DiDonato, R. v. Blair Academy ( 2020 )

J-A15014-20
2020 PA Super 259RUTH ANN DIDONATO, : IN THE SUPERIOR COURT OF
ADMINISTRATRIX OF THE : PENNSYLVANIA
ESTATE OF J.D. :
:
v. :
:
SKI SHAWNEE, INC., BLAIR ACADEMY :
AND JOHN PADDEN :
:
APPEAL OF: BLAIR ACADEMY AND :
JOHN PADDEN : No. 1704 EDA 2019
Appeal from the Order Entered May 10, 2019
In the Court of Common Pleas of Monroe County
Civil Division at No(s): No. 9426-CV-2018
RUTH ANN DIDONATO, : IN THE SUPERIOR COURT OF
ADMINISTRATRIX OF THE ESTATE OF : PENNSYLVANIA
J.D., DECEASED, :
:
Appellant :
:
v. :
:
SKI SHAWNEE, INC., BLAIR :
ACADEMY & JOHN PADDEN :
No. 3295 EDA 2019
Appeal from the Order Entered May 10, 2019
In the Court of Common Pleas of Monroe County
Civil Division at No(s): 9426-CV-2018
BEFORE: DUBOW, J., KING, J., and STRASSBURGER, J.*
OPINION BY KING, J.: FILED OCTOBER 27, 2020
Appellants/Cross-Appellees, Blair Academy & John Padden (collectively,
“the Academy defendants”), and Appellee/Cross-Appellant, Ruth Ann
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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DiDonato, administratrix of the estate of J.D., deceased (“the Estate”), appeal
from the order entered in the Monroe County Court of Common Pleas, which
granted in part and denied in part the Academy defendants’ motion to sever
the claims against defendant Ski Shawnee, Inc. (“Ski Shawnee”) and to
compel arbitration, in this wrongful death and survival action. We affirm in
part, reverse in part, and remand for further proceedings.
The relevant facts and procedural history of this case are as follows. On
December 26, 2017, the Estate initiated this action by writ of summons. The
Estate filed a complaint in the Philadelphia County Court of Common Pleas on
January 15, 2018, against Ski Shawnee and the Academy defendants. The
complaint alleged that in the fall of 2016, Decedent enrolled at Blair Academy,
a private boarding school in Blairstown, New Jersey. Prior to her enrollment,
Decedent had been living in Singapore with her parents. Blair Academy
required all students to participate in an organized sport. John Padden, the
head coach of the ski team, permitted Decedent to join the ski team.
According to the complaint, any student who wanted to try out for the team
needed to have the ability to ski nearly any trail on any mountain under any
condition. Decedent did not satisfy those requirements.
Notwithstanding her lack of ability, on January 9, 2017, during an event
at Ski Shawnee, Mr. Padden directed Decedent to ski down the Lower
Tomahawk Trail—an advanced, “black diamond” trail that was the most
difficult trail on the mountain. Ski Shawnee had installed snowmaking
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equipment at the bottom of the trail, requiring skiers to make a sharp turn to
avoid the equipment. Decedent was unable to navigate the turn at the bottom
of the hill, crashed into the equipment, and suffered fatal injuries. Decedent
was 15-years-old at the time of her death. The Estate brought two counts—
a survival action by the Estate and a wrongful death action on behalf of
Decedent’s parents. (See Complaint, filed 1/15/18, at ¶¶ 1-45; R.R. at 9a-
11a).
On February 6, 2018, Ski Shawnee filed preliminary objections alleging,
inter alia, improper venue in Philadelphia County.1 The Academy defendants
also filed preliminary objections raising improper venue on February 13, 2018.
Meanwhile, the Estate entered into separate stipulations with Ski
Shawnee and the Academy defendants to strike certain paragraphs from the
complaint and to withdraw a claim for punitive damages without prejudice to
move to reinstate that claim after the close of discovery.
