Nova Sign Group v. Bunting Graphics, Inc.

J-A05002-18 & J-A05003-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
NOVA SIGN GROUP : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellants :
:
:
v. :
:
:
BUNTING GRAPHICS, INC. : No. 3202 EDA 2017
v. :
:
:
TURNER CONSTRUCTION COMPANY :
Appeal from the Order Entered August 25, 2017
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 02052 October Term, 2015
NOVA SIGN GROUP : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BUNTING GRAPHICS, INC. :
:
Appellants : No. 3287 EDA 2017
:
:
:
:
v. :
:
:
TURNER CONSTRUCTION COMPANY :
Appeal from the Order Entered August 25, 2017
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 02052 October Term, 2015
BEFORE: DUBOW, J., MURRAY, J., and STEVENS*, P.J.E.
____________________________________
* Former Justice specially assigned to the Superior Court.
J-A05002-18 & J-A05003-18
MEMORANDUM BY DUBOW, J.: FILED APRIL 25, 2018
In these consolidated appeals,1 Nova Sign Group (“Nova”) appeals at
No. 3202 EDA 2017 from the August 25, 2017 Order granting Bunting
Graphic, Inc’s (“Bunting”) Motion for Summary Judgment. Bunting appeals
at No 3287 EDA 2017 from the same August 25, 2017 Order granting Turner
Construction Company’s (“Turner”) Motion for Summary Judgment. After
careful review, we affirm the Order appealed at No 3202 EDA 2017, and
dismiss Bunting’s appeal at No. 3287 EDA 2017 as moot.
The facts and procedural history are as follows. Turner entered into a
construction management contract with Eagles Stadium Operator, LLC
(“Owner”), the owner of Lincoln Financial Field in Philadephia. On April 16,
2014, Turner entered into a $1,289,128.00 subcontract with Bunting, a
contractor engaged in the manufacture and installation of architectural
signage and ornamental metals. Pursuant to the subcontract, Bunting was
to provide the signage and wayfinding2 for Lincoln Financial Field.
On May 20, 2014, Bunting entered into a $275,000.00 sub-subcontract
with Nova, whereby Nova agreed to install the signage that Bunting
fabricated and delivered to the site.
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1 We have consolidated these appeals sua sponte.
2 Wayfinding includes information systems that guide people through a
physical environment.
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The Sub-Subcontract
The sub-subcontract between Nova and Bunting contained the
following relevant provisions detailing the procedure by which the parties
would handle disputes between them. In particular, the parties agreed that:
(1) if Nova had a claim against the Owner, Nova would pursue that in claim
in the Court of Common Pleas; (2) if Nova had a claim against Bunting, Nova
would pursue that claim in arbitration; and (3) if Bunting believed that
Nova’s claim against it was actually the responsibility of the Owner, Nova
would stay the arbitration until Nova resolved its claim against the Owner:
[11(b)] In case of any dispute between [Bunting] and
[Nova], in any way relating to or arising from any act or
omission of the Owner or involving the Contract Documents[3],
[Nova] agrees to be bound to [Bunting] to the same extent that
[Bunting] is bound to Owner, by the terms of the Contract
Documents, and by any and all preliminary and final decisions or
determinations made thereunder by the party, board or court so
authorized in the Contract Documents or by law, whether or not
[Nova] is a party to such proceedings. In case of such dispute,
[Nova] will comply with all provisions of the Contract Documents
allowing a reasonable time for [Bunting] to analyze and forward
to the Owner any required communications or documentation.
[Bunting] will, at its option, (1) present to the Owner, in
[Bunting’s] name, or (2) authorize [Nova] to present to the
Owner, in [Bunting’s] name, all of [Nova’s] claims and answer
the Owner’s claims involving [Nova’s] work, whenever, [Bunting]
is permitted to do so by the terms of the contract documents. . .
[11(c)] Any controversy between [Bunting] and [Nova] not
relating to or arising from any action or inaction of the Owner
and not involving the Contract Documents shall be decided by
arbitration in accordance with the Construction Industry
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Arbitration Rule of the American Arbitration Association…If
[Bunting] notifies [Nova] that [Bunting] contends any
arbitration brought under this Article 11.c. involves a
controversy within the scope of Article 11.b., the
arbitration shall be stayed until the procedures under
Article 11.b. are completed and it is determined
thereunder that the controversy does not fall within
Article 11.b.
