J-A03006-18

____________________________________

* Retired Senior Judge assigned to the Superior Court.

2018 PA Super 75

HOWARD F. GRIEST, III 

Appellant

v.

KEVIN GRIEST

Appellee

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 2262 EDA 2017

Appeal from the Order Dated June 26, 2017

In the Court of Common Pleas of Chester County

Civil Division at No(s): 16-04054-RC

BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and PLATT*, J.

OPINION BY GANTMAN, P.J.: FILED MARCH 27, 2018

Appellant, Howard F. Griest, III, appeals from the order entered in the 

Chester County Court of Common Pleas, which overruled his preliminary 

objections in the nature of a motion to assert arbitration and compel 

bifurcation of the counterclaim of Appellee, Kevin Griest, in this partition 

action. We reverse and remand for further proceedings. 

The parties to this action are brothers. On April 12, 2000, the parties’ 

mother transferred two parcels of property to Appellant and Appellee as joint 

tenants with the right of survivorship: (1) real property at 265 Killian Road, 

Chester County, Pennsylvania (“Farm Property”); and (2) real property at 251 

Killian Road, Chester County, Pennsylvania (“Rental Property”). On April 29, 

2016, Appellant commenced this partition action against Appellee by writ of 

summons. Appellant filed a complaint on January 3, 2017. Specifically, 
J-A03006-18

- 2 -

Appellant alleged that, since August of 2006, Appellee has retained exclusive 

possession of the Farm Property. Appellant claimed Appellee refused to rent 

the Farm Property, which prevented Appellant from collecting a fair rental 

value for that land. Appellant conceded that Appellee has rented the Rental 

Property to tenants since 2004, but Appellant insisted the rental income is 

inadequate to pay for the taxes, insurance and maintenance expenses for both

properties. As a result, Appellant has had to contribute to those payments 

while Appellee has paid nothing. Appellant sought partition of the Farm 

Property and Rental Property so the parties can sell the properties, pay the 

expenses of the sales, and equitably divide the net proceeds of the sales. 

Appellant further requested an order assessing charges against Appellee for 

the fair market rental value arising from Appellee’s exclusive use and 

occupancy of the Farm Property, as well as reimbursement of the amounts 

Appellant has paid for taxes, maintenance, and insurance for the properties. 

On February 10, 2017, Appellee filed an answer and counterclaim, 

introducing a third parcel of real property at 50 West Conestoga Road, 

Elverson, Pennsylvania (“Elverson Property”). Appellee claimed the parties 

entered into an agreement dated May 5, 2006 (“Agreement”), which is 

relevant to the partition action. The Agreement provides, in pertinent part, 

as follows:

AGREEMENT

THIS AGREEMENT made by and between [Appellant] and 

[Appellee], both of Chester County, Pennsylvania 
J-A03006-18

- 3 -

(hereinafter collectively referred to as the “Partners”):

WHEREAS, the Partners are individuals and co-owners of 

[the Farm Property]; and 

WHEREAS, [Appellant] owns personal property separate and 

distinct from the Farm Property; and 

WHEREAS, [Appellee] owns personal property separate and 

distinct from the Farm Property;

WHEREAS, [Appellant] desires to utilize the Partners’ 

interest in the Farm Property as collateral for purposes of 

purchasing [the Elverson Property]; and 

WHEREAS, [Appellee] is not a party to the purchase of the 

[Elverson] Property; and 

WHEREAS, [Appellee] has been asked by [Appellant] to sign 

as a limited surety for [Appellant’s] purchase of the 

[Elverson Property], which Surety Agreement will pledge 

[Appellee’s] interest in the Farm Property as collateral for 

[Appellant’s] purchase of the [Elverson] Property;

WHEREAS, [Appellee] is willing to sign a Limited Surety 

Agreement, provided his personal property, which is 

separate and distinct from the Farm Property, is exempt 

from the Limited Surety Agreement; and 

WHEREAS, in exchange for signing a Limited Surety 

Agreement, [Appellee] has requested of [Appellant] the 

right to receive Twenty Percent (20%) interest in the 

[Elverson Property], under certain terms and conditions; 

and 

WHEREAS, [Appellant] is agreeable to meeting [Appellee’s] 

requests in exchange for [Appellee’s] signing a Limited 

Surety Agreement; and 

WHEREAS, the Partners desire to set forth in this Agreement 

the arrangement between them; 

