MEMORANDUM OPINION

ROBERT D. MARIANI, District Judge.

I. Procedural History

Presently before the Court is a Motion to Compel Arbitration in an underlying state action arising from the death of federal Defendant's husband. (See generally Pl.'s Mot. to Compel Arb., Doc. 2; see also Am. Compl., Doc. 11, Ex. J (underlying state complaint).)

According to Plaintiffs uncontradicted representations, on January 26, 2012, John Batz "became a resident of Tremont Health and Rehabilitation Center." (Brief in Supp. of Mot. to Compel Arb., Doc. 3, at 1.) Upon his admission to the Center, John's wife, Faith Batz, signed certain documents related to his admission, one of which was an Alternative Dispute Resolution ("ADR") Agreement. (Id. at 2.) The Agreement provided in relevant part that "[t]he Parties voluntarily agree that any disputes covered by this Agreement (herein after referred to as "Covered Disputes") that may arise between the Parties shall be resolved exclusively by an ADR process that shall include mediation and, where mediation does not successfully resolve the dispute, binding arbitration." (Def.'s Resp. to Mot. to Compel Arb., Doc. 7, Ex. A., at 1 (Alternative Dispute Resolution Agreement).) Covered Disputes are defined as "any and all disputes arising out of or in any way related to this Agreement or to the Resident's stay at the Center that would constitute a legally cognizable cause of action in a court of law sitting in the Commonwealth of Pennsylvania, including but not limited to "tort; . . . negligence; gross negligence; malpractice; death or wrongful death and any alleged departure from any applicable federal, state, or local medical, health care, consumer or safety standards." (Id., Ex. A, at 2.) The Agreement further emphasized, in a paragraph requiring separate acknowledgment:

(Id., Ex. A, at 4.) This paragraph was individually initialed by Faith Batz and by a representative of the Tremont Center, (see id., Ex. A), and the full agreement was signed by the same, (see id., Ex. A, at 5.)

In mid-February, while at the Tremont Center, John Batz allegedly suffered a deep tissue injury which deteriorated into "necrotizing fasciitis with Fourniers gangrene," requiring transfer to a hospital and multiple operations. (Doc. 11, Ex. J, at ¶¶ 21-26.) "By March 5, 2012, [Batz] had developed a large open wound that extended from his sacrum to his perineum." (Id., Ex. J, at ¶ 28.) At this point, Mr. Batz "was discharged from [the hospital] to home hospice where he died 8 days later on or about March 24, 2012." (Id., Ex. J, at ¶ 29.) His wife then filed a state court action individually and as administratrix of his Estate.

The Tremont Center in turn filed this federal action to stay the state court proceedings and to compel Mrs. Batz to arbitrate. (Id. at 8.) Tremont argued that by bringing an action in state court, Mrs. Batz "ignored the valid and enforceable ADR Agreement she executed on behalf of her husband, which obligated her, as the Administratrix of her husband's estate, to resolve any disputes she had with the Center by using the ADR process in accordance with that ADR Agreement." (Doc. 3 at 3.)

On the basis of the memoranda that the parties have filed so far, there are two unresolved disputes concerning the Motion to Compel, to wit:

II. Analysis

a. Validity of Faith Batz's Signature1

As an initial matter, it is indisputable that John Batz did not sign the ADR Agreement, even though he is named as a party to it. (See Doc. 7, Ex. A, at 1 ("This Alternative Dispute Resolution . . . Agreement. . . is entered into by Extendicare Health Services, Inc. on behalf of its parents, affiliates, and subsidiaries including Tremont Health & Rehab Center ..., a nursing facility, and John Bate, a Resident at the Center[.]").) The signature page clearly bears the signature of Faith Bate, above the signature lines "Legal Representative for Healthcare Decisions" and "Legal Representative for Financial Decisions," respectively. (Id., Ex. A, at 5.)

