Hazleton Area School Dist. v. Bosak
| Decision Date | 06 February 1996 |
| Citation | 671 A.2d 277 |
| Court | Pennsylvania Commonwealth Court |
| Parties | 106 Ed. Law Rep. 1244 HAZLETON AREA SCHOOL DISTRICT v. Robert A. BOSAK, Individually; William D. Bast and Associates, P.C.; William D. Bast, Individually; Lambert and Intreri, Inc.; United States Fidelity and Guaranty Company; and State Public School Building Authority, Robert A. Bosak, Appellant. ROBERT A. BOSAK & ASSOCIATES, Appellant, v. HAZLETON AREA SCHOOL DISTRICT. |
Mark F. Brancato, for Appellant.
Conrad A. Falvello, for Appellee.
Before PELLEGRINI and KELLEY, JJ., and RODGERS, Senior Judge.
In these consolidated appeals, 1 Robert A. Bosak appeals from the January 27, 1995 order of the Court of Common Pleas of Luzerne County (trial court) which denied and dismissed his preliminary objections to a complaint filed by the Hazleton Area School District (School District). Robert A. Bosak & Associates (RBA) appeals from the same order of the trial court which denied its petition to compel arbitration. We affirm with respect to both appeals.
In September 1988, a written agreement was entered into between the School District and RBA 2 (1988 agreement) for the design, engineering and construction of a new high school in Hazleton, Pennsylvania. The 1988 agreement included the following arbitration provision:
Claims, disputes or other matters in question between the parties to this Agreement arising out of or relating to this Agreement or breach thereof shall be subject to and decided by arbitration ... unless the parties mutually agree otherwise.... Demand for arbitration shall be filed in writing with the other party to this Agreement and with the American Arbitration Association.... No arbitration arising out of or relating to this Agreement shall include, by consolidation, joinder or in any other manner, an additional person or entity not a party to this Agreement, except by written consent containing a specific reference to this Agreement signed by the Owner, Architect, and any other person or entity sought to be joined.
Reproduced Record (R.) at 83a-84a.
Subsequent to the execution of the 1988 agreement, the School District obtained funding from the State Public School Building Authority (SPSBA) for the construction of the new high school. The SPSBA required that another agreement be signed by the SPSBA, the School District and RBA. This second agreement was executed in November 1989 (1989 agreement) and covered, inter alia, the same services which RBA was required to provide pursuant to the 1988 agreement. The 1989 agreement included the following arbitration provision:
Should any dispute concerning the subject matter of this AGREEMENT arise between the parties hereto, such dispute shall be referred to the American Arbitration Association and shall be settled in accordance with the American Arbitration Association's Rules and Regulations.
The School District began occupying the completed high school in September 1993. On January 18, 1994, the roof of the new high school collapsed under the weight of snow.
On July 15, 1994, the School District filed a complaint with the trial court seeking damages for the collapse of the roof. The School District alleged the existence of defects in the design and/or construction of the high school. The defendants named in the complaint were: (1) Robert A. Bosak, individually, as architect and engineer; (2) William D. Bast, individually, as engineer; (3) William D. Bast and Associates, P.C., as consulting engineers; (4) Lambert and Intreri, Inc., as general contractor; (5) United States Fidelity and Guaranty Company, as construction bonding insurance company acting as surety for services performed by the general contractor; and (6) the SPSBA (collectively, Defendants).
On August 16, 1994, Bosak, in his individual capacity, filed with the trial court preliminary objections to the School District's complaint. In his objections, Bosak stated that he never undertook to perform architectural and engineering services for the new high school in his individual capacity. Rather, work on the new high school was performed by RBA pursuant to the 1988 and 1989 agreements. As such, Bosak stated in his preliminary objections that this dispute should be governed by the arbitration provisions of those agreements. 3
Subsequently, on August 30, 1994, RBA filed with the trial court a petition to compel arbitration pursuant to section 501(a) of the Uniform Arbitration Act (Act), 42 Pa.C.S. § 7304. 4 RBA sought an order compelling the School District to proceed with arbitration of its claims against RBA in accordance with the arbitration provisions of the 1988 and 1989 agreements. 5
On October 6, 1994, a hearing was held before the trial court on Bosak's preliminary objections to the School District's complaint and on RBA's petition to compel arbitration. The trial court made the following relevant findings of fact.
The School District's complaint set forth causes of action in negligence against Bosak, individually, and others who were not parties to the 1988 or 1989 agreements. The School District has not alleged that it entered into an agreement with Bosak, individually. 6 In its complaint, the School District sought non-contract damages from the defendants. The recovery of such damages was not included in the terms of the 1988 or 1989 agreements and did not constitute the basis of consideration for either agreement. The School District did not draft the 1988 agreement or the 1989 agreement. In its complaint, the School District further alleged that its causes of action did not accrue until after it had begun to occupy the high school in September 1993.