On February 16, 2018, the Academy defendants filed a notice to remove
the case to federal court in the Eastern District of Pennsylvania based on
diversity jurisdiction. In their removal petition, the Academy defendants
insisted that Ms. DiDonato was a fraudulent party to the action who has no
connection with Decedent. The Academy defendants claimed Ms. DiDonato is
an associate attorney with a law firm located in Philadelphia, and she was
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1 The complaint alleged venue in Philadelphia was proper because Ski
Shawnee regularly conducted and solicited business there.
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selected solely to perfect venue in Philadelphia. The Academy defendants
maintained that Decedent (prior to her death) and her parents reside in
Singapore and are citizens of a foreign state for purposes of diversity
citizenship.
The Estate filed a motion to remand the case to state court on February
28, 2018. On March 19, 2018, the Eastern District of Pennsylvania granted
the Estate’s motion to remand for lack of jurisdiction in federal court. The
federal court stated that because Ski Shawnee is a properly joined and served
defendant and is a Pennsylvania corporation, removal to federal court was
improper.2
Upon remand to the Philadelphia County Court of Common Pleas, the
Estate filed answers to the Academy defendants’ preliminary objections and
to Ski Shawnee’s preliminary objections. In its answers, the Estate
maintained that venue was proper in Philadelphia because one defendant, Ski
Shawnee, regularly conducts business there.
The parties subsequently engaged in discovery related to the issue of
venue. On August 27, 2018, the court scheduled a hearing for October 25,
2018, on the venue issue. Following the hearing, the court entered an order
on October 29, 2018, sustaining the Academy defendants’ and Ski Shawnee’s
____________________________________________
2See 28 U.S.C. § 1441(b)(2) (explaining diversity of citizenship actions may
not be removed if any of parties in interest properly joined and served as a
defendant is citizen of state in which such action is brought).
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preliminary objections based on improper venue, and transferring the case to
the Monroe County Court of Common Pleas.
On December 17, 2018, the Academy defendants filed a motion to sever
the claims against Ski Shawnee, and to compel arbitration. The Academy
defendants alleged that Decedent’s mother had signed an enrollment contract
on behalf of Decedent’s father and on behalf of Decedent, which included an
arbitration clause. The Academy defendants claimed that the broad language
contained in the contract manifested the parties’ intent to resolve any claims
or disputes in arbitration. (See Academy defendants’ Motion to Sever and to
Compel Arbitration, filed 12/17/18, at 1-4; R.R. at 50a-53a).
The Academy defendants attached the enrollment contract to their
motion as Exhibit B. The enrollment contract provides, in pertinent part:
By signing this agreement, we agree that any claim or
dispute between us and Blair Academy, or against any
agent, employee, successor, or assign of the other, whether
related to this agreement or otherwise, and any claim or
dispute related to this agreement or the relationship or
duties contemplated under this contract, including the
validity of this arbitration clause, shall be resolved by
mandatory and binding arbitration. This arbitration
agreement applies to all claims now in existence or that may
arise in the future and shall survive the termination of the
student’s enrollment at Blair Academy. We understand that
the result of this arbitration agreement is that claims cannot
be litigated in court, including some claims that could have
been tried before a jury. A single arbitrator shall be
appointed by the American Arbitration Association and serve
under the rules thereunder. The hearing shall be in
Blairstown, New Jersey. We agree that the prevailing party
shall be reimbursed for the costs of arbitration and litigation,
including any legal fees. This agreement shall be governed
by and interpreted under the Federal Arbitration Act, 9
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U.S.C. Sections 1-16. If any part of this arbitration
agreement is found to be invalid or unenforceable under any
law or statute consistent with the F.A.A., the remainder of
this arbitration agreement shall be enforceable without
regard to such invalidity or unenforceability.
(Enrollment Contract, dated 3/20/16, at ¶5; R.R. at 40a, 52a).
Meanwhile, Ski Shawnee filed an answer, new matter, and cross-claim
against the Academy defendants, in response to the Estate’s complaint. The
Estate filed a reply on January 3, 2019.