Under well-known agency principles, an agency relationship "arises when one person (a `principal') manifests assent to another person (an `agent') that the agent shall act on the principal's behalf and subject to the principal's control, and the agent manifests assent or otherwise consents so to act." Restatement (Third) of Agency § 1.01. "There are four grounds upon which a [factfinder] can conclude that an agency relationship exists and that the principal is bound by a particular act of the agent and liable to third parties on the basis thereof." Bolus v. United Penn Bank, 363 Pa.Super. 247, 525 A.2d 1215, 1221 (1987). That is, an agency relationship can be based on (1) express authority, (2) implied authority, (3) apparent authority, or (4) authority that the principal is estopped from denying. Id. Indeed, the signature page of the ADR Agreement that Faith Batz signed in the spaces providing for execution by a "Legal Representative" expressly states that, if the Agreement is signed by a Legal Representative, "the representative certifies that the Center may reasonably rely upon the validity and authority of the Representative's signature based upon actual, implied or apparent authority to execute this Agreement as granted by the Resident." (Doc. 7, Ex. A, at 5.)

"Whether an agency relationship exists is a question of fact" that will vary from case to case. Bolus, 525 A.2d at 1221. Thus, even though Defendant cites cases where a principal did not grant authority to a purported agent sufficient to create an agency relationship, (see Def.'s Resp. to Mot. to Compel Arb., Doc 7-1, at 24), such factual contingencies are not binding in the instant case.

On the contrary, in the instant case the Court has evidence of the following facts, from the sworn Affidavit of Nurse Jayne Kintzel, which Plaintiff provided in its Reply Brief to the Motion to Compel Arbitration. (See generally Affidavit of Jayne Kintzel, LPN, Doc. 13, Ex. A.) Nurse Kintzel testifies that, upon meeting John Batz before his admission to the Tremont Center, she "noticed that Mr. Batz was blind." (Id., Ex. A, at ¶ p.) Subsequently, when she "attempted to present the [intake] documents, including the ADR Agreement, to Mr. Batz for his signature, he said that, since he cannot see, that his wife should sign for him." (Id., Ex. A, at ¶ 8.) Mrs. Batz subsequently reviewed and signed the documents. (See id. at ¶¶ 9-11.) Moreover, because Mr. Batz was present throughout the entire time required for his wife to review and sign all of the intake documents, Nurse Kintzel believed that "Mr. Batz knew that his wife signed the paperwork related to his admission to Tremont for him and, to [Kintzel's] knowledge, he did nothing after she signed the documents on his behalf to indicate that she did not have his authority to do so." (Id., Ex. A, at ¶ 15.)2

Because Kintzel's testimony was first raised in a reply brief, and because Defendant never sought leave to file a sur-reply, the Court ordered a conference call with counsel on January 22, 2014 to determine to what extent Kintzel's statements were in dispute. Counsel for the Defendant informed the Court that Defendant does not dispute the following facts; that John Batz was blind and had no other mental infirmities, (see Unofficial Tr., Jan. 22, 2014, at 3:5-6); that John told Kintzel that his wife should sign the Agreement, (see id. at 3:10-11); that Faith Batz had the opportunity to read and review the documents related to her husband's admission, and signed all such documents, (see id. at 3:14, 19-21); that John was present throughout this entire process, (see id. at 4:5-8); and that John took no further action after his wife signed the documents, (see id. at 4:9-12).3

On the basis of the undisputed factual portions of Kintzel's testimony, the Court finds sufficient evidence to establish that Faith Batz had express authority to sign these documents on her husband's behalf. "Express authority exists where the principal deliberately and specifically grants authority to the agent as to certain matters." Walton v. Johnson, 66 A.3d 782, 786 (Pa.Super.Ct.2013). John Batz's grant of authority could not be any more deliberate or specific than requesting his wife to sign documents for him, in the presence of third parties, and then waiting for her to fulfill his request. There is, moreover, no evidence that such statements were not made willfully, knowingly, or intelligently. Accordingly, Defendant's claim that Faith Batz's signature invalidates the Agreement is unavailing. She may not avoid arbitration on this basis.

b. Enforceability of the ADR Agreement

i. Whether the Agreement Requires an Initial Submission to State Court

Next, Defendant argues that, under the terms of the ADR Agreement, the case must proceed to a Pennsylvania state court before proceeding to arbitration. (Def.'s Mem. of Law Contra Interstate Commerce Nexus, Doc. 22, at 2.) This is based on a paragraph in the Agreement that states as follows:

(Doc. 7, Ex. A, at 2.)

