J-A25017-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
AVERY MUSSO, BY AND THROUGH : IN THE SUPERIOR COURT OF HER P/N/G ELIZABETH MUSSO : PENNSYLVANIA : : v. : : : IJUMP SCRANTON, LLC, : CIRCUSTRIX, LLC D/B/A DEFY, : No. 179 EDA 2024 CIRCUSTRIX HOLDINGS, LLC AND : SCRANTON STORAGE, LLC : : : APPEAL OF: CIRCUSTRIX, LLC AND : CIRCUSTRIX HOLDINGS, LLC :
Appeal from the Order Entered December 2, 2023 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 230600537
BEFORE: OLSON, J., DUBOW, J., and SULLIVAN, J.
MEMORANDUM BY DUBOW, J.: FILED JANUARY 27, 2025
Appellants, Circustrix, LLC d/b/a Defy, and Circustrix Holdings, LLC,
appeal from the December 2, 2023 order entered in the Philadelphia County
Court of Common Pleas denying their motion to compel arbitration and stay
litigation in this personal injury action. Appellants assert that the provision
compelling non-binding arbitration is enforceable against Appellee, Avery
Musso, by and through her mother, Elizabeth Musso. After careful review, we
are constrained to affirm.
The relevant facts and procedural history are as follows. On April 20,
2022, Avery Musso, a minor, was injured while a patron of Defy Scranton, a J-A25017-24
trampoline park (“Park”). That day, prior to using Park’s trampoline facilities,
Avery’s mother, Elizabeth, digitally signed a participation agreement
(“Agreement”) on behalf of herself and Avery. The Agreement included a
provision (“the Provision”) titled “Mediation, Non-Binding Arbitration, and
Venue,” that provided, in relevant part, that “the parties agree to mediation
and non-binding arbitration of any and all claims, disputes, and grievances[.]”
Agreement, 4/20/22, at ¶ 7.
Avery suffered an injury while at Park and, notwithstanding the
Provision, on June 6, 2023, Appellee filed a complaint asserting a cause of
action for premises liability. On August 9, 2023, Appellants filed a petition to
compel arbitration and stay litigation based on the Provision in the Agreement
requiring the parties to first submit this matter to non-binding arbitration.
On August 29, 2023, Appellee filed an answer to the petition to compel
arbitration, contending that the Agreement was unenforceable as to Avery
because, as a minor, Avery was not competent to enter into the Agreement.
Appellee also argued that this Court’s recent decision in Santiago v. Philly
Trampoline Park, LLC, 291 A.3d 1213 (Pa. Super. 2023), and Shultz v. Sky
Zone, LLC, 291 A.3d 1213 (Pa. Super. 2023), appeal granted sub nom, 304
A.3d 331 (Pa. 2023)—where we held a binding arbitration agreement signed
by a minor’s parent unenforceable against the minor—bound the trial court to
deny Appellants’ petition.
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On November 30, 2023, the trial court denied Appellants’ petition to
compel arbitration. This timely appeal followed.1, 2
Appellants raise the following issue for our review:
Whether the [t]rial [c]ourt erred in finding that the mediation and non-binding arbitration provision set forth in the [Agreement] signed by minor Appellee’s [m]other Elizabeth Musso cannot be enforced as to the claims of minor Appellee, such that minor Appellee may now disavow this mediation and non-binding arbitration provision and bring her claims—which fall squarely within the scope of the mediation and non-binding arbitration provision—before a court of law[?]
Appellants’ Brief at 5.
A.
When reviewing an order denying a petition to compel arbitration, “we
employ a two-part test to determine whether the trial court” erred. Fineman,
Krekstein & Harris, P.C. v. Perr, 287 A.3d 385, 389 (Pa. Super. 2022)
(citation omitted). “First, we examine whether a valid agreement to arbitrate
exists. Second, we must determine whether the dispute is within the scope
of the agreement.” Id. (citation omitted). “Whether a written contract
includes an arbitration agreement and whether the parties’ dispute is within
the scope of the arbitration agreement are questions of law subject to this
Court’s plenary review.” In re Estate of Atkinson, 231 A.3d 891, 898 (Pa.
