J-A19024-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 MARYANNE GALLAGHER                      :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 HEARTHSIDE REALTY, INC., D/B/A          :
 COLDWELL BANKER HEARTHSIDE              :
 REALTORS, ROBIN MANCUSO                 :   No. 3699 EDA 2018
 DELUNA, JAMIE MANCUSO AND               :
 PRITCHARD, BIELER, GRUVER &             :
 WILLISON, P.C.                          :
                                         :
                                         :
 APPEAL OF: HEARTHSIDE REALTY,           :
 INC., ROBIN MANCUSO-DELUNA              :
 AND JAIME MANCUSO                       :


             Appeal from the Order Entered, December 5, 2018,
               in the Court of Common Pleas of Bucks County,
                     Civil Division at No(s): 2018-02864.


BEFORE:    PANELLA, P.J., KUNSELMAN, J., and STEVENS*, P.J.E.

MEMORANDUM BY KUNSELMAN, J.:                   FILED SEPTEMBER 09, 2019

      Hearthside Realty, Inc., Robin Mancuso-DeLuna, and Jamie Mancuso

(“the Mancusos”) appeal the trial court’s order overruling and dismissing their

preliminary objections. Their objections sought to compel arbitration of this

dispute.   Because the Mancusos never contracted with Plaintiff, Maryanne

Gallagher, much less signed an arbitration agreement with her, we affirm.

      The trial court noted that there are two companion cases arising from

the same string of events. In June of 1997, Ms. Gallagher and Frank Mancuso

created a business partnership (the “Partnership”) with respect to a real-

____________________________________
* Former Justice specially assigned to the Superior Court.
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estate-brokerage business and entered into a Partnership Agreement. When

Frank attempted to substitute his two children, i.e., the Mancusos, for himself

as partners with Ms. Gallagher, Ms. Gallagher filed two lawsuits: a previous

case (Bucks County Case No. 2016-07570) and the instant matter.

      In her first case, Ms. Gallagher alleged two counts of breach of contract,

two counts of unjust enrichment, conversion, and breach of fiduciary duty

against Frank and his children, all of whom appealed the trial court’s decision

overruling their preliminary objections to Ms. Gallagher’s complaint.       They

argued the trial court erroneously failed to submit certain counts to arbitration.

The trial court issued a 1925(a) Opinion.       In November 2018, this Court

affirmed the order refusing to compel arbitration.

      In that decision, we quoted the following facts from the trial court’s

1925(a) Opinion:

            [In] June 1997, Maryanne Gallagher and Frank [Mancuso]
      created a business partnership for the purpose of owning,
      managing, operating, and conducting a real-estate-brokerage
      business in Levittown, Pennsylvania.         At the time of the
      Partnership’s formation, Frank was the sole owner of the capital
      stock of Hearthside Realty, Inc. . . . a Coldwell Banker franchisee
      operating under the name “Coldwell Banker Hearthside Realty.”

             Under the . . . Partnership Agreement, the Partnership was
      to operate as a branch of Coldwell Banker under the trade name
      “Coldwell Banker Hearthside Levittown Realty” pursuant to the
      Franchise Agreement in existence between Coldwell Banker as
      franchisor and Coldwell Banker Hearthside Realty (“CB
      Hearthside”) as franchisee. . . . Frank covenanted that he would
      continue to permit the Partnership to operate as a branch office of
      Coldwell Banker. Of particular importance to the instant matter is
      that the Partnership Agreement, entered into by and between [Ms.
      Gallagher] and Frank, contained an arbitration provision, to wit:

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            If any controversy or claim arising out of this
            Partnership Agreement cannot be settled by the
            Partners, the controversy or claim shall be settled by
            arbitration in accordance with the rules of the
            American Arbitration Association then in effect, and
            judgment on the award may be entered in any court
            having jurisdiction.

Gallagher v. Gallagher, et al., 3533 EDA 2017 (Nov. 5, 2018) (unpubished

memorandum).

      Ms. Gallagher and Frank signed the Partnership Agreement containing

that provision. The Mancusos did not sign anything with Ms. Gallagher.