Defendant's argument is somewhat difficult to follow, but appears to essentially allege that the above clause "does not even invoke the FAA" but relies only on Pennsylvania law via its references to the Pennsylvania Uniform Arbitration Act (PUAA). (Doc. 22 at 1.) Defendant then interprets the clause as requiring that a state court must first make a determination as to whether Pennsylvania law supports the enforcement of the arbitration agreement. (Id. at 2.) "Before the FAA can be even invoked by Plaintiff, there must be such a finding according to the terms and conditions of the agreement itself." (Id.) However, according to the Defendant, even if Pennsylvania law would allow arbitration, the Agreement is still not necessarily subject to arbitration, because a court could still "enforce the agreement" while—for some unexplained reason—ignoring the arbitration clause and submitting the case to a jury trial instead. (Id.) This outcome purportedly arises from an ambiguity in the phrase "enforcement of this agreement," although Defendant does not explain just what this ambiguity is. (See id.)

Defendant's argument, however, runs directly contrary to the purpose of the Federal Arbitration Act, as interpreted by clear and binding Supreme Court precedent. The FAA provides, in pertinent part, that a

9 U.S.C. § 2.

The Supreme Court has "held that the FAA pre-empts state laws which `require a judicial forum for the resolution of claims which the contracting parties agreed to resolve by arbitration.'" Volt Info. Sciences, Inc. v. Bd. of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 478, 109 S.Ct. 1248, 1255, 103 L.Ed.2d 488 (1989) (quoting Southland Corp. v. Keating, 465 U.S. 1, 10, 104 S.Ct. 852, 858, 79 L.Ed.2d 1 (1984)). "The preeminent concern of Congress in passing the [FAA] was to enforce private agreements into which parties had entered, and that concern requires that we rigorously enforce agreements to arbitrate. . . ." Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 221, 105 S.Ct. 1238, 1242, 84 L.Ed.2d 158 (1985).

Moreover, agreeing to abide by the PUAA's arbitration procedures should not be interpreted as contractual bypass of the FAA or as a requirement that a dispute subject to an arbitration agreement be submitted first to state court. As the Third Circuit held while upholding the enforceability of a very similar5 arbitration agreement, "parties may contract to arbitrate pursuant to arbitration rules or procedures borrowed from state law, and the federal policy [under the FAA] is satisfied so long as their agreement is enforced." Ario, 618 F.3d at 288 (internal alterations omitted) (quoting Roadway Package Sys., Inc. v. Kayser, 257 F.3d 287, 292 (3d Cir. 2001)).

Volt, 489 U.S. at 479, 109 S.Ct. 1248 (internal citations omitted).

Under this clear precedent, the Court can find no support for Defendant's argument that this case should proceed in state court. Nor is there any ambiguity in the agreement that could justify nullifying the arbitration clauses. Read in the context of the full agreement, which, as discussed above, is a clear waiver of trial rights and an agreement to arbitrate, the "Governing Law" clause simply establishes that the rules enumerated in the PUAA or, failing that, the FAA, will govern any arbitration proceeding. The Defendant's conclusory allegations of "ambiguity" cannot negate the clear meaning of the Agreement or undercut Congress's "principal purpose [in enacting the FAA] of ensuring that private arbitration agreements are enforced according to their terms." Id.

ii. Applicability of Pisano v. Extendicare Homes

However, this does not end the inquiry. While Plaintiffs Motion remained pending before the Court, the Pennsylvania Superior Court decided the case of Pisano v. Extendicare Homes, Inc., 77 A.3d 651 (Pa.Super.Ct.2013). Defendants first brought the case to the Court's attention in a reply to a request for briefing on an unrelated issue, (see Doc. 22 at 3), and the issue was then extensively briefed by both parties, (see Docs. 25, 28, 29).