NOW THEREFORE, the Partners, intending to be legally 

bound, mutually agree as follows:
J-A03006-18

- 4 -

1. Pledge of Farm Property as Collateral for Purchase of 

[Elverson] Property:

The Partners hereby agree to pledge the Farm Property 

as collateral for [Appellant’s] purchase of the [Elverson] 

Property. In making this pledge, [Appellee] will sign the 

Limited Surety Agreement attached hereto and marked 

as Exhibit “A”. The Partners acknowledge that [Appellee] 

owns personalty, which is to be exempted from that 

property being pledged as collateral. ... 

2. Refinancing of Loan for Purchase of [Elverson] Property:

The Partners acknowledge that [Appellant] has or will 

receive financing to complete his purchase of the 

[Elverson] Property. [Appellant] agrees that on June 2, 

2011 or as soon as reasonably possible thereafter, 

[Appellant] will apply for refinancing of any outstanding 

loan encumbering the Farm Property. In seeking 

refinancing, [Appellant] will make all reasonable efforts 

to complete the refinancing without pledging any of the 

Farm Property as collateral for the refinanced loan(s).

3. Consideration to [Appellee] for Signing Limited Surety 

Agreement:

In exchange for [Appellee’s] signing the Limited Surety 

Agreement, [Appellee] shall receive from [Appellant] a 

Twenty Percent (20%) interest in [the Elverson 

Property]. [Appellant] agrees that he will be solely 

responsible for payment of all costs associated with the 

ownership and maintenance of the real property 

including, but not limited to taxes, water and sewer 

rents, insurance, repairs and maintenance of the 

property. Unless the property is sold to a third party on 

or before June 2, 2011, [Appellee] agrees he will not seek 

to sell his interest in the property or request any payment 

from [Appellant] for [Appellee’s] interest in said property 

until June 2, 2011. ...

4. Farm Bank Account:

The Partners agree that all funds received by the Partners 
J-A03006-18

- 5 -

arising out of their operation of the Farm Property shall 

be kept separate and distinct from any money received 

by either [Appellant] or [Appellee] from other ventures 

in which either partner may invest or otherwise be 

involved. ...

5. Farm Operation:

Each Partner shall devote as much time as is reasonably 

possible to the operation of the Farm Property. Each 

Partner understands that the other is involved in 

businesses separate and distinct from the Partnership. 

Each Partner will endeavor to work with the other to 

further the interests of the Partnership, understanding 

that time constraints and other commitments may 

involve one partner contributing more time and/or effort 

towards the operation of the Partnership than the other. 

6. Profit and Loss:

The net profits or losses of the Partnership shall be 

divided equally between the Partners; provided that if 

one partner fails to materially contribute to the operation 

of the Farm Property, appropriate adjustments shall be 

made between the Partners to reflect the contribution 

made by each partner toward the operation and 

maintenance of the Farm Property. 

7. Legal Fees and Costs:

In the event any claim or litigation is initiated against 

[Appellee] by virtue of his signing the Limited Surety 

Agreement or receiving a 20% interest in the [Elverson 

Property], [Appellant] agrees to [indemnify] [Appellee] 

for all legal costs [Appellee] incurs in defending himself 

against any such claim or litigation. ... 

8. Choice of Law:

This Agreement shall be construed in accordance with the 

laws of the Commonwealth of Pennsylvania. 

9. Arbitration:
J-A03006-18

- 6 -

Any disputes which arise from this Agreement shall be 

submitted to binding arbitration in accordance with the 

Rules of the American Arbitration Association and any 

judgment on the award rendered by the arbitrator may 

be entered in any court having jurisdiction thereof.

