In the
United States Court of Appeals
For the Seventh Circuit

No. 01-1578

Ross Brothers Construction Co., Inc.,

Plaintiff-Appellant,

v.

International Steel Services, Inc. and
American Iron Oxide Company,

Defendants-Appellees.

Appeal from the United States District Court
for the Southern District of Indiana, Evansville Division.
No. 00 C 27--Richard L. Young, Judge.

Argued October 26, 2001--Decided March 18, 2002



  Before Posner, Manion, and Diane P. Wood,
Circuit Judges.

  Manion, Circuit Judge. Ross Brothers
Construction Company, Inc. brought suit
against International Steel Services,
Inc. and American Oxide Company to
recover damages for labor and materials
it furnished during a construction
project. Ross sued International Steel
for breach of contract, and sought to
foreclose on a mechanic’s lien that it
filed against real estate owned by
American Oxide. The defendants moved for
summary judgment, seeking to have the
breach of contract claim dismissed and
transferred to arbitration, and the
mechanic’s lien released and discharged.
During the course of the summary judgment
proceedings, a dispute arose as to the
number of purchase order agreements at
issue in the litigation. Ross argued that
it was seeking relief pursuant to three
separate purchase order agreements. The
defendants, however, contended that Ross’
complaint only stated claims for relief
under one purchase order agreement, not
three. The district court held that Ross’
complaint only requested relief under one
purchase order agreement, and granted the
defendants’ motion for summary judgment
as to that agreement. The plaintiff
appeals, and we reverse and remand for
further proceedings.
I.

  On May 10, 1999, Ross Brothers
Construction Co., Inc. entered into a
purchase order agreement ("P.O. 130")
with defendant International Steel
Services, Inc. whereby Ross agreed to
supply labor and materials to
International Steel for the construction
of an acid regeneration plant on real
estate owned by defendant American Oxide
Company. P.O. 130, and its accompanying
attachments, provided that the agreement
was "made under Pennsylvania law," and
included arbitration and "waiver of lien"
clauses. In addition to P.O. 130, Ross
contends that it also entered into two
subsequent verbal purchase order
agreements with International Steel,
P.O.s 167 and 200, and that these
agreements were separate and independent
from P.O. 130.

  Ross submitted invoices to International
Steel for work performed and materials
supplied pursuant to all three purchase
order agreements. After International
Steel refused to pay the invoices, Ross
filed a mechanic’s lien on American
Oxide’s real estate in the amount of
$1,400,000. Ross then initiated an action
in state court against International
Steel for breach of contract, and against
American Oxide to foreclose on the
mechanic’s lien. The defendants removed
the case to federal district court on the
basis of diversity of citizenship, and
filed a counterclaim against Ross for
breach of contract. Shortly thereafter,
the defendants filed a motion for summary
judgment, arguing that the arbitration
provision contained in P.O. 130 required
Ross’ breach of contract claim to be
transferred to arbitration, and that Ross
had waived the right to file a mechanic’s
lien because P.O. 130 contained a valid
lien waiver provision. In responding to
these arguments, Ross noted that P.O. 130
was not the only purchase order agreement
at issue in the litigation. Ross asserted
that it had performed work pursuant to
three separate purchase order agreements,
P.O.s 130, 167 and 200. Ross argued that
P.O.s 167 and 200 are not subject to the
choice of law, arbitration, and lien
waiver provisions contained in P.O. 130,
and that even if these provisions apply
to P.O.s 167 and 200 they are void as a
matter of law. The defendants countered
by asserting that Ross’ complaint did not
state claims for relief pursuant to P.O.s
167 and 200, and requested that the
district court "hold this dispute is
covered only by [P.O. 130] because Ross
is bound by its Complaint which refers
only to purchase order - 130." The
defendants argued that Ross was precluded
from asserting these claims because it
had failed "to reference or even mention
[P.O.s 167 and 200] in its prior
pleadings [i.e., the complaint]." The
district court granted the defendants’
motion, transferring Ross’ claim for
breach of P.O. 130 to arbitration/1 and
ordering Ross to release and discharge
the mechanic’s lien in its entirety. The
district court did not, however,
specifically address Ross’ claims for
breach of P.O.s 167 and 200, or whether
the mechanic’s lien was valid to the
extent that it encompassed these purchase
orders. Instead, the district court
merely noted at the conclusion of its
order that "[t]his Entry does not apply
to other purchase orders that exist
between the parties."