In Pisano, the Superior Court held that a wrongful death claim may not be sent to arbitration on the basis of an ADR agreement signed by the decedent or his agent, even if the agreement at issue called for wrongful death claims to be submitted to arbitration, and even if a survival claim arising out of the same occurrence must be sent to arbitration under the terms of the agreement, because wrongful death claims, unlike survival claims, are not "derivative of the rights of the decedent." Pisano, 77 A.3d at 663. The court held that, under Pennsylvania law, a wrongful death claim "shall exist only for the benefit of the spouse, children or parents of the deceased." Id. at 656 (quoting 42 Pa. Cons. Stat. Ann. § 8301(b)). This is different from a survival action, where "[t]he recovery of damages stems from the rights of action possessed by the decedent at the time of death." Id. at 658 (quoting Moyer v. Rubright, 438 Pa.Super. 154, 651 A.2d 1139, 1141 (1994)). Thus, whereas the decedent can contract away his own right to recover in court under a survival action and thereby limit such an action to arbitration, he cannot so alienate the rights of third parties to recover in their own wrongful death actions. Id. at 661 ("In the case sub judice, Appellee does not have an agreement with Belair to arbitrate. Belair's agreement is between it and Decedent alone. Regardless of Belair's intent, Pennsylvania's wrongful death statute . . . does not characterize Appellee 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 [H]olding otherwise would operate against the principles of Pennsylvania contract law and the FAA.").

Thus, according to the Pisano court, even though it is true that both Pennsylvania and the FAA favor agreements to arbitrate, this "liberal federal policy favoring arbitration" was "not intended to render arbitration agreements more enforceable than other contracts." Id. at 660-61. Allowing the decedent to contract away the rights of third parties who are not the beneficiaries of an arbitration agreement would indeed undo traditional contract principles and make arbitration agreements much more powerful than other agreements, solely by virtue of the fact that they concern arbitration.

1. Faith Batz's Signature is Irrelevant under Pisano

Plaintiff seeks to avoid Pisano first by arguing that "it has no application in the instant case because the ADR agreement was not signed by the decedent but by his wife." (Pl.'s Supp. Brief in Resp. to Def.'s Mem. of Law Contra Interstate Commerce Nexus, Doc. 25, at 5-6.) This argument fails for two reasons.

First, the Pisano court made no distinction as to who signed the contract, as long as the person signing it was acting as an agent. Its opinion indicates that the ADR agreement at issue was signed by "Jamie Pisano, the decedent's daughter" on the decedent's behalf (i.e., as his agent). Pisano, 77 A.3d at 653. The fact that the decedent did not physically sign the document played no role in the court's analysis.

Second, even if the Pisano facts were otherwise, the clear message of the decision is that a party can only alienate the rights it actually possesses. As discussed above, Plaintiff has already argued—and the Court agrees—that Faith Batz was acting as her husband's agent when she signed the ADR Agreement. All that she was doing was to assist John Batz in the exercise of his own rights, not to exercise any of her own. Because she was acting on John's behalf—and not her own—when she signed the agreement, the fact that she put her own signature on paper can have no legal significance. Nor is it significant that Mrs. Batz later filed the state action both individually and as administratrix of her husband's estate, as Plaintiff insinuates. (Doc. 25 at 6.) Clearly, the individual claims are severable from those of the estate, and under Pisano they must be so severed.

2. Pisano Represents the Law of Pennsylvania

The next issue to resolve is whether Pisano is properly binding on this Court as the law of Pennsylvania. "Except in matters governed by the Federal Constitution or by acts of Congress, the law to be applied in any case is the law of the state." Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1938). The scope of state contract law is obviously the type of matter in which the federal court must apply the law of the state. However, the analysis is somewhat complicated by the fact that "when, as here, the highest state court has not yet authoritatively addressed the critical issue our disposition of such cases must be governed by a prediction of how the state's highest court would decide were it confronted with the problem." McKenna v. Ortho Pharm. Corp., 622 F.2d 657, 661 (3d Cir.1980). In making such a prediction, decisions of lower state courts "should be accorded `proper regard,' of course, but not conclusive effect." Id. at 662. Accordingly, this Court is not automatically bound by the Pisano opinion if there is reason to predict that the Pennsylvania Supreme Court would interpret the law differently.