On January 9, 2019, the Estate filed an answer to the Academy
defendants’ motion to sever and compel arbitration. Initially, the Estate
argued that the Academy defendants had waived any claim regarding
arbitration because their preliminary objections did not raise any issue related
to jurisdiction or the arbitrability of the Estate’s claims. The Estate maintained
that the parties had engaged in extensive discovery related to venue, and the
Academy defendants did not proffer the enrollment contract or mention the
arbitration clause at any time, even though the Estate had requested the
production of any contracts or agreements related to its claims. By
participating in litigation for almost one year already, the Estate insisted the
Academy defendants had waived their claim to arbitration.
The Estate also claimed the purported contract related solely to
Decedent’s parents’ obligation to pay tuition and did not reference any duties
or obligations owed by or to Decedent. The Estate contended that Decedent’s
mother was the only signatory to the contract, and neither the administratrix,
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nor Decedent, was a party to the agreement. The Estate stressed that under
Pennsylvania law, parents do not have authority to release claims or forfeit
constitutional rights of their minor children.
The Estate claimed Mr. Padden is not a party to the enrollment contract,
so any claims against him do not belong in arbitration. Similarly, the Estate
averred that Ski Shawnee’s cross-claim against the Academy defendants does
not belong in arbitration because Ski Shawnee is not a party to the enrollment
contract. In any event, the Estate insisted the enrollment contract did not
contain a valid agreement to arbitrate. (See Estate’s Answer to Academy
defendants’ Motion to Sever and to Compel Arbitration, filed 1/9/19, at 1-6;
R.R. at 70a-75a).
On January 9, 2019, Ski Shawnee also filed a response to the Academy
defendants’ motion to sever and compel arbitration. Ski Shawnee echoed the
Estate’s claim that the Academy defendants had waived any right to
arbitration because they failed to produce the enrollment contract in response
to discovery requests and had already participated in litigation for one year,
including an attempt to remove the case to federal court. Ski Shawnee also
alleged that its cross-claim could not proceed to arbitration since it did not
sign the contract containing the arbitration provision. Ski Shawnee further
joined the Estate’s position that Pennsylvania law does not permit parents to
sign away their minor child’s rights. Ski Shawnee requested oral argument
on the Academy defendants’ motion. (See Ski Shawnee’s Response to
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Academy defendants’ Motion to Sever and to Compel Arbitration, filed 1/9/19,
at 1-5; R.R. at 147a-151a).
The court scheduled a hearing on the Academy defendants’ motion for
February 27, 2019. In the meantime, the Academy defendants filed an answer
and new matter to the Estate’s complaint. The new matter included the
Academy defendants’ claim of arbitration. (See Academy defendants’ Answer
and New Matter, filed 1/17/19, at 1-14; R.R. at 22a-35a). The Estate filed a
reply on January 31, 2019.
On February 13, 2019, the Academy defendants filed a motion for leave
to file a reply brief nunc pro tunc, in response to the Estate’s answer to their
motion to sever and compel arbitration. The Academy defendants attached a
copy of the proposed reply brief to their motion, in which they alleged, inter
alia, they promptly raised the arbitration issue once the court had adjudicated
the venue issue. The Academy defendants claimed they responded only to
initial discovery limited to venue, attended depositions limited to venue, and
the case was far from “trial ready.” The Academy defendants contended that
their attempt to remove the case to federal court did not involve any ruling
on the merits of the Estate’s claims. The Academy defendants insisted the
Estate was not prejudiced by the timing of their motion to sever and compel
arbitration. (See Academy defendants’ Reply Brief, filed 2/13/19, at 1-11;
R.R. at 220a-230a).
The court granted the Academy defendants’ request for nunc pro tunc
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relief on February 14, 2019, instructing the Prothonotary to docket the reply
brief attached to their motion.
On February 27, 2019, the court heard oral argument on the Academy
defendants’ motion to sever and compel arbitration.3 Following argument, all
parties submitted additional briefs in support of their respective positions.
The court entered an opinion and order on May 10, 2019, granting in
part and denying in part the Academy defendants’ motion. Specifically, the
court granted the motion to compel arbitration of the Estate’s survival claim
and of Mother’s wrongful death claim. The court denied the motion to compel
arbitration of Father’s wrongful death claim. To the extent the Academy
defendants also sought to compel arbitration of the Estate’s claims against Ski
Shawnee, the court denied that request. (See Opinion and Order, filed
5/10/19, at 1-19; R.R. at 243a-261a).
On June 6, 2019, the Academy defendants timely filed a notice of
appeal. The next day, the Estate timely filed a cross-appeal.4 The Estate also
filed a praecipe to amend the order for appellate certification under 42
Pa.C.S.A. § 702(b) and Pa.R.A.P. 1311 (governing interlocutory appeals by
permission). On June 10, 2019, the court amended its May 10, 2019 order,
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3 This proceeding was not transcribed.
4Ski Shawnee subsequently filed a notice to join the Estate’s cross-appeal
under Pa.R.A.P. 512 (governing joint appeals).
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expressly certifying it for immediate appellate review. The Estate timely filed
a formal petition for permission to appeal per Rule 1311(b), which this Court
granted.5
The trial court ordered the parties to file concise statements of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). The Academy
defendants timely complied on June 28, 2019, and the Estate timely complied
on July 2, 2019.
In their appeal, the Academy defendants raise the following issue for
our review:
Did the trial court err in denying the motion to compel
arbitration, in part, and in refusing to also refer to
arbitration the father’s wrongful death claim, where the
father is not a party to the action and where the mother
executed the arbitration agreement on behalf of both
parents?
(The Academy defendants’ Brief at 4).
In its cross-appeal, the Estate raises the following issues for our review:
Whether it was an abuse of discretion for the trial court to
fail to conclude, or even consider, that the boarding school
tuition payment agreement did not constitute a valid,
binding and enforceable contract?
Whether it was an abuse of discretion for the trial court to
fail to conclude, or even consider, that [the Estate’s]
____________________________________________
5 Although an order denying an application to compel arbitration is
immediately appealable under Pa.R.A.P. 311(a)(8) and 42 Pa.C.S.A. §
7320(a)(1), the Estate filed the petition for permission to appeal to the extent
that the portion of the court’s order compelling arbitration was not
immediately appealable. The Estate’s petition for permission to appeal and
this Court’s order granting relief are docketed at 77 EDM 2019.
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wrongful death and survival claims are not subject to the
arbitration clause contained within the purported contract
for boarding school tuition payment?
Whether it was an abuse of discretion for the trial court to
conclude that [Decedent’s mother] waived her minor
daughter’s constitutional right to a jury trial?
Whether it was an abuse of discretion for the trial court to
not conclude that [the Academy defendants], by
participating in litigation for nearly one year before raising
the purported applicability of an arbitration clause, waived
the defense of mandatory private arbitration?
Whether it was an abuse of discretion for the trial court to
refuse to compel arbitration as to the wrongful death claim
of [Decedent’s father]?
(The Estate’s Brief at 3-4).6
For purposes of disposition, we initially address the Estate’s fourth issue
on appeal concerning the Academy defendants’ waiver of arbitration. In this
issue, the Estate argues the Academy defendants were required to raise the
issue of arbitration in their preliminary objections to the Estate’s complaint,
citing Pa.R.C.P. 1028(a). The Estate asserts that the Academy defendants did
not file a motion to compel arbitration until December 17, 2018, almost a full
year after the Estate instituted this civil action. During that year, the Estate
claims that the Academy defendants accepted judicial process by filing pre-
trial motions, answering the Estate’s interrogatories and requests for
production of documents, participating in depositions related to the
____________________________________________
6 The Pennsylvania Association for Justice filed an amicus curiae brief in
support of the Estate’s issues.
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preliminary objections, and attending the hearing on preliminary objections,
all without raising the issue of arbitration. The Estate concludes the Academy
defendants waived their claim of arbitration by failing to raise it in a timely
manner, and this Court must reverse the portion of the court’s order
compelling arbitration.7 We agree.
“In reviewing the trial court’s decision in [this] matter, we are limited to
determining whether the trial court’s findings are supported by substantial
evidence and whether the trial court abused its discretion.” Goral v. Fox
Ridge, Inc., 683 A.2d 931, 933 (Pa.Super. 1996).
“It is well-settled that although as a matter of public policy, our courts
favor the settlement of disputes by arbitration, the right to enforce an
arbitration clause can be waived.” O’Donnell v. Hovnanian Enterprises,
Inc., 29 A.3d 1183, 1187 (Pa.Super. 2011) (quoting LSI Title Agency, Inc.
v. Evaluation Services, Inc., 951 A.2d 384, 391-92 (Pa.Super. 2008),
appeal denied, 599 Pa. 694, 960 A.2d 841 (2008)) (internal quotation marks
omitted). A party that avails itself of the judicial process by attempting to win
favorable rulings from the judicial system following the filing of a complaint
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7 Ski Shawnee filed an appellate brief in this case, which reiterates the Estate’s
claim of waiver. Ski Shawnee adds that the Academy defendants failed to
produce the enrollment contract in response to a pre-trial discovery request
for “any document which refers to, relates to or evidences any communication
between you and [Decedent].” (Ski Shawnee’s Brief at 10).
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waives the right to proceed through arbitration. Stanley-Laman Group, Ltd.
v. Hyldahl, 939 A.2d 378, 387 (Pa.Super. 2007).
When deciding whether a party accepted judicial process to constitute
waiver of a claim to arbitration, courts assess whether the party: (1) failed to
raise the issue of arbitration promptly; (2) engaged in discovery; (3) filed pre-
trial motions that do not raise the issue of arbitration; (4) waited for adverse
rulings on pre-trial motions before asserting arbitration; or (5) waited until
the case is ready for trial before asserting arbitration. O’Donnell, supra.
Significantly, a party “cannot avail itself of the judicial process and then pursue
an alternate route when it receives an adverse judgment. To allow litigants
to pursue that course and thereby avoid the waiver doctrine and our rules of
court is to advocate judicial inefficiency; this we are unwilling to do.” Samuel
J. Marranca General Contracting Co. v. Amerimar Cherry Hill
Associates, 610 A.2d 499, 502 (Pa.Super. 1992). Nevertheless, “the mere
filing of a complaint or answer without resulting prejudice to the objecting
party will not justify a finding of waiver of the right to arbitration.” LSI, supra
at 392 (quoting Keystone Tech. Group, Inc. v. Kerr Group, Inc., 824 A.2d
1223, 1226 (Pa.Super. 2003)).
In Samuel J. Marranca, supra, the appellee filed his complaint on June
25, 1990. The appellant filed preliminary objections alleging improper venue
and forum non conveniens. After the court overruled the preliminary
objections, the appellant filed its answer on July 11, 1991. Approximately two
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weeks later, the appellant first asserted a demand for arbitration. After the
appellee refused this request, the appellant filed a motion to compel
arbitration and stay judicial proceedings. The trial court decided the appellant
had waived any right to arbitration, stating:
The record in this case unequivocally establishes a
willingness on the part of [the appellant] to have the Court
of Common Pleas adjudicate the issues being raised without
resort to arbitration as long as the [c]ourt was not the
Luzerne County Court of Common Pleas. Clearly, [the
appellant] was ready to litigate this case in another
jurisdiction and, accordingly, we find it difficult to
understand and/or appreciate how, after having made and
lost the venue and forum non conveniens arguments, it can
now contend that the arbitration is mandatory and not
elective.
Samuel J. Marranca, supra at 500-01.
On appeal, this Court agreed with the trial court’s conclusion that the
appellant waived its right to enforce the arbitration clause. This Court
reasoned:
Here, [the appellant’s] conduct amounts to waiver. [The
appellant] chose not to file a petition to compel arbitration.
[The appellant] also elected not to assert arbitration as an
affirmative defense either in preliminary objections or in
new matter. Instead, [the appellant] waited until it had
received an adverse ruling on pretrial motions before
invoking and seeking to enforce the arbitration provision of
the contract. …
Id. at 501.
