J-A12022-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 JAMES FOX, INDIVIDUALLY AND ON          :   IN THE SUPERIOR COURT OF
 BEHALF OF THE ESTATE OF JOANN           :        PENNSYLVANIA
 EVANS                                   :
                                         :
                   Appellant             :
                                         :
                                         :
              v.                         :
                                         :   No. 1471 EDA 2017
                                         :
 JEANES HOSPITAL, TEMPLE                 :
 UNIVERSITY HEALTH SYSTEM, INC.,         :
 KINDRED HOSPITAL-PHILADELPHIA,          :
 SOMERTON CENTER NURSING                 :
 HOME, JITHA RAI, M.D. AND PAUL          :
 KARLIN, D.O.                            :

               Appeal from the Order Entered April 25, 2017
    In the Court of Common Pleas of Philadelphia County Civil Division at
                  No(s): March Term, 2016 No. 160302193


BEFORE: BOWES, J., OTT, J., and FORD ELLIOTT, P.J.E.

DISSENTING MEMORANDUM BY BOWES, J.:              FILED JANUARY 11, 2019

      I would quash the instant appeal as interlocutory. While I agree with

my distinguished colleagues that the trial court erred in dismissing Somerton

from the court proceeding, and that a stay pending arbitration was the proper

course, the wrongful dismissal does not confer jurisdiction upon this Court to

correct that error or review the order compelling arbitration. See Maleski v.

Mutual Fire, Marine and Inland Ins. Co., 633 A.2d 1143 (Pa. 1993)

(quashing appeal from order compelling claims to arbitration and dismissing

rather than staying claims pending arbitration); see also Sew Clean

Drycleaners & Launders, Inc. v. Dress for Success Cleaners, Inc., 903
J-A12022-18


A.2d 1254, 1257 (Pa.Super. 2006) (holding order compelling arbitration is not

a final, appealable order).

      I submit that the order appealed herein, which only dismissed claims as

to one of several parties, was not a final order under Pa.R.A.P. 341(b)(1) (“A

final order is any order that . . . disposes of all claims and all parties.”). Nor

was there an express determination that an immediate appeal of the order

disposing of “one or more but fewer than all of the claims and parties, . . .

would facilitate resolution of the entire case.” Pa.R.A.P. 341(c). It is not an

order made final or appealable by statute even though not dispositive of all

claims or parties. See Pa.R.A.P. 311(a)(8) and 42 Pa.C.S. § 7320(a). Nor is

it a collateral order under Pa.R.A.P. 311.        The order appealed from is

interlocutory and non-appealable.

      In my view, the instant case is governed by Maleski and Schantz v.

Gary Barbera Dodgeland, 830 A.2d 1265 (Pa.Super. 2003), and I am

unpersuaded by the majority’s attempt to distinguish those cases in order to

exercise jurisdiction over the instant appeal.    In Maleski, after concluding

that the order appealed from was interlocutory because the Commonwealth

Court improperly relinquished jurisdiction, our High Court quashed the appeal

without reaching the merits of whether the trial court properly compelled

arbitration. In Schantz, this Court found the trial court’s order transferring

all claims to arbitration and dismissing the case to be interlocutory in reliance




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upon Maleski. We quashed the appeal for lack of jurisdiction to review the

merits.

      The majority attempts to distinguish Maleski on two grounds, neither

of which has any bearing on the threshold jurisdictional question. First, the

majority cites its belief that the April 19, 2017 order operated to dismiss

Somerton    from    the   arbitration    proceeding,   a   construction   I   find

unreasonable.      See Majority Memorandum at 7 (concluding that order

compelling arbitration and dismissing Somerton from the case meant that “Fox

would face no opposing party when the case proceeds to arbitration”).

Secondly, the majority uses its subsequent merits determination that the

wrongful death claim should not have been compelled to arbitration to support

its finding that it was error to dismiss Somerton from the court case. In my

view, both reasons beg the question of whether we have jurisdiction to

entertain this appeal.

      The majority notes that Mr. Fox cited Stern v. Prudential Fin., Inc.,

836 A.2d 953, 955 n.1 (Pa.Super. 2003), as conferring jurisdiction over the

instant appeal, but offers no analysis regarding its applicability. See Majority

Memorandum at 8 n.10.        In Stern, the trial court sustained preliminary

objections, dismissed the complaint, and ordered all parties to arbitration. On

appeal, a panel of this Court conceded, in a footnote, that such orders are

generally interlocutory. Nonetheless, we relied upon Brown v. D & P Willow,

Inc., 686 A.2d 14, 15 n.1 (Pa.Super. 1996), to hold that dismissal of the case


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in lieu of a stay, together with the fact that arbitration was binding, were

“sufficient trappings of finality” to make the order a final one.1

       I submit that neither circumstance is present herein.         In contrast to

Stern, Mr. Fox’s claims against the other defendants remain pending despite

the order transferring his claims against Somerton to arbitration and

dismissing that party from the court action. Moreover, the propriety of the

order compelling arbitration, as well as certain facets of the arbitration

proceeding itself, remain subject to appellate review upon entry of a final

order.

       Since we lack jurisdiction to correct the trial court’s interlocutory order,2

I would quash the instant appeal. Hence, I respectfully dissent.




____________________________________________


1 The facts in Brown v. D & P Willow, Inc., 686 A.2d 14 (Pa.Super. 1996),
are quite irregular. In Brown, after settlement of a case, there was a fee
dispute between the attorneys who initially handled the case, and the
attorneys subsequently retained to replace them. The trial court ordered the
dispute to the Fee Dispute Committee of the county bar association for
binding, non-appealable arbitration. Appellant appealed from the order and
the question before this Court was “whether binding arbitration may be forced
upon litigants by a court in the absence of any agreement to that effect?” Id.
at 16. This Court found the order to be final and appealable because it put
appellant out of court and rendered any decision final and non-appealable,
without authority for such a directive.       The order contained sufficient
“trappings of finality” to permit an immediate appeal. Id. at 15 n.1.
2 Upon remand, I see no reason why a party cannot seek reinstatement of the

claims against Somerton and a stay pending arbitration. See e.g. Maleski v.
Mutual Fire, Marine and Inland Ins. Co., 633 A.2d 1143 (Pa. 1993) and
Schantz v. Gary Barbera Dodgeland, 830 A.2d 1265 (Pa.Super. 2003).

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