Smay v. E.R. Stuebner, Inc.

864 A.2d 1266, 2004 Pa. Super. 493, 2004 Pa. Super. LEXIS 4942
CourtSuperior Court of Pennsylvania
DecidedDecember 30, 2004
StatusPublished
Cited by81 cases

This text of 864 A.2d 1266 (Smay v. E.R. Stuebner, Inc.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smay v. E.R. Stuebner, Inc., 864 A.2d 1266, 2004 Pa. Super. 493, 2004 Pa. Super. LEXIS 4942 (Pa. Ct. App. 2004).

Opinions

OPINION BY

BOWES, J.:

¶ 1 Appellant, Greiner Industries, Inc., appeals from the order denying its petition to compel arbitration. After close review of the parties’ briefs and the certified record, we are constrained to reverse the trial court’s order and remand for arbitration proceedings.

¶ 2 Rodney Smay, the plaintiff in the underlying action, was injured on a high school construction site in the Conrad Weiser Area School District (the “School District”) in the course of his employment and as Appellant’s employee. Mr. Smay sustained serious personal injuries when a platform scissor lift that he was using to install wires in the ceiling of the gymnasium fell over and sent him plummeting twenty-five feet to the gymnasium floor. He filed a workers’ compensation claim against Appellant and a civil complaint naming Adams, Eisenhower & Meckley, Inc. d/b/a/ AEM Architects, Inc. (the “Architect”), Rose Hill Construction, Inc., E.R. Stuebner, Inc., Skyjack, Inc., United Rentals (North America), Inc. (incorrectly referred to as United Rentals, Inc. and United Rentals Aerial Equipment, Inc.), Berks Rigging & Erecting, Inc., Multará Associates, Inc., Eshbach Brothers, L.P., and the School District as defendants. The School District and the Architect, hereinafter collectively referred to as Ap-pellees, filed joinder complaints against Appellant on November 15, 2001, and January 22, 2001, respectively, wherein they sought indemnification under the construction contract that the School District executed with Appellant.1 The joinder complaints aver that the alleged injury arose from Appellant’s course of performance under the contract with the School District and that pursuant to that contract, Appellant is hable over to Appellees.2

¶ 3 On March 21, 2002, Appellant responded to the joinder complaints by writing to the Architect and the School District to demand arbitration to resolve whether Appellant contractually was obligated to indemnify either party. The Architect replied to Appellant’s demand with a letter denying that arbitration was appropriate and suggesting that Appellant seek relief from the trial court. The School District never responded to Appellant’s written demand for arbitration. On April 10, 2002, Appellant filed a motion to compel arbitration in this action pursuant to its contract with the School District. The trial court heard oral argument on May 10, 2002, and on June 13, 2002, it denied the motion. Oh July 1, 2002, this interlocutory appeal followed as of right. See Pa.R.A.P. 311(a)(8); 42 Pa.C.S. § 7320(a)(1) (denial of motion to compel arbitration is appealable as of right).3 While the appeal is pending, the civil action has been partially stayed with respect to matters directed to Appellant.

[1270]*1270¶ 4 Berks Rigging & Erecting, Inc., Multani Associates, Inc., Eshbach Brothers, L.P., and E.R. Stuebner, Inc., each filed a notice of no interest pursuant to Pa.R.A.P. 908. Hence, they have no interest in the disposition of this case. Of the remaining appellees, Skyjack, Inc. and United Rentals (North America), Inc. have failed to file briefs.

¶ 5 On April 1, 2003, subsequent to the filing of this appeal and the entry of a partial stay, the trial court granted two uncontested motions for summary judgment filed by the Architect and Rose Hill Construction, Inc. against the plaintiff and all defendants. Thereafter, the Architect filed a notice of no interest in the appeal. No one contests the validity of the April 1, 2003 order in the present appeal. Similarly, on February 4, 2004, the trial court entered summary judgment in favor of the School District against the plaintiff, Mr. Smay. Later, on April 27, 2004, the trial court extended the grant of summary judgment to all cross-claims against the School District. Therefore, as of the date of this writing, Appellees have been dismissed from the underlying action.4

¶ 6 The issues before us can be summarized as follows: Whether the trial court erred in denying Appellant’s petition to compel arbitration on the basis that the merits of Mr. Sma/s underlying personal injury action were beyond the scope of the agreement to arbitrate; whether the Architect, a third-party-beneficiary of the contract, is bound by the arbitration agreement contained in the contract; and whether Appellant waived its right to compel arbitration by availing itself of the common pleas court.

¶ 7 We review a trial court’s denial of a motion to compel arbitration for an abuse of discretion and to determine whether the trial court’s findings are supported by substantial evidence. Flender Corp. v. Tippins International, Inc., 830 A.2d 1279 (Pa.Super.2003). In doing so, we employ a two-part test to determine whether the trial court should have compelled arbitration. Callan v. Oxford Land Development, Inc., 858 A.2d 1229 (Pa.Super.2004). The first determination is whether a valid agreement to arbitrate exists. D & H Distributing Co. v. National Union Fire Ins. Co., 817 A.2d 1164 (Pa.Super.2003). The second determination is whether the dispute is within the scope of the agreement. Id.

¶ 8 On March 18, 1998, Appellant and the School District executed a contract for the construction of a high school. The contract expressly incorporated the General Conditions of Contract (the “General Conditions”) and the more specific Supplementary General Conditions of Contract (the “Supplemental Conditions”).5 These contract documents contained indemnity and arbitration provisions, which read as follows:

3.18 INDEMNIFICATION
3.18.1 To the fullest extent permitted by law, the Contractor shall indemnify and hold harmless the Owner [and] Architect ... from and against claims, damages, losses and expenses, including but not limited to attorneys’ fees, arising out of or resulting from perform-[1271]*1271anee of the Work, provided that such claim, damages, loss or expense is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself) including loss of use resulting therefore, but only to the extent caused in whole or in part by negligent acts or omissions of the Contractor, a Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be hable, regardless of whether or not such claim, damage, loss or expense is caused in part by a party indemnified hereunder. Such obligation shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity which would otherwise exist as to a party or person described in this Paragraph 3.18.

Supplemental Conditions, at 13-14 (emphases added).

4.5 ARBITRATION
4.5.1 Controversies and Claims Subject to Arbitration.

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Cite This Page — Counsel Stack

Bluebook (online)
864 A.2d 1266, 2004 Pa. Super. 493, 2004 Pa. Super. LEXIS 4942, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smay-v-er-stuebner-inc-pasuperct-2004.