J-A28028-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

NORMA RHEE AND HOON RHEE, H/W

v.

ADAM BRUGMAN AND 754 DARIEN 

STREET, LLC, 754 DARIEN STREET, 

LLC

v.

EVOLVE BUILD, INC. AND PEDRO 

PALMER CONSTRUCTION, INC.

APPEAL OF: 754 DARIEN STREET, 

LLC

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1303 EDA 2022

Appeal from the Order Entered April 22, 2022

In the Court of Common Pleas of Philadelphia County Civil Division at 

No(s): 210600757

BEFORE: PANELLA, P.J., LAZARUS, J., and SULLIVAN, J.

MEMORANDUM BY LAZARUS, J.: FILED MAY 17, 2023

754 Darien Street, LLC (“Darien”), appeals from the order, entered in 

the Court of Common Pleas of Philadelphia County, denying its motion to 

compel arbitration. Upon careful review, we affirm. 

This case stems from a contract entered into on May 27, 2019 

(“Agreement”) between Darien, a real estate holding limited liability company,

and appellee/contractor, Evolve Build, LLC (“Evolve”) with respect to the 

construction of a single-family home at 754 South Darien Street, Philadelphia. 
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After disputes arose between the parties,1 Darien issued a 14-day notice of 

default pursuant to section 13 of the Agreement.2 On January 1, 2020, Darien 

terminated the Agreement. Thereafter, on June 19, 2020, Evolve filed a 

mechanic’s lien claim in the Philadelphia Court of Common Pleas, claiming an 

amount due from Darien of $72,129.20.

____________________________________________

1 Darien contends that Evolve breached the Agreement by, inter alia: (1) 

failing to provide proper documentation in support of its requests for payment 

by Darien; (2) not constructing the project to specifications or in a 

workmanlike manner; (3) failing to pay for work and materials; (4) failing to 

provide Darien with a budget; and (5) causing Darien to incur added repair 

expenses. See Brief of Appellant, at 9-11. Evolve asserts that Darien was 

“habitually tardy in satisfying [Evolve’s] payment applications as they came 

due,” as a result of which, Evolve threatened to suspend work until Darien 

became current in its obligations, as provided under the Agreement. Brief of 

Appellee, at 2.

2 Section 13 of the Agreement provides, in relevant part:

If the Contractor defaults or persistently fails or neglects to carry 

out the Work in accordance with the Construction Documents or 

fails to perform any provision of the Contract, after fourteen (14) 

calendar days written notice from Owners specifying the defaults, 

the Owners may make good such deficiencies and may deduct the 

actual cost of construction and materials only from the payment 

then or thereafter due the Contractor, or at [its] option, may 

terminate the Contract and take possession of the site and of all 

materials thereon, and may finish the work by whatever 

commercially reasonable methods, and if the unpaid balance of 

the Contract Price exceeds the direct cost of construction and

materials only for finishing the Work, such excess shall be paid to 

the Contractor, but if such direct cost of construction and 

materials exceeds such unpaid balance, the Contractor shall pay 

the difference to the Owners. Owners’ remedy under this Article 

is exclusive for any failure to perform by Contractor. 

Agreement, 5/27/19, at § 13.
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On September 20, 2021, Norma and Hoon Rhee (“Rhees”), owners of 

752 South Darien Street, filed a second amended complaint bringing various 

claims against Darien and Adam Brugman stemming from Darien’s 

development of 754 South Darien Street, which is adjacent to the Rhees’ 

property. The Rhees alleged that their property had sustained damages—

including cracking, holes, water infiltration, and mold—as a result of the work 

being performed on the neighboring property. 

On August 31, 2021, Darien filed a joinder complaint, seeking to add

Evolve and Pedro Palmer Construction, Inc. as third-party defendants. Evolve 

filed preliminary objections, arguing, inter alia, that the case must be 

transferred to arbitration pursuant to the Agreement. Darien did not respond 

to Evolve’s preliminary objections, but rather, filed an amended joinder 

complaint on November 8, 2021, to which Evolve also preliminarily objected 

on the basis of the arbitration clause. On December 20, 2021, Darien filed a

second amended joinder complaint. Evolve again filed preliminary objections

raising, inter alia, the arbitration clause. On February 3, 2022, Darien filed a 

response to Evolve’s preliminary objections. On February 17, 2022, the trial 

court entered an order sustaining Evolve’s preliminary objections to the 

second amended joinder complaint and dismissing that complaint, with 

prejudice, as to Evolve.3 

____________________________________________

3 The trial court’s order did not set forth the rationale for its decision and, 

because the order was not a final, appealable order, did not file a Pa.R.A.P. 

