Zaucha, G. v. Chan, B. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
GARRETT T. ZAUCHA AND LISA R. : IN THE SUPERIOR COURT OF
ZAUCHA : PENNSYLVANIA
:
Appellants :
:
:
v. :
:
: No. 556 WDA 2021
BIK HA CHAN AND RICKY CHEN :
Appeal from the Order Entered April 7, 2021
In the Court of Common Pleas of Westmoreland County
Civil Division at 2043 of 2020
BEFORE: LAZARUS, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY MURRAY, J.: FILED: OCTOBER 25, 2021
Appellants Garrett T. Zaucha and Lisa R. Zaucha (the Zauchas) appeal
from the order: (1) sustaining the preliminary objections filed by Bik Ha Chan
and Ricky Chen (Appellees); (2) directing the case to mediation; and (3)
dismissing the Zauchas’ complaint. Upon review, we quash as interlocutory,
but remand with instructions.
The trial court explained:
The instant case was initiated with [the Zauchas’] filing of a
complaint on or about June 1, 2020. Preliminary objections were
subsequently filed by [Appellees] and briefed by the parties.
Argument on the objections was heard before this Court on
February 23, 2021. The Order of Court ruling on the preliminary
objections and presently on appeal was filed on or about April 7,
2021, dismissing [the Zauchas’] complaint. [They] timely
appealed and filed their Concise Statement of Errors Complained
of on Appeal on June 4, 2021.
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[The Zauchas’] claims stem from a May 31, 2018 sale from
[Appellees] to [the Zauchas] of residential property in Penn
Township, Westmoreland County. [The Zauchas] allege that
[Appellees] concealed various defective conditions on the property
prior to the sale. [The Zauchas’] four-count complaint contains
claims for breach of the Pennsylvania Real Estate Seller Disclosure
Law, fraudulent misrepresentation, violation of the Pennsylvania
Unfair Trade Practices and Consumer Protection Law and
fraudulent concealment. In their preliminary objections,
[Appellees] argued that the complaint should be dismissed under
Pa.R.C.P. 1028(a)(6) for failure to engage in agreed-upon
alternative dispute resolution as set out in the Agreement of Sale
for the Property. [Paragraph 27 of the Sales Agreement provides,
in its entirety:
27. MEDIATION (1-10)
Buyer and Seller will submit all disputes or claims
that arise from this Agreement, including disputes
and claims over deposit monies, to mediation.
Mediation will be conducted in accordance with the
Rules and Procedures of the Home Sellers/Home
Buyers Dispute Resolution System, unless it is not
available, in which case Buyer and Seller will mediate
according to the terms of the mediation system
offered or endorsed by the local Association of
Realtors. Mediation fees, contained in the mediator’s
fee schedule, will be divided equally among the parties
and will be paid before the mediation conference.
This mediation process must be concluded
before any party to the dispute may initiate legal
proceedings in any courtroom, with the exception
of filing a summons if it is necessary to stop any
statute of limitations from expiring. Any agreement
reached through mediation and signed by the
parties will be binding. Any agreement to
mediate disputes or claims arising from this
Agreement will survive settlement.
Sales Agreement, 4/27/18, at ¶ 27.] This [c]ourt agreed, and
dismissed the complaint with instructions to pursue alternative
dispute resolution[].
Trial Court Opinion, 6/21/21, at 2 (emphases added).
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As noted above, we find this appeal interlocutory. See Forrester v.
Hanson, 901 A.2d 548, 554 (Pa. Super. 2006) (Superior Court may raise
issue of jurisdiction sua sponte) (citation omitted). “This Court does not have
jurisdiction to entertain an appeal from a non-appealable, interlocutory order.”
Id. (citation omitted).
“Generally, only final orders are appealable, and final orders are defined
as orders disposing of all claims and all parties.” Spuglio v. Cugini, 818 A.2d
1286, 1287 (Pa. Super. 2003). See also Pa.R.C.P. 341(b)(1) (“A final order
is any order that ... disposes of all claims and of all parties, or is entered as a
final order pursuant to [Pa.R.C.P. 341(c)]”). “The finality of an order is a
judicial conclusion which can be reached only after an examination of its
ramifications. If the practical effect of an order is to put an appellant out of
court by precluding him from presenting the merits of his claim, the order is
appealable.” West v. West, 446 A.2d 1342 (Pa. Super. 1982) (citations
omitted). “For finality to occur, the trial court must dismiss with prejudice
the complaint in full.” Mier v. Stewart, 683 A.2d 930, 930 (Pa. Super. 1996)
(emphasis added). See Niemiec v. Allstate Ins. Co., 721 A.2d 807 (Pa.
Super. 1998) (order sustaining preliminary objections, referring case to
arbitration, and dismissing one count of complaint with prejudice was not final
and appealable). Additionally, “this Court repeatedly has held that an order
directing a matter to arbitration is not a final, appealable order but, rather, is
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an interlocutory order.”1 Pennsy Supply, Inc. v. Mumma, 921 A.2d at
1184, 1194 (Pa. Super. 2007) (citation omitted). See also Sew Clean
Drycleaners and Launders, Inc. v. Dress for Success Cleaners, Inc.,
903 A.2d 1254 (Pa. Super. 2006); but see Brown v. D.&P. Willow, Inc.,
686 A.2d 14, 15 n.1 (Pa. Super. 1996) (order compelling arbitration is final
and appealable if trial court dismisses case and arbitration is binding).
Here, the parties’ sales agreement specifies “all disputes and claims”
shall be submitted to mediation, which will be binding only if both parties reach
(and sign) an agreement. On this basis, the trial court entered the order
granting preliminary objections and directing the case to mediation. Because
the order did not “dispose of all claims and all parties,” it was not final and
appealable. We therefore quash the appeal as interlocutory.
However, with respect to the court’s dismissal of the Zauchas’
complaint, we were presented with a similar scenario in Schantz v.
Dodgeland, 830 A.2d 1265 (Pa. Super. 2003), where the trial court sustained
preliminary objections, directed the matter to ADR, and dismissed the
complaint. On appeal, Schantz argued that by dismissing the complaint, the
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1 Although this case involves mediation rather than arbitration, both processes
are legal means of alternative dispute resolution (ADR). See Black’s Law
Dictionary, 36 (5th Pocket ed. 1996) (defining alternative dispute resolution
as “[a]ny procedure for settling a dispute by means other than litigation, as
by arbitration or mediation.”). We have found no precedent indicating that
mediation cases should be treated differently than arbitration cases when
preliminary objections are sustained pursuant to Pa.R.Civ.P. 1028(a)(6).
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trial court effectively placed him out of court. Id. at 1266. This Court agreed.
Although the appeal was interlocutory, we found the trial court erred in
dismissing the complaint, and the proper procedure was for the trial court to
stay the case pending ADR. Id. Accordingly, although we quashed the appeal
as interlocutory, we directed the trial court, upon motion of a party, to
reinstate the complaint and stay the action pending ADR. Id. at 1266-67.
Consistent with Schantz, we remand with directions for the trial court, upon
motion of a party, to reinstate the Zauchas’ complaint and stay the action
pending mediation.
Appeal quashed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/25/2021
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