J-A01030-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    TERRANCE M. BRENNAN AND GLADYS A.             IN THE SUPERIOR COURT
    BRENNAN,                                                OF
                                                       PENNSYLVANIA
                             Appellees

                        v.

    NVR, INC., T/A NV HOMES,

                             Appellant               No. 2256 EDA 2017


                   Appeal from the Order Entered June 20, 2017
                 in the Court of Common Pleas of Chester County
                       Civil Division at No.: 2016-10546-TT


BEFORE: LAZARUS, J., OTT, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                              FILED APRIL 27, 2018

        Appellant, NVR, Inc., t/a NV Homes, appeals from the trial court’s June

20, 2017 order denying its preliminary objection in the nature of a motion to

compel arbitration. We affirm.

        We take the underlying facts and procedural history in this matter from

the trial court’s September 1, 2017 opinion and our independent review of the

certified record.

              [Appellees’] Complaint avers the following. On November
        17, 2014[,] the parties executed a Pennsylvania Purchase
        Agreement (Purchase Agreement) related to the construction of
        [Appellees’] home. The Purchase Agreement did not contain an
        arbitration provision. Section 6 of the Purchase Agreement states
        in relevant part: “You have received a copy of Seller’s limited
        warranty (the “Limited Warranty”) prior to execution of this

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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     Agreement and You agree to accept this warranty as the sole
     warranty being given to Purchaser. THE LIMITED WARRANTY OF
     THIS AGREEMENT IS THE ONLY WARRANTY BY SELLER
     APPLICABLE TO THE PROPERTY. . . .” (emphasis in original).
     [Appellees] assert that they were not provided with this Limited
     Warranty prior to executing the Purchase Agreement or at
     settlement. At some point after settlement, [Appellees] were
     provided with a Limited Warranty that related to the construction
     of condominiums. According to [Appellees], nine months after
     settlement, [Appellant] provided them with the “correct” Limited
     Warranty.     The Limited Warranty contained the following
     provision: “THE LIMITED WARRANTY PROVIDED FOR IN THIS
     BOOKLET INCLUDES BINDING ARBITRATION IN THE EVENT OF A
     DISPUTE WHICH IS NOT SETTLED BETWEEN YOU AND THE
     BUILDER. . . .” (emphasis in original). . . .

                                    *      *   *

     . . .[Appellees] assert the following with regard to the construction
     of the house. Prior to settlement and before the installation of the
     exterior siding, stone veneer and drywall, [Appellees] retained
     Peach Inspections to conduct an inspection. Peach Inspections
     identified and photographed “significant defects and sloppy
     installation in the house-wrap, flashing and window installations
     that would allow water intrusion and included this information in
     an inspection report.”        [Appellees] provided this report to
     [Appellant’s] Project Manager Kevin Hawley.              Mr. Hawley
     promised to correct the identified issues before settlement.
     [Appellees] also requested that Mr. Hawley photograph the
     completed corrections. Subsequently, Mr. Hawley represented to
     [Appellees] that the problems identified by Peach Inspections had
     been corrected; however, he had not had time to photograph
     those corrections. [Appellees] were concerned about completing
     settlement; however, Mr. Hawley again reassured them that the
     issues had been resolved. By this time, it was impossible for
     [Appellees] to independently verify that the issues had been
     corrected since the exterior siding, stone veneer and drywall had
     been installed.       Based on Mr. Hawley’s representations,
     [Appellees] completed settlement. However, after settlement,
     [Appellees] discovered significant defects such as water leaks
     around the windows and doors as well as the ceiling, basement
     and garage. Four months after settlement, [Appellees] retained
     Peach Inspections to return to the property. Peach Inspection
     removed the siding and found the defects originally identified to

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      be in the same condition they were in at the time of the original
      inspection.

(Trial Court Opinion, 9/01/17, at 2-4).

      Appellees filed the instant complaint on November 9, 2016, alleging

counts for fraudulent misrepresentation, and violation of Pennsylvania’s unfair

trade practices and consumer protection law. See 73 P.S. §§ 201-1, et seq.

Appellant filed preliminary objections in the nature of a motion to compel

arbitration on February 7, 2017. On June 20, 2017, the trial court overruled

the preliminary objections and directed Appellant to file an answer.        The

instant, timely appeal followed.   On July 14, 2017, the trial court ordered

Appellant to file a concise statement of errors complained of on appeal. See

Pa.R.A.P. 1925(b). Appellant filed its Rule 1925(b) statement on August 1,

2017. See id. On September 1, 2017, the trial court issued an opinion. See

Pa.R.A.P. 1925(a).

      On appeal, Appellant raises the following questions for our review:

                  I.     Is this appeal proper, where it is taken from an
            order overruling preliminary objections seeking to enforce
            the arbitration clause contained in the parties’ contract?

                  II.   Did the trial court exceed its discretion in
            declining to enforce the parties’ arbitration agreement,
            where that agreement was valid, enforceable and this
            dispute is within the scope of that provision?

(Appellant’s Brief, at 2).

      In its first issue, Appellant argues that this Court has jurisdiction over

the appeal. (See Appellant’s Brief, at 2, 11). Appellees do not challenge this


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Court’s jurisdiction over the appeal. (See Appellees’ Brief, at 7-18). It is long

settled that an order denying a motion to compel arbitration is immediately

appealable; therefore, we need not further address this issue. See 42 Pa.

C.S.A. § 7320(a)(1); Pa.R.A.P. 311(a)(8).

      In its second issue, Appellant argues that the trial court erred in

declining to enforce the arbitration agreement. (See Appellant’s Brief, at 12-

22). We disagree.

