order; (2) an interlocutory order [appealable] as of right; (3) an interlocutory order [appealable] by permission; or (4) a collateral order.” Commerce Bank v. Kessler, 2012 PA Super 100, 46 A.3d 724, 728 (Pa. Super. 2012), quoting Stahl v. Redcay, 2006 PA Super 55, 897 A.2d 478, 485 (Pa. Super. 2006) (citations omitted); see also Pa.R.A.P. 341(b). “As a general rule, only final orders are appealable, and final orders are defined as orders disposing of all claims and all parties.” Am. Indep. Ins. Co. v. E.S., 2002 PA Super 289, 809 A.2d 388, 391 (Pa. Super. 2002); see also Pa.R.A.P. 341(a) (“[A]n appeal may be taken as of right from any final order of a government unit or trial court.”).

Haviland v. Kline & Specter, P.C., 182 A.3d 488, 492 (Pa. Super. 2018).

“As a general rule, an order denying a party’s preliminary objections is interlocutory and, thus, not appealable as of right. There exists, however, a narrow exception to this oft-stated rule for cases in which the appeal is taken from an order denying a petition to compel arbitration.” Shadduck v. Christopher J. Kaclik, Inc., 713 A.2d 635, 636 (Pa. Super. 1998) (citations omitted). See also 42 Pa.C.S. § 7320(a)(1) (stating appeal may be taken from court order denying application to compel arbitration); Pa.R.A.P. 311(a)(8) (stating appeal may be taken as

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of right and without reference to Pa.R.A.P. 341(c) from order “which is made appealable by statute or general rule.”).[8]

Elwyn v. DeLuca, 48 A.3d 457, 460 n.4 (Pa. Super. 2012). See also Davis v. Ctr. Mgmt. Grp., LLC, 192 A.3d 173, 180 (Pa. Super. 2018).

When a court grants a petition to compel arbitration, we note the following: “Typically, a trial court’s order directing a dispute to arbitration will not be deemed final, as it does not address the merits of the parties’ claims but merely transfers their existing dispute to another forum in accordance with the arbitration provision of the underlying contract.” Fastuca v. L.W.

Molnar & Assocs., 950 A.2d 980, 986 (Pa. Super. 2008), citing Schantz v. Gary Barbera Dodgeland, 830 A.2d 1265, 1266-1267 (Pa. Super. 2003).

See also Maleski v. Mut. Fire, 633 A.2d 1143, 1145-1146 (Pa. 1993).

Turning to the present matter, we ordinarily would follow Fastuca and Maleski, however, we are faced with two problems. First, in its April 19, 2017, order, the trial court granted Somerton’s petition to compel arbitration

(via granting its motion for reconsideration), yet dismissed Somerton from the matter. See Order, 4/19/2017. Consequently, it appears Fox would face no

opposing party when the case proceeds to arbitration. As noted above, Section 7304(d) requires a stay of judicial proceedings when an issue is

____________________________________________

8 See also 42 Pa.C.S. § 7320(a)(2) (stating appeal may be taken from a court order granting an application to stay arbitration made under section 7304).

J-A12022-18 referred to arbitration. See Schantz, 830 A.2d at 1266.9 Second, as will be discussed in detail below, it was an error on the trial court’s part to dismiss

Somerton altogether because Fox’s wrongful death cause of action does not go to arbitration. Accordingly, we conclude the trial court improperly dismissed Somerton from the proceedings before it, after referring the matter to arbitration. Therefore, we remand and direct the court, upon motion of a party, to reinstate Somerton as an opposing party and stay the matter pending the resolution of the arbitration proceeding.10 Furthermore, we will now address the remaining arguments.

____________________________________________

9 In its Rule 1925(a) opinion, the trial court did not discuss its decision to dismiss Somerton from the matter or the question of appealability.