* * *

(Agreement, dated 5/6/06, at 1-4; R.R. at 71a-74a). Essentially, Appellee 

averred he agreed to “pledge” the Farm Property as collateral so that 

Appellant’s business entity, 50 West Conestoga Road, LP, could purchase the 

Elverson Property. In exchange, Appellee was to receive a twenty percent 

(20%) interest in the Elverson Property. Appellee insisted Appellant failed to 

pay him the amount owed. Under the Agreement, Appellee claimed the 

parties decided to operate the Farm Property jointly and to devote as much 

time as possible to the operation of the Farm Property. Appellee maintained 

Appellant devoted no time to the Farm Property since 2005, leaving Appellee 

to tend to the Farm Property on his own by raising livestock, harvesting crops, 

and hiring someone to assist with the farm management. Appellee also 

claimed he had expended substantial funds for maintenance of the Farm 

Property and Rental Property. Appellee conceded the Agreement contains a 

provision requiring any disputes arising from the Agreement to proceed to

binding arbitration. Nevertheless, Appellee suggested that all issues involving 

the parties and the Farm Property, Rental Property, and Elverson Property 

should be resolved together in one forum, the trial court. Appellee sought 

partition of the Farm Property and the Rental Property, payment of his twenty 
J-A03006-18

- 7 -

percent (20%) interest in the Elverson Property, and reimbursement for the 

expenses Appellee had paid to manage/operate the Farm Property and Rental 

Property, as well as an order assessing charges against Appellant for his failure 

to contribute to the management and operation of the Farm Property and/or 

Rental Property. 

Appellant filed preliminary objections to Appellee’s counterclaim on 

March 1, 2017, under Pa.R.C.P. 1028(a)(6), based on the arbitration clause 

in the parties’ Agreement.1 Appellant insisted the Elverson Property is 

separate and distinct from the other properties, and Appellee’s claim for a 

twenty percent (20%) interest in the Elverson property must proceed to 

arbitration. Appellee responded to the preliminary objections on March 20, 

2017, claiming the parties’ Agreement sets forth the parties’ obligations to the 

Farm Property, which is part of the partition action. Appellee renewed his 

request for a “global resolution” of all claims in the trial court.

By order dated June 26, 2017, and filed the next day, the court 

overruled Appellant’s preliminary objections, stating: 

[Appellant’s] Complaint raises a partition action regarding 

two properties owned by the parties. [Appellee’s] 

Counterclaim involves inter alia a written agreement 

between the parties with regard to a third property. That 

agreement contains an arbitration clause. [Appellant’s] 

Preliminary Objection is based on that arbitration 

agreement. Normally, we would sustain that Objection. 

____________________________________________

1 See Pa.R.C.P. 1028(a)(6) (explaining preliminary objections may be filed by 

any party to any pleading based on agreement for alternative dispute 

resolution). 
J-A03006-18

- 8 -

However, the agreement also contains provisions related to 

the two properties at issue in the instant action and could 

impact the parameters of any partition. Finally, the 

Counterclaim itself, in addition to mentioning the third 

property, also makes averments that could impact any 

partition. 

(Order, filed 6/27/17, at 1 n.1; R.R. at 98a) (internal citation omitted). 

Appellant timely filed a notice of appeal on July 14, 2017. On July 18, 2017, 

the court ordered Appellant to file a concise statement of errors complained 

of on appeal pursuant to Pa.R.A.P. 1925(b); Appellant timely complied on 

August 7, 2017. 

Appellant raises three issues for our review:

WHETHER THE CHESTER COUNTY COURT OF COMMON 

PLEAS ABUSED ITS DISCRETION AND/OR ERRED AS A 

MATTER OF LAW AND/OR ITS DECISION WAS 

UNSUPPORTED BY COMPETENT EVIDENCE IN OVERRULING 

APPELLANT’S PRELIMINARY OBJECTION TO APPELLEE’S 

COUNTERCLAIM, WHICH PRELIMINARY OBJECTION 

ASSERTED THE EXISTENCE OF AN AGREEMENT TO 

ARBITRATE UNDER PA.R.C.P. 1028(A)(6), IN A PARTITION 

ACTION WHEREIN THE COMPLAINT INVOLVES TWO 

PROPERTIES OWNED BY THE PARTIES, WHEN THE 

COUNTERCLAIM INVOLVES AN ENTIRELY DISTINCT THIRD 

PROPERTY THAT HAS DIFFERENT OWNERSHIP, AND THE 

ISSUES ASSERTED IN THE COUNTERCLAIM ARE GOVERNED 

BY A WRITTEN AGREEMENT THAT, BY THE COURT’S 

ACKNOWLEDGEMENT, SUBJECTS THE MATTERS IN THE 

COUNTERCLAIM TO BINDING ARBITRATION IN 

ACCORDANCE WITH THE RULES OF THE AMERICAN 

ARBITRATION ASSOCIATION.

