J-A10044-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DAVID AND STACY ANN KOPEW : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TOLL BROTHERS, INC.; TOLL BROS., :
INC.; TOLL PA GP CORP.; AND TOLL :
PA, L.P. : No. 760 EDA 2019
:
Appellant :
Appeal from the Order Entered January 30, 2019
In the Court of Common Pleas of Montgomery County Civil Division at
No(s): No. 2018-23696
BEFORE: BOWES, J., SHOGAN, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED JANUARY 06, 2021
This case comes to us following a remand directed by our decision in
Kopew v. Toll Brothers, Inc., 237 A.3d 1088 (Pa. Super. June 26, 2020)
(unpublished memorandum), where Toll Brothers, Inc., Toll Bros, Inc., Toll PA
GP Corp., and Toll PA, L.P. (referred to collectively as “Toll”) challenged an
order of the Montgomery County Court of Common Pleas (trial court) that
vacated an arbitrator’s dismissal of several construction defect claims by David
and Stacy Ann Kopew (the Kopews). The arbitrator’s dismissal was based on
findings of fact, as well as its interpretation of the Statute of Repose, 42
Pa.C.S. § 5536(a). See Arbitrator’s Order of Dismissal, 9/6/2018, at 11.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A10044-20
The Kopews’ appealed the arbitrator’s dismissal of their claims to the
trial court, which vacated that ruling, finding that the Kopews were improperly
denied a hearing. The trial court found that under 42 Pa.C.S. § 7341, the
arbitrator erred in dismissing the Kopews’ claims in their entirety and with
prejudice, prior to the completion of discovery.
Toll then filed an appeal in this Court, arguing that the trial court was
bound by the arbitrator’s legal conclusion regarding the application of the
Statute of Repose. The Kopews countered that the trial court was not so
bound because it had limited authority to vacate the dismissal as a remedy
for the arbitrator’s improper denial of an opportunity to present evidence
showing that there existed material questions of fact. See 42 Pa.C.S.
§§ 7314(a), 7341 (permitting court to vacate arbitrator’s award if a party was
improperly denied a hearing). The Kopews asserted further that since the trial
court had directed further arbitration proceedings, Toll was impermissibly
seeking review of an unappealable order. See 42 Pa.C.S. § 7320(a)(5)
(providing that court’s vacatur of an arbitrator’s dismissal is not reviewable
when rehearing is also directed).
In our earlier memorandum, we outlined in depth the key facts and law,
making it unnecessary to reiterate them here. As we had explained, though,
the trial court had authority to vacate the arbitrator’s dismissal only so long
as it was necessary to afford the Kopews a chance to present evidence having
-2-
J-A10044-20
some bearing on the application of the Statute of Repose; otherwise, the trial
court would have been bound by the arbitrator’s ruling that it applied.
However, because the Kopews did not clearly state what material
evidence the arbitrator prevented them from submitting that could have
affected the outcome of the arbitration, and the trial court only stated broadly
that an arbitrator cannot dismiss claims prior to the completion of discovery
and without an evidentiary hearing, further clarification was needed. To that
end, we directed the trial court to identify any outstanding evidence or
discovery requests that would have made it improper for the arbitrator to
summarily dismiss the Kopews’ arbitration based on the Statute of Repose.1
____________________________________________
1 The Kopews had maintained that this appeal is moot because they do not
intend to avail themselves of further arbitration or pursue any claims against
Toll once the appeal has concluded. Toll insisted the case is not moot, in part
because the Kopews had a pending request for a new arbitration and the
Statute of Repose issues are pending in similar matters. In our earlier
memorandum, we directed that if, on remand, the Kopews moved to dismiss
their arbitration with prejudice, it would put an end to the parties’ controversy,
making it unnecessary for the trial court to issue a new decision or for this
Court to take further action.
However, instead of immediately terminating their pending arbitration
requests upon remand, the Kopews waited until after the trial court issued is
clarifying decision to file their voluntary praecipe to discontinue the case with
prejudice. Since the trial court’s clarification was completed prior to the
Kopews’ praecipe, and the case has not yet been discontinued under the
governing arbitration rules, we will proceed to adjudicate the merits of the
trial court’s vacatur of the arbitrator’s dismissal. See Pa. Code Rule 1310
(providing that “No appeal may be discontinued except by leave of court after
notice to all parties or upon the filing of the written consent of all parties.”).
-3-
J-A10044-20
The trial court submitted a response on October 16, 2020, but did not
identify any particular piece of outstanding evidence that could have even
arguably made the Statute of Repose inapplicable as a matter of law. Rather,
the trial court echoed its earlier finding that the arbitrator’s “impropriety” was
summarily dismissing the Kopews’ claims before discovery had concluded.
Again, this lack of factual detail is problematic because the arbitrator
could have only committed an “impropriety” through the denial of a hearing if
the Kopews were actually deprived of the opportunity to present material
evidence regarding the applicability of the Statute of Repose. Such a finding
would require the Kopews to demonstrate that such evidence would have been
forthcoming but for the premature timing of the arbitrator’s decision. The
Kopews could not have wrongfully been denied a hearing to present material
evidence if they had no such evidence to present.
The Kopews have had numerous opportunities during arbitration, the
trial stage and the appeal to formulate a cogent theory about how the
arbitrator improperly dismissed their claims, and the Kopews have remained
unable to do so. Without any basis in the record showing that the arbitrator
denied the Kopews the chance to present evidence raising a genuine fact
question as to the Statute of Repose, the trial court lacked authority to vacate
the arbitrator’s dismissal. The arbitrator’s ruling was, therefore, binding on
the trial court, giving Toll the right to an interlocutory appeal of the trial court’s
-4-
J-A10044-20
vacatur. Thus, we are now compelled to order the reinstatement of the
arbitrator’s dismissal of the Kopews’ claims with prejudice.
Trial court order reversed. Arbitrator’s order reinstated. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/6/2021
-5-
Kopew, D. v. Toll Brothers, Inc.
Combined Opinion