10 In Stern, supra, the case Fox relies on, a panel of this Court stated:

We recognize that, in general, an order compelling arbitration is considered interlocutory. See, e.g., Schantz v. Gary Barbera Dodgeland, 2003 PA Super 295, PP4-5, 830 A.2d 1265 (Pa. Super. 2003); Rosy v. Nat'l Grange Ins. Co., 2001 PA Super 102, 771 A.2d 60, 61-62 (Pa. Super. 2001). However, when referring a matter to arbitration, the trial judge is not to dismiss the case but is to stay the civil action until the arbitration is completed. Schantz v. Gary Barbera Dodgeland, 2003 PA Super 295 at PP6-7, 830 A.2d 1265. Because the trial judge did not do so here and instead dismissed the civil action, and because the arbitration involved is binding arbitration, the order is a final order. See Brown v. D. & P. Willow Inc., 454 Pa. Super. 539, 686 A.2d 14, 15 n.1 (Pa. Super. 1996) (order directing fee dispute to binding arbitration was appealable and not interlocutory because it contained “sufficient trappings of finality” in that appellant was required to have dispute heard by local bar association, not court of record, and arbitrators’ decision was non-

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Next, Fox claims the trial court erred in its application of Taylor v. Extendicare Homes, Inc., 147 A.3d 490 (Pa. Sept. 28, 2016), cert. denied, 137 S. Ct. 1375 (U.S. 2017) (“Taylor II”), because Son is a beneficiary and an heir who can recover under the Wrongful Death Act, and therefore, the wrongful death claim should have been bifurcated from the purported

arbitrable survivor’s claim.11 See Fox’s Brief at 23-30. Relying on Pisano v. Extendicare Homes, Inc., 77 A.3d 651 (Pa. Super. 2013), appeal denied, 86 A.3d 233 (Pa. 2014), cert. denied, 134 S. Ct. 2890 (U.S. 2014), Fox expounds on its argument as follows:

Here, [Fox] entered an agreement on behalf of his mother as her personal representative. After his mother’s death, [Fox] became entitled by [Section] 8301(b) as a rightful beneficiary to bring a wrongful death action. The wrongful death claims here ____________________________________________ appealable). Therefore, we have jurisdiction over this matter, and it is proper for us to remand to the trial court.

Stern, 836 A.2d at 955 n.1.

11 Section 8301, which governs wrongful death claims, states:

An action may be brought, under procedures prescribed by general rules, to recover damages for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another if no recovery for the same damages claimed in the wrongful death action was obtained by the injured individual during his lifetime and any prior actions for the same injuries are consolidated with the wrongful death claim so as to avoid a duplicate recovery.

42 Pa.C.S. § 8301(a). Section 8302, which governs survival actions, provides: “All causes of action or proceedings, real or personal, shall survive the death of the plaintiff or of the defendant, or the death of one or more joint plaintiffs or defendants.” 42 Pa.C.S. § 8302.

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are not being brought by him in his personal representative capacity on behalf of [Decedent] or the Estate. Unlike wrongful death claims brought by a personal representative pursuant to [Section] 8301(d), [Son’s Section] 8301(b) claims are not derivative of his mother’s rights. The fact that he signed the Arbitration Agreement while acting as a personal representative for his mother has no bearing on his own rights or claims. As this Court in Pisano unequivocally stated: “[the signatory plaintiff] does not have an agreement with [the nursing facility] to arbitrate. [The nursing facility’s] agreement is between it and Decedent alone.” Pisano, 77 A.3d at 661 (emphasis added). “Regardless of [the nursing facility’s] intent, Pennsylvania’s wrongful death statute … does not characterize [the signing plaintiff] and other wrongful death claimants as third-party beneficiaries.” Id.

Whatever Somerton’s intent was, it cannot characterize a contract between itself and a patient as also applicable to or enforceable on wrongful death claimants who bear their own separate statute-derived claims. Therefore, [Fox] … cannot be compelled to arbitrate the wrongful death claim.

Fox’s Brief at 29-30 (emphasis in original).

Our scope and standard of review are as follows.

[A]rbitration is a matter of contract and, as such, it is for the court to determine whether an express agreement between the parties to arbitrate exists. Because the construction and interpretation of contracts is a question of law, the trial court’s conclusion as to whether the parties have agreed to arbitrate is reviewable by this Court. Our review is plenary, as it is with any review of questions of law.

