J-A27030-16

2017 PA Super 86

STANLEY FELLERMAN AND 

CAROL FELLERMAN

IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellees

v.

PECO ENERGY CO., COMCAST OF 

SOUTHEAST PENNSYLVANIA, LLC, 

HISTORIC HOME INSPECTION, LP, D/B/A 

WIN HOME INSPECTION, ADDISON 

WOLFE REAL ESTATE AND LISA JAMES 

OTTO PROPERTIES

APPEAL OF: HISTORIC HOME 

INSPECTION, LP, D/B/A WIN HOME 

INSPECTION

No. 3409 EDA 2015

Appeal from the Order Dated October 21, 2015

In the Court of Common Pleas of Philadelphia County

Civil Division at No(s): July Term, 2014, No. 2640

BEFORE: PANELLA, J., LAZARUS, J., and FITZGERALD, J.*

OPINION BY LAZARUS, J.: FILED MARCH 30, 2017

Historic Home Inspection, LP, d/b/a WIN Home Inspection (“Historic”), 

appeals from the order entered in the Court of Common Pleas of Philadelphia 

County overruling its preliminary objections, which sought to enforce an 

agreement for alternative dispute resolution. Upon review, we reverse and 

remand for proceedings consistent with the dictates of this opinion.

____________________________________________

*

Former Justice specially assigned to the Superior Court.
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Appellees, Stanley and Carol Fellerman (“Fellermans”), retained 

Historic to perform a home inspection in connection with their purchase of 

6858 Upper York Road in New Hope, Bucks County (“Property”). In 

conjunction therewith, Stanley Fellerman executed an “Inspection 

Agreement” (“Agreement”), outlining, inter alia, the scope of the inspection, 

exclusions, and limitations of liability. The Agreement also contained an 

arbitration clause, which provided as follows:

DISPUTE RESOLUTION AND REMEDY LIMITATION

. . .

Binding Arbitration – The undersigned parties below agree 

that any dispute between the parties, except those for 

nonpayment of fees, that in any way, directly or indirectly, 

arising out of, connected with, or relating to the interpretation of 

this Agreement, the inspection service provided, the report or 

any other matter involving our service, shall be submitted to 

binding arbitration conducted by and according to the 

Accelerated Arbitration Rules and Procedures of Constructive 

Dispute Resolution Services, LLC. You may recommend an 

alternative arbitration provider for our consideration. The 

arbitration decision shall be final and binding on all parties, and 

judgment upon the award rendered may be entered into any 

court having jurisdiction. In any dispute arising under this 

Agreement, Our Inspection or the Inspection Report, the costs of 

the arbitration shall be the sole responsibility of the client up to 

and including the arbitration hearing. As part of the arbitration 

award, the arbitrator shall award to the prevailing party any or 

all costs of the arbitration process as he or she deems to be 

appropriate. Expenses related to personal attorneys, experts, 

engineers, witnesses, engineering reports or other inspection 

reports or similar individuals or documents shall be the direct 

responsibility of the parties and shall not be considered as part 

of the arbitration award. The arbitration award shall be limited 

in scope to the issues and terms as specified in the Inspection 

Agreement. No legal action or proceeding of any kind, including 

those sounding in tort or contract, can be commenced against 
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us, or our officers, agents or employees more than one year 

after the date of the subject inspection. Time is expressly of the 

essence herein. THIS TIME PERIOD IS SHORTER THAN 

OTHERWISE PROVIDED BY LAW.