In the case of Grbac v. Reading Fair Co., 688 F.2d 215 (3d Cir.1982), the Third Circuit came to the opposite conclusion as Pisano and held that "the wrongful death action is purely derivative," meaning that the Pennsylvania Wrongful Death Act does not create "a separate claim on behalf of the surviving spouse and children which is not affected by the decedent's execution of a pre-mortem release." See id. at 216-17. The Circuit concluded that a nineteenth-century Pennsylvania Supreme Court case, Hill v. Pennsylvania R.R. Co., 178 Pa. 223, 35 A. 997 (1896), "is still the controlling law of Pennsylvania" and prevents recovery for wrongful death claims when a decedent had executed a pre-mortem release for his own personal injuries and death. Grbac, 688 F.2d at 217. In Hill, the Pennsylvania Supreme Court held that, in a wrongful death claim, "the right of action conferred is for the death of the party injured" and that the decedent's representative brings the legal claim only as a matter of obvious practical necessity, rather than because wrongful death is the representative's own cause of action. Hill, 35 A. at 998.

However, as pointed out in Pisano, though Hill correctly interpreted the Pennsylvania Wrongful Death Act at the time of it decision, the Act was subsequently amended in 1911 to distinguish between wrongful death actions and survival actions. Pisano, 77 A.3d at 656. Thus, in Hill, the Court represented the relevant statute as follows:

Hill, 35 A. at 998. Conversely, the modern Wrongful Death Act reads as follows:

42 Pa. Cons.Stat. Ann. § 8301(a)-(b).

The juxtaposition of the two statutes indicates a shift from vesting statutory rights in the decedent to vesting them in the decedent's statutorily enumerated beneficiaries. See also Frey v. Pa. Elec. Co., 414 Pa.Super. 535, 607 A.2d 796, 798 (1992) ("In contrast [to a survival action], wrongful death is not the deceased's cause of action. . . . Wrongful death damages are implemented to compensate the spouse, children, or parents of the deceased for the pecuniary loss they have sustained by the denial of future contributions decedent would have made in his or her lifetime."). The Pennsylvania Supreme Court has repeatedly emphasized the same, in the context of issues closely related to the one at hand. See, e.g., Anthony v. Koppers Co., Inc., 496 Pa. 119, 436 A.2d 181, 185 (1981) ("As distinguished from the wrongful death statutes, the survival statutes do not create a new cause of action; they simply permit a personal representative to enforce a cause of action which had already accrued to the deceased before his death."); Pezzulli v. D'Ambrosia, 344 Pa. 643, 26 A.2d 659, 661 (1942) ("[Survival and wrongful death actions] are entirely dissimilar in nature. The one represents a cause of action unknown to the common law and is for the benefit of certain enumerated relatives of the person killed by another's negligence. . . . The other is not a new cause of action at all, but merely continues in his personal representative the right of action which accrued to the deceased at common law because of the tort"); see also Tulewicz v. Se. Pa. Transp. Auth., 529 Pa. 588, 606 A.2d 427, 431 (1992) (holding, on the basis of Pezzulli, supra, that, because "the two actions are designed to compensate two different categories of claimants," bringing "the two causes of action by one named person, the administrator herein" does not subject "the respective parties to the $250,000.00 aggregate damage limitation cap"); Keystone Aerial Surveys, Inc. v. Pa. Prop. & Cas. Ins. Guar. Ass'n, 574 Pa. 147, 829 A.2d 297, 301-02 (2003) (agreeing with the interpretation that Tulewicz, supra, construed the damage limitation cap as a "`per-plaintiff' cap," and thereby reaffirming the independence of each claim).