Midomo Co., Inc. v. Presbyterian Housing Dev. Co., 739 A.2d 180, 187

(Pa. Super. 1999).

A contract shall be interpreted in accordance with the parties’ intent. When a written contract is clear and unambiguous, the parties’ intent is contained in the writing itself. A party will be bound by this writing regardless of whether he or she read and fully understood its terms. A court cannot alter these terms

- 10 -

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“under the guise of construction.” Unless otherwise specified, a contract’s language shall be given its plain and ordinary meaning.

Wert v. Manorcare of Carlisle PA, LLC, 124 A.3d 1248, 1259 (Pa. 2015), cert. denied, 136 S. Ct. 1201 (U.S. 2016).

Furthermore, while we recognize the trial court granted Somerton’s

petition to compel arbitration, we are guided by the following: “Our review of a claim that the trial court improperly denied preliminary objections in the nature of a petition to compel arbitration is limited to determining whether the trial court’s findings are supported by substantial evidence and whether the trial court abused its discretion in denying the petition.” Davis v. Ctr. Mgmt.

Group, LLC, 192 A.3d 173 (Pa. Super. 2018), quoting Cardinal v. Kindred

Healthcare, Inc., 155 A.3d 46, 49-50 (Pa. Super. 2017), appeal denied, 170

A.3d 1063 (Pa. 2017). “We employ a two-part test to determine whether the trial court should have compelled arbitration: 1) whether a valid agreement

to arbitrate exists, and 2) whether the dispute is within the scope of the agreement.” Washburn v. Northern Health Facilities, Inc., 121 A.3d

1008, 1012 (Pa. Super. 2015), appeal denied, 167 A.3d 702 (Pa. 2017).

With regard to the first element, Fox does not dispute that he entered

into an agreement on the behalf of the Decedent with Somerton. Therefore, we need not examine whether a valid agreement to arbitrate exists. With

respect to the second element, we note that “[w]hether a claim is within the scope of an arbitration provision is a matter of contract, and as with all