In O’Donnell, supra, the appellants originally filed their complaint on
April 25, 2007. The appellee filed preliminary objections, which did not raise
an arbitration claim. The appellants filed an amended complaint on July 17,
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2007. The appellee filed another set of preliminary objections, which did not
raise a claim of arbitration. On February 13, 2008, the trial court sustained
the preliminary objections in part, dismissing one count of the amended
complaint. Approximately two weeks later, the parties executed a tolling
agreement, discontinuing the litigation without prejudice while they engaged
in settlement negotiations. When those negotiations failed, the appellants
reinstituted the litigation by filing another complaint on February 2, 2010,
omitting the count that had been dismissed by the trial court. In response,
the appellee filed preliminary objections on March 19, 2010, raising for the
first time an arbitration agreement between the parties. The trial court
sustained the preliminary objections and compelled arbitration.
On appeal, this Court reversed, holding the appellee had waived its claim
of arbitration. This Court stated:
Had [the appellee] raised the arbitration provision in its
preliminary objections to the April 2007 Complaint, [the
appellants] would have been spared the time, effort, and
expense of filing an amended complaint in July 2007,
discontinuing the action to engage in settlement
negotiations, entering the Tolling Agreement and
Amendment, filing a complaint in February 2010, and filing
an amended complaint in April 2010. Similarly, the trial
court would have been spared the time and effort of
reviewing the July 2007 amended complaint and second set
of preliminary objections, the motion to discontinue without
prejudice, and the February 2010 complaint. Moreover,
[the appellee’s] contention that [the appellants] gained two
years for preparation of its case ignores the fact that [the
appellee’s] failure to raise the arbitration provision promptly
in April 2007 caused the two-year delay in proceeding to
binding arbitration. …
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… Beginning in 2007, [the appellee] availed itself of the
judicial process by filing preliminary objections; however, it
did not promptly raise the arbitration provision at that time.
…
Based on the foregoing, we conclude that [the appellee]
waived its right to binding arbitration. As [the appellants]
claim, the simple fact that [the appellee] allowed the
Preliminary Objection process to proceed for months, with
the arbitration argument at the ready, involves a conscious
engagement with the judicial process that cannot be
ignored. [The appellee’s] conduct was inconsistent with a
purpose to stand on the contract arbitration provision as to
leave no opportunity for a reasonable inference to the
contrary. Moreover, [the appellee’s] active participation in
the judicial process resulted in an undue advantage to [the
appellee] and prejudice to [the appellants], specifically, the
dismissal of Count VII and an avoidable, two-year delay in
proceeding to binding arbitration. For these reasons, we
conclude the trial court committed an error of law in
sustaining [the appellee’s] preliminary objections,
dismissing the complaint, and transferring the matter to
binding arbitration.
O’Donnell, supra at 1188-89 (internal citations and quotation marks
omitted) (emphasis in original). See also Goral, supra (holding appellants
waived claim to arbitration where they did not affirmatively seek arbitration
until 19 months after appellees had filed complaint; prior to that time,
appellants did nothing to move matter to arbitration and allowed case to linger
on court’s docket; it was not until litigation resulted in order requiring
appellants to satisfy appellees’ discovery requests that appellants sought
arbitration; appellees suffered prejudice where, in addition to litigation costs
already incurred, they would be required to re-initiate legal proceedings before
American Arbitration Association and incur additional costs). Compare Smay
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v. E.R. Stuebner, Inc., 864 A.2d 1266 (Pa.Super. 2004) (holding appellant
did not waive right to arbitration where appellant consistently asserted its
right to arbitration and used judicial system only to preserve that right and
protect its discovery interests).
Instantly, in addressing the Estate’s waiver argument, the trial court
stated:
[The Academy defendants] did pursue early tactical
maneuvers in this case before raising their claim for
arbitration, including removal to federal court and a
challenge to venue. They participated in discovery but only
related to their venue challenge. Their motion to sever [and
compel arbitration] has been filed before they have filed an
answer to the complaint. Pursuant to Pa.R.C.P. 1030, they
are permitted to raise the defense of arbitration by new
matter.
