J-A01003-16

*Former Justice specially assigned to the Superior Court. 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

SPARTAN DRYWALL BUILDERS, INC., 

D/B/A SPARTAN DRYWALL, INC.

IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

POST GOLDTEX, L.P. AND POST 

GENERAL CONTRACTING

Appellants No. 1182 EDA 2015

Appeal from the Order Entered April 8, 2015

In the Court of Common Pleas of Philadelphia County

Civil Division at No(s): June Term, No. 002448

BEFORE: LAZARUS, J., OTT, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED FEBRUARY 05, 2016

Appellants Post Goldtex, L.P. (“Post Goldtex”) and Post General 

Contracting (“Post Contracting”) appeal from the order of the Honorable 

Patricia McInerney of the Court of Common Pleas of Philadelphia County 

overruling their preliminary objections to the Mechanic’s Lien Enforcement 

Action of Respondent Spartan Drywall Builders, Inc., d/b/a Spartan Drywall, 

Inc. (“Spartan”) and dismissing arbitration proceedings. After careful 

review, we affirm.

On October 22, 2012, Post Goldtex and Spartan entered a construction 

contract (the “Agreement”) for Spartan to install drywall and perform related 

construction work at Post Goldtex Apartments located at 315 North 12th

Street in Philadelphia (the “Property”). The Agreement consists of several 
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documents that together constitute a “Contract Package” and provides that 

Spartan would be compensated under a Timing and Payment Schedule.

On February 7, 2014, Spartan filed a Mechanic’s Lien against the 

Property and any interest of its owners, which it alleged were Post Goldtex 

and Post Contracting. On May 27, 2014, Post Goldtex filed a praecipe for a 

rule to file a complaint upon the mechanic’s lien. 

On June 16, 2014, Spartan filed the instant action against Post Goldtex 

and Post Contracting. The trial court stayed the action after the parties 

agreed to submit their dispute to mediation. Although the parties met with 

a jointly-appointed mediator on one occasion, Post Goldtex concluded that a 

second mediation session would not resolve the dispute and filed a demand 

for arbitration on January 12, 2015.

In response, Spartan filed its First Amended Complaint, again naming 

both Post Goldtex and Post Contracting as defendants, as it alleged that both 

entities are “reputed owners” of the Property. Spartan sought a judgment in 

the amount of $259,681.46 against Post Goldtex and Post Contracting for 

their failure to pay Spartan for work, equipment, and materials pursuant to 

their obligations in the Agreement.

On March 5, 2015, Post Goldtex and Post Contracting filed preliminary 

objections asserting that the Agreement requires the parties to submit their 

dispute to arbitration and that Post Contracting was improperly joined to the 

mechanic’s lien action. Post Goldtex and Post Contracting also filed a motion 

to stay the proceedings in this action and to compel Spartan to submit to 
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arbitration. On April 8, 2015, the trial court entered an order overruling the 

preliminary objections and denying the motion to stay the proceedings. This 

timely appeal followed. Post Goldtex and Post Contracting complied with the 

trial court’s order to file a Concise Statement of Errors Complained of on 

Appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b).

On appeal, Post Goldtex and Post Contracting claim that the trial court 

erred in denying their preliminary objections when they allege that (1) the 

Agreement contains an unequivocal agreement to arbitrate and (2) Post 

Contracting was improperly joined as a party to this action. While as a 

general rule, an order denying preliminary objections is interlocutory and is 

not appealable as of right, there is a narrow exception for an order refusing 

to compel a case to arbitration, which involves a jurisdictional question that 

must be decided by the courts. Pisano v. Extendicare Homes, Inc., 77 

A.3d 651, 654 (Pa.Super. 2013).

Our standard of review is well-established:

We review a trial court's denial of a motion to compel arbitration 

for an abuse of discretion and to determine whether the trial 

court's findings are supported by substantial evidence. In doing 

so, we employ a two-part test to determine whether the trial 

court should have compelled arbitration. The first determination 

is whether a valid agreement to arbitrate exists. The second 

determination is whether the dispute is within the scope of the 

agreement.

