from the Order Dated October 21, 2015 In the Court of Common
Pleas of Philadelphia County Civil Division at No(s): July
Term, 2014, No. 2640
BEFORE: PANELLA, J., LAZARUS, J., and FITZGERALD, J.
Home Inspection, LP, d/b/a WIN Home Inspection
("Historic"), appeals from the order entered in the
Court of Common Pleas of Philadelphia County overruling its
preliminary objections, which sought to enforce an agreement
for alternative dispute resolution. Upon review, we reverse
and remand for proceedings consistent with the dictates of
Stanley and Carol Fellerman ("Fellermans"),
retained Historic to perform a home inspection in connection
with their purchase of 6858 Upper York Road in New Hope,
Bucks County ("Property"). In conjunction
therewith, Stanley Fellerman executed an "Inspection
Agreement" ("Agreement"), outlining, inter
alia, the scope of the inspection, exclusions, and
limitations of liability. The Agreement also contained an
arbitration clause, which provided as follows:
DISPUTE RESOLUTION AND REMEDY LIMITATION
. . .
Binding Arbitration - The undersigned parties below
agree that any dispute between the parties, except those for
nonpayment of fees, that in any way, directly or indirectly,
arising out of, connected with, or relating to the
interpretation of this Agreement, the inspection service
provided, the report or any other matter involving our
service, shall be submitted to binding arbitration conducted
by and according to the Accelerated Arbitration Rules and
Procedures of Constructive Dispute Resolution Services, LLC.
You may recommend an alternative arbitration provider for our
consideration. The arbitration decision shall be final and
binding on all parties, and judgment upon the award rendered
may be entered into any court having jurisdiction. In any
dispute arising under this Agreement, Our Inspection or the
Inspection Report, the costs of the arbitration shall be the
sole responsibility of the client up to and including the
arbitration hearing. As part of the arbitration award, the
arbitrator shall award to the prevailing party any or all
costs of the arbitration process as he or she deems to be
appropriate. Expenses related to personal attorneys, experts,
engineers, witnesses, engineering reports or other inspection
reports or similar individuals or documents shall be the
direct responsibility of the parties and shall not be
considered as part of the arbitration award. The arbitration
award shall be limited in scope to the issues and terms as
specified in the Inspection Agreement. No legal action or
proceeding of any kind, including those sounding in tort or
contract, can be commenced against us, or our officers,
agents or employees more than one year after the date of the
subject inspection. Time is expressly of the essence herein.
THIS TIME PERIOD IS SHORTER THAN OTHERWISE PROVIDED BY LAW.
LIMITATION OF LIABILITY - IF WE, OUR EMPLOYEES,
INSPECTORS, OR ANY OTHER PERSON YOU CLAIM TO BE OUR AGENT,
ARE CARELESS OR NEGLIGENT IN PERFORMING THE INSPECTION AND/OR
PREPARING THE REPORT AND/OR PROVIDING ANY SERVICES UNDER THIS
AGREEMENT, OUR LIABILITY IS LIMITED TO THE FEE YOU PAID
FOR THE INSPECTION SERVICE. AND YOU RELEASE U.S. FROM
ANY ADDITIONAL LIABILITY. WE HAVE NO RESPONSIBILITY FOR THE
POSSIBILITY YOU LOST AN OPPORTUNITY TO RENEGOTIATE WITH THE
SELLER. THERE WILL BE NO RECOVERY FOR SECONDARY OR
CONSEQUENTIAL DAMAGES BY ANY PERSON.
Inspection Agreement, 1/21/13, at 1-2.
Property contained four utility poles, which supported,
inter alia, PECO power lines, Comcast cable lines
and a PECO transformer. On December 2, 2013, the Fellermans
discovered that the pole closest to their residence,
supporting the PECO transformer, had fallen to the ground in
their "heavily wooded and leaf-covered front yard"
near their home. Brief of Appellees, at 6. The Fellermans
assert that the pole fell due to "severe rot, decay and
deterioration." Id. at 6. The Fellermans
notified PECO of the incident; however, prior to PECO's
arrival, Stanley Fellerman noticed that the fallen
transformer, power and cable lines had started a fire.
Stanley attempted to extinguish the fire and, in doing so,
was shocked, burned and severely injured, allegedly by the
PECO power line.
Fellermans filed suit by writ of summons on July 23, 2014. In
their second amended complaint, they named as defendants
PECO, Comcast, Historic, Addison Wolfe Real Estate and Lisa
James Otto Country Properties. The Fellermans asserted that
Historic failed to discover or disclose the deteriorated
condition of the utility pole, in breach of the Agreement,
and asserted causes of action for negligent
misrepresentation, fraud, violations of the Uniform Trade
Practices and Consumer Protection Law, 73 P.S. §§
201-1-201-9.3 (UTPCPL), and breach of contract.
September 22, 2015, Historic filed preliminary objections,
asserting, inter alia, that the Fettermans' suit
was barred by the terms of the arbitration clause contained
in the Agreement. The trial court overruled Historic's
preliminary objections by order dated October 20, 2015 and
ordered it to file an answer to the Fettermans' complaint
within twenty days. Historic filed a timely notice of appeal,
followed by a court-ordered statement of errors complained of
on appeal pursuant to Pa.R.A.P. 1925(b). In its Rule 1925(a)
opinion, the trial court found that its order was neither an
appealable "final order" within the meaning of
Pa.R.A.P. 341(b), nor was it an interlocutory order
appealable as of right under Pa.R.A.P. 311. Accordingly, the
court recommended quashal.
raises the following issue for our review:
Is it error to overrule preliminary objections raising an
agreement for alternative dispute resolution when the parties
signed and executed an agreement to arbitrate all disputes
arising out of breach of the [A]greement and that [A]greement
is the gist of the action?
Brief of Appellant, at 5.
to considering the merits of Historic's claim, we address
the trial court's assertion that its order denying
Historic's preliminary objection in the nature of a
motion to compel arbitration is interlocutory and not
immediately appealable. In short, the trial court is
incorrect. Pennsylvania Rule of Appellate Procedure 311(a)(8)
provides, in relevant part:
(a) General rule.--An appeal may be taken as of right and
without reference to Pa.R.A.P. 341(c) from:
. . .
(8) Other cases.--An order that is made final or appealable
by statute or general rule, even though the order does not