[3]The term “Contract Documents” in the sub-subcontract refers
to the sub-contract between Bunting and Turner. See Sub-
Subcontract, 5/20/14, at 1, Exhibit A.
Sub-Subcontract, 5/20/14, Article 11(b)-(c) (emphasis added).
The Dispute
The dispute that led to the instant matter involves 47 invoices that
Nova provided to Bunting and that Bunting refused to pay. As a result, on
November 26, 2014, Nova submitted a demand for arbitration. Pursuant to
Article 11(c) of the sub-subcontract, Bunting notified Nova by letter of its
belief that “[t]he invoices are for alleged acts that have arisen as a result of
the [O]wner and the contract documents.” Bunting’s Mot. for Sum. J.
Exhibit G, 11/28/14 Bunting Letter. Bunting, thus, requested that Nova stay
the arbitration proceedings until it could be determined whether Nova’s
claims were caused by an act or omission of Owner as provided in Article
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11(c). Id. On December 3, 2014, Nova denied Bunting’s request to stay
the arbitration by letter.4 Id. Exhibit H, 12/3/14 Nova Letter.
The parties proceeded to arbitration over the non-payment of all 47
Nova invoices. Following hearings, the arbitrator issued a decision on
September 22, 2015, which awarded Nova payment for 35 of the 47
disputed invoices in the amount of $187,421.99. The arbitrator did not issue
a decision on 12 of the invoices because he determined that they involved
the Owner, fell within Article 11(b) of the sub-subcontract and, “as such,
those claims are not arbitrable.” Id. Exhibit F, 9/22/15 Arbitration Award.
The arbitrator further stated that, “[p]er agreement of the parties [Nova]
has reserved its rights to present those non-arbitrable claims in a different
forum.” Id.
On October 20, 2015, Nova filed a Complaint against Bunting raising
claims of Breach of Contract and Unjust Enrichment arising from Bunting’s
refusal to pay the 12 outstanding Nova invoices. On March 3, 2016, Bunting
filed an Answer with New Matter. Nova filed a Reply to Bunting’s New Matter
on March 15, 2016.
On November 22, 2016, Bunting filed a Joinder Complaint against
Turner asserting claims for Contribution/Indemnification, Breach of Contract,
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4 In particular, Nova stated that it “respectfully denies your request and
intends to proceed with administration of its Demand for Arbitration in
accordance with the applicable rules of the AAA.” 12/3/14 Nova Letter.
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and Quantum Meruit. Turner filed Preliminary Objections to the Joinder
Complaint on December 22, 2016, to which Bunting filed an Answer on
January 11, 2017. On January 24, 2017, the court sustained Turner’s
Preliminary Objections in part, and dismissed Bunting’s Breach of Contract
and Quantum Meruit claims. The court overruled Turner’s Preliminary
Objection to the Contribution/Indemnification claim. On February 13, 2017,
Turner filed an Answer with New Matter to the remaining claim, and Bunting
filed a Reply to New Matter on March 6, 2017.
On June 16, 2017 and June 19, 2017, Turner and Bunting,
respectively, filed Motions for Summary Judgment. Bunting sought dismissal
of Nova’s claims, alleging that the doctrines of res judicata and collateral
estoppel barred them, and that Nova had waived its right to assert claims
against Bunting in the Court of Common Pleas when it brought those same
claims first in a private arbitration. Turner sought dismissal of Bunting’s
claims, asserting that Bunting had failed to establish facts legally sufficient
to support a common law indemnity claim.
On August 25, 2017, the trial court granted Bunting’s and Turner’s
Motions for Summary Judgment. On September 18, 2017, Nova filed the
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appeal docketed at No. 3202 EDA 2017. On September 25, 2017, Bunting
filed the appeal docketed at No. 3287 EDA 2017.5
Nova raises the following four issues on appeal:
1. Whether the [t]rial [c]ourt erred as a matter of law and
abused its discretion by not considering the agreement between
Nova and Bunting that was entered into during the [a]rbitration
and specifically referenced in the Award of the [a]rbitrator[?]
2. Whether the [t]rial [c]ourt erred as a matter of law and
abused its discretion when it did not find that Bunting was
[j]udicially [e]stopped from claiming Nova waived its rights to
present its claims to the [t]rial [c]ourt[?]