Elwyn v. DeLuca, 48 A.3d 457, 461 (Pa.Super. 2012) (quoting Smay v. 

E.R. Stuebner, Inc., 864 A.2d 1266, 1270 (Pa.Super. 2004)).
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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. 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, arbitration agreements are to be strictly construed and 

such agreements should not be extended by implication.

Elwyn, 48 A.3d at 461 (quoting Cumberland–Perry Area Vocational–

Technical School v. Bogar & Bink, 396 A.2d 433, 434–35 (Pa. Super. 

1978)).

As noted above, the parties’ Agreement consists of several documents 

that make up the “Contract Package.” The first document, entitled 

“Agreement of Critical Business Terms,” was specifically drafted for this 

project and designates Post Goldtex as “Owner” and Spartan as 

“Contractor.” The Contract Package also includes, inter alia, (1) American 

Institute of Architects (AIA) Form A201-1997, General Conditions of the 

Contract for Construction (hereinafter “Form A201”) and (2) AIA Form A401-

2007, Standard Form of Agreement between Contractor and Subcontractor 

(hereinafter “Form A401”).

Both Forms A201 and A401 contain provisions related to the 

enforcement of the Agreement. Form A201 designates Post Goldtex as the 

Owner of the Property and Spartan as the Contractor. With respect to 

arbitration, Form A201 specifically states:

§ 4.5 MEDIATION

§ 4.5.1. Any Claim arising out of or related to the Contract ... 

shall be subject to mediation as a condition precedent to 
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arbitration or the institution of legal or equitable proceedings by 

either party.

***

§ 4.6 ARBITRATION

§ 4.6.1. Any Claims arising out of or related to the Contract ... 

shall ... be subjected to arbitration. Prior to arbitration, the 

parties shall endeavor to resolve disputes by mediation in 

accordance with the provisions of Section 4.5.

AIA Document A201-1997, §§ 4.5, 4.6.1.

In contrast, Form A401 designates Post Contracting as the Contractor 

and Spartan as the Subcontractor. Form A401 specifically states:

§ 6.1 MEDIATION

§ 6.1.1. Any Claim arising out of or related to this Subcontract 

... shall be subject to mediation as a condition precedent to 

binding dispute resolution

***

§ 6.2 BINDING DISPUTE RESOLUTION

For any claim subject to, but not resolved by mediation pursuant 

to Section 6.1, the method for binding dispute resolution shall be 

as follows:

[X] Arbitration pursuant to Section 6.3 of this Agreement

[X] Litigation in a court of competent jurisdiction.

AIA Document A401-2007, §§ 6.1.1, 6.2. 

In denying Post Goldtex’s request to compel arbitration, the trial court 

found that the Agreement as set forth in the Contract Package contained 

conflicting language in that Form A201 requires mediation and then 

arbitration only whereas Form A401 first requires mediation and then 

subsequently allows either arbitration or litigation in a court of competent 
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jurisdiction. To resolve this contract, the trial court looked to another 

document in the Contract Package – the Agreement of Critical Business 

Terms, which specifically addresses how to resolve conflicts in the AIA 

documents:

AIA 401 AND A201 GOVERNING DOCUMENTS FOR ALL 

OTHER TERMS; CONFLICTING STATEMENTS IN 

DOCUMENTS:

The AIA 401 form of Contract as well as A201 General Conditions 

of the Contract shall govern all other terms and conditions of the 

contract between Contractor and Owner. All blanks to be filledin in the AIA contracts shall refer to terms in this document.

If there are any conflicting statements in the AIA contract 

documents or any other documents in this contract 

package, the statements in this document shall supercede 

those in the other documents.

Agreement of Critical Business Terms, at 6 (emphasis added).

