J-A34006-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JEFFREY AMSLER, KAREN AMSLER, AND 

KATHRYN CORRIGAN

IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellees

v.

ORCHARD HOUSE PROPERTIES LLC, 

FRED R. AMSLER JR., FRED R. AMSLER 

JR. LIVING TRUST, DONNA J. AMER, AND 

CAMBRIDGE TRAINING PARTNERS L.P.

Appellants No. 1029 MDA 2015

Appeal from the Order May 14, 2015

In the Court of Common Pleas of Sullivan County

Civil Division at No(s): 2013-CV-253

BEFORE: PANELLA, J., OTT, J., and JENKINS, J. 

MEMORANDUM BY PANELLA, J. FILED FEBRUARY 17, 2016

Appellants, Orchard House Properties LLC, Fred R. Amsler Jr., Fred R. 

Amsler Jr. Living Trust, Donna J. Amer, and Cambridge Training Partners 

L.P., appeal from the order entered May 14, 2015, in the Court of Common 

Pleas of Sullivan County, which denied their preliminary objection to compel 

arbitration. We vacate and remand this case for further proceedings. 

By way of background, Appellant Fred R. Amsler is the father of 

Appellees, Jeffrey Amsler and Karen Amsler. In 2010, Fred Amsler divorced 

the siblings’ mother, Ilene Amsler, after more than 50 years of marriage. 

Appellant Donna J. Amer is the purported paramour of Fred R. Amsler. The 

entities at issue, Orchard House Properties, LLC and Cambridge Training 
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Partners, L.P., were formed to own and control various assets and income 

belonging to Fred R. Amsler. The trial court summarized the relevant details 

of this internecine familial dispute as follows.

A. The Orchard House Properties, LLC Operating 

Agreement

On or about November 21, 2002, Orchard House 

Properties, LLC was organized and established as a Nevada 

limited liability company. An Operating Agreement was prepared 

on November 5, 2002 establishing and delineating the company 

purpose, scope, company interests, management, members, 

applicable law, venue, etc. Said agreement was signed by the 

following members with their signatures witnessed: Karen M. 

Amsler, Kathryn A. Corrigan, Patricia M. Becknell and Jeffrey S. 

Amsler. Exhibit A of the Operating Agreement set forth that 

these four (4) members were listed with a capital percentage of 

twenty five percent (25%) each and capital contributions of Ten 

Dollars ($10.00) each. 

On November 29, 2002[,] Jeffrey S. Amsler signed a 

Certificate of Acknowledgement, wherein he acknowledged and 

accepted his appointment as President of Orchard House 

Properties, LLC and assented to “all provisions and stipulations 

as herein imposed and expressed in the foregoing Limited 

Liability Company Agreement.” Jeffrey S. Amsler’s signature was 

witnessed and notarized. On or about November 29, 2002[,] 

Karen M. Amsler signed a Certificate of Acknowledgement, 

wherein she acknowledged and assented to “all provisions and 

stipulations as herein imposed and expressed in the foregoing 

Limited Liability Company Agreement.” Karen M. Amsler’s 

signature is witnessed and notarized. 

Article one Section 1.10 of the Operating Agreement states 

“[v]enue for any dispute arising under this Operating Agreement 

or any disputes among any members or the Limited Liability 

Company shall be in the county of the Registered Office of the 

Limited Liability Company.” See, Operating Agreement, p.6. 

Article 1.07 states “the registered office of the Limited Liability 

Company is 250 S. Center Street, Suite 500, Reno, Nevada 

89501.”
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Orchard House Properties, LLC held annual meetings in 

accordance with the Operating Agreement wherein all officers 

were present, the officers attended to the Limited Liability 

Company’s business as delineated in the Operating Agreement 

for approximately eleven (11) years until [Appellees] instituted 

the instant action.

B. The Cambridge Trading Partners Limited Partnership

On or about October 15, 1991[, an] Agreement of Limited 

Partnership [for] Cambridge Trading Partners was executed 

among Fred. R. Amsler as General Partner and Fred R. Amsler 

and Ilene A. Amsler each as a Limited Partner. On or about 

November 5, 2002, an Amendment and Restatement was 

executed in accordance with the Nevada Limited Partnership Act 

“for purpose of forming and continuing a limited partnership (the 

“Partnership”) in accordance with the provisions of the Nevada 

Limited Partnership Act (the “Act”) and set forth by Fred R. 