LIMITATION OF LIABILITY – IF WE, OUR EMPLOYEES, 

INSPECTORS, OR ANY OTHER PERSON YOU CLAIM TO BE OUR 

AGENT, ARE CARELESS OR NEGLIGENT IN PERFORMING THE 

INSPECTION AND/OR PREPARING THE REPORT AND/OR 

PROVIDING ANY SERVICES UNDER THIS AGREEMENT, OUR 

LIABILITY IS LIMITED TO THE FEE YOU PAID FOR THE 

INSPECTION SERVICE. AND YOU RELEASE US FROM ANY 

ADDITIONAL LIABILITY. WE HAVE NO RESPONSIBILITY FOR 

THE POSSIBILITY YOU LOST AN OPPORTUNITY TO 

RENEGOTIATE WITH THE SELLER. THERE WILL BE NO 

RECOVERY FOR SECONDARY OR CONSEQUENTIAL DAMAGES BY 

ANY PERSON. 

Inspection Agreement, 1/21/13, at 1-2. 

The Property contained four utility poles, which supported, inter alia, 

PECO power lines, Comcast cable lines and a PECO transformer. On 

December 2, 2013, the Fellermans discovered that the pole closest to their 

residence, supporting the PECO transformer, had fallen to the ground in 

their “heavily wooded and leaf-covered front yard” near their home. Brief of 

Appellees, at 6. The Fellermans assert that the pole fell due to “severe rot, 

decay and deterioration.” Id. at 6. The Fellermans notified PECO of the 

incident; however, prior to PECO’s arrival, Stanley Fellerman noticed that the 

fallen transformer, power and cable lines had started a fire. Stanley 

attempted to extinguish the fire and, in doing so, was shocked, burned and 

severely injured, allegedly by the PECO power line. 

The Fellermans filed suit by writ of summons on July 23, 2014. In 

their second amended complaint, they named as defendants PECO, Comcast, 
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Historic, Addison Wolfe Real Estate and Lisa James Otto Country Properties. 

The Fellermans asserted that Historic failed to discover or disclose the 

deteriorated condition of the utility pole, in breach of the Agreement, and 

asserted causes of action for negligent misrepresentation, fraud, violations 

of the Uniform Trade Practices and Consumer Protection Law, 73 P.S. §§ 

201-1-201-9.3 (UTPCPL), and breach of contract. 

On September 22, 2015, Historic filed preliminary objections, 

asserting, inter alia, that the Fettermans’ suit was barred by the terms of the 

arbitration clause contained in the Agreement. The trial court overruled 

Historic’s preliminary objections by order dated October 20, 2015 and 

ordered it to file an answer to the Fettermans’ complaint within twenty days. 

Historic filed a timely notice of appeal, followed by a court-ordered 

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). 

In its Rule 1925(a) opinion, the trial court found that its order was neither 

an appealable “final order” within the meaning of Pa.R.A.P. 341(b), nor was 

it an interlocutory order appealable as of right under Pa.R.A.P. 311. 

Accordingly, the court recommended quashal.

Historic raises the following issue for our review:

Is it error to overrule preliminary objections raising an 

agreement for alternative dispute resolution when the parties 

signed and executed an agreement to arbitrate all disputes 

arising out of breach of the [A]greement and that [A]greement is 

the gist of the action?

Brief of Appellant, at 5.
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Prior to considering the merits of Historic’s claim, we address the trial 

court’s assertion that its order denying Historic’s preliminary objection in the 

nature of a motion to compel arbitration is interlocutory and not immediately 

appealable. In short, the trial court is incorrect. Pennsylvania Rule of 

Appellate Procedure 311(a)(8) provides, in relevant part:

(a) General rule.--An appeal may be taken as of right and 

without reference to Pa.R.A.P. 341(c) from:

. . .

(8) Other cases.--An 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.

