E.C. Bones Construction v. Bridgeport Marketplace

Opinion

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

E.C. BONES CONSTRUCTION IN THE SUPERIOR COURT OF CONTRACTORS, INC. D/B/A/ E.C. PENNSYLVANIA BONES, INC.

Appellee

v.

BRIDGEPORT MARKETPLACE, LLC Appellant No. 1973 EDA 2013

Appeal from the Order May 14, 2013 In the Court of Common Pleas of Montgomery County Civil Division at No(s): 2012-32189

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.* MEMORANDUM BY GANTMAN, P.J.: FILED SEPTEMBER 19, 2014 Appellant, Bridgeport Marketplace, LLC, appeals from the order entered in the Montgomery County Court of Common Pleas, overruling its preliminary objections to the complaint filed by Appellee, E.C. Bones Construction Contractors, Inc. d/b/a E.C. Bones, Inc. We affirm.

The trial court opinion fully and correctly sets forth the relevant facts and procedural history of this case. Therefore, we have no reason to restate them. Nevertheless, we briefly summarize the facts most pertinent to this case as follows. On March 18, 2010, Appellant (owner) and Appellee

called the Fourth Street

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*Retired Senior Judge assigned to the Superior Court.

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inter

alia, an arbitration provision requiring all claims arising out of the Construction Agreement to proceed to arbitration.

That same day, Fourth Street Marketplace, LLC, as borrower, Erik C.

Bones and Faith C. Bones as sureties, Abington Bank, and Appellant entered

of the Forbearance Agreement, in the event Appellant terminated Appellee

subcontractors for work performed at the project through the date of said , dated May 18, 2010, at ¶ 7).

Significantly, the Forbearance Agreement does not contain an arbitration clause. On September 13, 2010, Appellant terminated Appellee from the Project.

On September 14, 2010, Scott Building Corp. t/a Scott Contractors, I Montgomery County Court of Common Pleas at docket No. 2010-

provided to the Project, pursuant to a subcontract agreement. On December 27, 2010, Appellee filed a joinder complaint against Appellant, Abington Bank, and the Borough of Bridgeport. Appellee amended the joinder complaint on January 26, 2011, alleging breach of the Construction

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Agreement, conspiracy to cause breach of the Construction Agreement, and intentional interference with the Construction Agreement. Appellant and the additional joinder defendants filed preliminary objections on February 24, 2011, seeking, inter alia, dismissal of the amended joinder complaint based on the arbitration clause in the Addendum to the Construction Agreement. On November 27, 2012, the court sustained the preliminary objections, dismissed the amended joinder complaint, and sent the joinder claims against Appellant and the other joinder defendants to arbitration.

On November 30, 2012, Appellee sent Appellant a letter demanding

of the Forbearance Agreement. On December 4, 2012, counsel for Appellee sent another demand letter to Appellant seeking $105,970.90 due and owing to several subcontractors for work performed on the Project. Appellant did not remit payment to the subcontractors. On December 13, 2012, Erik C. Bones and Faith C. Bones assigned to Appellee their right, title and interest to all claims and actions against Appellant, arising under ¶ 7 of the Forbearance Agreement.

On December 19, 2012, Appellee filed the current complaint against Appellant, alleging breach of the Forbearance Agreement and demanding all monies due to the subcontractors. On January 23, 2012, Appellant filed preliminary objections for dismissal of the current complaint, based on the struction

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Agreement claims against Appellant to arbitration. Following argument, the

grounded on the Forbearance Agreement, which did not contain an arbitration provision. On May 17, 2013, Appellant filed a petition for permission to file an interlocutory appeal, or alternatively, for reconsideration of the order overruling its preliminary objections. The trial co Appellant filed a petition for immediate review in this Court, which this Court granted by per curiam order dated July 18, 2013.1 On July 23, 2013, the trial court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), which Appellant timely filed on July 26, 2013.

Appellant raises the following issues for our review:

WHETHER THE TRIAL COURT ERRED IN OVERRULING INARY OBJECTION IN THE NATURE OF A DEMURRER PURSUANT TO THE COORDINATE JURISDICTION/RULE OF CASE DOCTRINE?

WHETHER THE TRIAL COURT ERRED IN OVERRULING

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1 See 42 Pa.C.S.A. § 7320(a) (permitting immediate appeal from order denying application to compel arbitration). Compare Rosy v. National Grange Mut. Ins. Co., 771 A.2d 60 (Pa.Super. 2001) (quashing appeal from order compelling arbitration; explaining order directing arbitration is interlocutory and is not immediately appealable because parties are forced into, rather than out of, court).