      On August 30, 2018, Ms. Gallagher filed a new, three-count complaint.

She re-sued the Mancusos and also sued Pritchard, Bieler, Gruver & Willison,

P.C. (hereinafter “PBGW”), but she did not re-sue Frank.

      The new complaint alleges fraud, tortious interference with an existing

contract, and conversion. Ms. Gallagher claims that, in 2014, the Mancusos

and PBGW prepared and filed tax returns for the Partnership usurping her

rights under the Partnership Agreement. She also alleges these tax returns

were prepared without her knowledge and eliminated her as a partner. This

change in ownership, she believes, violated Frank’s notice obligation under

the Partnership Agreement, which gave her the option to make an offer to

purchase Frank’s partnership interest in the business, if and when he left.

      In response to the complaint, the Mancusos sought to compel arbitration

through preliminary objections. The trial court denied that request, and the




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Mancusos timely appealed.1 The Mancusos and trial court complied with Rule

of Appellate Procedure 1925.

       The Mancusos raise one issue on appeal:

          Did the trial court err in overruling [the Mancusos’]
          preliminary objections to [Ms. Gallagher’s] complaint [by]
          finding that there is not a valid agreement . . . to arbitrate
          [her] claims against [them]?

The Mancusos’ Brief at 5.

       “Our standard of review of an order of the trial court overruling

preliminary objections is to determine whether the trial court committed an

error of law . . . the appellate court must apply the same standard as the trial

court.” DeLage Landen Fin. Servs., Inc. v. Urban P'ship, LLC, 903 A.2d

586, 589 (Pa. Super. 2006) (citation omitted; brackets in original). “When

preliminary objections, if sustained, would result in the dismissal of an action,

such objections should be sustained only in cases which are clear and free

from doubt.” Id. (citations omitted).

       To determine whether to compel arbitration, the Pennsylvania courts

apply a two-pronged test. See Elwyn v. DeLuca, 48 A.3d 457, 461 (Pa.

Super. 2012). The trial court determined that the Mancusos’ argument failed

____________________________________________


1  We have jurisdiction over this appeal. An order overruling preliminary
objections is usually not appealable. See Provenzano v. Ohio Valley Gen.
Hospital, 121 A.3d 1085 (Pa. Super. 2015). However, there is a narrow
exception when such orders refuse to compel arbitration. See Midomo Co.,
Inc. v. Presbyterian Hous. Dev. Co., 739 A.2d 180, 184 (Pa. Super. 1999).
Thus, the trial court’s December 4, 2018 order refusing to compel arbitration
is an interlocutory order, appealable as of right. 42 Pa.C.S.A. § 7302(a)(1).

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J-A19024-19



at the first prong of test, because they are not Frank, the only person with

whom Ms. Gallagher contracted.          Thus, the trial court concluded that no

arbitration agreement existed between the Mancusos and Ms. Gallagher.

      The trial court opined as follows:

         the arbitration provision governs claims or controversy
         between the partners of that agreement, to wit: Frank
         Mancuso and [Ms. Gallagher].       With respect to the first
         prong, there is no valid agreement to arbitrate between the
         parties of the instant case[, because the Mancusos] are not
         partners in the business entity created by [Ms. Gallagher]
         and Frank Mancuso.

               Moreover, the record does not support the conclusion
         that [the Mancusos] were intended third-party beneficiaries
         of the Partnership Agreement. The factual circumstances
         alleged in the complaint concerns activities which occurred
         outside of the ambit of the Partnership Agreement, as the
         conduct related to Frank Mancuso’s corporate restructuring
         and the preparation of tax returns created by PBGW
         pursuant thereto. Thus, the underlying dispute is not
         confined to the conduct of [Ms. Gallagher] and Frank
         Mancuso but relates to a concert of activity involving parties
         uncontemplated at the time the Partnership Agreement was
         executed.

