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Big Daddy's Beer & Pizza, Inc. v. Delbalso Bros. ( 2017 )


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  • J-A20008-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
BIG DADDY'S BEER & PIZZA, INC.           :    IN THE SUPERIOR COURT OF
D/B/A ANGELINA'S BAR &                   :         PENNSYLVANIA
RESTAURANT AND SAL SCALZO                :
:
Appellants           :
:
v.                         :
:
DELBALSO BROTHERS REALTY, A              :
PENNSYLVANIA PARTNERSHIP, AND            :
JOSEPH DELBALSO, SANDRA                  :
DELBALSO, MICHAEL DELBALSO,              :
MARY DELBALSO AND DONNA                  :
AMATO-DELBALSO                           :
:
Appellees            :           No. 1908 MDA 2016
Appeal from the Order Entered October 24, 2016
In the Court of Common Pleas of Luzerne County
Civil Division at No(s): 20160016
BEFORE: GANTMAN, P.J., PANELLA, J., and FORD ELLIOTT, P.J.E.
JUDGMENT ORDER BY GANTMAN, P.J.:                   FILED SEPTEMBER 25, 2017
Appellants, Big Daddy’s Beer & Pizza, Inc., d/b/a Angelina’s Bar &
Restaurant,   and   Sal   Scalzo,   appeal   the    order   sustaining   Appellees’
preliminary objections to compel arbitration. Appellant entered into a five-
year lease agreement (“Lease”) with Appellee, Delbalso Brothers Realty et
al., on June 1, 2011. The Lease contained a broad arbitration clause stating
any controversy or claim relating to the contract, including the construction
or application of the contract, will be settled by binding arbitration under the
rules of the American Arbitration Association.       On May 19, 2014, Appellee
filed a landlord/tenant complaint against Appellants for possession of the
J-A20008-17
premises as Appellants owed substantial unpaid rent.          The district court
entered judgment in favor of Appellee on June 3, 2014, and later granted
Appellee possession of the premises on July 14, 2014, because Appellants
had not satisfied the money judgment. Appellants filed a complaint against
Appellee on January 4, 2016, for replevin, conversion, trespass to chattels,
and unjust enrichment, after Appellee denied Appellants’ request to retrieve
equipment.     Appellee filed preliminary objections based on the arbitration
clause in the Lease.       The trial court sustained Appellees’ preliminary
objections on October 24, 2016, and ordered arbitration per the lease.
Appellants filed a notice of appeal on November 23, 2016.
Initially, we observe an appeal to this Court may be taken from: “(1) a
final order or an order certified as a final order (Pa.R.A.P. 341); (2) an
interlocutory order as of right (Pa.R.A.P. 311); (3) an interlocutory order by
permission (Pa.R.A.P. 312, 1311, 42 Pa.C.S.A. § 702(b)); or (4) a collateral
order (Pa.R.A.P. 313).” In re Estate of Cella,
    12 A.3d 374
    , 377 (Pa.Super.
2010).      Generally, an order sustaining preliminary objections compelling
arbitration is not immediately appealable.     Sew Clean Drycleaners and
Launders, Inc. v. Dress for Success Cleaners, Inc.,
    903 A.2d 1254
    (Pa.Super. 2006). See also Rosy v. National Grange Mut. Ins. Co.,
    771 A.2d 60
        (Pa.Super.   2001)   (quashing   appeal   from   order   compelling
arbitration; order directing either statutory or common law arbitration is
interlocutory and immediately unappealable).       Compare 42 Pa.C.S.A. §
-2-
J-A20008-17
7320(a) (permitting immediate appeal from order denying application to
compel arbitration).
Instantly, Appellants and Appellee entered into an enforceable lease
agreement with a broad arbitration clause. Appellants’ complaint asserted
multiple tort claims to recover property remaining in Appellee’s possession
as a result of Appellants’ breach of the lease and failure to satisfy a final
judgment for unpaid rent.         The trial court sustained Appellee’s preliminary
objections to compel arbitration.         Appellants now appeal that interlocutory
and unappealable order.1         See Sew Clean Drycleaners and Launders,
Inc.,
    supra.
     Accordingly, we quash the appeal.
Appeal quashed.
____________________________________________
1
Appellants rely on United States Automobile Association v. Shears,
    692 A.2d 161
     (Pa.Super. 1997), for the proposition that an order compelling
arbitration can be immediately appealable as a collateral order. Appellants’
wholesale reliance on Shears is insufficient, where Appellants make no
argument on each prong of the collateral order doctrine. See generally
AmerisourceBergen Corp. v. Does,
    81 A.3d 921
     (Pa.Super. 2013), appeal
denied,
    626 Pa. 695
    ,
    97 A.3d 742
     (2014) (stating Pa.R.A.P. 313 must be
interpreted narrowly and its requirements are stringent; each prong of
doctrine must be met before order can be considered collateral; to qualify
under Rule 313, issue “must involve rights deeply rooted in public policy
going beyond the particular litigation at hand”; importance to particular
party is insufficient to obtain immediate review). See also Melvin v. Doe,
    575 Pa. 264
    ,
    836 A.2d 42
     (2003) (stating each prong of collateral order
doctrine must be met; appellant must affirmatively demonstrate collateral
nature of order under review).
-3-
J-A20008-17
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/25/2017
-4-