Kopew, D. v. Toll Brothers, Inc.

Opinion

J-A10044-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DAVID AND STACY ANN KOPEW : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : TOLL BROTHERS, INC.; TOLL BROS., : INC.; TOLL PA GP CORP.; AND TOLL : PA, L.P. : No. 760 EDA 2019 : Appellant :

Appeal from the Order Entered January 30, 2019 In the Court of Common Pleas of Montgomery County Civil Division at No(s): No. 2018-23696

BEFORE: BOWES, J., SHOGAN, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED JANUARY 06, 2021

This case comes to us following a remand directed by our decision in

Kopew v. Toll Brothers, Inc., 237 A.3d 1088 (Pa. Super. June 26, 2020)

(unpublished memorandum), where Toll Brothers, Inc., Toll Bros, Inc., Toll PA

GP Corp., and Toll PA, L.P. (referred to collectively as “Toll”) challenged an

order of the Montgomery County Court of Common Pleas (trial court) that

vacated an arbitrator’s dismissal of several construction defect claims by David

and Stacy Ann Kopew (the Kopews). The arbitrator’s dismissal was based on

findings of fact, as well as its interpretation of the Statute of Repose, 42

Pa.C.S. § 5536(a). See Arbitrator’s Order of Dismissal, 9/6/2018, at 11.

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* Retired Senior Judge assigned to the Superior Court. J-A10044-20

The Kopews’ appealed the arbitrator’s dismissal of their claims to the

trial court, which vacated that ruling, finding that the Kopews were improperly

denied a hearing. The trial court found that under 42 Pa.C.S. § 7341, the

arbitrator erred in dismissing the Kopews’ claims in their entirety and with

prejudice, prior to the completion of discovery.

Toll then filed an appeal in this Court, arguing that the trial court was

bound by the arbitrator’s legal conclusion regarding the application of the

Statute of Repose. The Kopews countered that the trial court was not so

bound because it had limited authority to vacate the dismissal as a remedy

for the arbitrator’s improper denial of an opportunity to present evidence

showing that there existed material questions of fact. See 42 Pa.C.S.

§§ 7314(a), 7341 (permitting court to vacate arbitrator’s award if a party was

improperly denied a hearing). The Kopews asserted further that since the trial

court had directed further arbitration proceedings, Toll was impermissibly

seeking review of an unappealable order. See 42 Pa.C.S. § 7320(a)(5)

(providing that court’s vacatur of an arbitrator’s dismissal is not reviewable

when rehearing is also directed).

In our earlier memorandum, we outlined in depth the key facts and law,

making it unnecessary to reiterate them here. As we had explained, though,

the trial court had authority to vacate the arbitrator’s dismissal only so long

as it was necessary to afford the Kopews a chance to present evidence having

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some bearing on the application of the Statute of Repose; otherwise, the trial

court would have been bound by the arbitrator’s ruling that it applied.

However, because the Kopews did not clearly state what material

evidence the arbitrator prevented them from submitting that could have

affected the outcome of the arbitration, and the trial court only stated broadly

that an arbitrator cannot dismiss claims prior to the completion of discovery

and without an evidentiary hearing, further clarification was needed. To that

end, we directed the trial court to identify any outstanding evidence or

discovery requests that would have made it improper for the arbitrator to

summarily dismiss the Kopews’ arbitration based on the Statute of Repose.1

1 The Kopews had maintained that this appeal is moot because they do not intend to avail themselves of further arbitration or pursue any claims against Toll once the appeal has concluded. Toll insisted the case is not moot, in part because the Kopews had a pending request for a new arbitration and the Statute of Repose issues are pending in similar matters. In our earlier memorandum, we directed that if, on remand, the Kopews moved to dismiss their arbitration with prejudice, it would put an end to the parties’ controversy, making it unnecessary for the trial court to issue a new decision or for this Court to take further action.

However, instead of immediately terminating their pending arbitration requests upon remand, the Kopews waited until after the trial court issued is clarifying decision to file their voluntary praecipe to discontinue the case with prejudice. Since the trial court’s clarification was completed prior to the Kopews’ praecipe, and the case has not yet been discontinued under the governing arbitration rules, we will proceed to adjudicate the merits of the trial court’s vacatur of the arbitrator’s dismissal. See Pa. Code Rule 1310 (providing that “No appeal may be discontinued except by leave of court after notice to all parties or upon the filing of the written consent of all parties.”).

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The trial court submitted a response on October 16, 2020, but did not

identify any particular piece of outstanding evidence that could have even

arguably made the Statute of Repose inapplicable as a matter of law. Rather,

the trial court echoed its earlier finding that the arbitrator’s “impropriety” was

summarily dismissing the Kopews’ claims before discovery had concluded.

Again, this lack of factual detail is problematic because the arbitrator

could have only committed an “impropriety” through the denial of a hearing if

the Kopews were actually deprived of the opportunity to present material

evidence regarding the applicability of the Statute of Repose. Such a finding

would require the Kopews to demonstrate that such evidence would have been

forthcoming but for the premature timing of the arbitrator’s decision. The

Kopews could not have wrongfully been denied a hearing to present material

evidence if they had no such evidence to present.

The Kopews have had numerous opportunities during arbitration, the

trial stage and the appeal to formulate a cogent theory about how the

arbitrator improperly dismissed their claims, and the Kopews have remained

unable to do so. Without any basis in the record showing that the arbitrator

denied the Kopews the chance to present evidence raising a genuine fact

question as to the Statute of Repose, the trial court lacked authority to vacate

the arbitrator’s dismissal. The arbitrator’s ruling was, therefore, binding on

the trial court, giving Toll the right to an interlocutory appeal of the trial court’s

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vacatur. Thus, we are now compelled to order the reinstatement of the

arbitrator’s dismissal of the Kopews’ claims with prejudice.

Trial court order reversed. Arbitrator’s order reinstated. Jurisdiction

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/6/2021

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