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OF A DEMURRER SEEKING TO ENFORCE THE ARBITRATION CLAUSE?

WHETHER THE TRIAL COURT ERRED IN OVERRULING OF A DEMURRER REGARDING A PRIOR PENDING ACTION?

WHETHER THE TRIAL COURT ERRED IN OVERRULING

OF A DEMURRER PURSUANT TO THE COORDINATE RELEASE CLAUSE OF THE FORBEARANCE AGREEMENT?

Initially we observe:

When considering the appropriateness of a ruling on preliminary objections, the appellate court must apply the same standard as the trial court.

Preliminary objections in the nature of a demurrer test the legal sufficiency of the complaint. When considering preliminary objections, all material facts set forth in the challenged pleadings are admitted as true, as well as all inferences reasonably deducible therefrom. Preliminary objections which seek the dismissal of a cause of action should be sustained only in cases in which it is clear and free from doubt that the pleader will be unable to prove facts legally sufficient to establish the right to relief. If any doubt exists as to whether a demurrer should be sustained, it should be resolved in favor of overruling the preliminary objections.

Richmond v. McHale, 35 A.3d 779, 783 (Pa.Super. 2012) (quoting Feingold v. Hendrzak, 15 A.3d 937, 941 (Pa.Super. 2011)). Additionally:

arbitration for an abuse of discretion and to determine

substantial evidence. In doing so, we employ a two-part test to determine whether the trial court should have compelled arbitration. The first determination is whether a valid agreement to arbitrate exists. The second

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determination is whether the dispute is within the scope of the agreement.

* * *

Arbitration is a matter of contract, and parties to a contract cannot be compelled to arbitrate a given issue absent an agreement between them to arbitrate that issue.

Even though it is now the policy of the law to favor settlement of disputes by arbitration and to promote the swift and orderly disposition of claims, arbitration agreements are to be strictly construed and such agreements should not be extended by implication.

Elwyn v. DeLuca, 48 A.3d 457, 461 (Pa.Super. 2012) (internal citations omitted).

After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Thomas P.

The trial court opinion comprehensively discusses and properly disposes of those questions. (See Trial Court Opinion, filed April 4, 2014, at 9-16) (finding: arbitration provision in Addendum to Construction Agreement

agreement in Scott case; conversely, current case against Appellant is based on Forbearance Agreement executed by Fourth Street Marketplace, LLC, Erik C. Bones and Faith C. Bones (who have since assigned their interests under Forbearance Agreement to Appellee), Abington Bank, and Appellant; arbitration provision in Addendum to Construction Agreement does not apply in current cas

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joinder complaint in Scott case, and no violation of coordinate jurisdiction rule occurred; lis pendens doctrine similarly fails, where current case and Scott case are based on different contracts). Therefore, with respect to

2

In its fourth issue, Appellant argues ¶ 15(a) of the Forbearance

assignee), from all claims arising under the Forbearance Agreement. Appellant asserts that under ¶ 15(b) of the Forbearance Agreement, Erik C. Bones and Faith C. Bones expressly agreed not to litigate released claims. Appellant contends these clauses of the Forbearance Agreement bar Appellee from litigating its cause of action on behalf of Erik C. Bones and Faith C. Bones. Appe been dismissed for these reasons as well. We disagree.

Preliminarily, we observe that appellate briefs must conform in all material respects to the briefing requirements set forth in the Pennsylvania Rules of Appellate Procedure. Rosselli v. Rosselli, 750 A.2d 355

(Pa.Super. 2000), appeal denied, 564 Pa. 696, 764 A.2d 50 (2000) (citing

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more than the amount claimed in the Scott case (exclusive of interest and costs) and cannot be duplicated.

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Pa.R.A.P. 2101). See also Pa.R.A.P. 2114-2119 (addressing specific requirements of each subsection of brief on appeal). Regarding the argument section of an appellate brief, Rule 2119(a) provides:

Rule 2119. Argument

(a) General rule. The argument shall be divided into as many parts as there are questions to be argued; and

therein, followed by such discussion and citation of authorities as are deemed pertinent.

Pa.R.A.P. 2119(a). Importantly:

The argument portion of an appellate brief must include a pertinent discussion of the particular point raised along with discussion and citation of pertinent authorities. This Court will not consider the merits of an argument which fails to cite relevant case or statutory authority. Failure to cite relevant legal authority constitutes waiver of the claim on appeal.