Super. 2020).
____________________________________________
1 This interlocutory order is appealable as of right pursuant to Pa.R.A.P. 311(a)(8) and 42 Pa.C.S. § 7320(a)(1).
2 The trial court did not order Appellants to file a Pa.R.A.P. 1925(b) statement.
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Both Pennsylvania and federal law impose a strong public policy in favor of enforcing arbitration agreements. Accordingly, if a valid agreement to arbitrate exists and the dispute falls within the scope of the arbitration agreement, the dispute must be submitted to arbitration and the [trial] court’s denial of arbitration must be reversed.
Id. (citations omitted); see also Davis v. Ctr. Mgmt. Grp., LLC, 192 A.3d
173, 183 n.13 (stating that, “[o]ur Supreme Court [in Taylor v. Extendicare
Health Facilities, Inc., 147 A.3d 490, 509 (Pa. 2016)] has instructed courts
to ‘consider questions of arbitrability with a healthy regard for the federal
policy favoring arbitration’”).
B.
The trial court, relying on Santiago, denied the petition to compel
arbitration and stay litigation. Appellants contend that the trial court’s reliance
on Santiago is misplaced because this case is distinguishable from
Santiago.3 Appellants’ Brief at 15-17. In particular, Appellants assert that,
because this case concerns enforcement of an agreement to submit disputes
to non-binding arbitration and not binding arbitration, the holding in
Santiago does not apply. Id. Appellants emphasize that, unlike binding
arbitration, the mediation and non-binding arbitration requirement in the
Provision does not prevent Appellee from later filing her claim in the Court of
Common Pleas. Id. at 16.
In Santiago, and its companion case, Shultz, this Court considered,
inter alia, whether the defendant could enforce against a minor a binding ____________________________________________
3 Appellants do not dispute that Appellee’s claims fall within the scope of the
Provision. Appellants’ Brief at 15.
-4- J-A25017-24
arbitration agreement that a parent entered into on behalf of a minor child.
291 A.3d at 1224. In analyzing this issue, the Santiago Court explained that
Pennsylvania law has identified two distinct and mutually exclusive, classes of
guardians: “(1) guardian of the person being invested with the care of the
person of the minor, and (2) guardian of the estate being entrusted with the
control of the property of the minor.” Id. (citation omitted). The Court noted
that, although “parents have intrinsic rights and responsibilities as the natural
guardians of their minor children[,]” they have “no inherent right to
intermeddle with the property of the minor child . . . unless the natural
guardian has also been appointed as guardian of the minor’s estate.” Id. at
1225 (citations omitted).
The Court then reiterated the well-settled understanding that “a cause
of action is property,” and noted that “a parent has a natural and primary right
to bring an action, as guardian, on behalf of his or her child.” Id. (citations
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J-A25017-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
AVERY MUSSO, BY AND THROUGH : IN THE SUPERIOR COURT OF HER P/N/G ELIZABETH MUSSO : PENNSYLVANIA : : v. : : : IJUMP SCRANTON, LLC, : CIRCUSTRIX, LLC D/B/A DEFY, : No. 179 EDA 2024 CIRCUSTRIX HOLDINGS, LLC AND : SCRANTON STORAGE, LLC : : : APPEAL OF: CIRCUSTRIX, LLC AND : CIRCUSTRIX HOLDINGS, LLC :
Appeal from the Order Entered December 2, 2023 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 230600537
BEFORE: OLSON, J., DUBOW, J., and SULLIVAN, J.
MEMORANDUM BY DUBOW, J.: FILED JANUARY 27, 2025
Appellants, Circustrix, LLC d/b/a Defy, and Circustrix Holdings, LLC,
appeal from the December 2, 2023 order entered in the Philadelphia County
Court of Common Pleas denying their motion to compel arbitration and stay
litigation in this personal injury action. Appellants assert that the provision
compelling non-binding arbitration is enforceable against Appellee, Avery
Musso, by and through her mother, Elizabeth Musso. After careful review, we
are constrained to affirm.
