So, C. v. Toll Brothers, Inc. ( 2021 )

J-A27007-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CHI SO AND ALEY CHEUNG IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellees
v.
TOLL BROTHERS, INC., D/B/A/ TOLL
BROTHERS, MARC KOLBER, DAN
RICHARDS, DAN MURPHY, RJ2
CONSTRUCTION, INC. AND MIKE
VAUGHN
APPEAL OF TOLL BROTHERS, INC.,
MARC KOLBER, DAN RICHARDS AND No. 1012 EDA 2020
DAN MURPHY
Appeal from the Order February 26, 2020
In the Court of Common Pleas of Montgomery County
Civil Division at No: 2019-19451
BEFORE: STABILE, J., NICHOLS, J. AND COLINS, J.*
MEMORANDUM BY STABILE, J.: FILED: FEBRUARY 22, 2021
Appellants, Toll Brothers, Inc., Marc Kolber, Dan Richards and Dan
Murphy, appeal from an order denying their preliminary objections to the
complaint filed by Appellees, Chi So and Aley Cheung, in this civil tort action.
Appellants argue that the trial court erred by denying their preliminary
objection seeking transfer of this case to arbitration. We affirm.
Appellees’ complaint alleges that on January 18, 2018, they entered into
a letter agreement with Appellant Toll Brothers, Inc. (“Toll”) in which Toll
promised to perform work at Appellees’ home, including replacing stucco
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* Retired Senior Judge assigned to the Superior Court.
J-A27007-20
cladding, replacing certain window frames, and replacing exterior doors (“the
Project”). Complaint, 8/2/19, at ¶¶ 10-11. Appellants Kolber, Richards, and
Murphy managed the Project for Appellant Toll. Id. at ¶ 12. Appellees did
not append their letter agreement with Toll to the complaint.
Appellees advised Appellants that they had purchased a Pella 4-slide
panel door for the rear patio and asked Appellants to install this door. Id. at
¶¶ 14-17. Appellant Richards took measurements and advised that Appellant
Toll would install the Pella door as part of the Project. Id.
A Toll workman removed the existing French patio door but was unable
to install the Pella door. Id. at ¶ 20. Appellant Kolber advised Appellees that
Toll would be unable to install the Pella door. Id. at ¶ 21. Appellee Cheung
requested that the existing patio door simply be replaced with an identical
one, and that Toll should “forget about the Pella patio door that [Mrs. Cheung]
purchased.” Id. at ¶ 22. A replacement French patio door was delivered to
the property and installed by Toll’s workmen. Id. at ¶¶ 23–24. The next day,
Appellees hired another contractor to remove the replacement French patio
door and install the Pella patio door. Id. at ¶¶ 26–27.
Toll workers placed the replacement French patio door in a pickup truck
to remove it from the property. Id. at ¶ 31. Appellees objected to its removal,
and an argument ensued. Id. at ¶¶ 31-32. The individual Appellants drove
away with the door but later returned and placed the French patio door in
Appellees’ garage. Id. at ¶¶ 34-37.
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On August 2, 2019, Appellees filed a one-count complaint against
Appellants alleging the tort of trespass to land. According to Appellees,
Appellant Toll “intentionally direct[ed] its employees to trespass upon
[Appellees’] Property to seize the Toll Patio Door assembly which Toll no longer
owned and in which Toll had no security interest,” id. at ¶ 44, thus causing
Appellees to fear for their physical safety and suffer emotional distress. Id.
at ¶¶ 41-43.
Appellants filed preliminary objections requesting, inter alia, that the
trial court transfer this case to arbitration.1 Appellants appended the January
18, 2018 letter agreement between the parties to their preliminary objections.
The letter agreement noted that Appellees submitted a warranty request
seeking repairs to their home due to water infiltration. Preliminary Objections,
exhibit B (letter agreement), at 1. The letter agreement provided that Toll
“will complete the Repairs to your Home as set forth in the attached
exhibit A (“the Repairs”) . . .” Id. (emphasis added). Importantly,
Appellants failed to include exhibit A of the letter agreement in their
preliminary objections.
The agreement included an arbitration clause that stated:
Should a dispute arise, you agree to use best efforts to resolve
any such dispute promptly by contacting me directly to address
the dispute. If the dispute is unable to be resolved, you and Toll
agree that any and all controversies or claims arising out of or
relating to the Repairs, this letter agreement, the Limited
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1 Appellants filed several other preliminary objections, but none of them are
at issue in this appeal.
