J. A12040/18

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

ERIC AND SIGRID KUNZ, H/W, :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

 Appellants :

:

v. :

:

TOLL BROTHERS, INC., 

TOLL PA II, L.P., TOLL PA GP CORP.,

BROAD RUN ASSOCIATES, L.P.,

TOLL ARCHITECTURE, INC., AND

TOLL ARCHITECTURE I, P.A.

:

:

:

:

:

No. 3107 EDA 2017

Appeal from the Order August 14, 2017,

in the Court of Common Pleas of Chester County

Civil Division at No. 2016-01218-MJ

BEFORE: BOWES, J., OTT, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 16, 2018

Eric and Sigrid Kunz, husband and wife, appeal from the August 14, 

2017 order entered in the Court of Common Pleas of Chester County denying

their motion for reconsideration of the trial court’s December 12, 2016 order 

granting the petition of appellees Toll Brothers, Inc.; Toll PA II, L.P.; Toll PA 

GP Corp.; Broad Run Associates, L.P.; Toll Architecture, Inc.; and Toll 

Architecture I, P.A. (collectively, “Toll Brothers”), to compel arbitration and 

reinstating the December 12, 2016 order. We quash this appeal.

The trial court set forth the following:
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Procedural History

On July 19, 2016, [appellants] filed their complaint 

because of what they contend are “substantial 

construction defects” and because of [Toll Brothers’] 

[“]misrepresentations regarding the quality of the 

construction” of their home. [Appellants’] complaint 

assert[s] claims against [Toll Brothers] for violation of 

Pennsylvania’s Unfair Trade Practices and Consumer 

Protection Law (Count I), breach of express warranty 

(Count II), breach of implied warranty (Court III), 

negligence (Count IV), negligent supervision 

(Count V), and civil conspiracy (Count VI).

On August 31, 2016, [Toll Brothers] filed a petition to 

compel arbitration pursuant to arbitration language 

within the documents related to the purchase of 

[appellants’] home. [Appellants] opposed the petition 

arguing that the arbitration provisions in the 

governing documents were unenforceable “as they 

are indefinite[,] vague and contradictory.” Following 

briefing by the parties, on December 12, 2016, the 

court entered an order granting [Toll Brothers’] 

petition to compel arbitration.

On December 22, 2016, [appellants] filed an 

emergency motion asking the court to reconsider its 

decision or amend its order for immediate appeal. On 

January 3, 2017, the court entered a new order 

striking its December 12th order compelling arbitration 

pending further consideration by the court. The 

parties also were given additional time to conduct 

discovery on the issue of the allegedly “different”

arbitration provisions.

On January 12, 2017, [Toll Brothers] then filed their 

own motion to vacate, requesting that the court 

reinstate its original order compelling arbitration. On 

February 24, 2017, the court denied [Toll Brothers’] 

motion to vacate and clarified for the parties the 

issues that were the subject of the reconsideration 

order. After additional briefing and oral argument 

held on July 25, 2017, [appellants’] motion for 

reconsideration is now ripe for decision.
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The Relevant Arbitration Provisions

There are two documents at issue in this dispute. The 

first is an “Agreement of Sale” (“AOS”) between 

[appellants] and [appellee] Broad Run [Associates, 

L.P. (“Broad Run”)]. The second document is a limited 

warranty entitled “Toll Brothers Limited Warranty”

(“Limited Warranty”). Both documents contain 

arbitration provisions.

The arbitration clause in the AOS executed by 

[appellants] and Broad Run reads as follows:

ARBITRATION : Buyer . . . hereby agrees 

that any and all disputes with Seller, 

Seller’s parent company or their 

subsidiaries or affiliates arising out of the 

Premises, this Agreement, the Home 

Warranty, any other agreements, 

communications or dealings involving 

Buyer, or the construction or condition of 

the Premises including, but not limited to, 

disputes concerning breach of contract, 

express and implied warranties, personal 

injuries and/or illness, mold-related 

claims, representations, and/or omissions 

by Seller, on-site and off-site conditions 

and all other torts and statutory causes of 

action (“Claims”) shall be resolved by 

binding arbitration in accordance with the 

rules and procedures of Construction 

Arbitration Services, Inc. or its successor 

or an equivalent organization selected by 

Seller. If CAS is unable to arbitrate a 

particular claim, then that claim shall be 

resolved by binding arbitration pursuant 

to the Construction Rules of Arbitration of 

the American Arbitration Association or its 

successor or an equivalent organization 

selected by Seller. In Addition, Buyer 

agrees that Buyer may not initiate any 

arbitration proceeding for any Claim(s) 

unless and until Buyer has first given 
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Seller specific written notice of each claim 

(at 3103 Philmont Avenue, Huntingdon 

Valley, PA 19006, Attn: Warranty Dispute 

Resolution) and given Seller a reasonable 

opportunity after such notice to cure any 

default, including the repair of the 

Premises, in accordance with the Home 

Warranty. The provisions of this 

paragraph shall be governed by the 

provisions of the Federal Arbitration Act, 

9 U.S.C. §§ 1, et seq. and shall survive 

settlement.

