Woods at Wayne Homeowners Ass'n v. Gambone Bros. Dev. Co.
| Decision Date | 06 September 2013 |
| Docket Number | No. 1439 EDA 2012,J-A08037-13,1439 EDA 2012 |
| Parties | THE WOODS AT WAYNE HOMEOWNERS ASSOCIATION v. GAMBONE BROS. DEVELOPMENT CO., GAMBONE BROS. CONSTRUCTION CO., INC., CONTINENTAL REALTY CO., INC., CELOTEX CORPORATION, MI WINDOWS AND DOORS, INC. AND RMS MANAGEMENT CO., INC. APPEAL OF: GAMBONE BROS. DEVELOPMENT CO. AND GAMBONE BROS. CONSTRUCTION CO., INC. |
| Court | Pennsylvania Superior Court |
THE WOODS AT WAYNE HOMEOWNERS ASSOCIATION
v.
GAMBONE BROS. DEVELOPMENT CO., GAMBONE BROS. CONSTRUCTION CO.,
INC., CONTINENTAL REALTY CO., INC., CELOTEX CORPORATION,
MI WINDOWS AND DOORS, INC. AND RMS MANAGEMENT CO., INC.
APPEAL OF: GAMBONE BROS. DEVELOPMENT CO.
AND GAMBONE BROS. CONSTRUCTION CO., INC.
J-A08037-13
No. 1439 EDA 2012
SUPERIOR COURT OF PENNSYLVANIA
October 24, 2012
Dated: October 31, 2012
FILED SEPTEMBER 6, 2013
BEFORE: GANTMAN, J*., ALLEN, J., and OTT, J.
MEMORANDUM BY OTT, J.:
Gambone Bros. Development Co. and Gambone Bros. Construction Co., Inc. (collectively, "the Gambones") appeal from the May 21, 2012, order of the Court of Common Pleas of Montgomery County, overruling their preliminary objections to the amended complaint filed by The Woods at
Page 2
Wayne Homeowners Association ("the Association") and directing the Gambones to file an answer. After reviewing the official record, submissions by the parties, and relevant law, we affirm on the basis of the trial court's opinion.
The court aptly summarized the facts and procedural history in its Pa.R.A.P. 1925(a) opinion, and we adopt its recitation. See Trial Court Opinion, 10/26/2012, at 1-2, 12-15. The Gambones raise the following two claims: (1) the court erred and abused its discretion in overruling the Gambones' preliminary objections in the nature of alternative dispute resolution when the documents before the court unquestionably establish agreements to arbitrate under the Pennsylvania Uniform Arbitration Act1 ("Arbitration Act"); and (2) the court erred and abused its discretion when it found that the Gambones waived their rights to arbitrate and/or that the case was too complicated for arbitration. See The Gambones' Brief at 4.
The trial court has provided a well-reasoned discussion of its disposition. See Trial Court Opinion, supra, at 2-12, 15-31 ((1) explaining that this appeal survives the general rule that an order denying preliminary objections is not a final order but interlocutory and not appealable as of right, based on Pa.R.A.P. 311(a)(8) ("an order which is made appealable by statute or general rule"), as the Arbitration Act, pursuant to 42 Pa.C.S. §
Page 3
7320, confers immediate appealability on an order declining a request for arbitration; (2) concluding there was substantial evidence to support the finding that the Gambones waived their right to proceed to arbitration by acting and proceeding in a manner inconsistent with any reasonable inference that they intended to arbitrate the dispute, or to bring it to resolution, where (a) the Gambones waited 43 months before first raising the defense of arbitration despite being on notice of the gist of the Association's claims since October 2007, (b) the Gambones exhibited no particular diligence in having the question of arbitration resolved by moving their preliminary objections to argument and decision because almost a full year of additional delay had elapsed before the preliminary objections were argued and denied and the court heard no complaint about the delay, and (c) the Gambones did not raise the defense of an arbitration agreement until its answer to the Association's second motion to compel discovery, and in response to the first motion to compel, the Gambones argued only that the motion should be dismissed because the rule returnable had been served on the wrong counsel;2 and (3) finding that compelling the Association into
Page 4
arbitration with the Gambones would threaten duplicative litigation and expense as well as inconsistent awards and judgments against the Gambones and the other defendants, who were not privy to the arbitration agreements, thereby causing prejudice to the Association and possible loss of its rights to establish the claims against all defendants). Mindful of our standard of review,3 we conclude both issues are meritless and adopt the sound reasoning of the trial court. Accordingly, we affirm.
Order affirmed.
Page 5
Judgment Entered.
_____________
Prothonotary
Page 6
THE WOODS AT WAYNE HOMEOWNERS ASSOCIATION, Plaintiff
v.
GAMBONE BROTHERS DEVELOPMENT CO., et al., Defendants
Smyth, J.
I. Introduction
Gambone Brothers Development Company and Gambone Brothers Construction Company (collectively, Gambones) have appealed to the Superior Court of Pennsylvania from an order of this lower Court overruling their preliminary objections to the amended complaint of Woods at Wayne Homeowners Association and directing Gambones to answer. The amended complaint seeks damages for claims including breach of contract, negligence, breach of warranties, unfair trade practices, and unjust enrichment against Gambones and various other parties involved in the construction, sale, and management of a residential development due to its being plagued by water leaks and related damage to townhouses and single homes in the development as well as to common areas of the property.
Plaintiff Association represents its own interests conferred by its formative declaration, as well as the interests of individual homeowners in the
Page 7
development conferred by the agreements of sale by which they acquired the homes. The Gambone Defendants, Appellants, were the general contractors on the building project. Other Defendants named in the amended complaint include Continental Realty, the realtor on the sales; RMS Management Company, a firm the Association hired to manage the development; and Celotcx Corporation and MI Windows and Doors, manufacturers/suppliers of building components used in the development. The order on appeal, denying Gambones'preliminary objections, also denied Defendant RMS Management's motion for judgment on the pleadings.
II. Appealability of the Order
The order Gambones appeal obviously is not final, but "interlocutory," defined as "[p]rovisional; interim; temporary; not final," Black's Law Dictionary 815 (6th ed. 1990), as it leaves the entire case awaiting resolution before this lower Court. Indeed, the interlocutory nature of the order on appeal is exemplified by the fact that parties have proceeded to litigate issues concerning pretrial discovery while the appeal is pending.
The first question to be answered on appeal, therefore, is whether the order is properly appealable, in that, "It is fundamental law in this Commonwealth that an appeal will lie only from final orders, unless otherwise expressly permitted by statute." T.C.R. Realty, Inc. v. Cox, 472 Pa. 331, 337, 372 A.2d 721, 724 (1977); In re Legislative Route 1018, Section 4, 424 Pa. 477, 480, 227 A.2d 679, 681 (1967); Forrester v. Hanson, 901 A.2d 548, 554 (Pa. Super. Ct. 2006); Davis Supermarkets, Inc. v. UFCW, Local 23, 368 Pa.Super.
Page 8
290, 293, 533 A.2d 1068, 1070 (1987); see also Pa.R.A.P. 341(a) ("[A]n appeal may be taken as of right from any final order . . . ."); Pa.R.A.P. 341(b) ("A final order is any order that: (1) disposes of all claims and of all parties; or (2) is expressly defined as a final order by statute . . . ."). "The appealability of an order goes to the jurisdiction of the appellate court and may be raised sua sponte." Davis Supermarkets, 368 Pa.Super. at 293, 533 A.2d at 1070; accord Forrester, 901 A.2d at 554 ("This Court does not have jurisdiction to entertain an appeal from a non-appealable, interlocutory order.").
An order overruling preliminary objections is ordinarily interlocutory and unappealable, as it leaves the matter pending below and hence does the opposite of finally disposing of all claims and parties. An order overruling, dismissing, or denying a party's preliminary objections is and always has been defined as an interlocutory order from which no statute provides an appeal, Legislative Route 1018, 424 Pa. at 480, 227 A.2d at 681; F.D.P. v. Ferrara, 804 A.2d 1221, 1226 (Pa. Super. Ct. 2002), and Pennsylvania cases quashing appeals from such orders for lack of appellate jurisdiction are legion. E.g., Tewold v. Keystone Tankship Corp., 418 Pa. 299, 210 A.2d 268 (1965) (per curiam); B. & W. Coast Serv. Corp. v. Papahagis, 340 Pa. 575, 17 A.2d 873 (1941) (per curiam) (dismissing appeal); Mass. Bonding 6s Ins. Co. v. Johnston & Harder, Inc., 330 Pa. 336, 199 A. 216 (1938); F.D.P., 804 A.2d at 1221-27, 1234 (quashing appeal from an order dismissing preliminary objections the trial court had improperly certified as final pursuant to Pa.R.A.P. 341(c)(1)); Chase Manhattan Mortgage Corp. v. Hodes, 784 A. 2d 144, 145 (Pa. Super. Ct.
Page 9
2001) (per curiam) ("[A]n order overruling preliminary objections and directing the filing of an answer is interlocutory and unappealable."); Grimme Combustion, Inc. v. Mergentime Corp., 385 Pa.Super. 260, 560 A.2d 793 (1989); Davis Supermarkets, 368 Pa.Super. at 294, 533 A.2d at 1070; Deanovich v. Mendlowitz, 233 Pa. Super. 794, 341 A.2d 203 (1975) (per curiam).
By the same token, the courts have long held an order denying judgment on the pleadings is not appealable as a final order and is not otherwise made appealable by law, and cases quashing appeals from such orders are equally plentiful. E.g., Bellotti v. Spaeder, 433 Pa. 219, 249 A.2d 343 (1969) (quashing as interlocutory appeal from an order denying judgment on the pleadings as such an order is not final and is not made appealable by statute); Larson Constr. Co. v. Donaldson's Crossroads, Inc., 418 Pa. 300, 211 A.2d 462 (1965) (per curiam); Vendetti v. Schuster, 418 Pa. 68, 208 A.2d 864 (1965); Weste v. Grayson-Robinson Stores, Inc., 417 Pa. 6, 207 A.2d 851 (1965); Branna Constr. Co. v. W. Allegheny Joint Sch. Auth., 414 Pa. 251, 199 A.2d 414 (1964); Painter v. Painter, 410 Pa. 382, 190 A.2d 149 (1963) (per curiam); Nosal v. Nosal, 410 Pa. 304, 189 A.2d 262 (1963); ...
To continue reading
Request your trial