3. Whether the [t]rial [c]ourt erred as a matter of law and
abused its discretion by finding that the doctrines of res judicata
and collateral estoppel precluded Nova from presenting its claims
against Bunting[?]
4. Whether the [t]rial [c]ourt erred as a matter of law and
abused its discretion by finding that Nova was precluded from
presenting its claims against Bunting in the Court of Common
Pleas pursuant to the Contract[?]
Nova’s Brief at 5 (reordered for ease of disposition).
Bunting raises the following two issues on appeal:
1. Whether the trial court abused its discretion and/or
committed an error of law by finding that Bunting was not
entitled to indemnification from Turner on a theory of liability
over [sic] because Bunting cannot premise liability upon the
same cause of action as alleged by Nova[?]
2. Whether the trial court abused its discretion and/or
committed an error of law by premising its dismissal of Bunting’s
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5 Bunting acknowledges that if this Court affirms the portion of the trial
court’s Order granting summary judgment in its favor, its appeal from the
portion of the Order granting summary judgment in Turner’s favor is moot.
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indemnification claim on a finding that Pennsylvania only
authorizes contribution among joint tortfeasors[?]
Bunting’s Brief at 4 (emphasis in original).
We first address the claims raised by Nova. Each of Nova’s four issues
challenge the trial court’s Order granting summary judgment in favor of
Bunting. Our Supreme Court has clarified our role as the appellate court as
follows:
On appellate review [ ] an appellate court may reverse a grant of
summary judgment if there has been an error of law or an abuse
of discretion. But the issue as to whether there are no genuine
issues as to any material fact presents a question of law, and
therefore, on that question our standard of review is de novo.
This means we need not defer to the determinations made by
the lower tribunals. To the extent that this Court must resolve a
question of law, we shall review the grant of summary judgment
in the context of the entire record.
Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010)
(citations and quotation marks omitted).
A trial court may grant summary judgment “only in those cases where
the record clearly demonstrates that there is no genuine issue of material
fact and that the moving party is entitled to judgment as a matter of law.”
Id. (citation and quotation marks omitted); see also Pa.R.C.P. No.
1035.2(1). “When considering a motion for summary judgment, the trial
court must take all facts of record and reasonable inferences therefrom in a
light most favorable to the non-moving party.” Summers, supra at 1159
(citation omitted). “In so doing, the trial court must resolve all doubts as to
the existence of a genuine issue of material fact against the moving party,
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and, thus, may only grant summary judgment where the right to such
judgment is clear and free from all doubt.” Id. (citation and internal
quotation marks omitted).
To the extent that Nova’s issues on appeal require us to interpret the
sub-subcontract between Nova and Bunting, we note that our standard of
review regarding contract interpretation is well-settled. “Because contract
interpretation is a question of law, this Court is not bound by the trial court’s
interpretation.” Ragnar Benson, Inc. v. Hempfield Twp. Mun. Auth.,
916 A.2d 1183, 1188 (Pa. Super. 2007) (citation omitted). “Our standard of
review over questions of law is de novo and to the extent necessary, the
scope of our review is plenary as [the appellate] court may review the entire
record in making its decision.” Id.
Nova’s First and Second Issues: Alleged Reservation of Rights
In its first and second issues, Nova claims that the court erred in not
considering the “agreement” between Nova and Bunting that occurred during
the Arbitration, and in not finding Bunting judicially estopped from arguing
that Nova waived its rights to present its claims in the Court of Common
Pleas. Nova’s Brief at 15-17.
As a prefatory matter, we note that the “agreement” between Nova
and Bunting in which Nova purports that the parties agreed that Nova
preserved its rights to present its outstanding claims against Bunting in a
different forum is not in the Certified Record. In addition, the trial court
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noted in its August 25, 2017 Opinion that “because the parties have not
provided this court with any further agreement,” it presumed that the
agreement to which the arbitrator was referring in his Order was the parties’
sub-subcontract. Trial Ct. Op., 8/25/17, at 4 n.3.
It is an appellant’s responsibility to provide the appellate court with a
complete certified record.