II.

  We begin our analysis with some
jurisdictional housekeeping. After a
preliminary review of the short record in
this case, we discovered two potential
jurisdictional problems and ordered the
parties to brief the issues. We noted
that while the district court’s judgment
purported to be "final," the status of
the defendants’ counterclaim was unclear.
We also questioned whether diversity of
citizenship existed between the parties.
After reviewing the parties’ respective
briefs, we concluded that the district
court disposed of the defendants’
counterclaim, and that diversity of
citizenship existed between the parties
in accordance with 28 U.S.C. sec. 1332.

  At oral argument, however, another
jurisdictional wrinkle appeared, once
again bringing into question the finality
of the district court’s judgment.
Specifically, we questioned the parties
as to whether the district court’s
statement that "[t]his Entry does not
apply to other purchase orders that exist
between the parties" meant that Ross’
P.O. 167 and 200 claims remained pending
before the court, thus depriving this
court of jurisdiction under 28 U.S.C.
sec. 1291. The parties contended that the
only matter pending before the district
court was the defendants’ motion for
attorneys’ fees. The Supreme Court has
held that a "[q]uestion remaining to be
decided after an order ending litigation
on the merits does not prevent finality
if its resolution will not alter the
order or moot or revise decisions
embodied in the order," Budinich v.
Becton Dickinson & Co., 486 U.S. 196, 199
(1988), and therefore "a claim for
attorney’s fees is not part of the merits
of the action to which the fees pertain."
Id. at 200. See also Barrow v. Falck, 977
F.2d 1100, 1102 (7th Cir. 1992). The
claim for attorneys’ fees
notwithstanding, neither party was, quite
understandably, sure how to characterize
the district court’s cryptic reference to
"other purchase orders." Nevertheless,
both parties maintained that the district
court’s judgment was final, and that we
had jurisdiction to hear the appeal.
Parties may not, however, confer
jurisdiction on this court by merely
agreeing that the district court’s
decision is final, and thus appealable
under sec. 1291. See, e.g., ITOFCA, Inc.
v. MegaTrans Logistics, Inc., 235 F.3d
360, 363 (7th Cir. 2000). "It is our own
threshold and independent obligation to
make that determination even [when] both
parties agreeably [consider an] order to
be final and appealable." Horwitz v.
Alloy Auto. Co., 957 F.2d 1431, 1435 (7th
Cir. 1992). Whether a decision is final
for purposes of sec. 1291 "generally
depends on whether the decision by the
district court ’ends the litigation on
the merits and leaves nothing for the
court to do but execute the judgment.’"
MegaTrans, 235 F.3d at 363 (citation
omitted). As explained below, we conclude
that the district court made a final
determination with respect to Ross’ P.O.
167 and 200 claims. Because the district
court’s order ended the "merits" phase of
the litigation, it is a final appealable
judgment for purposes of sec. 1291. Id.

  We now turn to Ross’ argument that the
district court improperly "dismissed" the
claims it brought for breach of contract
and to foreclose on the mechanic’s lien
pursuant to P.O.s 167 and 200. Ross
contends that the district court’s order
violates Circuit Rule 50/2 because the
court dismissed the P.O. 167 and 200
claims without explanation./3 Ross also
challenges the district court’s decision
ordering a complete release and discharge
of the mechanic’s lien. According to
Ross, it was improper for the district
court to order a release and discharge of
the entire amount of the lien without
first considering the lien’s validity as
to P.O.s 167 and 200. Furthermore, to the
extent the mechanic’s lien covers P.O.
130, Ross argues that the purchase
order’s arbitration clause precluded the
district court from ordering the release
and discharge of that portion of the lien
as well.