- 11 - J-A12022-18 questions of law, our review of the trial court’s conclusion is plenary.” Elwyn, 48 A.3d at 461. Furthermore, [i]n general, only parties to an arbitration agreement are subject to arbitration. See Cumberland-Perry Area Vocational- Technical School v. Bogar & Bink, 261 Pa. Super. 350, 396 A.2d 433 (Pa. Super. 1978) (parties cannot be compelled to arbitrate disputes absent agreement to arbitrate). However, a nonparty, such as a third-party beneficiary, may fall within the scope of an arbitration agreement if that is the parties’ intent. Cf. Highmark Inc. v. Hospital Service Association of Northeastern Pennsylvania, 2001 PA Super 278, 785 A.2d 93 (Pa. Super. 2001) (third-party beneficiary may enforce arbitration clause even though it is not a signatory to the contract). Smay v. E.R. Stuebner, Inc., 864 A.2d 1266, 1271 (Pa. Super. 2004). While “the courts of this Commonwealth strongly favor the settlement of disputes by arbitration,”12 “arbitration agreements are to be strictly construed and such agreement[s] should not be extended by implication.”13 The historical application of arbitration to wrongful death and survival act causes of action is complex, arduous, and fact-specific. Accordingly, we will focus on the two cases largely relied upon by the trial court and Fox, Pisano, supra, and Taylor II, supra, as we find them persuasive in this matter. In Pisano, supra, a nursing facility appealed from the trial court’s order denying its preliminary objections to the trial court’s jurisdiction over a wrongful death suit by the plaintiff, the son and administrator of the estate of ____________________________________________ 12Smith v. Cumberland Group, Ltd., 687 A.2d 1167, 1171 (Pa. Super. 1997). 13 Elwyn, 48 A.3d at 461. - 12 - J-A12022-18 the decedent, based upon the existence of an alternative dispute resolution (“ADR”) agreement between the nursing home and the decedent. See Pisano, 77 A.3d at 653. The nursing home sought to compel arbitration based on the ADR agreement, which the decedent’s daughter had signed on his behalf upon his admission to the nursing home. The trial court in Pisano overruled the nursing home’s preliminary objections, and determined that while “a wrongful death action ‘lies in the tortious act which would support a survival action,’ [the wrongful death claim] ‘is independent of the decedent’s estate’s rights to an action against the tortfeasor.’” Id. at 654 (citation omitted). The issue on appeal was whether the trial court committed “an error of law by refusing to compel arbitration of [plaintiff’s] wrongful death action where, under Pennsylvania law, a wrongful death plaintiff’s right of action is derivative of, and therefore limited by, the decedent’s rights immediately preceding death[.]” Id. at 653-654. After analyzing the nature of wrongful death claims and the definition of “derivative,” a panel of this Court concluded the plaintiff’s wrongful death claim was not derivative of and defined by the decedent’s rights, stating: [W]rongful death actions are derivative of decedents’ injuries but are not derivative of decedents’ rights. This conclusion aligns with the proper use of the term “derivative action” and is consistent with the Supreme Court’s pronouncement in Kaczorowski [v. Kalkosinsk, 184 A. 663 (Pa. 1936)], which explained: We have announced the principle that the [wrongful death] statutory action is derivative [of the survival action] because it has as its basis the same tortious act which would have supported the injured party’s own cause of action. Its - 13 - J-A12022-18 derivation, however, is from the tortious act, and not from the person of the deceased, so that it comes to the parties named in the statute free from personal disabilities arising from the relationship of the injured party and tort-feasor. Kaczorowski, 184 A. at 664. Pisano, 77 A.3d at 660. Furthermore, the Pisano Court determined the plaintiff was not bound under the agreement to arbitrate the wrongful death action,14 and held: ____________________________________________ 14 Specifically, the Court acknowledged: [The nursing home]’s agreement is between it and Decedent alone. Regardless of [the nursing home]’s intent, Pennsylvania’s wrongful death statute … does not characterize [the plaintiff] and other wrongful death claimants as third-party beneficiaries. It is, therefore, clear under relevant contract law that the trial court herein properly refused to compel arbitration. As this Court stated previously, “[T]he existence of an arbitration provision and a liberal policy favoring arbitration does not require the rubber stamping of all disputes as subject to arbitration.” McNulty v. H&R Block, Inc., 2004 PA Super 45, 843 A.2d 1267, 1271 (Pa. Super. 