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In Westmoreland County, Pennsylvania this week, the trial court in Pisano v. Extendicare Homes, Inc., No. 41 of 2012 (Westmoreland Co. July 9, 2012) denies the Defendant's Motion to Dismiss for lack of subject matter jurisdiction. After the death of her father the Administrator of his Estate filed a wrongful death suit against a long term care nursing care facility. Prior to her father's death the personal with power of attorney executed a binding ADR arbitration agreement. Once the lawsuit was filed the nursing home attempted to have it dismissed by arguing that the case was required to be decided pursuant to the binding ADR agreement.

The trial court denies the Defendant's Motion and finds that under the Pennsylvania Constitution Art. 1, Section 6 and Rule 213(e) of the Pennsylvania Rules of Civil Procedure the contractual rights must give way to constitutional rights, particularly when a procedural rule also requires the consolidation of a wrongful death action with a survival action. Since the children of the decedent did not enter into the arbitration agreement they cannot be deemed to waive the right to a jury trial by the actions of the person with a power of attorney. Therefore, rule 213 requires the consolidation of the two actions into one case in lieu of the arbitration process.

For a copy of the opinion and order feel free to contact Scott Cooper at Schmidt Kramer Injury Lawyers in Central Pennsylvania at 717-232-6300 or

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