Gallagher, M. v. Hearthside Realty, Inc. ( 2019 )

J-A19024-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MARYANNE GALLAGHER : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
HEARTHSIDE REALTY, INC., D/B/A :
COLDWELL BANKER HEARTHSIDE :
REALTORS, ROBIN MANCUSO : No. 3699 EDA 2018
DELUNA, JAMIE MANCUSO AND :
PRITCHARD, BIELER, GRUVER & :
WILLISON, P.C. :
:
:
APPEAL OF: HEARTHSIDE REALTY, :
INC., ROBIN MANCUSO-DELUNA :
AND JAIME MANCUSO :
Appeal from the Order Entered, December 5, 2018,
in the Court of Common Pleas of Bucks County,
Civil Division at No(s): 2018-02864.
BEFORE: PANELLA, P.J., KUNSELMAN, J., and STEVENS*, P.J.E.
MEMORANDUM BY KUNSELMAN, J.: FILED SEPTEMBER 09, 2019
Hearthside Realty, Inc., Robin Mancuso-DeLuna, and Jamie Mancuso
(“the Mancusos”) appeal the trial court’s order overruling and dismissing their
preliminary objections. Their objections sought to compel arbitration of this
dispute. Because the Mancusos never contracted with Plaintiff, Maryanne
Gallagher, much less signed an arbitration agreement with her, we affirm.
The trial court noted that there are two companion cases arising from
the same string of events. In June of 1997, Ms. Gallagher and Frank Mancuso
created a business partnership (the “Partnership”) with respect to a real-
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* Former Justice specially assigned to the Superior Court.
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estate-brokerage business and entered into a Partnership Agreement. When
Frank attempted to substitute his two children, i.e., the Mancusos, for himself
as partners with Ms. Gallagher, Ms. Gallagher filed two lawsuits: a previous
case (Bucks County Case No. 2016-07570) and the instant matter.
In her first case, Ms. Gallagher alleged two counts of breach of contract,
two counts of unjust enrichment, conversion, and breach of fiduciary duty
against Frank and his children, all of whom appealed the trial court’s decision
overruling their preliminary objections to Ms. Gallagher’s complaint. They
argued the trial court erroneously failed to submit certain counts to arbitration.
The trial court issued a 1925(a) Opinion. In November 2018, this Court
affirmed the order refusing to compel arbitration.
In that decision, we quoted the following facts from the trial court’s
1925(a) Opinion:
[In] June 1997, Maryanne Gallagher and Frank [Mancuso]
created a business partnership for the purpose of owning,
managing, operating, and conducting a real-estate-brokerage
business in Levittown, Pennsylvania. At the time of the
Partnership’s formation, Frank was the sole owner of the capital
stock of Hearthside Realty, Inc. . . . a Coldwell Banker franchisee
operating under the name “Coldwell Banker Hearthside Realty.”
Under the . . . Partnership Agreement, the Partnership was
to operate as a branch of Coldwell Banker under the trade name
“Coldwell Banker Hearthside Levittown Realty” pursuant to the
Franchise Agreement in existence between Coldwell Banker as
franchisor and Coldwell Banker Hearthside Realty (“CB
Hearthside”) as franchisee. . . . Frank covenanted that he would
continue to permit the Partnership to operate as a branch office of
Coldwell Banker. Of particular importance to the instant matter is
that the Partnership Agreement, entered into by and between [Ms.
Gallagher] and Frank, contained an arbitration provision, to wit:
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If any controversy or claim arising out of this
Partnership Agreement cannot be settled by the
Partners, the controversy or claim shall be settled by
arbitration in accordance with the rules of the
American Arbitration Association then in effect, and
judgment on the award may be entered in any court
having jurisdiction.
Gallagher v. Gallagher, et al., 3533 EDA 2017 (Nov. 5, 2018) (unpubished
memorandum).
Ms. Gallagher and Frank signed the Partnership Agreement containing
that provision. The Mancusos did not sign anything with Ms. Gallagher.
