Dempsey Uniform and Linen v. Fox Two ( 2014 )

J-S40031-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DEMPSEY UNIFORM & LINEN SUPPLY, IN THE SUPERIOR COURT OF
INC. PENNSYLVANIA
Appellee
v.
FOX TWO D/B/A CAMELOT RESTAURANT
Appellant No. 2203 MDA 2013
Appeal from the Judgment Entered November 1, 2013
In the Court of Common Pleas of Lackawanna County
Civil Division at No(s): 12 CV 5629
BEFORE: BENDER, P.J.E., BOWES, J., and PANELLA, J.
MEMORANDUM BY PANELLA, J.: FILED SEPTEMBER 24, 2014
Appellant, Fox Two d/b/a Camelot Restaurant , appeals
from the judgment entered in the Court of Common Pleas of Lackawanna
County in favor of Appellee, Dempsey Uniform & Linen Supply, Inc. At issue
in this appeal is a prior order in this case that concluded that this contract
dispute was governed by a written agreement that contained a mandatory
arbitration clause. After careful review, we affirm.
On September 19, 2012, Dempsey filed a complaint alleging that
Camelot had breached a service contract with Dempsey. After Camelot filed
an answer with new matter, Dempsey filed a motion to compel arbitration.
The following factual summary is taken from testimony presented at the
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On May 26, 2010, Dr. Joseph Soliman, the principal owner of Camelot,
was preparing the restaurant for a grand opening. Also present was the
owner of another area restaurant, William Barrasse, who was acting as a
consultant to Dr. Soliman. Two representatives of Dempsey, Jim Rhodes
and Mark Lewis, came to Camelot to discuss whether Camelot would utilize
Barrasse utilized Demp
Barrasse testified that he did not sign the form in his own capacity, or for
the benefit of his own restaurant. He further testified that he signed the
at 54.
the type of merchandise and services listed below and added during the
term in accordance with the prices and conditions set forth in this
provided that the agreement was effective as of the date of execution and
had a term of 260 weeks from the date service began, with each party
retaining a See id., at ¶ B.
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resolve any controversy or claim arising out of this Agreement by Arbitration
either in Lackawanna County, PA or Northumberl Id., at
¶ 11.
Mark Lewis testified that in conjunction with the service agreement,
Dr. Solimon executed a credit application as president of Camelot. See N.T.,
6/5/13, at 18-19. Dr. Solimon agreed that he had executed a credit
application, but stated that he had been told that this was all necessary only
See id., at 58-60. Approximately one
Dempsey. Lewis testified that Dempsey serviced Camelot for almost two
years pursuant to the agreement, and Camelot paid Dempsey during the
same period. See id., at 21; 25. On June 6, 2012, Camelot stated that it
was no longer doing business with Dempsey, and procured the services of
another linen rental company.
After receiving this evidence, the trial court concluded that the service
agreement was a binding written agreement, and ordered that the case
proceed through arbitration. The arbitrator found in favor of Dempsey, and
judgment was entered on behalf of Dempsey. This timely appeal followed.
On appeal, Camelot raises the following issues for our review:
[1.] Whether the trial court abused its discretion when it held
that a written contract existed between Fox Two d/b/a Camelot
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[2.] Whether the trial court erred and abused its discretion
refused to allow testimony as to whether or not the parties
agreed to the terms set forth in a writing, which the trial court
ultimately held bound the parties to arbitrate their dispute?
[3.]
offer of proof or permission to elicit certain testimony constituted
and § 5105?
order compelling arbitration, and remand this case for further proceedings in
the trial court. See id
arbitration under an abuse of discretion standard. See Pisano v.
Extendicare Homes, Inc., 77 A.3d 651, 654 (Pa. Super. 2013).1 To
determine if arbitration is required, the trial court must employ a two-part
test. First, the trial court must determine if a valid agreement to arbitrate
exists between the parties. See Pittsburgh Logistics Systems, Inc. v.
Professional Transportation and Logistics, Inc., 803 A.2d 776, 779 (Pa.
Super. 2002). If so, the trial court must then determine if the dispute
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1
We note an apparent conflict in our case-law regarding this standard of
review. Some of our precedent indicates an abuse of discretion standard,
while other precedent indicates that the review is pursuant to a plenary, de
novo standard. Interestingly, some precedent, such as Pisano and
Keystone Technology Group, Inc. v. Kerr Group, Inc., 824 A.2d 1223
(Pa. Super. 2003), assert both standards of review within the same opinion.
In the present matter, we will proceed under the abuse of discretion
standard, but note that the result would be the same if we were to review
the issue under a de novo, plenary standard.
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before it falls within the scope of the arbitration agreement. See id. Our
standard for determining the scope of an arbitration provision is the same
rule that governs the construction of contracts. See id. Specifically, we
must determine the scope to which the parties
arbitration is determined by the intention of the parties as ascertained in
Id. (quotation
omitted).
to form a contract that bound the parties to the terms contained in the
written agreement. As a corollary to this assertion, Camelot contends that
the trial court erred in denying it the opportunity to present parol evidence
on the issue of contract formation.
complete expression of their agreement, alleged prior or contemporaneous
oral representations or agreements concerning subjects that are specifically
covered by the written contract are merged in or superseded by that
Blumenstock v. Gibson, 811 A.2d 1029, 1035 (Pa. Super.
2002) (citation omitted). Absent fraud, accident, or mistake, a written
contract is not only the best, but the only evidence of the terms of the
See id., at 1035. Therefore, parol evidence is not
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admissible to modify the terms of the written contract in the absence of an
averment of fraud, accident or mistake. See id., at 1036.
Based upon the testimony of Barrasse that he signed the service
agreement in his capacity as a consultant for Camelot, combined with the
fact that the parties operated as if an agreement had been reached for
constituted an abuse of discretion. The written service agreement
constitutes the best evidence of the agreement that the parties operated
under for nearly two years. While Camelot pled that Barrasse had been
fraudulently induced to sign the service agreement, his prior experience with
Dempsey, as well as the explicit language of the agreement, provide
sufficien
established fraudulent inducement. Thus, parol evidence was inadmissible.
constitute an abuse of discretion.
compelling arbitration.
Judgment affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/24/2014
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