The relevant facts and procedural history are as follows. On April 20,
2022, Avery Musso, a minor, was injured while a patron of Defy Scranton, a J-A25017-24
trampoline park (“Park”). That day, prior to using Park’s trampoline facilities,
Avery’s mother, Elizabeth, digitally signed a participation agreement
(“Agreement”) on behalf of herself and Avery. The Agreement included a
provision (“the Provision”) titled “Mediation, Non-Binding Arbitration, and
Venue,” that provided, in relevant part, that “the parties agree to mediation
and non-binding arbitration of any and all claims, disputes, and grievances[.]”
Agreement, 4/20/22, at ¶ 7.
Avery suffered an injury while at Park and, notwithstanding the
Provision, on June 6, 2023, Appellee filed a complaint asserting a cause of
action for premises liability. On August 9, 2023, Appellants filed a petition to
compel arbitration and stay litigation based on the Provision in the Agreement
requiring the parties to first submit this matter to non-binding arbitration.
On August 29, 2023, Appellee filed an answer to the petition to compel
arbitration, contending that the Agreement was unenforceable as to Avery
because, as a minor, Avery was not competent to enter into the Agreement.
Appellee also argued that this Court’s recent decision in Santiago v. Philly
Trampoline Park, LLC, 291 A.3d 1213 (Pa. Super. 2023), and Shultz v. Sky
Zone, LLC, 291 A.3d 1213 (Pa. Super. 2023), appeal granted sub nom, 304
A.3d 331 (Pa. 2023)—where we held a binding arbitration agreement signed
by a minor’s parent unenforceable against the minor—bound the trial court to
deny Appellants’ petition.
-2- J-A25017-24
On November 30, 2023, the trial court denied Appellants’ petition to
compel arbitration. This timely appeal followed.1, 2
Appellants raise the following issue for our review:
Whether the [t]rial [c]ourt erred in finding that the mediation and non-binding arbitration provision set forth in the [Agreement] signed by minor Appellee’s [m]other Elizabeth Musso cannot be enforced as to the claims of minor Appellee, such that minor Appellee may now disavow this mediation and non-binding arbitration provision and bring her claims—which fall squarely within the scope of the mediation and non-binding arbitration provision—before a court of law[?]
Appellants’ Brief at 5.
A.
When reviewing an order denying a petition to compel arbitration, “we
employ a two-part test to determine whether the trial court” erred. Fineman,
Krekstein & Harris, P.C. v. Perr, 287 A.3d 385, 389 (Pa. Super. 2022)
(citation omitted). “First, we examine whether a valid agreement to arbitrate
exists. Second, we must determine whether the dispute is within the scope
of the agreement.” Id. (citation omitted). “Whether a written contract
includes an arbitration agreement and whether the parties’ dispute is within
the scope of the arbitration agreement are questions of law subject to this
Court’s plenary review.” In re Estate of Atkinson, 231 A.3d 891, 898 (Pa.
Super. 2020).
____________________________________________
1 This interlocutory order is appealable as of right pursuant to Pa.R.A.P. 311(a)(8) and 42 Pa.C.S. § 7320(a)(1).
2 The trial court did not order Appellants to file a Pa.R.A.P. 1925(b) statement.
-3- J-A25017-24
Both Pennsylvania and federal law impose a strong public policy in favor of enforcing arbitration agreements. Accordingly, if a valid agreement to arbitrate exists and the dispute falls within the scope of the arbitration agreement, the dispute must be submitted to arbitration and the [trial] court’s denial of arbitration must be reversed.
Id. (citations omitted); see also Davis v. Ctr. Mgmt. Grp., LLC, 192 A.3d
173, 183 n.13 (stating that, “[o]ur Supreme Court [in Taylor v. Extendicare
Health Facilities, Inc., 147 A.3d 490, 509 (Pa. 2016)] has instructed courts
to ‘consider questions of arbitrability with a healthy regard for the federal
policy favoring arbitration’”).
B.