Neither the 1988 agreement nor the 1989 agreement states that a claim for negligence or tort liability is cognizable under its arbitration provision. The 1988 agreement provides for the arbitration of claims among non-agreement parties only if all parties, including the School District and the non-agreement parties, consent. The School District's filing of its complaint was a de facto denial of permission to arbitrate this multi-party claim. The 1988 agreement does not address the resolution of multi-party claims when all parties, including those who are not parties to the agreement, do not consent to arbitration. In this case, neither the School District nor parties outside of the 1988 agreement have consented to arbitration of this dispute.
In its petition to compel arbitration, RBA did not assert any claim, contract or otherwise, against the School District. RBA has also not filed any request for arbitration with the American Arbitration Association. Moreover, RBA has not stated whether the arbitration provision in the 1988 agreement or the arbitration provision in the 1989 agreement is applicable to the present case. The arbitration provisions in the 1988 and 1989 agreements are different in their terms and parties. There are no oral or written addenda to either agreement.
Based upon witness testimony, as well as the 1988 and 1989 agreements, the trial court found that the evidence indicated at least a prima facie case of professional negligence by Bosak, not contemplated by the 1988 and 1989 agreements. By revised order dated January 27, 1995, 7 the trial court: (1) denied and dismissed Bosak's preliminary objections to the School District's complaint because the claims set forth in the complaint were outside of the scope of the arbitration provisions; and (2) denied RBA's petition to compel arbitration because it failed to set forth a claim or cause of action that fell within the scope of the arbitration provisions. Bosak now appeals the trial court's denial of his preliminary objections to the School District's complaint 8 and RBA appeals the trial court's denial of its petition to compel arbitration.
In these consolidated appeals, the following issues have been presented for our review: (1) whether the trial court erred by failing to enforce the arbitration provisions of the 1988 and 1989 agreements and by failing to compel arbitration of the School District's tort claims which arose from, related to and otherwise concerned the subject matter of the 1988 and 1989 agreements; (2) whether the Act requires claims against an agent to be submitted to arbitration against a principal where the claims against the agent arise solely from work he performed on behalf of the principal under the 1988 and 1989 agreements, and the claims otherwise are arbitrable against the principal; and (3) whether the trial court erred by denying RBA's petition to compel arbitration on grounds that are not mandated by the Act where RBA made the requisite showings under section 7304(a) of the Act.
Initially, we note that our scope of review of a decision by a trial court is limited to a determination of whether the trial court violated constitutional rights, abused its discretion or committed an error of law. Long v. Thomas, 152 Pa.Cmwlth. 416, 619 A.2d 394 (1992), petition for allowance of appeal denied, 535 Pa. 641, 631 A.2d 1012 (1993). Preliminary objections, the end result of which would be dismissal of a cause of action, should be sustained only in cases that are clear and free from doubt. Bower v. Bower, 531 Pa. 54, 611 A.2d 181 (1992). The test is whether it is clear from all of the facts pleaded that the pleader will be unable to prove facts legally sufficient to establish his or her right to relief. Firing v. Kephart, 466 Pa. 560, 563, 353 A.2d 833, 835 (1976).
Bosak and RBA argue that the parties to the 1988 and 1989 agreements did not confine the scope of the arbitration provisions in those agreements to claims sounding in contract. Rather, the parties broadly agreed to arbitrate any dispute or claim arising from, relating to or otherwise concerning the subject matter of the agreements. Since the School District's tort claims against Bosak dealt with services which were provided pursuant to the 19...
To continue reading
Request your trial
-
Werner v. Plater-Zyberk
...an individual, at the expense of the wrongdoer, for the damage incurred. Prosser and Keeton at 7. Compare Hazleton Area School District v. Bosak, 671 A.2d 277, 283 (Pa. Cmwlth.1996) (citing Restatement (Second) of Torts § 901 (1977)) (the policy consideration underlying tort law is the prot......
-
McDermott v. Party City Corp.
...is to be determined from the point in time when the contract was formed. Tannen, 901 F.Supp. at 943; Hazleton Area School District v. Bosak, 671 A.2d 277, 282 (1996). In this case, the Shareholder Agreement unambiguously Nasuti further agrees to indemnify, defend and hold [the McDermotts] h......
-
McDermott v. Party City Corp., CIVIL ACTION NO. 95-3683 (E.D. Pa. 8/1/2003)
...is to be determined from the point in time when the contract was formed. Tannen, 901 F. Supp. at 943; Hazleton Area School District v. Bosak, 671 A.2d 277, 282 (1996). In this case, the Shareholder Agreement unambiguously Nasuti further agrees to indemnify, defend and hold [the McDermotts] ......
-
Woods at Wayne Homeowners Ass'n v. Gambone Bros. Dev. Co.
...(Pa. Super. Ct. 2002); Midomo Co. v. Presbyterian Hous. Dev. Co., 739 A.2d 180 (Pa. Super. Ct. 1999); Hazleton Area Sch. Dist. v. Bosak, 671 A.2d 277, 281 n.8 (Pa. Commw. Ct. 1996); cf. Pa.R.C.P. 1028(a)(6) note ("An agreement to arbitrate may be asserted by preliminary objection or by peti......