1925(a) opinion.
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On March 4, 2022, Darien filed a petition seeking to compel Evolve to 

submit to arbitration pursuant to the Agreement. Evolve filed a response on 

March 24, 2022, in which it asserted that: (1) Darien had waived its 

arbitration claims and (2) Darien’s claims are precluded by the doctrine of res 

judicata. On April 21, 2022, the trial court dismissed the petition, but did not 

specify the grounds on which it denied relief. Darien filed a timely notice of 

appeal, followed by a court-ordered Pa.R.A.P. 1925(b) concise statement of 

errors complained of on appeal. Darien raises the following claims for our 

review:

1. Did the court err by denying [Darien’s] petition to compel 

arbitration where 42 Pa.C.S.[A.] § 7304(a) requires the court to 

order the parties to proceed with arbitration where, as here, a 

valid agreement to arbitrate has been shown and the party 

opposing the petition has refused to arbitrate?

2. Did the court err in concluding that there was not a valid

agreement to arbitrate [] between the parties?

3. Did the court err when it failed to determine that Evolve []

refused to arbitrate the matter where, inter alia, Evolve 

specifically raised the issue as to the validity of a binding 

arbitration agreement that required the court to refer the matter 

to arbitration in its preliminary objections to [] Darien’s joinder 

complaint?

4. Did the court err in concluding that [] Darien did not have a 

valid claim against Evolve that could be subjected to arbitration?

5. Did the court err in concluding that the dispute between []

Darien and Evolve was not within the scope of the arbitration

agreement?

6. Did the court err in concluding that [] Darien did not make or 

waived any counter-argument to appellee’s claim of untimeliness 

when [] Darien raised the issue—that procedural questions such 

as the propriety or timeliness of invocation of the arbitration 
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provision must be resolved by the arbitrators—in its petition to 

compel arbitration at [¶] 22?

7. Did the court err where it made a determination on the merits 

that [] Darien’s claim against Evolve arose in January 2020, and 

that [] Darien waived its right to enforce the arbitration agreement 

where [] Darien’s claim against Evolve cannot arise until the 

measure of damages for the claimed breach is known to [] Darien 

under the terms of Section 13 (pp. 11-12) of the Construction 

Agreement between the parties.

Brief of Appellant, at 5-6 (unnecessary capitalization omitted).

Prior to addressing the claims Darien raises on appeal, we must first 

determine whether it has preserved for appellate purposes the sole issue

relevant to the trial court’s ruling—waiver of arbitration. In its brief, Evolve 

asserts that “Darien failed to address the issue of waiver of the arbitration 

provision of the [Agreement] in its [Rule] 1925(b) [s]tatement,” and, 

accordingly, “any and all arguments relative to [Darien’s] waiver of the 

arbitration provisions . . . are waived.” Brief of Appellee, at 10. Evolve argues 

that “Darien was specifically on notice of the issue of waiver upon which the 

[t]rial [c]ourt’s ultimate order issued,” as Evolve “explicitly argued below that 

the issue of waiver prevented the enforcement of the arbitration clause[.]” 

Id. at 9, 10. 

In response, Darien argues that it “complied with the appellate rules of 

procedure when it identified the errors complained of on appeal due to the 

vagueness of the [o]rder, and did not waive any argument[.]” Reply Brief of 

Appellant, at 4. Darien asserts that, in its Rule 1925(b) statement, it

“identifie[d] the issues for appeal in general terms since it [could not] readily 

discern from the [o]rder the basis for the [c]ourt’s decision.” Id. at 3. 
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Following the trial court’s issuance of its Rule 1925(a) opinion, in which it 

explained the reasoning behind its decision, Darien filed a motion to amend 

its Rule 1925(b) statement “in an abundance of caution[,] as . . . it believed 

the specific waiver issue was already subsumed by Issues Nos. 1, 2, and 4 in 

its initial [Rule 1925(b) statement].” Id. at 4. However, the trial court did 

not rule on the motion4 until after Darien submitted its opening brief in this 

Court. 