  As an initial matter, we note the
absence of any specific discussion by the
district court of P.O.s 167 and 200 in
its order. While the district court’s
order discusses P.O. 130 in great detail,
it was not until the end of the opinion
that the court even acknowledged the
existence of other purchase orders,
noting "[t]his Entry does not apply to
other purchase orders that exist between
the parties." Viewed in isolation, it is
unclear what the district court intended
to convey through this statement. Hence,
Ross’ argument that we should remand the
case back to the district court, pursuant
to Circuit Rule 50, to enable the court
to explain the meaning of the statement.

  While we agree that the district court’s
order violates Circuit Rule 50, we do not
believe that it is necessary to remand
the case for clarification. We have
consistently held "that lack of an
explanation [by a district court] does
not necessarily defeat appellate
jurisdiction, at least where the reasons
are apparent from the record." See, e.g.,
United States v. Ettrick Wood Products,
Inc., 916 F.2d 1211, 1218 (7th Cir.
1990). After a careful examination of the
record, we conclude that the district
court accepted the defendants’ argument
that Ross failed to sufficiently plead
claims for relief pursuant to P.O.s 167
and 200 in its complaint, and that P.O.
130 was the only purchase order at issue
in the case./4 We find this to be the
case for two reasons. First, only three
purchase orders were mentioned by the
parties during the course of the
litigation, P.O.s 130, 167, and 200. As
such, when the district court refers to
"other purchase orders" it can only mean
P.O.s 167 and 200. Second, we must
presume the district court read the
briefs submitted during the summary
judgment proceedings, where the parties
spent a substantial amount of time
arguing over the scope of the lawsuit
(i.e., whether P.O.s 167 and 200 were at
issue). Viewed in this context, the
district court’s statement that "[t]his
Entry does not apply to other purchase
orders that exist between the parties,"
can only be interpreted as evidencing the
court’s acceptance of the defendants’
argument that Ross’ complaint did not
state claims for relief pursuant to P.O.s
167 and 200, and that Ross was precluded
from clarifying the scope of its
complaint during the course of the
summary judgment proceedings.

  In reviewing the district court’s
disposition of Ross’ P.O. 167 and 200
claims, our degree of scrutiny is
governed by Fed. R. Civ. P. 8, which
provides that a pleading is sufficient if
it contains: "(1) a short and plain
statement of the grounds upon which the
court’s jurisdiction depends, unless the
court already has jurisdiction and the
claim needs no new grounds of
jurisdiction to support it, (2) a short
and plain statement of the claim showing
that the pleader is entitled to relief,
and (3) a demand for judgment for the
relief the pleader seeks . . . ." Fed. R.
Civ. P. 8(a). As this court has
consistently noted, "the essential
function of a complaint under the civil
rules . . . is to put the defendant on
notice of the plaintiff’s claim." Davis
v. Ruby Foods, Inc., 269 F.3d 818, 820
(7th Cir. 2001). In placing the defendant
on notice, however, a plaintiff must
comply with Rule 8(e)(1), which requires
that "[e]ach averment of a pleading shall
be simple, concise, and direct." Fed. R.
Civ. P. 8(e)(1). Nevertheless, "[n]o
technical forms of pleading or motions
are required." Id. Finally, we note that
Rule 8(f) demands that "[a]ll pleadings
shall be so construed [by a district
court] as to do substantial justice."
Fed. R. Civ. P. 8(f). With these
principles in mind, we now turn to Ross’
complaint to determine whether it stated
claims for relief pursuant to P.O.s 167
and 200.