The arbitration clause in the Limited Warranty 

between [appellants] and [appellee] Toll Brothers, 

Inc., reads as follows:

Any disputes between YOU and US related 

to or arising from this LIMITED 

WARRANTY will be resolved by binding 

arbitration. Disputes subject to binding 

arbitration include but are not limited to:

A. WE do not agree with YOU 

that a DEFICIENCY or 

DEFINED STRUCTURAL 

ELEMENT FAILURE is covered 

by the LIMITED WARRANTY;

B. WE do not correct a 

DEFICIENCY or DEFINED 

STRUCTURAL ELEMENT 

FAILURE to YOUR satisfaction 

or in a manner that YOU 

believe this LIMITED 

WARRANTY requires;

C. WE fail to respond to YOUR 

written notice of a 

DEFICIENCY or DEFINED 

STRUCTURAL ELEMENT 

FAILURE;
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D. Disputes related to COMMON

Elements;

E. Alleged breach of this 

LIMITED WARRANTY[;]

F. Alleged violations of 

consumer protection, unfair 

trade practices, or other 

statutes;

G. Disputes concerning the 

issues that should be 

submitted to binding 

arbitration;

H. Disputes concerning the 

timeliness [to] binding 

arbitration requests.

Any binding arbitration proceeding will be 

conducted by an independent arbitration 

organization by the WARRANTY PROGRAM 

ADMINISTRATOR. The rules and 

procedures followed will be those of the 

designated arbitration organization. A 

copy of the applicable rules and 

procedures will be delivered to YOU upon 

request.

Trial court opinion, 8/14/17 at 1-3 (record citations omitted).

Following oral argument, the trial court entered its August 14, 2017 

order denying appellants’ motion for reconsideration of its December 12, 2016

order granting Toll Brothers’ petition to compel arbitration and reinstating its 

December 12, 2016 order. On September 12, 2017, appellants filed a notice 

of appeal to this court. The trial court then ordered appellants to file a concise 

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). 
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Appellants timely complied. In response, the trial court entered an order 

stating that “[t]he present appeal seeks review of an order directing this 

matter to arbitration [; however,] [u]nder Pennsylvania law, such an order is 

not final and appealable.”

1

 (Order of court, 10/4/17 at 1.)

On October 23, 2017, this court ordered appellants to show cause within 

ten days as to the basis of our jurisdiction over this matter. (Order of court, 

10/23/17.) Appellants timely complied by filing a “brief in support of 

jurisdiction over this appeal.” On November 16, 2017, this court discharged 

the show-cause order, referred the appealability issue to this merits panel, 

and directed the parties to be prepared to address the issue in their briefs and 

at oral argument. (Id.).

We must, therefore, determine the appealability of the order that 

appellants wish to appeal from because “[t]he appealability of an order goes 

directly to the jurisdiction of the [c]ourt asked to review the order.” N.A.M. 

v. M.P.W., 168 A.3d 256, 260 (Pa.Super. 2017) (citation omitted). With 

respect to appealability,

[t]his Court may address the merits of an appeal 

taken from “(a) a final order or an order certified as a 

final order; (2) an interlocutory order [appealable] as 

of right; (3) an interlocutory order [appealable] by 

permission; or (4) a collateral order.” Commerce 

Bank v. Kessler, 2012 PA Super 100, 46 A.3d 724, 

728 (Pa. Super. 2012), quoting Stahl v. Redcay, 

 

1 The trial court further noted that “[e]ven if the present appeal were 

considered to be proper, the [trial] court believes that its [o]rder of August 14, 

2017, adequately explains the basis for the court’s decision.” (Trial court 

opinion, 10/4/17 at 2.)
J. A12040/18

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2006 PA Super 55, 897 A.2d 478, 485 (Pa. Super. 

2006) (citations omitted); see also Pa.R.A.P. 341(b). 

“As a general rule, only final orders are appealable, 

and final orders are defined as orders disposing of all 

claims and all parties.” Am. Indep. Ins. Co. v. E.S., 

2002 PA Super 289, 809 A.2d 388, 391 (Pa. Super. 

2002); see also Pa.R.A.P. 341(a) (“[A]n appeal may 

be taken as of right from any final order of a 

government unit or trial court.”).

Havalind v. Kline & Specter, P.C., 182 A.3d 488, 492 (Pa.Super. 2018).