Amsler, as the General Partner and, the Fred R. Amsler Trust 

and the Ilene A. Amsler Trust as Limited Partners.[”] (P.1 of 

Cambridge Trading Partners Amendment and Restatement). The 

Amended Restatement Agreement of Limited partnership (the 

“Agreement”) consists of twenty[-]nine (29) provisions related to 

the formation, scope, objective, partnership duties and 

responsibilities. (See Paragraph 23, Misc. C). The Arbitration of 

Disputes [provision] states “[a]ny dispute arising out of or in 

connection with this Agreement, if not settled by mediation, shall 

be settled by arbitration in accordance with the Commercial 

Arbitration Rules of the American Arbitration Association, and 

any decision rendered in such arbitration shall have the same 

effect as if made by a court having proper jurisdiction.” (P. 55 of 

the Agreement).

On or about October 18, 2010[,] an Assignment of fifty 

percent (50%) of limited partnership interests held by the Ilene 

A. Amsler Trust were assigned to the Fred R. Amsler Trust. The 

Trustees of the Fred R. Amsler Trust then desired to assign five 

percent (5%) of the limited partnership interests to Jeffrey S. 

Amsler. On or about November 9, 2009[,] at the Annual Meeting 

of the Members of the Cambridge Training Partners, LP, the 

limited partners desired to transfer interests in Cambridge 

Trading Partners, LP to reflect the above assignments. Members 

Fred R. Amsler, Jeffrey S. Amsler and Ilene A. Amsler were 

present at said meeting. At this Annual Meeting of the members 

of the Cambridge Trading Partners, LLC the resolution was 
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adopted which confirmed “that on May 29, 2010, Ilene A. Amsler 

transferred her 50% (fifty percent) Limited Partnership interest 

to Fred R. Amsler, Jr. Following the transfer on the same date, 

Fred R. Amsler, Jr. transferred 41% (forty[-]one percent) of his 

Limited Partnership interest to the Fred R. Amsler, Jr. Trust and 

5% (five percent) of his Limited Partnership [interest] to Jeffrey 

S. Amsler.” See, Minutes of the 2010 Meeting of the Members. 

Members Fred R. Amsler, Jr. and Jeffrey S. Amsler were present 

at the meeting.

C. [Appellees’] Complaint

On or about October 16, 2013, [Appellees] filed a civil 

action against Fred R. Amsler, Jr. and Orchard House Properties, 

LLC. Thereafter on or about July 23, 2014, [Appellees] filed a 

Complaint and Praecipe to Join Additional Defendants, namely 

Cambridge Trading Partners, LP, Fred R. Amsler Revocable Living 

Trust and Donna Amer. In their Complaint, [Appellees] assert 

that Fred R. Amsler, Jr. was a fiduciary that dominated the 

affairs of Cambridge Trading Partners, LP, in which Jeffrey 

Amsler was the only limited partner, in comp[l]ete secrecy and 

in breach of his confidential and fiduciary relationships between 

he and the sibling Amsler. More specifically, the Complaint sets 

forth the following causes of action:

Count I: Breach of the Operating Agreement

Plaintiffs against the Defendant LLC parties

Count II: Unjust Enrichment

Plaintiffs against the Defendant LLC parties

Count III: Conversion

Plaintiffs against the Defendant LLC parties

Count IV: Breaches of Fiduciary Duty

Plaintiffs against Fred Amsler

Count V: Breaches of the Partnership Agreement

Jeff Amsler against Fred Amsler and the 

Defendant Partnership

Count VI: Unjust Enrichment

Jeffrey Amsler against the Defendant 

Partnership Parties

Count VII: Conversion

Jeffrey Amsler against the Defendant 

Partnership Parties

Count VIII: Breaches of Fiduciary Duty

Jeffrey Amsler against Fred Amsler
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Count IX: Aiding and Abetting Breaches of Fiduciary 