As the trial court deemed the Agreement of Critical Business Terms to 

be the controlling document in the Contract Package and noted that it 

contained no language that designated arbitration as the parties’ choice 

method for dispute resolution, the trial court concluded that it could not 

compel arbitration on any party to the Agreement.

While Post Goldtex seems to acknowledge that Forms A201 and A401 

have conflicting clauses about the choice method of dispute resolution, it 

argues that the language in Form A201 should control as this document 

concerned the agreement between Post Goldtex and Spartan as Owner and 

Contractor. This argument ignores the fact that the parties agreed to 
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integrate both of the Forms into the Agreement of Critical Terms and 

expressly agreed that the language of both Forms “shall govern all other 

terms of the contract between [Spartan and Post Goldtex].” Agreement of 

Critical Business Terms, at 6. As Form 401 provides that any claim arising 

out of or related to the Subcontract, after being submitted to mediation, 

could be resolved by either arbitration or litigation, Spartan cannot be 

compelled to arbitrate its claims against Post Goldtex when there is no clear 

indication that the parties agreed to select arbitration as the exclusive 

method for dispute resolution.1 Accordingly, the trial court did not err in 

overruling Post Goldtex’s preliminary objection seeking to compel 

arbitration.

Second, Post Contracting argues that it was improperly joined as a 

defendant in this mechanic’s lien action as it alleges that it has no ownership 

interest in the Property but merely served as a contractor. Asserting that a 

mechanic’s lien is a statutory in rem action that addresses the rights of the 

parties with respect to a parcel of property, Post Contracting argues that it is 

____________________________________________

1 Although the parties identify Spartan as the Contractor in Form 201 with 

respect to Post Goldtex as the owner of the Property and the Subcontractor 

in Form 401 with respect to Post Contracting, this alternative 

characterization does not affect Spartan’s ability to file a mechanic’s lien 

against Post Goldtex under both designations. See Denlinger, Inc. v. 

Agresta, 714 A.2d 1048, 1053 (Pa. Super. 1998) (finding trial court erred in 

striking the construction company’s mechanic’s lien in which the entity was 

alternatively characterized as both the contractor and subcontractor of the 

project).
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not a proper party to this mechanic’s lien action as Spartan should have filed 

a breach of contract action against it to recover money damages instead. 

Our scope and standard of review is as follows:

A preliminary objection in the nature of a demurrer is properly 

granted where the contested pleading is legally insufficient. 

Preliminary objections in the nature of a demurrer require the 

court to resolve the issues solely on the basis of the pleadings; 

no testimony or other evidence outside of the complaint may be 

considered to dispose of the legal issues presented by the 

demurrer. All material facts set forth in the pleading and all 

inferences reasonably deducible therefrom must be admitted as 

true.

In determining whether the trial court properly sustained 

preliminary objections, the appellate court must examine the 

averments in the complaint, together with the documents and 

exhibits attached thereto, in order to evaluate the sufficiency of 

the facts averred. The impetus of our inquiry is to determine the 

legal sufficiency of the complaint and whether the pleading 

would permit recovery if ultimately proven. This Court will 

reverse the trial court's decision regarding preliminary objections 

only where there has been an error of law or abuse of discretion. 

When sustaining the trial court's ruling will result in the denial of 

claim or a dismissal of suit, preliminary objections will be 

sustained only where the case i[s] free and clear of doubt.

Barton v. Lowe's Home Centers, Inc., 124 A.3d 349, 354 (Pa. Super. 

2015) (quoting Weiley v. Albert Einstein Medical Center, 51 A.3d 202, 

208–209 (Pa. Super. 2012)).

Upon review of the pleadings and the order and opinion of the trial 

court, we find that the trial court correctly accepted as true the material 

facts of the complaint in which Spartan asserted that Post Contracting (a/k/a 

Post Brothers Apartments) is a reputed owner of the Property. At this stage 

of the instant action, it was proper to overrule Post Contracting’s preliminary 
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objection in the nature of a demurrer asserting that it had been improperly 

joined as a defendant in this mechanic’s lien action. 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/5/2016