Preliminarily, we note that “[t]he law is clear that an order that has the 

effect of directing the parties to arbitrate a matter is interlocutory and not 

appealable.” Niemiec v. Allstate Ins. Co., 721 A.2d 807, 808 (Pa.Super. 

1998) (citation omitted). Therefore, the interlocutory order compelling 

arbitration from which appellants seek to appeal is not appealable as a final 

order. Additionally, an interlocutory order compelling arbitration is not 

appealable as of right pursuant to Pennsylvania Rule of Appellate 

Procedure 311. Pa.R.A.P. 311 (enumerating those interlocutory orders from 

which an appeal may be taken as of right). Further, the order is not 

appealable as an interlocutory order by permission under Pa.R.A.P. 312

because appellants never petitioned the trial court for permission to appeal 

the interlocutory order as required under Pa.R.A.P. 1311 and the trial court 

never granted permission.

Here, appellants maintain that this court has jurisdiction over this appeal 

pursuant to the collateral order doctrine set forth in Pa.R.A.P. 313. Rule 313

defines a collateral order as “an order separable from and collateral to the 
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main cause of action where the right involved is too important to be denied 

review and the question presented is such that if review is postponed until 

final judgment in the case, the claim will be irreparably lost.” 

Pa.R.A.P. 313(b).

[T]he collateral order doctrine is a specialized,

practical application of the general rule that only final 

orders are appealable as of right. Thus, Rule 313 

must be interpreted narrowly, and the requirements 

for an appealable collateral order remain stringent in 

order to prevent undue corrosion of the final order 

rule. To that end, each prong of the collateral order 

doctrine must be clearly present before an order may 

be considered collateral.

Price v. Simakas Co., 133 A.3d 751, 755 (Pa.Super. 2016) (internal citations 

and quotation marks omitted).

“With regard to the first prong of the collateral order doctrine, an order 

is separable from the main cause of action if it can be resolved without an 

analysis of the merits of the underlying dispute and if it is entirely distinct 

from the underlying issue in the case.” Shearer v. Hafer, 177 A.3d 850, 858 

(Pa. 2018) (citation and internal quotation marks omitted). Here, the issue 

of whether the trial court erred when it entered its order compelling arbitration 

is separate and distinct from the allegations of misrepresentation, violations 

of Pennsylvania’s Unfair Trade Practices and Consumer Protection Law, breach 

of express warranty, breach of implied warranty, negligence, negligent 

supervision, and civil conspiracy that appellants set forth in their complaint. 

Therefore, appellants satisfy the first prong of the collateral order doctrine.
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With respect to the second prong of the collateral order doctrine, which 

is the importance prong, “a right is important if the interests that would go 

unprotected without immediate appeal are significant relative to the efficiency 

interests served by the final order rule. Further, the rights involved must 

implicate interests deeply rooted in public policy and going beyond the 

particular litigation at hand.” Id. at 858-859 (citations, brackets, and internal 

quotation marks omitted).

Here, appellants claim that the order compelling arbitration “implicates 

important rights that are too important to be denied immediate review.” 

(Appellant’s brief at 4.) Specifically, appellants claim that the order violates 

their due process right to be heard by the tribunal that has jurisdiction over 

the matter, which, appellants assert, is the trial court. (Id.) Appellants 

further contend that “the rights at stake are not limited to appellants[, as 

appellants] are one family out of many against whom Toll Brothers has 

attempted to subject to the contradictory provisions in the [a]greement of 

[s]ale and [l]imited [w]arranty.” (Id. (emphasis in original).) In so arguing, 

appellants rely on Commonwealth v. Philip Morris, Inc., 128 A.3d 334 

(Pa.Commw. Ct. 2015).

In that tobacco litigation case, 52 states and territories, including the 

Commonwealth of Pennsylvania (“Commonwealth”), entered into a master 

settlement agreement (“MSA”) with certain tobacco manufacturers to settle 

tobacco-related health-care costs. Id. at 338-339. The MSA provided that
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“[a]ny dispute, controversy or claim arising out of or relating to calculations 

performed by, or any determinations made by, the Independent Auditor . . . 

shall be submitted to binding arbitration.” Id. at 339. A calculation dispute

arose as to whether certain states qualified for payment adjustments for the 

years 1999 to 2002, but was settled. The same calculation dispute then arose 

for the year 2003. In that dispute, tobacco manufacturers and most states, 

including the Commonwealth, agreed to multi-state arbitration. The dispute 

once again arose for the 2004 calendar year. Id. at 340. The Commonwealth

filed a motion to compel single-state arbitration, and the tobacco 

manufacturers filed a motion to compel multi-state arbitration. The trial court 

granted the manufacturers’ motion to compel multi-state arbitration.