[A]n appellate court cannot consider anything which is not part
of the record in this case. Any document which is not part of the
official certified record is considered to be nonexistent, which
deficiency may not be remedied by inclusion in the reproduced
record. It is the responsibility of the appellant to provide a
complete record to the appellate court on appeal…. Where a
review of an appellant’s claim may not be made because of such
a defect in the record, we may [deem] the issue waived.
Eichman v. McKeon, 824 A.2d 305, 316 (Pa.Super. 2003) (internal
citations and quotation marks omitted). See also Pa.R.A.P. 1921, Note
(stating: “An appellate court may consider only the facts which have been
duly certified in the record on appeal”). Because Nova did not provide either
the trial court or this Court with a copy of the alleged agreement, Nova has
waived these issues.6
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6 To the extent that the agreement to which Nova refers in this issue is the
sub-subcontract between it and Bunting, our review of the sub-subcontract
belies Nova’s claim that Nova reserved its right to present non-arbitrable
claims in a different forum. Rather, the sub-subcontract clearly provides
that Nova is to stay arbitration until further determination of the nature of
the claims can be made pursuant to Article 11(b). Nova declined to stay the
arbitration and, thus, chose to submit all 47 claims to arbitration.
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Nova’s Third Issue: Res Judicata and Collateral Estoppel
Because the trial court applied the doctrines of collateral estoppel and
res judicata in granting Bunting’s Motion for Summary Judgment, we also
observe that, “[c]ollateral estoppel, or issue preclusion, is a doctrine which
prevents re-litigation of an issue in a later action, despite the fact that it is
based on a cause of action different from the one previously litigated.”
Weissberger v. Myers, 90 A.3d 730, 733 (Pa.Super. 2014) (citation
omitted). Collateral estoppel applies when, inter alia, “a defendant seeks to
prevent a plaintiff from asserting a claim the plaintiff has previously litigated
and lost against another defendant.” Office of Disciplinary Counsel v.
Kiesewetter, 889 A.2d 47, 51 (Pa. 2005) (citation omitted). Collateral
estoppel applies to bar re-litigation of an issue where
(1) the issue decided in the prior case is identical to one
presented in the later case; (2) there was a final judgment on
the merits; (3) the party against whom the plea is asserted was
a party or in privity with a party in the prior case; (4) the party
or person privy to the party against whom the doctrine is
asserted had a full and fair opportunity to litigate the issue in the
prior proceeding and (5) the determination in the prior
proceeding was essential to the judgment.
Century Indemnity Co. v. OneBeacon Ins. Co., 173 A.3d 784, 805 (Pa.
Super. 2017) (citation omitted).
"Under the doctrine of res judicata, or claim preclusion, a final
judgment on the merits by a court of competent jurisdiction will bar any
future action on the same cause of action between the parties and their
privies." Mariner Chestnut Partners, L.P. v. Lenfest, 152 A.3d 265, 286
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(Pa. Super. 2016) (citations and quotation marks omitted). The "doctrine
therefore forbids further litigation on all matters which might have been
raised and decided in the former suit, as well as those which were actually
raised therein." Id.
In support of its claim that the trial court erred when it applied the
doctrines of res judicata and collateral estoppel to support its grant of
Bunting’s Motion for Summary Judgment, Nova first argues that its claims
against Bunting were not barred because the arbitrator did not make a final
determination of the merits of Buntings’ potential liability for payment of the
12 outstanding invoices. Nova’s Brief at 13. Nova specifically cites the trial
court’s failure to “address or contemplate the agreement between the
parties which was memorialized in the Arbitration Award[,]” and argues that
the court erred in precluding it from bringing its claims because “per the
agreement of the parties, the Arbitration agreement expressly allowed Nova
to present those claims in a different forum.” Id.
With respect to Nova’s averment that the trial court erred in finding
that its claims against Bunting were barred because the Arbitrator did not
decide the merits of Bunting’s liability for the outstanding 12 invoices, the
trial court found that the Arbitrator specifically concluded that those 12
claims arose due to an act or omission of the Owner, not Bunting, and, thus,
fell within Article 11(b). Trial Ct. Op. at 6. The 12 claims the Arbitrator
concluded arose from the Owner’s conduct—and were, thus, not Bunting’s
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responsibility—are the same 12 claims that are the subject of the instant
litigation. The sub-subcontract specifically provided that “[t]he award
rendered by the arbitrators shall be final[.]” 7 Article 11(c). The court,
therefore, concluded that the doctrines of res judicata and collateral estoppel
prohibit Nova from forcing Bunting to re-litigate the issue of liability for
payment of the 12 invoices. Id. at 7.
