Dempsey Uniform and Linen v. Fox Two

• Court: Superior Court of Pennsylvania
• Decided: September 24, 2014
• Docket: 2203 MDA 2013
• Status: Unpublished

Opinion

J-S40031-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DEMPSEY UNIFORM & LINEN SUPPLY, IN THE SUPERIOR COURT OF INC. PENNSYLVANIA

Appellee

v.

FOX TWO D/B/A CAMELOT RESTAURANT

Appellant No. 2203 MDA 2013

Appeal from the Judgment Entered November 1, 2013 In the Court of Common Pleas of Lackawanna County Civil Division at No(s): 12 CV 5629

BEFORE: BENDER, P.J.E., BOWES, J., and PANELLA, J.

MEMORANDUM BY PANELLA, J.: FILED SEPTEMBER 24, 2014

Appellant, Fox Two d/b/a Camelot Restaurant , appeals

from the judgment entered in the Court of Common Pleas of Lackawanna

County in favor of Appellee, Dempsey Uniform & Linen Supply, Inc. At issue

in this appeal is a prior order in this case that concluded that this contract

dispute was governed by a written agreement that contained a mandatory

arbitration clause. After careful review, we affirm.

On September 19, 2012, Dempsey filed a complaint alleging that

Camelot had breached a service contract with Dempsey. After Camelot filed

an answer with new matter, Dempsey filed a motion to compel arbitration.

The following factual summary is taken from testimony presented at the J-S40031-14

On May 26, 2010, Dr. Joseph Soliman, the principal owner of Camelot,

was preparing the restaurant for a grand opening. Also present was the

owner of another area restaurant, William Barrasse, who was acting as a

consultant to Dr. Soliman. Two representatives of Dempsey, Jim Rhodes

and Mark Lewis, came to Camelot to discuss whether Camelot would utilize

Barrasse utilized Demp

Barrasse testified that he did not sign the form in his own capacity, or for

the benefit of his own restaurant. He further testified that he signed the

at 54.

the type of merchandise and services listed below and added during the

term in accordance with the prices and conditions set forth in this

provided that the agreement was effective as of the date of execution and

had a term of 260 weeks from the date service began, with each party

retaining a See id., at ¶ B.

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resolve any controversy or claim arising out of this Agreement by Arbitration

either in Lackawanna County, PA or Northumberl Id., at

¶ 11.

Mark Lewis testified that in conjunction with the service agreement,

Dr. Solimon executed a credit application as president of Camelot. See N.T.,

6/5/13, at 18-19. Dr. Solimon agreed that he had executed a credit

application, but stated that he had been told that this was all necessary only

See id., at 58-60. Approximately one

Dempsey. Lewis testified that Dempsey serviced Camelot for almost two

years pursuant to the agreement, and Camelot paid Dempsey during the

same period. See id., at 21; 25. On June 6, 2012, Camelot stated that it

was no longer doing business with Dempsey, and procured the services of

another linen rental company.

After receiving this evidence, the trial court concluded that the service

agreement was a binding written agreement, and ordered that the case

proceed through arbitration. The arbitrator found in favor of Dempsey, and

judgment was entered on behalf of Dempsey. This timely appeal followed.

On appeal, Camelot raises the following issues for our review:

[1.] Whether the trial court abused its discretion when it held that a written contract existed between Fox Two d/b/a Camelot

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[2.] Whether the trial court erred and abused its discretion

refused to allow testimony as to whether or not the parties agreed to the terms set forth in a writing, which the trial court ultimately held bound the parties to arbitrate their dispute?

[3.] offer of proof or permission to elicit certain testimony constituted

and § 5105?

order compelling arbitration, and remand this case for further proceedings in

the trial court. See id

arbitration under an abuse of discretion standard. See Pisano v.

Extendicare Homes, Inc., 77 A.3d 651, 654 (Pa. Super. 2013).1 To

determine if arbitration is required, the trial court must employ a two-part

test. First, the trial court must determine if a valid agreement to arbitrate

exists between the parties. See Pittsburgh Logistics Systems, Inc. v.

Professional Transportation and Logistics, Inc., 803 A.2d 776, 779 (Pa.

Super. 2002). If so, the trial court must then determine if the dispute ____________________________________________

1 We note an apparent conflict in our case-law regarding this standard of review. Some of our precedent indicates an abuse of discretion standard, while other precedent indicates that the review is pursuant to a plenary, de novo standard. Interestingly, some precedent, such as Pisano and Keystone Technology Group, Inc. v. Kerr Group, Inc., 824 A.2d 1223 (Pa. Super. 2003), assert both standards of review within the same opinion. In the present matter, we will proceed under the abuse of discretion standard, but note that the result would be the same if we were to review the issue under a de novo, plenary standard.

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before it falls within the scope of the arbitration agreement. See id. Our

standard for determining the scope of an arbitration provision is the same

rule that governs the construction of contracts. See id. Specifically, we

must determine the scope to which the parties

arbitration is determined by the intention of the parties as ascertained in

Id. (quotation

omitted).

to form a contract that bound the parties to the terms contained in the

written agreement. As a corollary to this assertion, Camelot contends that

the trial court erred in denying it the opportunity to present parol evidence

on the issue of contract formation.

complete expression of their agreement, alleged prior or contemporaneous

oral representations or agreements concerning subjects that are specifically

covered by the written contract are merged in or superseded by that

Blumenstock v. Gibson, 811 A.2d 1029, 1035 (Pa. Super.

2002) (citation omitted). Absent fraud, accident, or mistake, a written

contract is not only the best, but the only evidence of the terms of the

See id., at 1035. Therefore, parol evidence is not

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admissible to modify the terms of the written contract in the absence of an

averment of fraud, accident or mistake. See id., at 1036.

Based upon the testimony of Barrasse that he signed the service

agreement in his capacity as a consultant for Camelot, combined with the

fact that the parties operated as if an agreement had been reached for

constituted an abuse of discretion. The written service agreement

constitutes the best evidence of the agreement that the parties operated

under for nearly two years. While Camelot pled that Barrasse had been

fraudulently induced to sign the service agreement, his prior experience with

Dempsey, as well as the explicit language of the agreement, provide

sufficien

established fraudulent inducement. Thus, parol evidence was inadmissible.

constitute an abuse of discretion.

compelling arbitration.

Judgment affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/24/2014

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