Pennsylvania Rule of Appellate Procedure 1925(b)(4)(vii) provides that 

issues not included in an appellant’s Rule 1925(b) statement are waived on 

appeal. “Each error identified in the [s]tatement will be deemed to include 

every subsidiary issue that was raised in the trial court[.]” Pa.R.A.P. 

1925(b)(4)(v). Here, we disagree with Darien that it preserved the waiver 

issue in its Rule 1925(b) statement because the issue was subsumed by issues 

1, 2, and 4 raised therein. Those claims are as follows:

1. [Darien] respectfully submits that the trial court erred as a 

matter of law and/or abused its discretion by denying [Darien’s] 

petition to compel arbitration where 42 Pa.C.S.[A.] § 7304(a) 

requires the court to order the parties to proceed to arbitration 

where, as here, a valid agreement to arbitrate has been shown 

and the party opposing the petition has refused to arbitrate. See

Ross Dev. Co. v. Advanced Bldg. Dev., Inc., 803 A.2d 194, 

196 (Pa. Super. 2002); Midomo Co. v. Presyterian Hous. Dev. 

Co., 739 A.2d 180 (Pa. Super. 1999).

____________________________________________

4 By order dated August 1, 2022, the trial court denied Darien’s motion to 

supplement its Rule 1925(b) statement. 
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2. The court erred as a matter of law or abused its discretion to 

the extent that the court failed to determine that a valid 

agreement to arbitrate existed between the parties.

. . .

4. The court erred as a matter of law or abused its discretion to 

the extent that the court determined that [Darien] did not have a 

valid claim against Evolve that could be subjected to arbitration. 

See Midomo[, supra].

Rule 1925(b) Statement, 6/1/22, at ¶¶ 1, 2, 4 (unnecessary capitalization 

omitted).

The above claims, which Darien contends “subsume” the issue of waiver,

all relate to the validity of the arbitration agreement or whether Darien’s 

claims fell within its scope. We fail to discern how the issue of waiver is 

reasonably suggested by any of the above claims. 

However, our analysis does not end here. In this case, the trial court’s 

order denying Darien’s petition to compel arbitration did not specify the 

reasons for the denial. 

If the reasons for the court’s order do not appear in the record, it 

may be impossible for the appellant to be sufficiently specific in 

formulating questions on appeal. As our Supreme Court has held,

unless one knows the basis for a court’s order, there is no 

way to specifically challenge its rationale. . . .

When one seeking to appeal has no basis in the record to 

discern the basis for the order being challenged, [Rule] 

1925(b) must not be employed as a trap to defeat appellate 

review, requiring specifically stated challenges to the 

resolution of issues before there has been any revelation as 

to how the issues have been resolved.

Ryan v. Johnson, [] 564 A.2d 1237, 1239 ([Pa.] 1989).
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When the reasons for a trial court’s ruling are vague or not 

discernable from the record, then an appellant may be forced to 

file a vague Rule 1925(b) statement, and it would be unjust to 

consider such filing a violation of the Rule. Commonwealth v. 

Zheng, 908 A.2d 285, 288 (Pa. Super. 2006). “Just as the trial 

judge cannot be made to guess what an appellant is complaining 

of on appeal, an appellant cannot be made to guess what the trial 

judge is thinking in his or her ruling.” Id. Therefore, under these 

limited circumstances where the appellant is unable to ascertain 

the trial court’s rationale for the ruling under appeal, it is not 

appropriate to find waiver or to dismiss the appeal based on a 

vague Rule 1925(b) statement. Accord Commonwealth v. 

Poncala, 915 A.2d 97, 100 (Pa. Super. 2006).

Hess v. Fox Rothschild, LLP, 925 A.2d 798, 804 (Pa. Super. 2007).