Duty

Plaintiffs against Donna Amer

Count X: Civil Conspiracy

Plaintiffs against Defendants

County XI: Equitable Accounting

Plaintiffs against Fred Amsler and the 

Defendant Entities

Count XII: Declaratory Judgment

Plaintiffs against Defendants

Count XIII: Preliminary and Permanent Injunctive Relief

Plaintiffs against Fred Amsler and Donna 

Amer

D. [Appellants’] Preliminary Objections

On or about September 8, 2014[,] [Appellants] filed 

Preliminary Objections to [Appellees’] Complaint. ...

[Appellants’] Preliminary Objections [maintain, inter alia,] 

that [the trial court] lacked subject jurisdiction and that venue in 

the Court of Common pleas of Sullivan County was improper. 

Specifically, [Appellants] claimed that [the trial court] could not 

properly assert subject matter jurisdiction over Counts V, VI, 

VII, VIII, X, XI, and XII which related to [Appellee], Jeffrey S. 

Amsler[’s] claims over [Appellants,] Fred A. Amsler, Jr. and 

Cambridge Trading Partners, LP, since a valid arbitration 

agreement existed. [Appellants] asserted that Jeffrey S. Amsler 

accepted and agreed to the terms and conditions within the 

Partnership Agreement which included the agreement to 

arbitrate “[a]ny dispute arising out of or in connection with [the 

Partnership] Agreement.” Furthermore, the Partnership 

Agreement of Cambridge Trading Partners, LP (hereinafter 

“Partnership Agreement”) required mediation and if the dispute 

could not be settled, then arbitration. As such, [Appellants] 

argued that counts V, VI, VII, VIII, X, XI, and XII must be 

resolved under and in accordance with the commercial 

arbitration rules of the American Arbitration Association since 

that was specifically agreed to by the parties in the Partnership 

Agreement and [the trial court] lacked subject matter 

jurisdiction as a result. 

Trial Court Opinion, 12/2/15 at 2-7. 
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After hearing argument on the Appellants’ preliminary objections, the 

trial court issued an order on May 14, 2015, which summarily overruled the 

preliminary objections to Appellees’ complaint in their entirety. 

Appellants filed a timely appeal from the May 14, 2014, order denying 

preliminary objections.1 Subsequent thereto, Appellees filed a motion to 

quash the appeal as having been taken from an order that is interlocutory 

and not appealable. Appellants filed an answer to that motion, asserting that 

the subject order denied a request to compel arbitration. This Court issued 

an order denying the application to quash to the extent the May 14 order 

denied Appellants’ preliminary objection invoking the parties’ arbitration 

agreement. To the extent that the May 14 order denied Appellants’ 

preliminary objections that raised issues unrelated to arbitration, we granted 

the application to quash. This matter is now ripe for our review. 

Appellants frame the limited issue on appeal as follows.

____________________________________________

1 On May 27, 2015, Appellants filed a motion for reconsideration of the trial 

court’s May 14 order denying the preliminary objections to Appellees’ 

complaint. Argument was held on the motion on September 16, 2015, after 

which, the trial court granted Appellants’ motion for reconsideration. In their 

appellate brief, Appellees argue that the trial court’s order granting the 

motion for reconsideration, issued after the thirty-day appeal period under 

Pa.R.A.P. 903(a) expired, is void ab initio. See Appellees’ Brief at 3 n.4. 

However, we note that our review in the instant appeal is limited solely to 

the propriety of the trial court’s May 14 order denying the preliminary 

objections invoking the parties’ arbitration agreement. As such, we do not 

reach a determination as to the validity of the order granting 

reconsideration.
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Whether the trial court committed an error of law and/or an 

abuse of discretion in denying Appellants’ Preliminary Objections 

to compel arbitration since a valid arbitration clause was 

contained in the Partnership Agreement and the dispute was 

within the scope of the arbitration clause. 

Appellants’ Brief at 4. 