In light of the foregoing, the Court finds the Pisano decision to be a more persuasive interpretation of Pennsylvania law than the Grbac decision. Though this Court is normally bound by all precedential decisions from the Third Circuit, this is not the case when it interprets the law of a sovereign state under Erie. In such situations, Third Circuit decisions that do not constitute the law of the instant case carry only persuasive value. See Aceto v. Zurich Ins. Co., 440 F.2d 1320, 1321-22 (3d Cir.1971) ("The matter in dispute is the correct interpretation of Pennsylvania law. While this court must often undertake such interpretation, final authority upon all such matters is vested in the highest court of the Commonwealth. No one may properly rely upon what we have held as more than persuasive on a question of Pennsylvania law so long as the Pennsylvania Supreme Court has not ruled upon that legal question.") (emphasis added); Hittle v. Scripto-Tokai Corp., 166 F.Supp.2d 159, 162 (M.D.Pa.2001) (summarizing relevant case law and then "assum[ing] without deciding that we are not strictly bound by [Third Circuit predictions of state law] and that we are free to make a contrary prediction"). Here, because the Hill case on which Grbac relied has been plainly superseded by later amendments to the wrongful death statute and because a review of Pennsylvania Supreme Court case law discloses that, over the past half century, it has consistently treated wrongful death claims as independent claims derived from the rights of a different plaintiff than the decedent, the Court predicts that the Pennsylvania Supreme Court would not adopt Grbac as state law. Rather, the Court predicts that the Pennsylvania Supreme Court would adopt Pisano as Pennsylvania's state law, when given the chance.

Finally, Plaintiff objects that Pisano cannot accurately state the law of Pennsylvania because it represents a radical departure from "100 years of jurisprudence" that would have the effect of invalidating a host of arbitration, settlement, and liability release agreements as they relate to wrongful death claims. (See Doc. 25 at 11-12.)

This argument must fail also, as it overlooks the fact that Pisano is ultimately a case about contract law, not arbitration. It is hard to imagine a principle better established through hundreds of years of common law than the principle that a party may only alienate through contract his rights to those things within his lawful control. Just as, absent an agency relationship, a person may not sign a contract to sell his neighbor's house, so he may not sign a contract to waive his neighbor's trial rights. See also E.E.O.C. v. Waffle House, Inc., 534 U.S. 279, 294, 122 S.Ct. 754, 764, 151 L.Ed.2d 755 (2002) ("The FAA directs courts to place arbitration agreements on equal footing with other contracts, but it does not require parties to arbitrate when they have not agreed to do so It goes without saying that a contract cannot bind a nonparty. Accordingly, the proarbitration goals of the FAA do not require the agency to [arbitrate] if it has not agreed to do so.").6 Therefore, even if it is true that many existing Pennsylvania agreements submit wrongful death claims to arbitration, such agreements have always been in conflict with established contract law. Pisano may, arguably, be belated in explicitly making this point. But even if it is, belatedness cannot be conflated with radicalism.

iii. The FAA Requires Bifurcation

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, 103 S.Ct. 927, 939, 74 L.Ed.2d 765 (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. Id. at 19-20, 103 S.Ct. 927.

Id. at 20, 103 S.Ct. 927. Such 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).

Defendant notes these precedents but argues that the Court should decline to compel arbitration anyway, citing the inefficiency rationale that both the Supreme Court and Third Circuit have explicitly rejected. (See Doc. 29 at 2.) As the Supreme Court and Third Circuit precedents make clear, the policy of the FAA is not efficiency per se, but rather the promotion of arbitration, from which an incidental benefit is often—but not necessarily always—efficiency. See, e.g., Volt, 489 U.S. at 478, 109 S.Ct. 1248 ("The FAA was designed to overrule the judiciary's longstanding refusal to enforce agreements to arbitrate and to place such agreements upon the same footing as other contracts.") (internal quotations and citations omitted).

Therefore, it is necessary to divide the Complaint for resolution. The Wrongful Death claims (Counts I and III) cannot be arbitrated under Pennsylvania law as stated in Pisano v. Extendicare Homes. On the other hand, as Defendant has provided no colorable reason why the Survival Action claims (Counts II and IV) cannot be arbitrated, the Court shall compel arbitration as to these latter claims.

III. Conclusion

Based on the foregoing considerations, Plaintiffs Motion to Compel Arbitration (Doc. 2) is GRANTED as to the Survival Action claims only. A separate Order follows.

ORDER

AND NOW, THIS 23RD DAY OF JANUARY, 2014, in accordance with the Court's Memorandum Opinion, IT IS HEREBY ORDERED THAT: