Big Daddy's Beer & Pizza, Inc. v. Delbalso Bros.

Opinion

J-A20008-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BIG DADDY'S BEER & PIZZA, INC. : IN THE SUPERIOR COURT OF D/B/A ANGELINA'S BAR & : PENNSYLVANIA RESTAURANT AND SAL SCALZO : : Appellants : : v. : : DELBALSO BROTHERS REALTY, A : PENNSYLVANIA PARTNERSHIP, AND : JOSEPH DELBALSO, SANDRA : DELBALSO, MICHAEL DELBALSO, : MARY DELBALSO AND DONNA : AMATO-DELBALSO : : Appellees : No. 1908 MDA 2016

Appeal from the Order Entered October 24, 2016 In the Court of Common Pleas of Luzerne County Civil Division at No(s): 20160016

BEFORE: GANTMAN, P.J., PANELLA, J., and FORD ELLIOTT, P.J.E.

JUDGMENT ORDER BY GANTMAN, P.J.: FILED SEPTEMBER 25, 2017

Appellants, Big Daddy’s Beer & Pizza, Inc., d/b/a Angelina’s Bar &

Restaurant, and Sal Scalzo, appeal the order sustaining Appellees’

preliminary objections to compel arbitration. Appellant entered into a five-

year lease agreement (“Lease”) with Appellee, Delbalso Brothers Realty et

al., on June 1, 2011. The Lease contained a broad arbitration clause stating

any controversy or claim relating to the contract, including the construction

or application of the contract, will be settled by binding arbitration under the

rules of the American Arbitration Association. On May 19, 2014, Appellee

filed a landlord/tenant complaint against Appellants for possession of the J-A20008-17

premises as Appellants owed substantial unpaid rent. The district court

entered judgment in favor of Appellee on June 3, 2014, and later granted

Appellee possession of the premises on July 14, 2014, because Appellants

had not satisfied the money judgment. Appellants filed a complaint against

Appellee on January 4, 2016, for replevin, conversion, trespass to chattels,

and unjust enrichment, after Appellee denied Appellants’ request to retrieve

equipment. Appellee filed preliminary objections based on the arbitration

clause in the Lease. The trial court sustained Appellees’ preliminary

objections on October 24, 2016, and ordered arbitration per the lease.

Appellants filed a notice of appeal on November 23, 2016.

Initially, we observe an appeal to this Court may be taken from: “(1) a

final order or an order certified as a final order (Pa.R.A.P. 341); (2) an

interlocutory order as of right (Pa.R.A.P. 311); (3) an interlocutory order by

permission (Pa.R.A.P. 312, 1311, 42 Pa.C.S.A. § 702(b)); or (4) a collateral

order (Pa.R.A.P. 313).” In re Estate of Cella, 12 A.3d 374, 377 (Pa.Super.

2010). Generally, an order sustaining preliminary objections compelling

arbitration is not immediately appealable. Sew Clean Drycleaners and

Launders, Inc. v. Dress for Success Cleaners, Inc., 903 A.2d 1254

(Pa.Super. 2006). See also Rosy v. National Grange Mut. Ins. Co., 771

A.2d 60 (Pa.Super. 2001) (quashing appeal from order compelling

arbitration; order directing either statutory or common law arbitration is

interlocutory and immediately unappealable). Compare 42 Pa.C.S.A. §

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7320(a) (permitting immediate appeal from order denying application to

compel arbitration).

Instantly, Appellants and Appellee entered into an enforceable lease

agreement with a broad arbitration clause. Appellants’ complaint asserted

multiple tort claims to recover property remaining in Appellee’s possession

as a result of Appellants’ breach of the lease and failure to satisfy a final

judgment for unpaid rent. The trial court sustained Appellee’s preliminary

objections to compel arbitration. Appellants now appeal that interlocutory

and unappealable order.1 See Sew Clean Drycleaners and Launders,

Inc., supra. Accordingly, we quash the appeal.

Appeal quashed.

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1 Appellants rely on United States Automobile Association v. Shears, 692 A.2d 161 (Pa.Super. 1997), for the proposition that an order compelling arbitration can be immediately appealable as a collateral order. Appellants’ wholesale reliance on Shears is insufficient, where Appellants make no argument on each prong of the collateral order doctrine. See generally AmerisourceBergen Corp. v. Does, 81 A.3d 921 (Pa.Super. 2013), appeal denied, 626 Pa. 695, 97 A.3d 742 (2014) (stating Pa.R.A.P. 313 must be interpreted narrowly and its requirements are stringent; each prong of doctrine must be met before order can be considered collateral; to qualify under Rule 313, issue “must involve rights deeply rooted in public policy going beyond the particular litigation at hand”; importance to particular party is insufficient to obtain immediate review). See also Melvin v. Doe, 575 Pa. 264, 836 A.2d 42 (2003) (stating each prong of collateral order doctrine must be met; appellant must affirmatively demonstrate collateral nature of order under review).

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/25/2017

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