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CUMBERLAND-PERRY AREA VOCATIONAL-TECHNICAL SCHOOL AUTHORITY v. BOGAR & BINK (12/22/78)

decided: December 22, 1978.

CUMBERLAND-PERRY AREA VOCATIONAL-TECHNICAL SCHOOL AUTHORITY, A CORPORATION
v.
BOGAR & BINK, A PARTNERSHIP, H. B. ALEXANDER & SON, INC., A CORPORATION, SUBURBAN ROOFING COMPANY, INC., A CORPORATION, AND THE CELOTEX CORPORATION, A CORPORATION. APPEAL OF SUBURBAN ROOFING COMPANY, INC.



No. 558 OCTOBER TERM, 1978, Appeal from the Order entered November 14, 1977, of the Court of Common Pleas of Cumberland County, Pennsylvania, Civil Action-in-Law Division at No. 532 Civil 1976.

COUNSEL

Stephen M. Phillips, Atlanta, Ga., for appellant.

John E. Slike, Camp Hill, for appellee, Bogar & Bink.

No appearance entered nor briefs submitted for remaining appellees.

Cercone, Spaeth and Lipez, JJ.

Author: Lipez

[ 261 Pa. Super. Page 352]

This appeal involves a petition to compel arbitration of claims for alleged breaches of express and implied warranties and for negligence in connection with the construction of a school building. The school authority, as owner of the building, had filed suit against the architect, the general contractor, a subcontractor and a materialman. The defendant architect then brought this petition. The court below ordered arbitration as to all of the parties except the materialman and the defendant subcontractor appealed. We reverse as to the appellant.

On June 20, 1967, the Cumberland-Perry Area Vocational-Technical School Authority (Authority) contracted with Bogar & Bink (Architect) for the design of the Authority's school buildings in Mechanicsburg, Pennsylvania. The general construction contract was awarded to H. B. Alexander & Son, Inc., (Alexander). On June 10, 1969, Alexander contracted with Suburban Roofing Co., Inc., (Suburban) for construction and installation of the roof of the school building. In performing the work, Suburban purchased materials from the predecessor in interest to the Celotex Corporation. Construction was completed in 1970, and the final payment was made on October 20 of that year.

On February 20, 1976, after certain alleged defects in construction of the roof had become evident, the Authority filed a writ of summons against the Architect, Alexander, Suburban and Celotex, seeking damages for the defects. On April 22, 1977, the Authority filed a complaint against the above defendants alleging breach of express and implied warranties and negligence by each of them. On May 31, 1977, the Architect petitioned the Court of Common Pleas of Cumberland County to stay the proceedings and order arbitration between the Authority on one hand, and the Architect, Alexander, Suburban and Celotex on the other, pursuant to the contracts between the Authority and the Architect, the Authority and Alexander, and Alexander and Suburban.

[ 261 Pa. Super. Page 353]

The trial court ordered a consolidated arbitration among all parties except Celotex, and Suburban appealed. We conclude that the court below, by requiring arbitration with parties not in contractual privity with Suburban in effect remade the contract. For the reasons which follow, we vacate the order as to Suburban.

Arbitration is a matter of contract, and parties to a contract cannot be compelled to arbitrate a given issue absent an agreement between them to arbitrate that issue. Lincoln University v. Lincoln University Chapter of AAUP, 467 Pa. 112, 119, 354 A.2d 576, 580 (1976); Schoellhammer's Hatboro Manor, Inc., v. Local Joint Executive Board, 426 Pa. 53, 58, 231 A.2d 160, 162 (1967). Even though it is now the policy of the law to favor settlement of disputes by arbitration and to promote the swift and orderly disposition of claims, Children's Hospital v. Am. Arb. Ass'n, 231 Pa. Super. 230, 234, 331 A.2d 848, 850 (1974), arbitration agreements are to be strictly construed and such agreements should not be extended by implication. Emmaus Municipal Auth. v. Eltz, 416 Pa. 123, 125, 204 A.2d 926, 927 (1964).

Three contracts are involved in the case before us: (1) The contract between the Authority and the Architect (hereinafter referred to as the "Architect's Contract"); (2) the contract between the Authority and Alexander (the "General Contract"); and (3) ...


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