WHETHER THE CHESTER COUNTY COURT OF COMMON 

PLEAS ABUSED ITS DISCRETION AND/OR ERRED AS A 

MATTER OF LAW AND/OR ITS DECISION WAS 

UNSUPPORTED BY COMPETENT EVIDENCE IN OVERRULING 

APPELLANT’S PRELIMINARY OBJECTION TO APPELLEE’S 

COUNTERCLAIM, WHICH PRELIMINARY OBJECTION 
J-A03006-18

- 9 -

ASSERTED THE EXISTENCE OF AN AGREEMENT FOR 

BINDING ARBITRATION IN ACCORDANCE WITH THE RULES 

OF THE AMERICAN ARBITRATION ASSOCIATION UNDER 

PA.R.C.P. 1028(A)(6), WHEN APPELLEE/COUNTERCLAIM 

PLAINTIFF ADMITTED THE EXISTENCE OF A WRITTEN 

AGREEMENT FOR BINDING ARBITRATION WITH RESPECT 

TO THE ISSUES SET FORTH IN THE COUNTERCLAIM. 

WHETHER THE CHESTER COUNTY COURT OF COMMON 

PLEAS ABUSED ITS DISCRETION AND/OR ERRED AS A 

MATTER OF LAW AND/OR ITS DECISION WAS 

UNSUPPORTED BY COMPETENT EVIDENCE IN OVERRULING 

APPELLANT’S PRELIMINARY OBJECTION TO APPELLEE’S 

COUNTERCLAIM, WHICH PRELIMINARY OBJECTION 

ASSERTED THE EXISTENCE OF AN AGREEMENT FOR 

ARBITRATION UNDER PA.R.C.P. 1028(A)(6), WHEN THE 

COURT FOUND THAT THE SUBJECT AGREEMENT 

CONTAINED AN AGREEMENT TO SUBMIT ALL DISPUTES TO 

BINDING ARBITRATION, AND ACKNOWLEDGED THAT IT 

WOULD NORMALLY SUSTAIN THE OBJECTION BASED ON 

THE ARBITRATION AGREEMENT, BUT NONETHELESS 

PROCEEDED TO OVERRULE THE PRELIMINARY OBJECTION 

ON [THE] BASIS THAT THE AGREEMENT COULD 

PURPORTEDLY IMPACT THE PARTITION ACTION AND THE 

COUNTERCLAIM MENTIONS THE THIRD PROPERTY AND 

MAY PURPORTEDLY IMPACT THE PARTITION. 

(Appellant’s Brief at 5-6). 

For purposes of disposition, we combine Appellant’s issues. Appellant 

argues his claims for partition are separate and distinct from Appellee’s 

allegations in the counterclaim relating to the Elverson Property and the 

parties’ Agreement, so the parties should litigate Appellant’s partition 

complaint in the trial court and Appellee’s counterclaim in arbitration. 

Appellant asserts the parties’ Agreement contains a clear and valid agreement 

to arbitrate claims arising out of the Agreement. Appellant avers the 

Agreement pertains mainly to the Elverson Property, as entirely distinct from 
J-A03006-18

- 10 -

the Farm Property and Rental Property, which are subjects of the partition 

action. Appellant emphasizes that neither Appellant nor Appellee individually 

owns the Elverson Property; instead, an entity called 50 West Conestoga 

Road, LP owns the Elverson Property. Appellant stresses 50 West Conestoga 

Road, LP is not even a party to this action. Appellant suggests that litigating 

Appellee’s counterclaim in the partition action would deprive that entity of due 

process. Appellant complains Appellee is attempting to utilize the partition 

action to bypass the binding arbitration clause in the parties’ Agreement. 