  Ross’ complaint contained the following
averments: "[A] Purchase Order and
subsequent verbal change orders were
entered into between International Steel
and Ross for certain construction
services performed on the Real Estate";
"Ross has provided labor and materials
relative to the Real Estate under the
terms of the Purchase Order and
subsequent verbal change orders"; "Ross
has demanded payment in amounts currently
due and owing under the terms of the
Purchase Order and subsequent verbal
change orders but International Steel has
failed and otherwise refused to make
payment of same"; and "[t]hat judgment be
entered against Defendant, International
Steel, in the amount due and owing under
the contract and subsequent verbal change
orders . . . ." Additionally, each of the
invoices attached to the complaint refer
to a specific purchase order. Although
most of the invoices were issued pursuant
to P.O. 130, others specifically refer to
P.O.s 167 and 200.

  The mechanic’s lien affidavit attached
to the complaint is further evidence that
Ross sought relief under three separate
purchase orders. The affidavit asserts
that the mechanic’s lien was filed
"pursuant to verbal contracts and
contracts entered into after July 1,
1999." The parties’ stipulation that P.O.
130 was executed on May 20, 1999,
demonstrates that the defendants and the
district court knew, or should have
known, that this litigation involved
multiple purchase order agreements.

  While there is little question that
Ross’ complaint could have been drafted
in a more precise manner, Rule 8 does not
demand perfection--just notice. We
believe that Ross’ complaint adequately
placed the defendants on notice that it
was suing them pursuant to three separate
purchase order agreements. Furthermore,
if there was any doubt about the scope of
the complaint, Ross made its intentions
abundantly clear during the summary
judgment proceedings when it noted that
"[t]he work performed . . . consisted of
three separate and independent purchase
orders . . . Purchase Order 156070-130 .
. . and . . . two additional unsigned
purchase orders, 156070-167 and 156070-
200." Ross then went on to argue that the
arbitration, choice of law, and lien
waiver provisions contained in P.O. 130
were not applicable to P.O.s 167 and 200.

  We have held that "[c]omplaints in a
system of notice pleading initiate the
litigation but recede into the background
as the case progresses." Bartholet v.
Reishauer A.G. (Zurich), 953 F.2d 1073,
1078 (7th Cir. 1992), and that subsequent
pleadings can "refine the claims [and]
briefs and memoranda [can] supply the
legal arguments that bridge the gap
between facts and judgments." Id. See
also Luckett v. Rent-A-Center, Inc., 53
F.3d 871, 873 (7th Cir. 1995) ("District
judges must heed the message of Rule 8:
the pleading stage is not the occasion
for technicalities."); Moore v. City of
Harriman, 272 F.3d 769, 774 (6th Cir.
2001) (concluding that "[e]ven assuming
the complaint itself failed to provide
sufficient notice, Moore’s response to
the officers’ motion to dismiss clarified
any remaining ambiguity . . . ."). There
fore, "[a]s long as Rule 8 stands
unaltered . . . courts must follow the
norm that a complaint is sufficient if
any state of the world consistent with
the complaint could support relief."
South Austin Coalition Cmty. Council v.
SBC Communications, Inc., 274 F.3d 1168,
1171 (7th Cir. 2001).

  We, therefore, vacate the district
court’s order, and remand the case so
that Ross’ P.O. 167 and 200 claims for
breach of contract and foreclosure of the
mechanic’s lien may be considered on the
merits. On remand, the district court
will need to consider the following: (1)
whether P.O.s 167 and 200 are separate
and independent agreements, or merely
part of P.O. 130; (2) if P.O.s 167 and
200 are separate agreements, whether Ross
contractually agreed that all future
purchase orders would include the terms
and conditions contained in P.O. 130
(i.e., the arbitration, choice-of-law,
and lien waiver clauses),/5 and (3) if
P.O.s 167 and 200 contain P.O. 130’s
provisions, whether any of them are void
under Indiana law./6 We express no
opinion on the resolution of these
questions.