Here, Evolve’s brief in opposition to Darien’s petition to compel 

arbitration raised two primary arguments: (1) that the trial court’s February 

17, 2022 order dismissing Darien’s second amended joinder complaint as to 

Evolve was res judicata as to Darien’s claims against Evolve; and (2) by 

allowing the trial court to rule on Evolve’s preliminary objections rather than 

submitting to arbitration, Darien waived its right to enforce the arbitration 

clause. See Evolve’s Memorandum of Law in Opposition to Darien’s Petition 

to Compel Arbitration, 1/14/22. Thus, Darien was on notice that the issue of 

waiver was one of only two arguments raised in opposition to its petition, and 

a likely rationale for the court’s ruling.5 

____________________________________________

5 We note that, despite overlooking the issue of waiver, Darien did include in 

its Rule 1925(b) statement a claim relating to res judicata. See Rule 1925(b) 

Statement, 6/1/22, at ¶ 7 (“The [c]ourt erred as a matter of law or abused its 

discretion to the extent that [it] found that the [c]ourt’s order dismissing with 

prejudice [Darien’s] joinder complaint . . . is res judicata of its claim against 

Evolve.”).
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Notwithstanding the foregoing, we decline to find Darien’s argument 

waived. The primary purpose behind Rule 1925(b) is to “aid trial judges in 

identifying and focusing upon those issues which the parties plan to raise on 

appeal.” Commonwealth v. Parrish, 224 A.3d 682, 693 (Pa. 2020). “[T]he 

rule fulfills an important policy consideration by providing to disputing parties, 

as well as to the public at large, the legal basis for a judicial decision.” 

Commonwealth v. DeJesus, 868 A.2d 379, 382 (Pa. 2005).

Here, the trial court authored a thorough Rule 1925(a) opinion 

explaining the rationale for its decision. The court was in no way impeded in 

the preparation of its opinion by Darien’s failure to raise the issue of waiver in 

its Rule 1925(b) statement. Moreover, in its Rule 1925(b) statement, Darien 

stated that it “identifies the issues for appeal in general terms since it cannot 

readily discern from the [o]rder the basis of the [c]ourt’s decision.” Rule 

1925(b) Statement, 6/1/22, at 1 n.2. “[I]f the appellant in a civil case cannot 

readily discern the basis for the judge’s decision, the appellant shall preface 

the Statement with an explanation as to why the Statement has identified the 

errors in only general terms. In such a case, the generality of the Statement 

will not be grounds for finding waiver.” Fulano v. Fanjul Corp., 236 A.3d 1, 

10 (Pa. Super. 2020), quoting Pa.R.A.P. 1925(b)(4)(vi). In addition, once the 

trial court issued it opinion setting forth the reasons for its dismissal of the 

petition to compel, Darien promptly sought leave to supplement its Rule 

1925(b) statement to include the issue of waiver. See Motion to File 

Supplemental Concise Statement, 6/24/22 (arguing good cause existed 
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because court issued opinion clarifying reasons for denial of petition to compel 

after time within which Darien was required to file Rule 1925(b) statement). 

The court did not rule on that motion—which it ultimately denied—until after 

Darien’s opening brief was filed. Accordingly, because we cannot expect 

appellants to infer the reasons for a trial court’s rulings from a record that is 

devoid of any explanation of those rulings, and because Darien made 

reasonable efforts to preserve the issue for appellate review by promptly 

seeking leave to amend, we decline to hold that Darien has waived the issue 

of waiver for failure to include it in its Rule 1925(b) statement. Nonetheless, 

Darien is entitled to no relief. 

As an appellate court, our standard of review of an order deciding a 

petition to compel6 “is limited to determining whether the trial court’s findings 

are supported by substantial evidence and whether it abused its discretion[.]” 

Del Ciotto v. Pennsylvania Hosp. of the Univ. of Penn Health Sys., 177 

A.3d 335, 348 (Pa. Super. 2017). 

Generally, in reviewing a petition to compel arbitration, “judicial inquiry 

is limited to determining (1) whether a valid agreement to arbitrate exists 

between the parties and, if so, (2) whether the dispute involved is within the 

____________________________________________

6 “An appeal may be taken from . . . [a] court order denying an application to 

compel arbitration made under section 7304 (relating to proceedings to 

compel or stay arbitration).”). 42 Pa.C.S.A. § 7320(a)(1). See also Pa.R.A.P. 

311(a)() (“An appeal may be taken as of right and without reference to 

Pa.R.A.P. 341(c) from . . . [a]n order that is made final or appealable by 

statute or general rule, even though the order does not dispose of all claims 

and of all parties.”).
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scope of the arbitration provision.” Midomo Co., Inc. v. Presbyterian 

Hous. Dev. Co., 739 A.2d 180, 186 (Pa. Super. 1999). 