As a prefatory matter, we must address Appellees’ assertion that this 

court is without jurisdiction to entertain the instant appeal. We note that 

[o]ur jurisdiction to review the propriety of the trial court’s order 

overruling preliminary objections in the nature of a motion to 

compel arbitration is conferred by Pa.R.A.P. 311(a)(8), which 

provides that an interlocutory appeal may be taken as of right 

from any order made appealable by statute, and by 42 Pa.C.S. § 

7320(a)(1) of the Uniform Arbitration Act, which authorizes an 

appeal from [a] court order denying an application to compel 

arbitration.

Collier v. National Penn Bank, --- A.3d ---, ---, 2015 WL 7444713 at *2 

(Pa. Super, filed Nov. 24, 2015) (internal quotation marks and a citation 

omitted). 

A party may appeal directly from the order denying a preliminary 

objection invoking an arbitration agreement; a separate petition to compel 

arbitration is not required. See Stewart v. GGNSC-Canonsburg, L.P., 9 

A.3d 215, 218 (Pa. Super. 2010). As the current appeal is properly before 

us, we deny Appellees’ request to quash the appeal. We proceed to the 

merits. 

Our review of a claim that the trial court improperly denied the 

Appellants’ preliminary objection in the nature of a petition to compel 

arbitration is limited to determining whether the trial court’s findings are 
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supported by substantial evidence and whether the trial court abused its 

discretion in denying the petition. See Walton v. Johnson, 66 A.3d 782, 

787 (Pa. Super. 2013). 

“We employ a two-part test to determine whether the trial court 

should have compelled arbitration: 1) whether a valid agreement to arbitrate 

exists, and 2) whether the dispute is within the scope of the agreement.” 

Washburn v. Northern Health Facilities, Inc., 121 A.3d 1008, 1012 (Pa. 

Super. 2015) (citation omitted). “Whether a claim is within the scope of an 

arbitration provision is a matter of contract, and as with all questions of law, 

our review of the trial court's conclusion is plenary.” MacPherson v. 

Magee Memorial Hospital for Convalescence, --- A.3d ---, ---, 2015 WL 

7571937 at *7 (Pa. Super., filed Nov. 25, 2015) (citation omitted) (en 

banc). 

The arbitration clause at issue provides as follows.

23. Miscellaneous

. . .

C. Arbitration of Disputes. Any disputes arising out of or in 

connection with this Agreement, if not settled by mediation, shall 

be settled by arbitration in accordance with the Commercial 

Arbitration Rules of the American Arbitration Association, and 

any decision rendered in such arbitration shall have the same 

effect as if made by a court having proper jurisdiction. 

Amendment and Restatement to Agreement of the Cambridge Trading 

Partners, 11/5/02 at 55.
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There appears to be no disagreement that the claims at issue, namely, 

Counts V, VI, VII, VIII, X, XI and XII of the Complaint averring breach of the 

partnership agreement, are within the scope of the agreement to arbitrate. 

Therefore, we must determine whether a valid arbitration agreement exists. 

In its opinion, the trial court revisited its earlier decision overruling 

Appellants’ preliminary objection to enforce the arbitration agreement and 

concluded that the arbitration provision should, in fact, be enforced. In so 

finding, the court determined that all parties agreed to the terms of the 

partnership agreement and that the arbitration clause was valid and 

enforceable. See Trial Court Opinion, 12/2/15 at 10. The court further stated 

that both parties had relied upon the terms of the Partnership Agreement 

and “[t]o now ignore the ... arbitration terms of the Partnership Agreement 

would require this [c]ourt to enforce certain terms of the ... Partnership 

Agreement while ignoring others. To do so would be inconsistent with the 

laws of the Commonwealth.” Id. at 10-11. 

Appellees counter that the arbitration agreement is unenforceable for 

numerous reasons. First and foremost, Appellees aver that a confidential 

relationship existed between Appellant, Fred Amsler and his son, Jeffrey 

Amsler, and that the arbitration agreement was not knowingly entered into. 

See Appellees’ Brief at 10-11. 