   We also vacate the district
court’s order instructing Ross to release
and discharge its mechanic’s lien. We do
so for two reasons. First, because the
district court erroneously concluded that
P.O.s 167 and 200 were not a part of the
litigation, it failed to consider the
validity of Ross’ mechanic’s lien in
relation to these purchase orders. This
decision amounted to a de facto dismissal
of Ross’ claim to foreclose on the
mechanic’s lien as to P.O.s 167 and 200.
Had the mechanic’s lien been discharged,
Ross would not be able to a file a
separate mechanic’s lien covering only
P.O.s 167 and 200. See Ind. Code sec. 32-
8-3-3(a) (mechanic’s lien must be filed
within 90 days after the claimant
furnishes labor or materials). Second, to
the extent the mechanic’s lien covers
P.O. 130, the district court erred in
ordering the release and discharge of
that portion of the lien after
determining that the arbitration clause
contained in P.O. 130 was valid. As both
parties acknowledge, the arbitration
clause must be interpreted pursuant to
the purchase order agreement’s choice of
law provision. P.O. 130’s choice of law
provision requires that the agreement be
construed according to Pennsylvania law.
Because P.O. 130’s arbitration clause
does not provide for the application of
the Pennsylvania Uniform Arbitration Act,
the clause is governed by the state’s
common law. See, e.g., Borgia v.
Prudential Ins. Co., 750 A.2d 843, 846
(Pa. 2000). Under Pennsylvania’s common
law arbitration, "when a party to an
agreement seeks to enjoin the other from
proceeding to arbitration, judicial
inquiry is limited to the question of (1)
whether an agreement to arbitrate was
entered into and (2) whether the dispute
involved comes within the ambit of the
arbitration provision." Rocca v. Pa. Gen.
Ins. Co., 516 A.2d 772, 773 (Pa. Super.
Ct. 1986); see also Flightways Corp. v.
Keystone Helicopter Corp., 331 A.2d 184,
185 (Pa. 1975). In this case, neither
party disputes the validity of the
arbitration clause as it relates to P.O.
130. The only question then is whether
Ross’ claim to foreclose on its
mechanic’s lien, pursuant to P.O. 130, is
covered by the arbitration clause.

  We begin our analysis of this issue by
noting that Pennsylvania, as a matter of
public policy, favors the disposition or
settlement of disputes by way of
arbitration. See, e.g., Flightways Corp.,
331 A.2d at 185. ("By now it has become
well established that ’[s]ettlement of
disputes by arbitration are no longer
deemed contrary to public policy. In
fact, our statutes encourage arbitration
and with our dockets crowded and in some
jurisdictions congested arbitration is
favored by the courts.’") (citation
omitted). In determining whether Ross’
claim to foreclose on its mechanic’s
lien, pursuant to P.O. 130, is subject to
the arbitration, we are governed by two
basic propositions: "(1) arbitration
agreements are to be strictly construed
and not extended by implication; and (2)
when parties have agreed to arbitrate in
a clear and unmistakable manner, every
reasonable effort should be made to favor
the agreement unless it may be said with
positive assurance that the arbitration
clause involved is not susceptible to an
interpretation that covers the asserted
dispute." Highmark, Inc. v. Hosp. Serv.
Ass’n of N.E. Pa., 785 A.2d 93, 98 (Pa.
Super. Ct. 2001) (citation omitted); see
also Emmaus v. Mun. Auth. v. Eltz, 204
A.2d 926, 927 (Pa. 1964).