[N]ot all questions are to be resolved by the trial court. In a 

proceeding to stay or to compel arbitration, the question of 

whether the parties agreed to arbitrate, commonly referred to as 

“substantive arbitrability,” is generally one for the courts and not 

for the arbitrators. AT & T Technologies, Inc. v. 

Communications Workers of Am., 475 U.S. 643, 649[] (1986). 

On the other hand, resolution of procedural questions, including 

whether the invocation of arbitration was proper or timely is left 

to the arbitrator. Mack Mfg. Corp. v. International Union, 

United Auto., Aircraft and Agric. Implement Workers Local 

677, [] 81 A.2d 562 ([Pa.] 1951). Such questions may be 

referred to as “procedural arbitrability.”

Ross Dev. Co. v. Advanced Bldg. Dev., Inc., 803 A.2d 194, 196 (Pa. Super. 

2002).

However, 

the right to enforce an arbitration clause can be waived. A waiver 

of the right to proceed to arbitration may be expressly stated, or 

it may be inferred from a party’s undisputed acts or language so 

inconsistent with a purpose to stand on the contract provisions as 

to leave no opportunity for a reasonable inference to the contrary.

Waiver “should not be lightly inferred[,] and unless one’s conduct 

has gained him an undue advantage or resulted in prejudice to 

another he should not be held to have relinquished the right.” 

Goral v. Fox Ridge, Inc., 683 A.2d 931, 933 (Pa. Super. 1996). “A party’s 

acceptance of the regular channels of the judicial process can demonstrate its 

waiver of arbitration.” GE Lancaster Investments, LLC v. Am. Exp. Tax & 

Bus. Servs., Inc., 920 A.2d 850, 853–54 (Pa. Super. 2007), citing Smay v. 

E.R. Stuebner, Inc., 864 A.2d 1266, 1278 (Pa. Super. 2004) (stating 

acceptance of judicial process includes party’s failure to raise arbitration issue 
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promptly, party’s engagement in discovery, and party waiting until it receives 

adverse rulings on pretrial motions before raising arbitration).

Here, we conclude that Darien has waived its right to arbitration by acts 

“so inconsistent with a purpose to stand on the contract provisions as to leave 

no opportunity for a reasonable inference to the contrary.” Goral, 683 A.2d 

at 933. Rather than immediately filing a petition to compel arbitration when 

the Rhees initiated their suit, Darien instead availed itself of the judicial 

process by filing a joinder complaint against Evolve. When Evolve filed 

preliminary objections asserting the existence of the arbitration clause, Darien 

did not submit to arbitration, as it was contractually obliged to do. Rather, 

Darien doubled down on the judicial process, filing an amended joinder 

complaint.7 When Evolve preliminarily objected on the basis of the arbitration 

clause for a second time, Darien again amended its joinder complaint rather 

than agreeing to arbitrate. Once again, Evolve preliminarily objected and, this 

time, Darien filed a response to Evolve’s objections. Only after the trial court 

dismissed its claims against Evolve with prejudice did Darien reverse course 

and file a petition seeking to compel arbitration. At any point after Evolve 

raised the issue of arbitration, Darien could have desisted in its efforts to 

____________________________________________

7 Notably, in its brief, Darien concedes that, after Evolve filed preliminary 

objections to its first joinder complaint, “the [trial c]ourt’s analysis should 

have ended” and “the case should have been transferred to arbitration by 

[o]rder.” Reply Brief of Appellant, at 6. Nevertheless, rather than simply 

agreeing to arbitration, Darien continued to avail itself of the judicial process, 

filing two subsequent amended joinder complaints and responding to Evolve’s 

third set of preliminary objections.
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pursue a judicial remedy and agreed to arbitrate. Instead, it forced Evolve to 

expend resources repeatedly objecting to its joinder complaints. Having been 

put out of court with respect to its claims against Evolve, Darien cannot now

seek redress under the Agreement it repeatedly repudiated by virtue of its 

conduct. See Samuel J. Marranca Gen. Contracting Co., Inc. v. 

Amerimar Cherry Hill Associates Ltd. P'ship, 610 A.2d 499, 501 (Pa. 

Super. 1992) (finding party waived right to arbitrate where conduct, including 

choosing not to file petition to compel arbitration, not asserting arbitration as 

affirmative defense, and waiting until it received adverse ruling on pretrial 

motions before seeking to enforce arbitration clause, indicated waiver).

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/17/2023