               Furthermore, the factual circumstances alleged are
         completely extrinsic to the activities governed by the
         Partnership Agreement. We thus determine that no valid
         agreement to arbitrate exists between the parties in the
         instant case. We need not reach the second prong discussed
         in Provenzano v. Ohio Valley Gen. Hosp, 121 A.3d 1085
         (Pa. Super. 2015) which evaluates whether the particular
         claims in the complaint operate within the scope of the
         requisite arbitration provision.

Trial Court Opinion, 2/11/19, at 6-7.

      The Mancusos reject the trial court’s conclusion that they do not have

an arbitration agreement with Ms. Gallagher. They believe that the contract

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she entered with their father Frank extends to them, because “the gist of her

claims against [them] are based upon the Partnership, the Partnership

Agreement, which is a contract, and [the Mancusos] being partners with [Ms.

Gallagher] in the Partnership.” The Mancusos’ Brief at 19. That non sequitur

rests upon the Mancusos’s unproven premise that Ms. Gallagher and they

agreed to arbitrate their claims against one another. They did not.

      We believe the Mancusos fail to prove their silent premise, because, as

a matter of basic contract law, they cannot. “The elemental aspects necessary

to give rise to an enforceable contract are offer, acceptance, consideration or

mutual meeting of the minds.” Schreiber v. Olan Mills, 627 A.2d 806, 808

(Pa. Super. 1993). Ms. Gallagher and the Mancusos exchanged no offer, no

acceptance, and no consideration. They reached no meeting of the minds.

Thus, they had no contract.

      Without a contractual agreement to do so, a party usually cannot be

compelled to arbitrate. “Arbitration is a matter of contract, and . . . cannot

be compelled to arbitrate a given issue absent an agreement between them

to arbitrate . . . such agreements should not be extended by implication.”

Elwyn, 48 A.3d at 461 (quoting Cumberland–Perry Area Vo.–Tech.

School v. Bogar & Bink, 396 A.2d 433, 434 – 435 (Pa. Super. 1978)

(emphasis added). Here, the Mancusos attempt to force Ms. Gallagher into

arbitration, despite there being no agreement between them.

      Thus, this case is readily distinguishable from the two cases upon which

the Mancusos rely: Shadduck v. Christopher J. Kaclik, Inc., 713 A.2d 635

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(Pa. Super. 1998), and Dodds v. Pulte Home Corp., 909 A.2d 348 (Pa.

Super. 2006). In both cases, it was undisputed that the plaintiffs had entered

into contracts with the companies that had built their respective homes. The

homeowners joined the builders’ parent companies and added tort-based and

statute-based claims. This Court held the homeowners’ procedural steps could

not transform breach-of-warranty actions against the builders, which were

subject to arbitration, into non-arbitral, court cases.

      Here, by contrast, Frank, the person with whom Ms. Gallagher agreed

to go to arbitration, is absent from the suit. Moreover, Ms. Gallagher alleges

no breach of contract by the Mancusos, because she cannot. It is black-letter

law that the Mancusos could not have breached a Partnership Agreement they

never entered. See, e.g., Seneca Res. Corp. v. S & T Bank, 122 A.3d 374,

379 (Pa. Super. 2015) (stating “To show a breach of contract, a party must

establish the existence of a contract . . . .”)

      Finally, we note that, although the Partnership Agreement is binding

upon Frank’s and Ms. Gallagher’s successors, the Mancusos do not argue they

are legal successors to Frank under the Agreement. Therefore, we express

no opinion on this point, and the trial court made no finding that they are

Frank’s legal successors. Moreover, the trial court concluded the Mancusos

are not third-party beneficiaries of the Partnership Agreement.     See Trial

Court Opinion, 2/11/19, at 7. The Mancusos do not challenge that ruling on

appeal.   Indeed, the whole theory of Ms. Gallagher’s lawsuit is that the




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Mancusos are not legal successors to Frank and that their role in the business

is an illegal usurpation of the Partnership.

      Accordingly, we agree with the learned trial court. The Mancusos have

not satisfied the first prong of the test in Elwyn, supra, because they failed

to establish that there was an arbitration agreement between Ms. Gallagher

and themselves.

      Order affirmed. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/9/19




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