  The defendants argue that the district
court was justified in addressing the
merits of Ross’ P.O. 130 mechanic’s lien
claim after it determined that P.O. 130
contained a valid arbitration clause.
They contend that under Pennsylvania law
if an issue that is allegedly subject to
arbitration is severable, "the court is
free to proceed with [resolving] those
remaining issues despite transferring
some of the issues to arbitration."/7
But this begs the question: Is Ross’
claim to foreclose on the mechanic’s
lien, pursuant to P.O. 130, a claim that
is "severable" under Pennsylvania law?
The general rule is that "[o]nce it has
been determined that a substantive
dispute is arbitrable, the arbitrators
normally have the authority to decide all
matters necessary to dispose of the
claim." Borgia, 750 A.2d at 846 (Pa.
2000). In arguing for an exception to
this general rule, it was incumbent upon
the defendants to provide legal authority
to substantiate their claim that the
mechanic’s lien claim was severable under
Pennsylvania law. As we have noted on
several occasions, arguments raised in a
conclusory or underdeveloped manner on
appeal are waived. See, e.g., Pond v.
Michelin N. Am., Inc., 183 F.3d 592, 597
(7th Cir. 1999).

  The defendants also argue that because
American Oxide was not a party to P.O.
130, it should not be forced to arbitrate
Ross’ claim to foreclose on that portion
of the mechanic’s lien. We disagree. It
is undisputed that American Oxide is a
third party beneficiary to P.O. 130. The
defendants acknowledge this on appeal,
noting that "[t]he waiver of lien
provision was intended to, and does,
benefit AMROX [American Oxide] as it is
the owner of the real estate against
which a mechanic’s lien was filed." Under
Pennsylvania law, "a third party
beneficiary’s rights and limitations in a
contract are the same as those of the
original contracting parties." Miller v.
Allstate Ins. Co., 763 A.2d 401, 405 n.1
(Pa. Super. Ct. 2000). Thus, while a
third-party beneficiary may enforce an
arbitration agreement, see, e.g.,
Highmark, 785 A.2d 93 at 99, the converse
is true as well. Id. See also Johnson v.
Pa. Nat’l Ins. Companies, 594 A.2d 296,
298-99 (Pa. 1991).

  Furthermore, the language used by
International Steel in drafting P.O.
130’s arbitration clause is sweeping:
"[a]ny claim or controversy arising out
of or relating to this Purchase Order or
breach thereof shall be settled in
accordance with the rules of the American
Arbitration Association." Neither party
disputes that Ross’ mechanic’s lien
covers P.O. 130. As such, there is no
question that Ross’ claim to foreclose on
the mechanic’s lien, to the extent the
lien encompasses P.O. 130, arose out of
and relates to P.O. 130. Pennsylvania
courts have held, in interpreting a
virtually identical arbitration,/8 that
when a party to a contract, in this case
International Steel, uses "the broadest
conceivable language" in drafting an
arbitration clause, "it must be concluded
that the parties intended the scope of
the submission to be unlimited."
Ambridge, 328 A.2d at 501. Therefore,
when "there is an unlimited arbitration
clause, any dispute which may arise
between the parties concerning the
principal contract is to be settled
pursuant to its terms." Id. For these
reasons, we vacate the district court’s
decision ordering the release and
discharge of Ross’ mechanic’s lien.

III.

  In conclusion, we reverse and vacate the
district court’s determination that P.O.s
167 and 200 were not at issue in this
litigation. We also reverse and vacate
the district court’s order directing Ross
to release and discharge the mechanic’s
lien. On remand, the district court is
directed to consider the validity of
Ross’ claims for breach of contract and
to foreclose on the mechanic’s lien
pursuant to P.O.s 167 and 200. In
addressing the merits of these claims,
the district court will need to determine
whether P.O.s 167 and 200 are separate
and independent agreements apart from
P.O. 130. If the district court concludes
that P.O.s 167 and 200 are part of the
P.O. 130 agreement, then all of Ross’
claims (i.e., breach of contract and
foreclosure of mechanic’s lien) must be
transferred to arbitration. On the other
hand, if the district court determines
that P.O.s 167 and 200 are separate
agreements, it must then determine
whether, as the defendants contend, Ross
contractually agreed to incorporate the
terms and conditions contained in P.O.
130 (i.e., the arbitration, choice-of-
law, and lien waiver clauses) into all
future purchase order agreements. If the
district court concludes that P.O.s 167
and 200 contain P.O. 130’s terms and
conditions, the court must then evaluate
whether any of these contractual
provisions are void under Indiana law.
See ante at 11 n.6. The district court
must answer these questions before it can
determine whether it or the arbitrator is
vested with the authority to address the
merits of these claims./9 The district
court’s disposition of Ross’ P.O. 167 and
200 claims, however, has no bearing on
Ross’ claim to foreclose on the
mechanic’s lien pursuant to P.O. 130,
which, as previously noted, must be
transferred to arbitration along with
Ross’ breach of P.O. 130 claim. The case
is remanded, and the district court is
instructed to proceed in the manner
outlined in this opinion.