We discern no error. The trial court properly concluded that the
decision of the arbitrator that the Owner, and not Bunting, was the cause of
the 12 outstanding claims, entitled Bunting to judgment as a matter of law.
The trial court aptly found that because Nova had already brought all of its
claims against Bunting to arbitration—rather than stay the arbitration as
required under Article 11(c) while the parties determined the arbitrability of
the disputed claims—and the Arbitrator had made a final decision as to all of
Nova’s claims, the doctrines of res judicata and collateral estoppel barred
Nova from suing Bunting in the Court of Common Pleas for a second time on
the same claims. Accordingly, Nova’s third issue fails to warrant relief.
Nova’s Fourth Issue: Nova’s Refusal to Stay Arbitration
In its last issue, Nova claims that the trial court erred in concluding
that Nova failed to follow the procedures for resolving disputes between the
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7See also Stack v. Karavan Trailers, Inc., 864 A.2d 551, 556 (Pa. Super.
2004) (citation omitted) (reiterating the general principle that “arbitrators
are the final judges of both the facts and the law”).
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parties set forth in the sub-subcontract. Nova’s Brief at 14. Nova also
claims that Bunting waived its right to raise the issue of Nova’s waiver
because Bunting did not file a Motion to Stay Arbitration when Nova refused
to pursue the claims Bunting alleged arose from Owner’s acts or omissions.
The trial court explained that Article 11(c) of the parties’ sub-
subcontract required Nova to stay the arbitration upon receipt of notice from
Bunting that Bunting believed some of the claims for which Nova sought
payment originated from an act or omission of the Owner. Specifically, the
court explained that
Nova was provided with a clear procedure by which to settle its
disputes with Bunting, but Nova failed to follow that procedure.
Under the terms of the parties’ contract, Nova should have
stayed its arbitration upon receipt of Bunting’s letter
requesting they do so in November 2014. At that point,
Bunting would have had to either: (1) present Nova’s claims to
the Owner in Bunting’s name or (2) allow Nova to present its
claims in Bunting’s name. Then, at the conclusion of that
proceeding, Nova would have been permitted to present its
remaining claims against Bunting in arbitration.
Trial Ct. Op. at 7. The court, thus, concluded that “Nova had an opportunity
to stay its arbitration and seek the jurisdiction of this court properly, but it
waived that opportunity.” Id.
We agree with the trial court. When Bunting notified Nova by letter
dated November 28, 2014, that it believed that “[t]he invoices are for
alleged acts that have arisen as a result of the [O]wner and the contract
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documents[,]”8 Article 11(c) of the sub-subcontract required Nova to stay
the arbitration “until the procedures under Article 11.b. are completed and it
is determined thereunder that the controversy does not fall within Article
11.b.”9 Nova failed—in fact, refused—to follow this directive and, instead,
proceeded to arbitration on all claims, where the arbitrator determined that
Bunting was not liable for 12 of the claims.
With respect to Nova’s claim that because Bunting did not file a Motion
to Stay Arbitration, Bunting has waived its right to assert that Nova waived
its right to re-assert these claims, we conclude that the parties’ sub-
subcontract imposed no such obligation on Bunting. Rather, as discussed
supra, Article 11(c) required Bunting to notify Nova if Bunting believed that
it was not liable for the claims pursued by Nova. Bunting fulfilled its
obligation under the sub-subcontract, but Nova refused to stay the
arbitration as required by Article 11(c). Nova is, therefore, not entitled to
relief on this claim. Accordingly, we affirm the Order granting summary
judgment to Bunting.
Having resolved Nova’s claims in Bunting’s favor, we need not address
the merits of the claims Bunting raised in its protective appeal filed at No.
3287 EDA 2017. We, thus, dismiss Bunting’s appeal as moot.
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8 See Bunting’s 11/28/14 Letter.
9 See Sub-subcontract, 5/20/14, at Article 11(c).
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Order affirmed at No. 3202 EDA 2017. Appeal dismissed at No. 3287
EDA 2017.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/25/18
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