In re Estate of Whitley, 50 A.3d 203, 209 (Pa.Super. 2012), appeal denied, 620 Pa. 724, 69 A.3d 603 (2013) (internal citations and quotation marks omitted). See also Lackner v. Glosser, 892 A.2d 21 (Pa.Super

procedure, and arguments which are not appropriately developed are waived on appeal; arguments not appropriately developed include those where party has failed to cite any authority in support of contention); Estate of Haiko v. McGinley, 799 A.2d 155 (Pa.Super. 2002) (stating rules of appellate procedure make clear appellant must support each question raised by discussion and analysis of pertinent authority; absent reasoned

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review is hampered, necessitating waiver of issue on appeal).

Instantly, Appellant failed to cite any legal authority to support its argument that ¶ 15(a) of the Forbearance Agreement releases it from

Appellant cites no legal authority to support its contention that ¶ 15(b) of the Forbearance Agreement bars Appellee, as assignee of Erik C. Bones and Faith C. Bones, from litigating this cause of action against Appellant.

n appeal with citation to relevant legal authority precludes meaningful review and constitutes waiver on appeal. See Pa.R.A.P. 2119(a); Pa.R.A.P. 2101; Whitley, supra; Lackner, supra; Haiko, supra.

Moreover:

[T]he interpretation of any contract is a question of law

need not defer to the conclusions of the trial court and are free to draw our own inferences. In interpreting a contract, the ultimate goal is to ascertain and give effect to the intent of the parties as reasonably manifested by the language of their written agreement. When construing agreements involving clear and unambiguous terms, this Court need only examine the writing itself to give effect to ourt must construe the

contract only as written and may not modify the plain meaning under the guise of interpretation.

Nevyas v. Morgan, 921 A.2d 8, 15 (Pa.Super. 2007) (quoting Currid v. Meeting House Restaurant, Inc., 869 A.2d 516, 519 (Pa.Super. 2005), appeal denied, 584 Pa. 694, 882 A.2d 478 (2005)).

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Instantly, ¶ 15 of the Forbearance Agreement provides, in pertinent part:3

15. RELEASE AND INDEMNIFICATION. In order to induce Bank and Assignee to enter into this Agreement, Obligors do hereby agree as follows:

(a) Release. Obligors hereby fully, finally and forever acquit, quitclaim, release and discharge Bank and Assignee and their officers, directors, managers, employees, agents, counsel, successors and assigns of and from any and all obligations, claims, liabilities, damages, demands, debts, liens, deficiencies or cause or causes of action to, of or for the benefit (whether directly or indirectly) of any obligor, at law or in equity, known or unknown, contingent or otherwise, whether asserted or unasserted, whether now known or hereafter discovered, whether statutory in contract or in tort, as well as any other kind or character of action now held, owned or possessed (whether directly or indirectly) by any obligor on account of, arising out of, related to or concerning, whether directly or indirectly, proximately or remotely (i)

the negotiation, review, preparation or documentation of the loan documents or any other documents or agreements executed in connection therewith, (ii) the administration of the loan documents; (iii) the

documents or agreements executed in connection therewith, and/or (iv) any action or inaction by Bank or Assignee in connection with any such documents,

(b) Covenant Not to Litigate. Obligors do hereby agree that they will never prosecute, nor voluntarily aid in the prosecution of, any action or proceeding relating to the Released Claims, whether by claim, counterclaim, or

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3 The Forbearance Agreement denotes Fourth Street Marketplace, LLC and

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otherwise except that which is in the nature of a defense to any claim by Bank, Assignee, or any third party.

(Forbearance Agreement at ¶ 15(a), (b)) (internal capitalization omitted). Paragraph 15(a) of the Forbearance Agreement makes clear that Erik C. Bones and Faith C. Bones (as Obligors) did not agree to release Appellant (as Assignee) from all claims arising out of the Forbearance Agreement. Rather, ¶ 15(a) releases Appellant from only claims arising out of: (1) negotiation, review, preparation or documentation of the loan documents or any other documents or agreements executed in connection therewith; (2) administration of the loan documents; (3) enforcement, protection or

documents, or any other documents or agreements executed in connection therewith; or (4) any action or inaction by Abington Bank or Appellant in connection with any such documents, instruments and agreements. See id.

agreement to compensate

to do with the loan documents or process.

Furthermore, the Forbearance Agreement contains an exclusive jurisdiction and jury trial waiver provision, which demonstrates the parties anticipated that claims arising out of the Forbearance Agreement might require litigation in court. Id. at ¶¶ 18, 32. Read as a whole, the

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Forbearance Agreement unambiguously demonstrates the parties intended to release Appellant from litigation as to only the four specific types of claims described in ¶ 15(a). See Nevyas, supra. Therefore, even if Appellant had properly preserved its fourth issue for review, we would nevertheless deny relief on this claim. Accordingly, we affirm.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/19/2014

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