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Repairs Warranty, or any of the Released Claims shall be resolved
by binding arbitration administered by the American Arbitration
Association in accordance with its Construction Industry
Arbitration Rules and judgment on the award rendered by the
arbitrator(s) may be entered in any court having jurisdiction
thereof.
Id. at 3 (emphasis added).
On February 26, 2020, the trial court overruled Appellants’ preliminary
objections. This timely appeal followed. The trial court filed a Pa.R.A.P. 1925
opinion without ordering Appellants to file a Rule 1925 statement of matters
complained of on appeal.
Appellants raise the following issue in this appeal:
Whether a claim asserted against those involved in performing
warranty repair work on a home, arising during the warranty
repair work, must be submitted to arbitration, where the parties
agreed that “any and all controversies or claims arising out of or
relating to” either the repairs or the parties’ relationship would be
resolved by arbitration.
Appellants’ Brief at 4.
Generally, “an order [overruling] a party’s preliminary objections is
interlocutory and, thus, not appealable as of right.” Callan v. Oxford Land
Dev., Inc., 858 A.2d 1229, 1232 (Pa. Super. 2004). An exception to this rule
exists when a party appeals from an order denying a petition to compel
arbitration. Id.; see also Pa.R.A.P. 311(a)(8); 42 Pa.C.S.A. § 7320(a).
Under this exception, the trial court’s order overruling Appellants’ preliminary
objections seeking to compel arbitration, though interlocutory, is appealable
as of right.
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Our review of an order overruling preliminary objections seeking to
compel arbitration “is limited to determining whether the trial court’s findings
are supported by substantial evidence and whether the trial court abused its
discretion in denying the petition.” Callan, 858 A.2d at 1233. In making this
determination, we apply the following principles:
(1) [A]rbitration agreements are to be strictly construed and not
extended by implication; and (2) when parties have agreed to
arbitrate in a clear and unmistakable manner, every reasonable
effort should be made to favor the agreement unless it may be
said with positive assurance that the arbitration clause involved is
not susceptible to an interpretation that covers the asserted
dispute.
Id. Whether a dispute is within the scope of an arbitration agreement is a
question of law for which our scope of review is plenary. Provenzano v. Ohio
Valley Gen. Hosp., 121 A.3d 1085, 1095 (Pa. Super. 2015).
The arbitration clause in the letter agreement provides that all
“controversies or claims arising out of or relating to the Repairs, this letter
agreement, the Limited Repairs Warranty, or any of the Released Claims” are
subject to arbitration. Appellants argue that this case must go to arbitration
because it concerns “Repairs” and/or “this letter agreement.”2
Appellants fail to demonstrate that this case concerns “Repairs” because
there is no definition of “Repairs” in the record. The letter agreement does
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2 Appellants do not argue that this case is subject to arbitration on the grounds
that it concerns the “Limited Repairs Warranty[] or any of the Released
Claims.”
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not itself define “Repairs”; it merely states that “Repairs” are “set forth in the
attached exhibit A.” Appellants, however, failed to attach exhibit A to their
preliminary objections. Without this exhibit in the record, we cannot define
the scope of the term of art, “Repairs,” and cannot tell whether Appellees’
action fits within this term. Furthermore, Appellants have the duty to ensure
that the certified record is complete for purposes of appellate review. Brown
v. Halpern, 202 A.3d 687, 698-99 (Pa. Super. 2019). Thus, the omission of
exhibit A is fatal to their argument.
For the same reason, Appellants demonstrate that this case is subject
to arbitration under the next phrase, “this letter agreement.” The letter
agreement states that Toll “will complete the Repairs to your Home as set
forth in the attached exhibit A (“the Repairs”).” The letter agreement refers
to exhibit A, the exhibit Appellants failed to include in the record. Absent this
exhibit, Appellants cannot demonstrate that Appellees’ action fits within the
scope of “Repairs,” which in turn prevents them from demonstrating that
Appellees’ action fits within the scope of “this letter agreement.” Brown, 202
A.3d at 698-99.