The right to use arbitration can be lost if an objecting party
has suffered prejudice in the litigation proceedings. Here[,
the Estate] has not demonstrated how [the Academy
defendants] have gained an undue advantage by raising the
request for arbitration at this point. …
Since [the Academy defendants] raised their defense of
arbitration at this early juncture before the pleadings are
closed, I find that they have not waived their right to pursue
arbitration. …
(Opinion and Order at 13-14; R.R. at 255a-256a) (internal citations omitted).
For the following reasons, we cannot agree with the trial court’s analysis.
Here, the record confirms the Estate filed a complaint in the Philadelphia
County Court of Common Pleas on January 15, 2018. The Academy
defendants initially reached a stipulation with the Estate to strike one
paragraph of the complaint and to withdraw the claim of punitive damages,
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without prejudice to the Estate’s right to reinstate that claim after the close of
discovery. On February 13, 2018, the Academy defendants filed preliminary
objections based on improper venue. A few days later, the Academy
defendants filed a notice of removal of the case to federal court based on
diversity jurisdiction. The Estate filed a motion to remand, which the Eastern
District Court of Pennsylvania granted on March 19, 2018.
Upon remand, the Estate responded to the Academy defendants’
preliminary objections. The parties then engaged in extensive pre-trial
discovery on the issue of venue. The Academy defendants do not dispute that
they did not produce the enrollment contract or mention the arbitration clause
in response to pre-trial discovery requests for any contract related to the
claims in this case.8 Following a hearing on the venue issue, on October 25,
2018, the court sustained the preliminary objections and transferred the case
to the Monroe County Court of Common Pleas.
On December 17, 2018, almost a full year after the Estate had filed its
complaint, the Academy defendants filed a motion to sever the claims against
Ski Shawnee and to compel arbitration, raising the issue of arbitration and
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8 The Academy defendants contend they did not produce the enrollment
contract in response to the request for “any document which refers to, relates
to or evidences any communication between you and [Decedent]” because
the enrollment contract was between Blair Academy and Decedent’s parents.
(Academy defendants’ Reply Brief at 33 n.14). In light of the Academy
defendants’ attempt to bind Decedent to the contract for purposes of the
survival action, we find their response in this respect disingenuous.
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producing a copy of the enrollment contract for the first time since litigation
began. The Academy defendants subsequently filed an answer and new
matter, which reiterated the claim for arbitration.
Under these circumstances, the record demonstrates that the Academy
defendants accepted judicial process and waived their claim of arbitration.
See Stanley-Laman, supra. Significantly, the Academy defendants (1) did
not raise the issue of arbitration for almost a year after the Estate filed its
complaint; (2) engaged in pre-trial discovery on the issue of venue, during
which it did not produce the enrollment contract or mention the arbitration
provision; (3) filed preliminary objections based on improper venue, which did
not raise the issue of arbitration, and filed a notice of removal to federal court;
and (4) waited for the trial court’s rulings on the preliminary objections and
the federal court’s actions on the notice of removal before asserting a claim
of arbitration. See O’Donnell, supra.
We disagree with the trial court’s reasoning that the fact that the
pleadings remained open when the Academy defendants raised arbitration
supports a finding against waiver. See, e.g., GE Lancaster Investments,
LLC v. American Exp. Tax and Business Services, Inc., 920 A.2d 850,
854, 855 (Pa.Super. 2007) (stating “we find nothing in these cases which
would limit the finding of waiver where the party seeking the right to pursue
arbitration has availed itself of the judicial process prior to the filing of a
complaint”; “a party may accept the judicial process prior to the filing of a
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complaint by attempting to win favorable rulings from the trial court on pre-
complaint discovery motions so as to undermine the opposing party’s ability
to file a proper complaint”). Similar to the appellant in Samuel J. Marranca,
supra, the Academy defendants waited until the court ruled on their
preliminary objections to assert a claim of arbitration. Likewise, the Academy
defendants’ preliminary objections based on improper venue and their notice
of removal to federal court suggest the Academy defendants were initially
ready to litigate the claims in court (as opposed to in arbitration), so long as
the jurisdiction was not in the Philadelphia County Court of Common Pleas.