Appellant maintains the dispute at issue in Appellee’s counterclaim, involving 

Appellant’s alleged breaches of his obligations under the Agreement, is 

unquestionably within the scope of the arbitration provision. Appellant insists 

the mere mention of the Farm Property in the Agreement should not permit 

Appellee to evade the arbitration clause and litigate all claims at the same 

time. Appellant concludes the arbitration clause governs Appellee’s 

counterclaim and this Court must reverse the trial court’s order denying 

arbitration of, and retaining jurisdiction over, the counterclaim. We agree in 

part but not on the grounds stated.

Initially, as a general rule:

[A]n order [overruling] preliminary objections is 

interlocutory and not appealable as of right. There exists, 

however, a narrow exception to this oft-stated rule for cases 

in which the appeal is taken from an order denying a petition 

to compel arbitration. Our decisional law has made clear 

that the issue of whether a party agreed to arbitrate a 

dispute is a threshold, jurisdictional question that must be 

decided by the court.
J-A03006-18

- 11 -

Pisano v. Extendicare Homes, Inc., 77 A.3d 651, 654 (Pa.Super. 2013), 

appeal denied, 624 Pa. 683, 86 A.3d 233 (2014), cert. denied, ___ U.S. ___, 

134 S.Ct. 2890, 189 L.Ed.2d 838 (2014) (internal citations and quotation 

marks omitted). The relevant standard and scope of review in this context 

are as follows:

Our review of a claim that the trial court improperly 

denied the appellant’s preliminary objections in the 

nature of a petition to compel arbitration is limited to 

determining whether the trial court’s findings are 

supported by substantial evidence and whether the 

trial court abused its discretion in denying the petition.

In doing so, we employ a two-part test to determine 

whether the trial court should have compelled arbitration. 

First, we examine whether a valid agreement to arbitrate 

exists. Second, we must determine whether the dispute is 

within the scope of the agreement. 

* * *

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. 

Id. at 654-55 (internal citations and quotation marks omitted). In making 

these determinations, courts must bear in mind:

(1) arbitration agreements are to be strictly construed 

and not extended by implication; and (2) when parties 

have agreed to arbitrate in a clear and unmistakable 

manner, every reasonable effort should be made to 

favor the agreement unless it may be said with 

positive assurance that the arbitration clause involved 

is not susceptible to an interpretation that covers the 

asserted dispute.
J-A03006-18

- 12 -

To resolve this tension, courts should apply the rules of 

contractual constructions, adopting an interpretation that 

gives paramount importance to the intent of the parties and 

ascribes the most reasonable, probable, and natural conduct 

to the parties. In interpreting a contract, the ultimate goal 

is to ascertain and give effect to the intent of the parties as 

reasonably manifested by the language of their written 

agreement. 

Provenzano v. Ohio Valley General Hosp., 121 A.3d 1085, 1095 

(Pa.Super. 2015) (internal citations omitted). 

Pennsylvania law endorses the nationally accepted liberal policy favoring 

arbitration embodied in the Federal Arbitration Act at 9 U.S.C. §§ 1-16 

(“FAA”):

[The enactment of the FAA] expresses a liberal federal 

policy favoring arbitration agreements. [Congress’] purpose 

was to overcome state legislative and judicial efforts to 

undermine the enforceability of arbitration agreements, 

inter alia, by establishing a substantive rule of federal law 

placing such agreements upon the same footing as other 

contracts. The federal statute thus requires that a written 

provision...to settle by arbitration a controversy thereafter 

arising out of such contract or transaction...shall be valid, 

irrevocable, and enforceable, save upon any grounds at law 

or in equity for the revocation of any contract.2

2 Pennsylvania law reflects an identical policy 

embodied in the Uniform Arbitration Act. See 42 

Pa.C.S.[A]. § 7303 (“A written agreement to subject 

any existing controversy to arbitration or a provision 

in a written agreement to submit to arbitration any 

controversy thereafter arising between the parties is 

valid, enforceable, and irrevocable, save upon such 

grounds as exist at law or in equity relating to the 

validity, enforceability or revocation of any contract”).

Salley v. Option One Mortg. Corp., 592 Pa. 323, 330, 925 A.2d 115, 118-

19 (2007). See also Taylor v. Extendicare Health Facilities, Inc., 637 
J-A03006-18

- 13 -

Pa. 163, 194, 147 A.3d 490, 509 (2016) (stating: “Section 2 of the FAA binds 

state courts to compel arbitration of claims subject to an arbitration 

agreement”; this directive is mandatory); Ross Development Co. v. 