The Commonwealth appealed claiming that the order compelling 

multi-state arbitration was appealable as a collateral order. Id. With respect 

to the second prong of the collateral order doctrine, the Commonwealth 

contended that the order raised important issues with respect to its sovereign 

rights in that it would not be permitted to select an independent arbitrator 

that would apply Pennsylvania law but would be compelled to jointly decide 

the appointment of the arbitrator with all of the states and territories subject 

to multi-state arbitration and that the arbitrator would apply generic legal 

principles. Id. at 341. The Commonwealth Court agreed finding that the 

Commonwealth satisfied the second prong of the collateral order doctrine 

because “[t]he issue is important not only to the parties of the MSA, but to 
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the public at large because the sovereign power in our government belongs 

to the people.” Id. at 346.

Here, in their “brief in support of jurisdiction over this appeal,”

appellants contend that they satisfy the second prong of the collateral order 

doctrine because:

the August 14 [o]rder implicates important due 

process interests that cannot go unprotected. At 

stake is whether [appellants] are required to arbitrate 

their construction defect claims in an arbitration forum 

that [appellants] did not agree to, or whether 

[appellants] are entitled to proceed in the Court of 

Common Pleas, which has jurisdiction over this 

matter. As set forth in [Philip Morris], the right to 

have claims heard by the tribunal with jurisdiction is 

a per se due process right, and due process rights are 

generally “too important to be denied review.” 

[Philip Morris, 128 A.3d] at 344. Accordingly, on 

this basis alone, the second prong of the collateral 

order doctrine is met.

Appellant’s brief in support of jurisdiction over this appeal, 11/2/17 at 19.

In their brief, appellants reiterate that position, but fail to explain how 

their voluntary and mutual agreement to arbitrate their disputes with 

Toll Brothers denies them due process and implicates interests deeply rooted 

in public policy that go beyond the litigation they initiated against 

Toll Brothers. This is not a case where the trial court ordered arbitration 

absent an agreement to arbitrate or in the absence of a rule of law requiring 

arbitration. See Gilyard v. Redevelopment Auth. of Philadelphia., 780 

A.2d 793 (Pa.Commw.Ct. 2001) (reversing order remanding appeal to 

arbitration where trial court had no legal basis to transfer matter to a panel of 
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arbitrators for a hearing). Additionally, this case is not analogous to 

Philip Morris wherein the order to compel multi-state arbitration, as opposed 

to single-state arbitration, implicated the Commonwealth’s sovereign rights 

that ultimately belong to the citizens of the Commonwealth. Philip Morris, 

128 A.3d at 346. In this case, appellants entered into an agreement of sale 

for the construction of a home that included a limited warranty. Both the 

agreement of sale and the ancillary limited warranty contained arbitration 

provisions that appellants do not wish to abide by. Therefore, the issue here 

does not concern a right that implicates interests deeply rooted in public policy 

that go beyond appellants’ litigation against Toll Brothers. The issue here 

concerns appellants’ unhappiness with the arbitration provisions in their 

contractual agreements with Toll Brothers. Additionally, the only deeply 

rooted public policy involved in this case is the well-established public policy 

that Pennsylvania favors arbitration because it relieves parties of expensive 

litigation and eases court congestion. Cardinal v. Kindred Healthcare, 

Inc., 155 A.3d 46, 52 (Pa.Super. 2017).

In an attempt to demonstrate that the right involved goes beyond the 

particular litigation at hand, appellants claim that they are “one family out of 

many against whom Toll Brothers has attempted to subject to the 

contradictory arbitration provisions in the [a]greement of [s]ale and [l]imited 

[w]arranty.” (Appellant’s brief at 4 (emphasis in original).) This contention 

is equally unavailing and fails to implicate interests deeply rooted in public 
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policy because it merely raises the possibility that other individuals who may 

have voluntarily entered into home-construction contracts with Toll Brothers 

that contain arbitration provisions may not want to abide by those arbitration 

provisions in the event that a dispute arises. Clearly, appellants fail to satisfy 

the second prong of the collateral order doctrine.

Finally, even if we determined that appellants satisfied the second 

prong, appellants concede that their claim will not be irreparably lost if 

appellate review is postponed until after arbitration, as follows:

If the August [o]rder is not immediately appealable, 

in the best case scenario, [a]ppellants – who are 

senior citizens – will be forced to expend substantial 

amounts of money and time over the course of years 

before obtaining appellate review of the August 

[o]rder, only to start the litigation from beginning in 

the Chester County Court of Common Pleas.

Appellant’s brief at 7. Therefore, even assuming that appellants satisfied the 

second prong of the collateral order doctrine, by their own admission, 

appellants would not satisfy the third prong.

Appeal quashed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/16/18