      Our scope and standard of review are settled.

             We begin by noting that our review of a claim that the trial
      court improperly denied preliminary objections in the nature of a
      petition to compel arbitration is limited to determining whether
      the trial court’s findings are supported by substantial evidence and
      whether the trial court abused its discretion in denying the
      petition. As contract interpretation is a question of law, our review
      of the trial court’s decision is de novo and our scope is plenary.

Petersen v. Kindred Healthcare, Inc., 155 A.3d 641, 644 (Pa. Super.

2017) (citations omitted).

      Pennsylvania law favors settlement of disputes by arbitration.          See

Provenzano v. Ohio Valley General Hosp., 121 A.3d 1085, 1096 (Pa.

Super. 2015). When deciding whether a trial court should have compelled

arbitration, we employ a two-part test: (1) does a valid agreement to arbitrate

exist, and (2) is the dispute within the scope of the agreement.     See Smay

v. E.R. Stuebner, Inc., 864 A.2d 1266, 1270 (Pa. Super. 2004). “[I]f a valid

arbitration agreement exists between the parties and [the plaintiff’s] claim is

within the scope of the agreement, the controversy must be submitted to


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arbitration.” Highmark Inc. v. Hospital Service Ass'n. of Northeastern

Pennsylvania, 785 A.2d 93, 98 (Pa. Super. 2001), appeal denied, 797 A.2d

914 (Pa. 2002). “[T]he scope of arbitration is determined by the intention of

the parties as ascertained in accordance with the rules governing contracts

generally.” Henning v. State Farm Mut. Auto. Ins. Co., 795 A.2d 994, 996

(Pa. Super. 2002), appeal denied, 808 A.2d 572 (Pa. 2002) (citations and

internal quotation marks omitted).

      Here, the trial court found both that there was no valid agreement to

arbitrate and that, even if there was, the instant matter was not within the

scope of the arbitration agreement.     (See Trial Ct. Op., at 3-4).    After a

thorough review of the certified record, we agree.

      As the trial court correctly discussed, (see id. at 2-3), the relevant

contract between the parties is the Purchase Agreement.          The Purchase

Agreement does not contain an arbitration clause. (See Purchase Agreement,

11/17/14, at 1-11). The section of the Purchase Agreement entitled “Claims

and Disputes” does not mention arbitration. (See id. at 4 ¶ 13). Again, the

trial court rightly found that the only mention of arbitration occurs within the

Limited Warranty, contained within the Homeowner’s Manual. (See Trial Ct.

Op., at 3-4; Defendant’s Preliminary Objections, 2/07/17, Exhibit 1 at 61-62

¶ 12).   The Limited Warranty, which was unsigned, is not incorporated into

the Purchase Agreement. (See Purchase Agreement, at 6 ¶¶ 27-28).          While

it is mentioned in the Purchase Agreement, (see id. at 2 ¶ 6), the Purchase


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Agreement specifically mandated that Appellant provide a copy of the Limited

Warranty to Appellees prior to the execution of the Purchase Agreement. (See

id.). Appellant does not dispute that it failed to do so and that, when it did

supply a copy of the Limited Warranty to Appellees, it provided the wrong one,

only providing the correct Limited Warranty many months after the signing of

the Purchase Agreement.         (See Appellant’s Brief, at 5; Defendant’s

Preliminary Objections, at 2-3). Under these circumstances, we cannot say

that “both parties have manifested an intent to be bound by the terms of the

[Limited Warranty.]” Johnston the Florist, Inc. v. Tedco Constr. Corp.,

657 A.2d 511, 516 (Pa. Super. 1995). Thus, we find that the trial court neither

abused its discretion nor committed an error of law in finding that there was

no valid agreement to arbitrate. See Quiles v. Financial Exchange Co.,

879 A.2d 281, 286-87 (Pa. Super. 2005) (affirming trial court decision that

there was no valid agreement to arbitrate where, although arbitration

agreement was contained within employee handbook, record demonstrated

that it was not provided to employee at time of hiring despite employee’s

signature on document saying she had read and received handbook).

      Moreover, even if there was a valid agreement to arbitrate, we agree

with the trial court that the instant matter is not within the scope of the

arbitration provision. (See Trial Ct. Op., at 3-4). As the trial court stated:

            The booklet containing the Limited Warranty as well as the
      Limited Warranty itself describes the various systems in the house
      ([e.g.] HVAC, structural components etc.), maintenance
      requirements as well as [Appellant’s] liability for repairing damage

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      to same. However, as detailed above, the instant action is not
      based on the improper construction of the home, but rather
      [Appellant’s] representative’s fraudulent misrepresentations.
      Therefore, we found that [Appellees’] causes of action did not fall
      within the arbitration provision. . . .

(Id. at 4). We have thoroughly reviewed the record. Appellees’ complaint

specifically alleges that Appellant’s employee fraudulently misrepresented that

he had undertaken the repairs requested by Appellees but had not actually

done so and other violations of Pennsylvania’s Unfair Trade Practices and

Consumer Protection Laws.      (See Complaint, 11/09/16, at 6-8).      We see

nothing in the Limited Warranty or the arbitration clause that covers these

types of claims. (See Limited Warranty, at 61-62 ¶ 12; see also id. at 59-

63). Thus, the trial court neither abused its discretion nor committed an error

of law in finding that the instant matter was not within the scope of the

arbitration agreement. See Henning, supra at 996-97 (holding that limited

arbitration clause only covers those disputes within its terms).

      Accordingly, for the reasons discussed above, we affirm the order of the

trial court.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/27/18

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