Advanced Bldg. Development, Inc., 803 A.2d 194, 196 (Pa.Super. 2002) 

(reiterating historical perspective in Pennsylvania law favoring arbitration); 

Smith v. Cumberland Group, Ltd., 687 A.2d 1167, 1171 (Pa.Super. 1997) 

(stating: “As a matter of public policy, the courts of this Commonwealth 

strongly favor the settlement of disputes by arbitration”). “Under the FAA, 

any doubts concerning the scope of arbitrable issues should be resolved in 

favor of arbitration.” Provenzano, supra at 1097 (internal citation and 

quotation marks omitted). Importantly: “The essential and overarching 

purpose of the FAA...is to ensure the enforcement of arbitration agreements 

according to their terms so as to facilitate streamlined proceedings and 

resolution of claims.” Id. at 1098 (internal citation and quotation marks 

omitted). 

Instantly, Appellant’s complaint alleged Appellee: (1) retained exclusive 

possession of the Farm Property since August of 2006; (2) refused to rent the 

Farm Property, which prevented Appellant from collecting a fair rental value 

for that land; and (3) rented the Rental Property for an amount inadequate to 

pay for the taxes, insurance and maintenance expenses for both properties, 

which forced Appellant to contribute to those expenses. Appellant sought 

partition of the Farm Property and Rental Property so the parties could sell the 
J-A03006-18

- 14 -

properties, pay the expenses of the sales, and equitably divide the net 

proceeds of the sales. Appellant further requested an order assessing charges 

against Appellee for the fair market rental value arising from Appellee’s 

exclusive use and occupancy of the Farm Property, as well as reimbursement 

of the amounts Appellant paid for taxes, maintenance, and insurance for the 

properties. 

Appellee’s counterclaim alleged Appellant: (1) failed to pay Appellee the 

twenty percent (20%) interest owed under the Agreement regarding the 

Elverson Property; (2) devoted no time to operation of the Farm Property since 

2005; and (3) caused Appellee to expend substantial funds for maintenance 

of the Farm Property. Appellee also sought partition of the Farm Property and 

Rental Property, payment of his twenty percent (20%) interest in the Elverson 

Property, and reimbursement for the expenses Appellee paid to 

manage/operate the Farm Property and Rental Property, as well as an order 

assessing charges against Appellant for his failure to contribute to the 

management and operation of the Farm Property and/or Rental Property. 

The parties concede the Agreement contains a valid arbitration clause. 

(See Agreement at ¶ 9; R.R. at 74a). The Agreement delineates the parties’ 

rights and duties regarding the Elverson Property and implicates the Farm 

Property. For example, the Agreement specifies that the parties will use the 

Farm Property as collateral for Appellant to obtain the Elverson Property; in 

exchange, Appellee will receive a twenty percent (20%) interest in the 
J-A03006-18

- 15 -

Elverson Property. (See id. at ¶¶ 1, 3; R.R. at 72a). The Agreement requires 

Appellant to receive financing to complete the purchase of the Elverson 

Property and apply for refinancing of any outstanding loan encumbering the 

Farm Property, without pledging any of the Farm Property as collateral for the 

refinanced loan(s). (Id. at ¶ 2; R.R. at 72a). Under the Agreement, the 

parties must keep all funds received from operation of the Farm Property 

separate and distinct from any other money either partner obtains through 

individual ventures or investments. (Id. at ¶ 4; R.R. at 73a). The Agreement 

instructs the parties to devote as much time as is reasonably possible to 

operation of the Farm Property and to work with each other to further the 

interests of the “Partnership.” (Id. at ¶ 5; R.R. at 73a). The parties agreed 

that any profits or losses of the “Partnership” will be divided equally between 

the “Partners”; provided that if one partner fails to contribute materially to 

operation of the Farm Property, appropriate adjustments will be made 

between the Partners to reflect the contribution made by each Partner toward 

the operation and maintenance of the Farm Property. (Id. at ¶ 6; R.R. at 

73a). 