In an attempt to overcome their failure to include exhibit A in the record,
Appellants argue that this case is subject to arbitration because of several
“judicial admissions” that Appellees made in their response to Appellants’
preliminary objections—specifically, Appellees’ statements that they
“purchased a Pella 4-slide-panel door for their rear patio deck which they
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wanted Toll to install as part of the ongoing repairs,” that Toll “was unable to
install the Pella door,” and that Appellees “then told Toll that it should install
the standard French patio door originally proposed by Toll.” Appellants’ Brief
at 23-24 (citing Appellees’ Memorandum In Opposition To Appellants’
Preliminary Objections, at 6). We disagree. A judicial admission is “a clear
and unequivocal admission of fact. Judicial admissions are limited in scope to
factual matters otherwise requiring evidentiary proof, and are exclusive of
legal theories and conclusions of law.” Koziar v. Raynor, 200 A.3d 513, 521
(Pa. Super. 2018). Assuming that Appellees’ statements are judicial
admissions, they are merely factual admissions that Appellees wanted Toll to
install the Pella door as part of ongoing repairs. Id. They do not resolve the
critical legal question of whether the complaint falls within the scope of the
term of art “Repairs” in the arbitration clause. Nor can we define “Repairs” or
examine whether the complaint falls within this term of art due to Appellants’
failure to include exhibit A in the record.
Lastly, Appellants argue that this case is subject to arbitration under this
Court’s reasoning in Saltzman v. Thomas Jefferson Univ. Hosps., 166
A.3d 465 (Pa. Super. 2017), and Callan. We disagree.
In Saltzman, the plaintiff filed tort claims against a hospital for wrongful
termination of employment. The hospital filed preliminary objections seeking
arbitration under an employment agreement between the plaintiff and the
hospital that required arbitration of “any controversy or claim between the
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parties hereto arising under or related to this Agreement or any breach
thereof.” This Court reasoned that it “has consistently compelled the
arbitration of tort claims arising from a contractual relationship where the
language of the arbitration clause is broad and unlimited.” Id., 166 A.3d at
478. Since the language of the parties’ arbitration provision was “broadly
worded,” and there was “no evidence demonstrating the parties’ intent to
exclude tort claims arising from or related to the Agreement,” we held that
the plaintiff’s tort claims were subject to arbitration. Id. at 479.
In Callan, the parties entered into an agreement of sale for real estate
that included the following arbitration provision, “All claims, disputes and
other matters in question both before and after settlement arising out of or
relating to this Agreement of Sale on the house being purchased shall be
decided by arbitration.” Furthermore, paragraph 19 of the agreement
provided, “Buyer acknowledges that Buyer has reviewed the final subdivision
plan as approved by the township. Seller reserves the right to make
adjustments and modifications to accommodate site conditions or at the
request of governmental/authorities.” Next, paragraph 18 of the agreement
provided:
Vegetation existing prior to construction/wooded areas: Seller will
attempt to preserve as many of the existing trees or shrubs as
reasonably possible during the construction of the improvement
and house on the premises. It is expressly agreed, however, that
Seller does not guarantee or warrant the survival of any trees or
shrubs existing on the premises prior to the said construction. The
Seller shall be responsible to grade and seed the disturbed areas
only.
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The plaintiff, the buyer of the real estate, filed a tort claim alleging that the
seller trespassed onto her property to remove trees, removed the trees, and
caused the buyer inconvenience and discomfort. This Court held:
Paragraph 18 of the agreement of sale specifically acknowledges
Seller does not warrant the survival of trees on the property
during construction of improvements on the property. Paragraph
19 reveals Buyer signed the final subdivision plan as approved by
the Township, which indicated a feeder road would be installed
adjacent to her property. Installment of the feeder road is an
improvement on the premises. Our review of the record reflects
Buyer’s tort claims arise from the contract for sale and are
therefore subject to the arbitration agreement.
Id., 858 A.2d at 1234. The plaintiff’s claim in Callan was subject to
arbitration because all claims “arising out of or relating to this Agreement of
Sale” fell within its scope, and the plaintiff’s claim of trespass related to
paragraphs 18 and 19 of the Agreement.
The distinction between this case, on the one hand, and Saltzman and
Callan, on the other, is simple. We reasoned in Saltzman and Callan that
the plaintiffs’ complaints fell within the scope of broadly worded arbitration
clauses. Here, for the reasons discussed above, Appellants have failed to
demonstrate that Appellees’ complaint falls within the arbitration clause in the
letter agreement, because they cannot show that the averments of the
complaint “aris[e] out of or relat[e] to the Repairs, this letter agreement, the
Limited Repairs Warranty, or any of the Released Claims.” Preliminary
Objections, Letter Agreement, at 1.
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For these reasons, we affirm the trial court’s order denying Appellants’
preliminary objections.
Order affirmed. Case remanded for further proceedings. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/22/21
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