FOOTNOTES

/1 Ross does not appeal the district court’s deci-
sion to transfer its breach of P.O. 130 claim to
arbitration.

/2 Circuit Rule 50 provides that "[w]henever a
district court resolves any claim or counterclaim
on the merits, terminates the litigation in its
court (as by remanding or transferring the case,
or denying leave to proceed in forma pauperis
with or without prejudice), or enters an inter-
locutory order that may be appealed to the court
of appeals, the judge shall give his or her
reasons, either orally on the record or by writ-
ten statement."
/3 Alternatively, Ross argues that summary judgment
of its P.O. 167 and 200 claims was inappropriate
because genuine issues of material fact remain as
to whether these purchase orders comprised con-
tracts separate and distinct from P.O. 130, and
whether the mechanic’s lien, to the extent the
lien covered amounts due under P.O.s 167 and 200,
is valid.

/4 The defendants do not challenge the existence or
validity of P.O.s 167 and 200, nor do they
contend that P.O.s 167 and 200 are part of P.O.
130. Instead, the defendants argue only that
Ross’ complaint fails to state claims for relief
based on these purchase orders.

/5 The defendants argue on appeal that Ross agreed
that all future purchase orders would contain
P.O. 130’s terms and conditions.

/6 Ross argues that even if the arbitration, choice-
of-law, and lien waiver provisions of P.O. 130
apply to P.O.s 167 and 200, they are void as a
matter of law with respect to its mechanic’s lien
claim. Ross contends that P.O.s 167 and 200 were
entered into after July 1, 1999. This is signifi-
cant because Ind. Code sec. 32-8-3-16(b)provides
that after July 1, 1999, "[a] provision in a
contract for the improvement of real estate in
Indiana is void if the provision requires a
person . . . who furnishes labor, materials, or
machinery to waive a right to a lien against real
estate or to a claim against a payment bond
before the person is paid for the labor or
materials furnished." Furthermore, Ind. Code sec.
32-8-3-16(c) provides that "[a] provision in a
contract for the improvement of real estate in
Indiana under which one (1) or more persons agree
not to file a notice of intention to hold a lien
is void." Finally, Ind. Code sec. 32-8-3-17
provides that "[a] provision in a contract for
the improvement of real estate in Indiana is void
if the provision makes the contract subject to
the laws of another state or that requires that
any litigation, arbitration, or other dispute
resolution process on the contract occur in
another state."

/7 Pa. Cons. Stat. Ann. sec. 7304(d) provides that
"[a]n action or proceeding, allegedly involving
an issue subject to arbitration, shall be stayed
if a court order to proceed with arbitration has
been made or an application for such an order has
been made under this section. If the issue alleg-
edly subject to arbitration is severable, the
stay of the court action or proceeding may be
made with respect to the severable issue only. If
the application for an order to proceed with
arbitration is made in such action or proceeding
and is granted, the court order to proceed with
arbitration shall include a stay of the action or
proceeding."

/8 The arbitration clause at issue in Borough of
Ambridge Water Auth. v. Columbia, 328 A.2d 498
(Pa. 1974), provided that "any controversy or
claim arising out of or relating to this Agree-
ment or the breach thereof shall be settled by
arbitration in accordance with the rules of the
American Arbitration Association . . . ." Id. at
499.

/9 As previously noted, we express no opinion on the
resolution of these questions.