2004). This is especially true where, as here, holding otherwise would operate against principles of Pennsylvania contract law and the FAA. Gaffer [Insurance Company, Ltd. v. Discover Reinsurance Company], 936 A.2d at 1113 (quoting E.E.O.C. [v. Waffle House, Inc., 534 U.S. 279, 293 (2002)]) (“Notwithstanding this favorable federal policy towards arbitration agreements, the Federal Arbitration Act ‘does not require parties to arbitrate when they have not agreed to do so.’”). Furthermore, … compelling arbitration upon individuals who did not waive their right to a jury trial would infringe upon wrongful death claimants’ constitutional rights. This right, as preserved in the Seventh Amendment of the United States Constitution, “is enshrined in the Pennsylvania Constitution,” and “the constitutional right to a jury trial, as set forth in Pa. Const. art. 1, § 6, does not differentiate between civil cases and criminal - 14 - J-A12022-18 [The] Pennsylvania’s wrongful death statute creates an independent action distinct from a survival claim that, although derived from the same tortious conduct, is not derivative of the rights of the decedent. We conclude, therefore, that the trial court did not abuse its discretion in determining that Decedent’s contractual agreement with [the nursing home] to arbitrate all claims was not binding on the non-signatory wrongful death claimants. Id. at 663. Following Pisano, in Taylor v. Extendicare Health Facilities, Inc., 113 A.3d 317 (Pa. Super. 2015) (“Taylor I”), the underlying case involved multiple negligence claims against numerous defendant health care facilities for incidents that occurred and were alleged to have ultimately caused the decedent’s death.15 Taylor, 113 A.3d at 319. A panel of this Court held that despite the distinctions recognized in Pisano regarding wrongful death and ____________________________________________ cases.” Bruckshaw v. Frankford Hospital of City of Philadelphia, 58 A.3d 102, 108-109 (Pa. 2012). Denying wrongful death claimants this right where they did not waive it of their own accord would amount to this Court placing contract law above that of both the United States and Pennsylvania Constitutions. Commonwealth v. Gamble, 62 Pa. 343, 349 (1869) (“But that the legislature must act in subordination to the Constitution needs no argument to prove . . . .”). Pisano, 77 A.3d at 661-662. 15The co-executors of the estate filed the lawsuit, which included wrongful death and survival actions. Based on the opinion, it is unclear how the co- executors were related to the decedent. - 15 - J-A12022-18 survival claims, Pa.R.C.P. 213(e)16 and 42 Pa.C.S. § 8301(a) required consolidation of wrongful death and survival actions for trial. Taylor, 113 A.3d at 325. However, subsequently, the Pennsylvania Supreme Court reversed the decision in Taylor I, holding that Rule 213(e) conflicts with the Federal Arbitration Act (“FAA”)17 and therefore, is preempted. Taylor II, 147 A.3d at 510 (“The Supreme Court has made clear that bifurcation and piecemeal litigation is the tribute that must be paid to Congressional intent.”).18 The Supreme Court in Taylor II also opined: The only exception to a state’s obligation to enforce an arbitration agreement is provided by the savings clause, which permits the ____________________________________________ 16 Rule 213(e) provides: “(e) A cause of action for the wrongful death of a decedent and a cause of action for the injuries of the decedent which survives his or her death may be enforced in one action, but if independent actions are commenced they shall be consolidated for trial.” Pa.R.C.P. 213(e). 17 See 9 U.S.C. § 1 et seq. The FAA provides that arbitration agreements “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2. 18 The Supreme Court also stated: We recognize that Rule 213(e) is a procedural mechanism to control case flow, and does not substantively target arbitration. However, the Supreme Court directed … that state courts may not rely upon principles of general law when reviewing an arbitration agreement if that law undermines the enforcement of arbitration agreements. We cannot require a procedure that defeats an otherwise valid arbitration agreement, contrary to the FAA, even if it is desirable for the arbitration-neutral goal of judicial efficiency. Taylor II, 147 A.3d at 510. - 16 - J-A12022-18 application of generally applicable state contract law defenses such as fraud, duress, or unconscionability, to determine whether a valid contract exists. Pursuant to the savings clause, the compulsory joinder mandate of Rule 213(e) could bar the trial court from bifurcating the Taylors’ arbitrable survival action from its pending litigation in state court only if it qualifies as a generally applicable contract defense. Taylor II, 147 A.3d at 509 (citations and footnote omitted). As such, the Supreme Court remanded the matter to the trial court, providing “the parties will have the opportunity to litigate whether there is a valid and enforceable arbitration contract in accord with generally applicable contract defenses and the FAA’s savings clause.” Id. at 513. Turning to the present matter, the trial court found the following: [T]he present case presents two distinct causes of action, decedent JoAnn Evans’s survival action and Plaintiff James Fox’s wrongful death action, which are not required to proceed together. It is not disputed that decedent’s survival action is within the scope of the Agreement. Thus, decedent’s survival claim must go to arbitration pursuant to the Agreement because as discussed above[,] the Agreement is enforceable because it is not unconscionable. The only