On August 30, 2018, Ms. Gallagher filed a new, three-count complaint.
She re-sued the Mancusos and also sued Pritchard, Bieler, Gruver & Willison,
P.C. (hereinafter “PBGW”), but she did not re-sue Frank.
The new complaint alleges fraud, tortious interference with an existing
contract, and conversion. Ms. Gallagher claims that, in 2014, the Mancusos
and PBGW prepared and filed tax returns for the Partnership usurping her
rights under the Partnership Agreement. She also alleges these tax returns
were prepared without her knowledge and eliminated her as a partner. This
change in ownership, she believes, violated Frank’s notice obligation under
the Partnership Agreement, which gave her the option to make an offer to
purchase Frank’s partnership interest in the business, if and when he left.
In response to the complaint, the Mancusos sought to compel arbitration
through preliminary objections. The trial court denied that request, and the
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Mancusos timely appealed.1 The Mancusos and trial court complied with Rule
of Appellate Procedure 1925.
The Mancusos raise one issue on appeal:
Did the trial court err in overruling [the Mancusos’]
preliminary objections to [Ms. Gallagher’s] complaint [by]
finding that there is not a valid agreement . . . to arbitrate
[her] claims against [them]?
The Mancusos’ Brief at 5.
“Our standard of review of an order of the trial court overruling
preliminary objections is to determine whether the trial court committed an
error of law . . . the appellate court must apply the same standard as the trial
court.” DeLage Landen Fin. Servs., Inc. v. Urban P'ship, LLC, 903 A.2d
586, 589 (Pa. Super. 2006) (citation omitted; brackets in original). “When
preliminary objections, if sustained, would result in the dismissal of an action,
such objections should be sustained only in cases which are clear and free
from doubt.” Id. (citations omitted).
To determine whether to compel arbitration, the Pennsylvania courts
apply a two-pronged test. See Elwyn v. DeLuca, 48 A.3d 457, 461 (Pa.
Super. 2012). The trial court determined that the Mancusos’ argument failed
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1 We have jurisdiction over this appeal. An order overruling preliminary
objections is usually not appealable. See Provenzano v. Ohio Valley Gen.
Hospital, 121 A.3d 1085 (Pa. Super. 2015). However, there is a narrow
exception when such orders refuse to compel arbitration. See Midomo Co.,
Inc. v. Presbyterian Hous. Dev. Co., 739 A.2d 180, 184 (Pa. Super. 1999).
Thus, the trial court’s December 4, 2018 order refusing to compel arbitration
is an interlocutory order, appealable as of right. 42 Pa.C.S.A. § 7302(a)(1).
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at the first prong of test, because they are not Frank, the only person with
whom Ms. Gallagher contracted. Thus, the trial court concluded that no
arbitration agreement existed between the Mancusos and Ms. Gallagher.
The trial court opined as follows:
the arbitration provision governs claims or controversy
between the partners of that agreement, to wit: Frank
Mancuso and [Ms. Gallagher]. With respect to the first
prong, there is no valid agreement to arbitrate between the
parties of the instant case[, because the Mancusos] are not
partners in the business entity created by [Ms. Gallagher]
and Frank Mancuso.
Moreover, the record does not support the conclusion
that [the Mancusos] were intended third-party beneficiaries
of the Partnership Agreement. The factual circumstances
alleged in the complaint concerns activities which occurred
outside of the ambit of the Partnership Agreement, as the
conduct related to Frank Mancuso’s corporate restructuring
and the preparation of tax returns created by PBGW
pursuant thereto. Thus, the underlying dispute is not
confined to the conduct of [Ms. Gallagher] and Frank
Mancuso but relates to a concert of activity involving parties
uncontemplated at the time the Partnership Agreement was
executed.