See Samuel J. Marranca, supra.The record makes clear that the Academy defendants’ failure to raise
the issue of arbitration promptly caused almost a full year delay in proceeding
to arbitration. The fact that the Academy defendants allowed the preliminary
objection process to proceed for months, with the arbitration argument at the
ready, involves a conscious engagement with the judicial process that this
Court cannot ignore.9 See O’Donnell, supra at 1188-89.
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9 To the extent the Estate claims the Academy defendants were required to
raise their claim of arbitration in preliminary objections, we reject that
position. Although a party can assert a claim of arbitration in preliminary
objections, a party can also assert a claim of arbitration in a petition to compel
arbitration or in the new matter. See Pa.R.C.P. 1028(a)(6), Note (stating
agreement to arbitrate may be asserted by preliminary objection or by petition
to compel arbitration); Pa.R.C.P. 1030(a) (stating all affirmative defenses
including but not limited to arbitration and award shall be pleaded in
responsive pleading under heading “new matter”). As the Academy
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Further, the Academy defendants’ tactical maneuvers prejudiced the
Estate. Had the Academy defendants raised the arbitration provision in their
preliminary objections filed on February 13, 2018, the Estate would have been
spared the time, effort, and expense of filing a response to those preliminary
objections, engaging in pre-trial discovery with the Academy defendants
regarding venue,10 and filing a motion to remand the case from federal court
to state court. See O’Donnell, supra. Similarly, the Philadelphia County
Court of Common Pleas would have been spared the time and effort of
reviewing the Academy defendants’ preliminary objections on improper
venue, the Estate’s response, and hearing argument from the Academy
defendants in support of their position at the hearing on venue. Likewise, the
Eastern District of Pennsylvania would have been spared the time and effort
of reviewing the Academy defendants’ notice of removal and the Estate’s
motion for remand. Id.
In addition to the costs the Estate has incurred in litigating its claims in
court against the Academy defendants, the trial court’s order now requires the
Estate to reinitiate some of its claims in arbitration, which will generate
additional costs for the Estate. See Goral, supra. See also GE Lancaster
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defendants raised their claim of arbitration in a motion to compel arbitration
and in their new matter to the Estate’s complaint, we do not find waiver of
their claim of arbitration on this basis.
10 We recognize the Estate would have still incurred the time and expense of
litigating Ski Shawnee’s preliminary objections.
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Investments, supra (explaining that to allow appellant to pursue arbitration
would unfairly prejudice appellees because, in addition to costs incurred to
date, they would be required to commence legal proceedings in arbitration
and incur additional costs). Additionally, the arbitration provision provides
that “the prevailing party shall be reimbursed for the costs of arbitration and
litigation, including any legal fees.” (Enrollment Contract, dated 3/20/16, at
¶5; R.R. at 40a, 52a). A reasonable interpretation of this provision suggests
that if the Academy defendants prevailed in arbitration, the Estate would be
responsible not only for the costs of arbitration, but also for the full year of
litigation against the Academy defendants before they asserted a claim of
arbitration.
Based upon the foregoing, we conclude the Academy defendants
accepted judicial process in this case and waived their claim of arbitration. 11
Accordingly, we reverse the portion of the trial court’s order sending any
claims to arbitration, affirm the order in all other respects, and remand for
further proceedings in the trial court.
Order reversed in part, affirmed in part. Case remanded. Jurisdiction
is relinquished.
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11 Consequently, we decline to address the Estate’s remaining issues or the
Academy defendants’ issue on appeal, which all relate to the validity and scope
of the arbitration agreement. See O’Donnell, supra (declining to address
claim that enforceable arbitration agreement existed based on this Court’s
holding that appellee waived claim of arbitration).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/27/2020
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