The trial court, relying on Santiago, denied the petition to compel
arbitration and stay litigation. Appellants contend that the trial court’s reliance
on Santiago is misplaced because this case is distinguishable from
Santiago.3 Appellants’ Brief at 15-17. In particular, Appellants assert that,
because this case concerns enforcement of an agreement to submit disputes
to non-binding arbitration and not binding arbitration, the holding in
Santiago does not apply. Id. Appellants emphasize that, unlike binding
arbitration, the mediation and non-binding arbitration requirement in the
Provision does not prevent Appellee from later filing her claim in the Court of
Common Pleas. Id. at 16.
In Santiago, and its companion case, Shultz, this Court considered,
inter alia, whether the defendant could enforce against a minor a binding ____________________________________________
3 Appellants do not dispute that Appellee’s claims fall within the scope of the
Provision. Appellants’ Brief at 15.
-4- J-A25017-24
arbitration agreement that a parent entered into on behalf of a minor child.
291 A.3d at 1224. In analyzing this issue, the Santiago Court explained that
Pennsylvania law has identified two distinct and mutually exclusive, classes of
guardians: “(1) guardian of the person being invested with the care of the
person of the minor, and (2) guardian of the estate being entrusted with the
control of the property of the minor.” Id. (citation omitted). The Court noted
that, although “parents have intrinsic rights and responsibilities as the natural
guardians of their minor children[,]” they have “no inherent right to
intermeddle with the property of the minor child . . . unless the natural
guardian has also been appointed as guardian of the minor’s estate.” Id. at
1225 (citations omitted).
The Court then reiterated the well-settled understanding that “a cause
of action is property,” and noted that “a parent has a natural and primary right
to bring an action, as guardian, on behalf of his or her child.” Id. (citations
omitted). Nevertheless, “a minor’s representation is subject to the trial court’s
control and supervision” and “no action to which a minor is a party shall be
compromised, settled[,] or discontinued except after approval by the court[.]”
Id. (citations omitted).
The Santiago Court construed the trial court’s oversight function in
litigation matters involving minors as having “the significant effect of
transforming the parent’s role from that of a natural guardian into, in essence,
a court-approved guardian who has authority to make decisions about the
minor’s estate, not merely the child’s person.” Id. at 1229. Given that, the
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Court reasoned that an agreement executed by a minor’s parent without the
court’s involvement “has none of the legal safeguards attendant to the
appointment of a guardian of the minor’s estate” and that “parents in their
pre-litigation state of natural guardianship lack[] any authority to manage the
estate of their minor children.” Id. (citing Rock v. Pyle, 720 A.2d 137, 141
(Pa. Super. 1998) (“Natural guardianship confers no inherent right to
intermeddle with the property of the minor child, and the natural guardian has
no inherent authority to demand or power to receive, hold[,] or manage the
minor’s property unless the natural guardian has also been appointed
as guardian of the minor’s estate.” (emphasis in original)). Accordingly,
the Court held that the statuses of the natural guardians of the minor plaintiffs
in Santiago “did not ipso facto grant them the authority to bind their minor
children to an arbitration agreement.” Id. Therefore, the Court affirmed the
orders of the trial court, which held unenforceable the arbitration agreements
into which the parents of the minors entered.
As in Santiago, there is no evidence in this case that any court had
approved Avery’s mother, Elizabeth, as guardian of Avery’s estate prior to
Elizabeth entering into the Provision. Thus, for the same reasons as this Court
set forth in Santiago, Elizabeth lacked the authority to bind Avery to an
arbitration agreement. Because the basis for the Santiago Court’s holding is
grounded in the distinction between the authority of a parent as natural
guardian and the lack of de facto authority as guardian of the estate of her
minor child, the nature of the arbitration agreement as either binding or non-
-6- J-A25017-24
binding is immaterial to our analysis. We are, therefore, constrained to affirm
the order of the trial court denying Appellants’ petition to compel arbitration
and stay litigation.4
Order affirmed.
Judge Olson joins the memorandum.
Judge Sullivan notes dissent.
Date: 1/27/2025
4 As noted above, Santiago is currently on appeal before the Pennsylvania
Supreme Court. In light of the similarities between Santiago and the instant case, we urge the Supreme Court to grant Appellants’ petition for allowance of appeal, if filed, so that either this Court (on remand) or the Supreme Court will apply the Supreme Court’s decision in Santiago to the instant case.
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