Loading...
HomeMy WebLinkAbout2015-4421 M2J2S, LLC d/b/a SERVICEMASTER RESTORATION SERVICES, MICKEY RAPP AND JESSIE BOCK, Plaintiffs v. UNITED TELEPHONE COMPANY OF IN THE COURT OF COMMON PLEAS PENNSYLVANIA, LLC d/b/a OF THE NINTH JUDICIAL DISTRICT CENTURYLINK, Defendant 2015-04421 CIVIL ACTION IN RE: OPINION PURSUANT TO Pa.R.A.P. 1925(a) PLACEY, C.P.J., 18 SEPTEMBER 2018 PROCEDURAL HISTORY Plaintiffs commenced this action on August 11, 2015, by filing a Writ of Summons. On September 28, 2015, Plaintiffs filed a Complaint alleging (1) breach of contract, (2) violation of the Contractor and Subcontractor Payment Act, and (3) commercial disparagement. Defendant filed Preliminary Objections on October 19, 2015. Following argument, on August 15, 2016, Defendant’s Preliminary Objections were overruled, except for Count 3 that was sustained and dismissed. Defendant was directed to respond to the remainder of the Complaint, which Defendant did on September 9, 2016. On September 15, 2016, Defendant filed a motion to certify the August 15, 2016 Order for interlocutory appeal, and an Order directing Plaintiffs to show cause why the requested relief should not be granted was issued on September 26, 2016. Defendant filed its Notice of Appeal on September 19, 2016, and the next day Defendant was ordered to file its Concise Statement of Errors Complained of on Appeal, 2015-04421 CIVIL ACTION which Defendant filed on September 23, 2016. Although the August 15, 2016 Order was not certified for interlocutory appeal, still, Defendant did file a Notice of Appeal complaining that this court erred by failing to sustain Defendant’s preliminary objection that the arbitration clause of the Contract mandated that the parties submit their dispute to binding arbitration, thereby depriving the court of subject matter jurisdiction. On September 5, 2017, the Appellate Court ordered this court to determine, as a matter of fact, the meaning of the except clause and remanded the case back for further proceedings. On January 9, 2018, Plaintiffs’ Motion for Status Conference, Evidentiary Hearing and/or Argument was granted. Defendant filed a Motion for Continuance on April 16, 2018; a rule to show cause was issued upon Plaintiffs; and the Motion was subsequently denied on May 9, 2018. An Evidentiary Hearing was held on May 17, 2018, where the parties were allowed to present argument, witnesses, and parol evidence concerning the meaning of the except clause. On June 20, 2018, Defendants remaining Preliminary Objections were again overruled by this court. On July 16, 2018, Defendant Filed Notice of Appeal and was subsequently instructed to file a Concise Statement of Errors Complained of on Appeal, which was filed on July 26, 2018. Defendant complains: 1. The Court erred by failing to sustain CenturyLink’s preliminary objection that the arbitration clause of the Contract mandated that the parties submit their dispute to binding arbitration, thereby depriving the Court of subject matter jurisdiction. 2. The Court did not comply with the Superior Court's September 5, 2017 Order because the Court did not "determine, as a matter of fact, the meaning of the \[except\] clause." 3. The Court's \[sic\] erred by finding “that at this point in the proceedings the claim, as distilled from the Complaint, is for payment on a contract that is specifically excluded from the contractual binding arbitration as pled.” 2 2015-04421 CIVIL ACTION Statement of Errors Complained of on Appeal, filed July 16, 2018. DISCUSSION Statement of Law: In reviewing preliminary objections, it must be accepted as true all well-pled allegations, and material facts averred in the Complaint, as well as all reasonable inferences that can be drawn from those facts. Bower v. Bower, 611 A.2d 181, 182 (Pa. 1992). Preliminary objections will be sustained when, “based on the facts pleaded, it is clear and free from doubt that the complainant will be unable to prove facts legally sufficient to establish a right to relief.” Mazur v. Trinity Area School Dist., 961 A.2d 96, 101 (Pa. 2008). Any doubt should be resolved against the objecting party. Koken v. Steinberg, 825 A.2d 723, 726 (Pa.Cmwlth. 2003). An agreement for alternative dispute resolution may be asserted by preliminary objection. Pa.R.C.P. 1028(a)(6). Furthermore, “appellate courts cannot assume the content of evidence not in the record based solely on what that court would anticipate the evidence to be.” Trizechahn Gateway LLC v. Titus, 976 A.2d 474, 483 (Pa. 2009). It is recognized that “the settlement of disputes by arbitration is favored by the public policy of this Commonwealth and is, therefore, encouraged by our courts and by statute.” Fastuca v. L.W. Molnar & Assoc., 10 A.3d 1230, 1241 (Pa. 2011) (citations omitted). “When one party to an agreement to arbitrate seeks to enjoin the other from proceeding to arbitration, judicial inquiry is limited to the questions of whether an agreement to arbitrate was entered into and whether the dispute involved falls within the scope of the arbitration provision.” Flightways Corp. v. Keystone Helicopter Corp., 331 A.2d 184, 185 (Pa. 1975). When determining whether the parties entered into an agreement to settle disputes by alternative dispute resolution, “courts should apply the 3 2015-04421 CIVIL ACTION rules of contractual construction, adopting an interpretation that gives paramount importance to the intent of the parties and ascribes the most reasonable, probable, and natural conduct to the parties.” Midomo Co. v. Presbyterian Housing Development Co., 738 A.2d 180, 190-91 (Pa. Super. 1999) (citations omitted). Application of Law to Facts: The central inquiry on remand remains as to whether the contract’s arbitration clause requires this disagreement to be submitted to binding arbitration. The arbitration clause provides that “\[a\]ny dispute between \[Defendant\] and ServiceMaster (including the interpretation of this Agreement), except for non-payment of invoices for ServiceMaster’s work, shall be submitted to binding arbitration.” Joint Exhibit 3, Statement of Authorization for Mold, ¶ 7(emphasis added). The Evidentiary Hearing yielded little substantive material fact for consideration. Although Defendant was granted the opportunity to present witnesses and parol evidence to establish the meaning of the except clause, Defendant did not provide documentation or other evidence that described quality of work issues that would fall within the scope of the binding arbitration paragraph. The Complaint, as crafted, is essentially a contract dispute for work that was performed but not paid. The binding arbitration paragraph expressly limits arbitration to disputes relating to quality of contracted services and excludes contract balance claims. As the record currently stands, only the well-pled allegations of the Complaint, Defendant’s Preliminary Objection, and evidence adduced by the parties at the Evidentiary Hearing were considered, specifically no anticipated evidence was considered, and it was determined that the claims for nonpayment for services rendered are outside the arbitration clause. Accordingly, Defendant’s Preliminary Objection that 4 2015-04421 CIVIL ACTION the arbitration clause mandated the parties submit their dispute to binding arbitration was again overruled. CONCLUSION In consideration of the above analysis, it is respectfully requested that the reviewing court uphold this court’s ruling regarding Defendant’s Preliminary Objection. By the Court, ________________________ Thomas A. Placey C.P.J. Distribution: Andrew W. Barbin, Esq. Gregory M. Stokes, Esq. 5