Furthermore, the factual circumstances alleged are
completely extrinsic to the activities governed by the
Partnership Agreement. We thus determine that no valid
agreement to arbitrate exists between the parties in the
instant case. We need not reach the second prong discussed
in Provenzano v. Ohio Valley Gen. Hosp, 121 A.3d 1085
(Pa. Super. 2015) which evaluates whether the particular
claims in the complaint operate within the scope of the
requisite arbitration provision.
Trial Court Opinion, 2/11/19, at 6-7.
The Mancusos reject the trial court’s conclusion that they do not have
an arbitration agreement with Ms. Gallagher. They believe that the contract
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she entered with their father Frank extends to them, because “the gist of her
claims against [them] are based upon the Partnership, the Partnership
Agreement, which is a contract, and [the Mancusos] being partners with [Ms.
Gallagher] in the Partnership.” The Mancusos’ Brief at 19. That non sequitur
rests upon the Mancusos’s unproven premise that Ms. Gallagher and they
agreed to arbitrate their claims against one another. They did not.
We believe the Mancusos fail to prove their silent premise, because, as
a matter of basic contract law, they cannot. “The elemental aspects necessary
to give rise to an enforceable contract are offer, acceptance, consideration or
mutual meeting of the minds.” Schreiber v. Olan Mills, 627 A.2d 806, 808
(Pa. Super. 1993). Ms. Gallagher and the Mancusos exchanged no offer, no
acceptance, and no consideration. They reached no meeting of the minds.
Thus, they had no contract.
Without a contractual agreement to do so, a party usually cannot be
compelled to arbitrate. “Arbitration is a matter of contract, and . . . cannot
be compelled to arbitrate a given issue absent an agreement between them
to arbitrate . . . such agreements should not be extended by implication.”
Elwyn, 48 A.3d at 461 (quoting Cumberland–Perry Area Vo.–Tech.
School v. Bogar & Bink, 396 A.2d 433, 434 – 435 (Pa. Super. 1978)
(emphasis added). Here, the Mancusos attempt to force Ms. Gallagher into
arbitration, despite there being no agreement between them.
Thus, this case is readily distinguishable from the two cases upon which
the Mancusos rely: Shadduck v. Christopher J. Kaclik, Inc., 713 A.2d 635
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(Pa. Super. 1998), and Dodds v. Pulte Home Corp., 909 A.2d 348 (Pa.
Super. 2006). In both cases, it was undisputed that the plaintiffs had entered
into contracts with the companies that had built their respective homes. The
homeowners joined the builders’ parent companies and added tort-based and
statute-based claims. This Court held the homeowners’ procedural steps could
not transform breach-of-warranty actions against the builders, which were
subject to arbitration, into non-arbitral, court cases.
Here, by contrast, Frank, the person with whom Ms. Gallagher agreed
to go to arbitration, is absent from the suit. Moreover, Ms. Gallagher alleges
no breach of contract by the Mancusos, because she cannot. It is black-letter
law that the Mancusos could not have breached a Partnership Agreement they
never entered. See, e.g., Seneca Res. Corp. v. S & T Bank, 122 A.3d 374,
379 (Pa. Super. 2015) (stating “To show a breach of contract, a party must
establish the existence of a contract . . . .”)
Finally, we note that, although the Partnership Agreement is binding
upon Frank’s and Ms. Gallagher’s successors, the Mancusos do not argue they
are legal successors to Frank under the Agreement. Therefore, we express
no opinion on this point, and the trial court made no finding that they are
Frank’s legal successors. Moreover, the trial court concluded the Mancusos
are not third-party beneficiaries of the Partnership Agreement. See Trial
Court Opinion, 2/11/19, at 7. The Mancusos do not challenge that ruling on
appeal. Indeed, the whole theory of Ms. Gallagher’s lawsuit is that the
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Mancusos are not legal successors to Frank and that their role in the business
is an illegal usurpation of the Partnership.
Accordingly, we agree with the learned trial court. The Mancusos have
not satisfied the first prong of the test in Elwyn, supra, because they failed
to establish that there was an arbitration agreement between Ms. Gallagher
and themselves.
Order affirmed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/9/19
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