By entering the Agreement, the parties decided on a set of rules that 

would govern their pursuit of Appellant’s purchase of the Elverson Property 

and their joint operation of the Farm Property. All of the allegations in both 

the complaint and counterclaim concerning the Farm Property and the 

Elverson Property fall within the scope of the Agreement and its arbitration 
J-A03006-18

- 16 -

provision. (See id. at ¶¶ 1, 3, 5, 6; R.R. at 72a-73a). 

Additionally, the parties utilized the Farm Property as collateral for 

Appellant’s purchase of the Elverson Property. The court cannot partition the 

Farm Property in a proceeding separate from claims surrounding the Elverson 

Property and the parties’ Agreement, as the lender for the loan on the Elverson 

Property would have a lien on the Farm Property, in the event of a default, 

thereby destabilizing the Agreement.

Each party also asserted claims related to the Rental Property. The 

Agreement does not specifically mention the Rental Property. Nevertheless, 

the Agreement repeatedly refers to the “Partnership” and makes clear “[e]ach 

Partner will endeavor to work with the other to further the interests of the 

Partnership, understanding that time constraints and other commitments may 

involve one partner contributing more time and/or effort towards the 

operation of the Partnership than the other.” (Id. at ¶ 5; R.R. at 73a). The 

parties’ rights and duties concerning the Farm Property and the Elverson 

Property vis-à-vis the Rental Property are so inextricably intertwined that 

claims pertaining to all three properties should be adjudicated in one forum. 

In other words, adjudication of claims regarding the Elverson Property 

implicates claims regarding the Farm Property, which necessarily implicates 

claims regarding the Rental Property. 

In light of the parties’ relationship, course of conduct in executing the 

Agreement to arbitrate, and to facilitate streamlined proceedings and 
J-A03006-18

- 17 -

resolution of claims, we consider issues involving joint ownership of and 

contribution to the Partnership and the three properties to fall within the scope 

of arbitrable issues. See Provenzano, supra (reversing trial court’s order 

overruling preliminary objections in form of petition to compel arbitration of 

claim under Wage Payment and Collection Law (“WPCL”); WPCL claim arose 

out of alleged breach of employment contract containing arbitration clause 

and was temporally and factually related to appellee’s contract claim; in 

overruling preliminary objections, trial court subordinated liberal policy 

favoring arbitration shared in prevailing federal and state law). Compare 

Taylor, supra (holding FAA preempts application of Pa.R.C.P. 213(e) 

(requiring consolidation of wrongful death and survival claims for trial); 

decedent signed agreement with nursing home facility providing that any 

disputes arising between parties must be submitted to arbitration; wrongful 

death action had to be adjudicated in trial court, because arbitration 

agreement, signed only by decedent, did not bind claims of decedent’s 

wrongful death beneficiaries; wrongful death action was not derivative of 

decedent’s survival claim, because wrongful death action belonged only to 

statutory claimants and not to decedent; concluding wrongful death and 

survival claims had to be bifurcated, with beneficiaries’ wrongful death claim 

to proceed in trial court and decedent’s survival claim to proceed in 

arbitration). 

Unlike Taylor, where the arbitration agreement could not bind the 
J-A03006-18

- 18 -

wrongful death beneficiaries, here Appellant and Appellee signed the 

Agreement containing the arbitration provision. Further, nothing in the Rules 

of Civil Procedure prohibits litigation of a partition action in the arbitration

forum. See Pa.R.C.P. 1551-1574 (governing actions for partition of real 

property). Therefore, we see no need to bifurcate resolution of the claims 

raised in this case. Thus, we conclude all claims in this matter should proceed 

in the single forum of arbitration, to avoid conflicting resolutions and/or the 

potential for duplicative awards.

2 Accordingly, we reverse the order overruling 

Appellant’s preliminary objections to Appellee’s counterclaim and remand for 

further proceedings.

Order reversed; case remanded for further proceedings. Jurisdiction is 

relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/27/18

____________________________________________

2 At oral argument, the Court gave the parties an opportunity to waive the 

arbitration clause so all claims could proceed in the trial court. Following 

argument, Appellant’s counsel notified this Court that the parties were unable 

to reach a stipulation regarding a common forum for all their claims at one 

time. Upon remand, the trial court might want to revisit the waiver potential. 

If the parties still cannot agree, the trial court must direct all claims to proceed 

to arbitration.