Loading...
HomeMy WebLinkAbout2004-6039 Civil HITESH SUR!, RAMA SUR! and SATISH SUR!, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW vs. NO. 04-6039 CIVIL UMAKANT DASH, KAL Y ANE DASH, C.M. DETWEILER, INC., Individually and trading as HOWARD HANNA DETWEILER REALTY, HILLARY BITTING, JACK GAUGHEN, INC. trading And doing business as JACK GAUGHEN REAL TOR ERA and KEITH SEALOVER, Defendants IN RE: MEMORANDUM AND ORDER Despite the fact that a complaint has not yet been filed in this case, there is already a substantial procedural history. On December 2, 2004, the plaintiffs filed a praecipe for a writ of summons against the captioned defendants. On December 30, 2004, counsel for the plaintiffs noticed the depositions of the two real estate licensee defendants, Hillary Bitting and Keith Sealover. On March 2, 2005, defendant Bitting filed a praecipe requesting that a Rule to File Complaint be issued against plaintiffs. On March 4, 2005, defendant Sealover filed a Motion for Protective Order seeking to bar the aforementioned deposition. A rule to show cause was issued against the plaintiffs who, subsequently, filed a motion to stay proceedings pending disposition of the motion for protective order. Defendant Bitting thereafter filed a motion to compel mediation which was joined in by defendant Sealover. It is the motion to compel mediation which is now before the court. The motion for mediation seeks participation by all parties to this action even though they were not parties to the original real estate purchase agreement which appears to be the subj ect of this law suit. NO. 04-6039 CIVIL There is a dearth of appellate case law with respect to mediation clauses although there are numerous cases interpreting arbitration clauses. In two recent cases from the Court of Common Pleas of Adams County, Bell v. Land Games, No. 04-S-898 (C.P. Adams, February 11, 2005), and Molloy v. Martin, No. 04-S-346 (C.P. Adams, February 23,2005), that court, in granting the defendants' motions to compel mediation, relied upon appellate court decisions that interpreted arbitration clauses, noting the substantial similarities between arbitration and mediation. The court reasoned that the court's role of interpreting the parties' contractual relationships is consistent regardless of the nature of the alternative dispute resolution at issue. Under Pennsylvania law, a party cannot compel arbitration of a disagreement between parties who have not contracted to arbitrate that disagreement. See Cumberland-Perry Area Vocational Technical School Auth. v. Bogar & Bink, 396 A.2d 433 (Pa.Super. 1978). Notwithstanding, a nonparty may fall within the scope of an arbitration clause if that was the intent of the parties. See Smay v. E.R. Stuedner, Inc., 864 A.2d 1266 (Pa.Super. 2004). In the matter sub judice, a complaint has not yet been filed. The court, therefore, has no understanding whatsoever of the alleged relationship between the parties to this litigation. Moreover, the existence of an agreement for alternative dispute resolution is more properly raised by preliminary objection to the complaint. Pa.R.C.P. 1028(6). In summary, we are satisfied that the pending motion to compel mediation is premature. AND NOW, this ORDER day of July, 2005, the motion of the defendants to compel mediation is DENIED. Argument on the Gaughen defendants' motion for protective order is 2 NO. 04-6039 CIVIL herewith set for Thursday, September 8,2005, at 2:15 p.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, P A. BY THE COURT, Kevin A. Hess, 1. Albert 1. Hajjar, Esquire F or the Plaintiffs Douglas Marsico, Esquire For Defendants C.M. Detweiler Inc., Howard Hanna Detweiler Realty and Hillary Bitting Paige MacDonald-Matthes, Esquire For Defendants Jack Gaughen, Inc. and Keith Sealover Umakant and Kalyane Dash 310 Connor Circle Sacramento, CA 95835 :rlm 3 HITESH SUR!, RAMA SUR! and SATISH SUR!, Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW vs. NO. 04-6039 CIVIL UMAKANT DASH, KAL Y ANE DASH, C.M. DETWEILER, INC., Individually and trading as HOWARD HANNA DETWEILER REALTY, HILLARY BITTING, JACK GAUGHEN, INC. trading And doing business as JACK GAUGHEN REAL TOR ERA and KEITH SEALOVER, Defendants ORDER AND NOW, this day of July, 2005, the motion of the defendants to compel mediation is DENIED. Argument on the Gaughen defendants' motion for protective order is herewith set for Thursday, September 8,2005, at 2:15 p.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, P A. BY THE COURT, Kevin A. Hess, 1. Albert 1. Hajjar, Esquire F or the Plaintiffs Douglas Marsico, Esquire For Defendants C.M. Detweiler Inc., Howard Hanna Detweiler Realty and Hillary Bitting Paige MacDonald-Matthes, Esquire For Defendants Jack Gaughen, Inc. and Keith Sealover Umakant and Kalyane Dash 310 Connor Circle Sacramento, CA 95835 :rlm