remaining issue then is whether [Fox]’s wrongful death claim is subject to the terms of the Agreement. Interpretation of an arbitration agreement is governed by principles of contract law. It is well settled in Pennsylvania that a contract that is clear on its face should be interpreted according to the language of the agreement. In this case, the Agreement begins by stating that the Agreement is between the Patient, the Patient’s representative, and Defendant Somerton. This is reiterated in paragraph 15, which states that the agreement is binding on both the Patient and the Patient’s representative. Finally, below the signature line the Agreement states that the Patient’s representative is signing the Agreement both individually and as an agent of the Patient. Thus[,] in this case, where the agreement plainly states that it is binding on both decedent and on Plaintiff James Fox as decedent’s representative, the - 17 - J-A12022-18 unambiguous language of the Agreement must be given effect so as to capture the wrongful death action within the scope of the Agreement. In spite of the plain language of the Agreement, [Fox] argues that case precedent compels the opposite result. See Taylor, 147 A.3d at 493; Pisano, 77 A.3d at 660; White v. Genesis Healthcare, No. 736 (Ct. Comm. Pls. July 27, 2016); Lipshutz v. St. Monica Manor, 2013 WL 7020480 at *4 (Ct. Comm. Pls. 2013). [Fox], though, misconstrues the relevant case law. Most recently, this issue was examined by the Pennsylvania Supreme Court in Taylor, which stands for the proposition that wrongful death and survival claims can be bifurcated as discussed above. 147 A.3d at 510. Taylor though is inapplicable here, where the Agreement specifically states that Plaintiff James Fox was signing in both his individual and representative capacity. Therefore, even though Taylor would allow for [Fox]’s individual wrongful death claim to be bifurcated from decedent’s survival claim, it is not necessary to bifurcate the claims because the Agreement per its own terms applies to both actions. See Taylor, 147 A.3d at 510; Lesko, 15 A.3d at 341-42; Wert, 124 A.3d at 1260. Prior to Taylor, the Superior Court examined a similar agreement in Pisano. 77 A.3d at 660. In Pisano, the Superior Court held that non-signatory wrongful death claimants cannot be bound by the terms of an arbitration agreement. Id. Subsequent case law has affirmed the limited holding of Pisano. See, e.g., Taylor, 147 A.3d at 499 (affirming that Pisano stands for the proposition that an arbitration agreement cannot be enforced against a non-signatory wrongful death beneficiary); White, 2016 WL 4410001 (stating that Pisano stands for the proposition that a “non–signatory claimant cannot be compelled to arbitration”). Thus, Pisano does not apply in this case because the claimant is a signatory to the Agreement. See 77 A.3d at 660; see also Taylor, 147 A.3d at 499. Plaintiff also urges this Court to consider White v. Genesis Healthcare. See 2016 WL 4410001. In White, the Honorable Judge New of the Philadelphia Court of Common Pleas found that an arbitration agreement did not apply to compel both a wrongful death and survival action to arbitration where the representative signatory signed only in her representative capacity. Id. That is simply not the case here where the - 18 - J-A12022-18 Agreement makes clear that Plaintiff James Fox was signing as both an individual and as decedent's representative. See Burkett [v. St. Francis Country], 133 A.3d at 31 n.13 (stating in a non- precedential opinion that the enforceability of arbitration agreements should be interpreted according to the specific language of each agreement). Trial Court Opinion, 12/20/2017, at unnumbered 11-13 (some citations omitted). To summarize, the trial court determined that despite the fact that Fox’s Wrongful Death Act and Survival Act claims were distinct, both Pisano and Taylor II were not applicable to these claims, and therefore, the agreement bound both Decedent and Son, as Decedent’s representative, to arbitration because: (1) Son was a signatory to the Agreement; (2) the agreement began by stating it was between the patient, the patient’s representative, and Somerton; (3) it was reiterated in the fifteenth paragraph that the agreement is binding on both the patient and the patient’s representative; and (4) below the signature line, the agreement stated the patient’s representative is signing both individually and as an agent of the patient. We are compelled to disagree based on a review of the record and because we find Taylor II controlling. The Agreement provides, in pertinent part: VOLUNTARY BINDING ARBITRATION AGREEMENT (“Agreement”) If this Agreement is not signed, the Patient will still be allowed to be cared for in this Center. - 19 - J-A12022-18 This Agreement by and between the Patient and/or the Patient’s Representative (hereinafter collectively referred to as “Patient”) and the Center (“Center” as indicated on page 4), is an Agreement intended to resolve by binding arbitration any dispute (as described below) related to any admission at the Center. THIS AGREEMENT WAIVES THE RIGHT TO A TRIAL BY JUDGE OR JURY. PLEASE READ CAREFULLY. …