“A confidential relationship is marked by such a disparity in position 

that the inferior party places complete trust in the superior party’s advice 

and seeks no other counsel, so as to give rise to a potential abuse of power.” 
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Lenau v. Co-eXprise Inc., 102 A.3d 423, 443 (Pa. Super. 2014) (citation 

omitted), appeal denied, 113 A.3d 280 (Pa. 2015). “[T]he existence of a 

confidential relationship requires a fact-sensitive inquiry not to be disposed 

rigidly as a matter of law.” Yenchi v. Ameriprise Financial Inc., 123 A.3d 

1071, 1079 (Pa. Super. 2015). 

A contract that is the product of a confidential relationship is 

presumptively voidable “unless the party seeking to sustain the 

validity of the transaction affirmatively demonstrates that it was 

fair under all of the circumstances and beyond the reach of 

suspicion.” Frowen v. Blank, 493 Pa. 137, 145, 425 A.2d 412, 

416 (1981). More precisely, “the proponent of the contract must 

prove by clear and convincing evidence ‘that the contract was 

free, voluntary and an independent act of the other party, 

entered into with an understanding and knowledge of its nature, 

terms and consequences.’” Biddle v. Johnsonbaugh, 444 

Pa.Super. 450, 456, 664 A.2d 159, 162 (1995) (quoting Kees v. 

Green, 365 Pa. 368, 375, 75 A.2d 602, 605 (1950)). In 

Frowen, the Supreme Court explained the basis for this 

presumption:

When the relationship between the parties to an 

agreement is one of trust and confidence, the normal 

arm’s length bargaining is not assumed, and overreaching 

by the dominant party for his benefit permits the 

aggrieved party to rescind the transaction. This is so 

because the presence of a confidential relationship negates 

the assumption that each party is acting in his own best 

interest. Frowen, 493 Pa. at 144, 425 A.2d at 416 

(citations omitted). Thus, “[o]nce a confidential 

relationship is shown to have existed, it then becomes the 

obligation of the party attempting to enforce the terms of 

the agreement to establish that there has not been a 

breach of that trust.” Id. at 144, 425 A.2d at 416; Iron 

Worker's Sav. and Loan Ass'n v. IWS, Inc., 424 

Pa.Super. 255, 270, 622 A.2d 367, 375 (1993) (citing 

Frowen, 493 Pa. at 144, 425 A.2d at 416). 
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Paone v. Dean Witter Reynolds, Inc., 789 A.2d 221, 226 (Pa. Super. 

2001).

Here, although Appellees alleged in response to Appellants’ preliminary 

objections that a confidential relationship existed between Fred Amsler and 

Jeffrey Amsler and that the arbitration agreement was a product of that 

relationship, the trial court failed to conduct an inquiry into the existence of 

the confidential relationship prior to ruling on the merits of the preliminary 

objections.2 As previously noted, our judicial inquiry when determining the 

validity of an arbitration agreement is limited to 1) whether a valid 

agreement to arbitrate exists, and 2) whether the dispute is within the scope 

of the agreement. See Washburn, supra. The fact-sensitive inquiry into 

the existence of a confidential relationship clearly falls outside of this limited 

scope of review. 

Accordingly, we are constrained to vacate the trial court’s order 

overruling Appellant’s preliminary objection to enforce the arbitration 

agreement and remand this case for a hearing wherein the trial court must 

determine whether the evidence supports the existence of a confidential 

relationship. “If so, the trial court must determine whether the proponent of 

the arbitration provision (presumably the stronger party) has met its burden 

____________________________________________

2 Appellees raise the existence of a confidential relationship in Count VIII of 

their Complaint. At this stage in the proceedings, we offer no opinion as to 

the sufficiency with which Appellees allege the existence of the a confidential 

relationship.
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of showing that the provision is fair under all the circumstances, Frown, 493 

Pa. at 145, 425 A.2d at 416, that it was entered into with knowledge of its 

nature and consequences, Biddle, 664 A.2d at 162, and thus that the 

provision was not itself a result of a violation of the trust reposed in the 

confidential relationship.” Paone, 789 A.2d at 227. Where the evidence 

suggests that a confidential relationship did not exist, then the arbitration 

agreement is enforceable. 

Order vacated. Motion to quash appeal denied. Case remanded for 

proceedings consistent with this memorandum. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/17/2016