J-A11042-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

SA-FE WINDOWS, INC.                             IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellant

                    v.

ADLAUR STT, L.L.C.

                         Appellee                    No. 2575 EDA 2014


              Appeal from the Order Entered on August 6, 2014
            In the Court of Common Pleas of Philadelphia County
                  Civil Division at No.: June 2014 - 001189


BEFORE: FORD ELLIOTT, P.J.E., OLSON, J., and WECHT, J.

MEMORANDUM BY WECHT, J.:                           FILED AUGUST 17, 2015

      SA-FE Windows, Inc (“SA-FE”), appeals the order entered on August 6,

2014, denying SA-FE’s petition to stay arbitration. We must quash SA-FE’s

appeal for want of jurisdiction.

      The trial court set forth the pertinent factual and procedural history of

this case as follows:

      This case was commenced by petition [on] June 9, 2014, with
      [SA-FE’s] petition to stay arbitration of non-arbitrable claims.
      Said petition argued that none of the contracts signed between
      [SA-FE] and [Adlaur STT, L.L.C. (“Adlaur”)] required arbitration
      and that only Adlaur’s breach of express warranty claim was
      within the scope of arbitration. Thus, pursuant to 42 Pa.C.S.
      § 7304(b) and 42 Pa.C.S. § 7342(a), [SA-FE] requested that this
      court stay the arbitration proceeding that had been filed before
      the American Arbitration Association (“AAA”).

      On June 25, 2014, [Adlaur] filed its response to [SA-FE’s]
      motion, arguing that the matter was properly submitted to
      arbitration, as the warranty between the parties had an
      arbitration clause stating that any controversy arising from the
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      warranty shall be submitted for settlement by arbitration to and
      under the rules of the American Arbitration Association in
      Philadelphia, Pennsylvania.

      On August 6, 2014, following a review of the record and
      appropriate briefs, the [trial court] denied [SA-FE’s] petition.

      On August 25, 2014, [SA-FE] filed a timely notice of appeal to
      the Superior Court.

      On September 3, 2014, the [trial court] issued its order pursuant
      to Pa.R.A.P. 1925(b), directing [SA-FE] to file its concise
      statement of [errors] complained of on appeal within twenty-one
      days.

      On September 19, 2014, [SA-FE] filed its statement of errors
      complained of on appeal, arguing that: the [trial court] erred
      when it concluded that the arbitrator had the jurisdiction to
      decide whether Adlaur’s claims are subject to arbitration under
      the arbitration clause contained in the parties’ contracts.

Trial Court Opinion (“T.C.O.”), 11/18/2014, at 1-2 (capitalization modified;

citations omitted).

      SA-FE presents a single issue for our consideration:

      Whether the trial court erred in holding that all Adlaur’s claims in
      its demand for arbitration—as opposed to only the breach of
      express warranty claim—fall within the scope of the arbitration
      agreement contained in the warranty between SA-FE and Adlaur,
      thus resulting in the denial of SA-FE’s request to stay the
      arbitration with regard to Adlaur’s other claims?

Brief for SA-FE at 5 (capitalization omitted).

      Although the parties do not dispute jurisdiction, we must determine

whether this appeal is properly before us. “Generally, an appeal will only be

permitted from a final order unless otherwise permitted by statute or rule of

court.” Zitney v. Appalachian Timber Products, Inc., 72 A.3d 281, 284-

85 (Pa. Super 2013) (quoting Johnston the Florist, Inc. v. TEDCO

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Constr. Corp., 657 A.2d 511, 514 (Pa. Super. 1995)).                 “As a matter of

general principle, an order is not appealable unless it puts the appellant out

of court.” Brennan v. Gen. Acc. Fire & Life Ass. Co., Ltd., 453 A.2d 356,

357 (Pa. Super. 1982).

        Pursuant to 42 Pa.C.S. § 7304(b), a party may ask that a trial court

enter    an   order     staying    “an    arbitration   proceeding    threatened   or

commenced.”        The court shall “forthwith and summarily” determine the

issue, and, if the court finds for the non-moving party, it shall order the

parties to proceed with arbitration. 42 Pa.C.S. § 7304(b).

        The appealability of a trial court order concerning whether certain

claims fall within an arbitration clause is governed by 42 Pa.C.S. § 7320,

which provides in relevant part as follows:

        (a)   General rule.—An appeal may be taken from:

        (1) A court order denying an application to compel arbitration
        under section 7304 (relating to proceedings to compel or stay
        arbitration).

        (2) A court order granting an application to stay arbitration
        made under section 7304(b).

42 Pa.C.S. § 7320.1        Thus, in effect, the statute expressly provides that

orders that prevent arbitration from proceeding are immediately appealable.
____________________________________________


1
      On its face, section 7320 governs statutory but not common-law
arbitration. Subsection 7302(a) provides that “[a]n agreement to arbitrate a
controversy on a nonjudicial basis shall be conclusively presumed to be an
agreement to arbitrate pursuant to Subchapter B (relating to common[-]law
arbitration).” In this case, neither party contends that the warranty in
(Footnote Continued Next Page)


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However, it conspicuously omits to make appealable orders that effectively

direct arbitration.

      We have held in clear terms that this omission precludes an immediate

appeal from an order directing arbitration. See Rosy v. Nat’l Grange Mut.

Ins. Co., 771 A.2d 60, 61-62 (Pa. Super. 2001); Campbell v. Fitzgerald

Motors Inc., 707 A.2d 1167 (Pa. Super. 1998); Gardner v. Prudential

Ins. Co., 481 A.2d 654 (Pa. Super. 1984); Brennan v. Gen. Acc. Fire &

Life Ass. Co., Ltd., 453 A.2d 356 (Pa. Super. 1982). In addition to citing

section 7320, in Brennan, we elaborated upon the principles underlying the

asymmetry:

      Although a party . . . may in some sense be out of court
      [following an order directing common-law arbitration], that is
      true only temporarily. The controversy is not concluded and we
      see no compelling need for immediate appellate review. If the
      arbitration is permitted to proceed, the party initially objecting to
      arbitration may win.       The party would then no longer be
      aggrieved and no appeal would be required. At worst, the party
      will have been required to participate in an unnecessary
      arbitration, but that is no different than the situation where a
      party is required to go to trial after a court erroneously refuses
      to sustain a demurrer to a complaint.




                       _______________________
(Footnote Continued)

question prescribes statutory arbitration; to the contrary, the warranty calls
for arbitration pursuant to AAA’s procedures. Consequently, Subchapter B
governing common-law arbitration applies to this case. However, section
7342 provides that section 7320, with one exception that does not apply to
this case, also governs appealability in the context of common-law
arbitration. 42 Pa.C.S. § 7342(a).



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453 A.2d at 358.    Our observation in Brennan regarding the worst case

scenario is especially on point in this case, given that SA-FE concedes the

arbitrability of Adlaur’s breach of express warranty claim; it would seem that

the parties will find themselves before an arbitrator regardless of the fate of

Adlaur’s other claims.

      In the instant case, SA-FE has petitioned for a stay of arbitration

proceedings, properly invoking the trial court’s power to determine the scope

of the arbitration agreement at issue in this case. The trial court conducted

summary proceedings, after which it declined to stay arbitration, effectively

directing arbitration. Such an order is not appealable under section 7320.

Consequently, this Court lacks jurisdiction over SA-FE’s appeal.

      Appeal quashed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/17/2015




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