Pa.R.A.P. 311(a)(8). Applicable here, section 7320 of the Judiciary Code 

provides, in relevant part:

(a) General rule.--An appeal may be taken from:

(1) 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 MacPherson v. Magee Mem'l Hosp. 

for Convalescence, 128 A.3d 1209, 1213 n.4 (Pa. Super. 2015), appeal 

denied, 700 EAL 2015 (Pa. Nov. 17, 2016) (order refusing to compel 

arbitration is threshold, jurisdictional question appealable as exception to 

general rule that order overruling preliminary objections is interlocutory and 

not appealable as of right). Historic’s sole claim on appeal addresses the 

trial court’s refusal to compel arbitration pursuant to the terms of the 

Agreement. Accordingly, Historic’s appeal is properly before this Court.
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We now turn to the substance of Historic’s claim. We begin by noting: 

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

overruled 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.” Pisano v. Extendicare Homes, Inc., 77 A.3d 651, 

654 (Pa. Super. 2013), [] (quoting Walton v. Johnson, 66 A.3d 

782, 787 (Pa. Super. 2013)).

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

whether the trial court should have compelled arbitration.” 

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)). First, we examine 

whether a valid agreement to arbitrate exists. Second, we 

must determine whether the dispute is within the scope of 

the agreement. Pisano, 77 A.3d at 654–[]55. 

“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.” Elwyn, 48 A.3d at 

461. 

MacPherson, 128 A.3d at 1218–19. 

This Court has explained the interpretation of arbitration 

agreements as follows: (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. To resolve this tension, courts 

should apply the rules of contractual construction[], 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. 
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Callan v. Oxford Land Dev., Inc., 858 A.2d 1229, 1233 (Pa. Super. 2004) 

(citations and quotation marks omitted).

We first determine whether a valid agreement to arbitrate exists 

between Historic and the Fellermans. Elwyn, 48 A.3d at 461. The 

Fellermans argue that the arbitration agreement is invalid because it is 

unconscionable. Specifically, they claim that the agreement is illegible and 

not conspicuous and, as a result, they were not put on adequate notice of 

the rights they were waiving. They also assert that the agreement 

unreasonably favors the drafter, Historic.1 

Historic argues that, although the agreement is “not easy to read,” 

Stanley Fellerman signed it without asserting that it was illegible. Citing 

Hinkal v. Pardoe, 133 A.3d 738 (Pa. Super. 2016) (en banc), Historic 

____________________________________________

1

In contesting the validity of the Agreement, the Fellermans also argue that, 

because there are multiple other defendants with regard to whom they have 

indisputably not waived their right to a jury trial, forcing them to arbitrate 

would deprive them of their constitutional right to a jury trial. In this 

regard, the Fellermans also invoke notions of judicial economy, arguing that 

“arbitrating only the claims against Historic [], and preserving the right to a 

jury against the other entities, would require separate proceedings, separate 

discovery, enormous expense for all involved, and delay the ultimate 

resolution of the matter.” Brief of Appellants, at 13. This argument is 

meritless. Recently, our Supreme Court decided Taylor v. Extendicare 

Health Facilities, Inc., 147 A.3d 490 (Pa. 2016), in which it addressed 

nearly identical arguments aimed at invalidating an agreement to arbitrate in 

the context of a wrongful death and survival action. The Court rejected 

those arguments, concluding that the mandate of the Federal Arbitration 

Act, 9 U.S.C. § 1, et seq., favoring arbitration, trumps notions of judicial 

economy and efficiency and requires that otherwise valid arbitration 

agreements be enforced, even where enforcement results in related disputes 

with multiple defendants being adjudicated in separate forums. 
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asserts that parties to a contract have a duty to read the document before 

signing it, and the failure to do so is not an excuse or defense. Historic also 

argues that, because both parties must arbitrate, the agreement does not 

favor the drafter. Moreover, Historic notes that the Fellermans “do not 

allege they could not negotiate the arbitration clause out of the agreement, 

or that they were unable to hire one of the many other home inspection 

companies in business in southeastern Pennsylvania.” Brief of Appellants, at 

13. 

Based on our review, we conclude that the parties entered into a valid 

agreement to arbitrate. The Fellermans base their unconscionability 

argument primarily on their assertion that the agreement was inconspicuous 

and difficult to read. Our review of a copy of the document included in the 

reproduced record reveals that, while it is not the clearest document, it is 

legible and capable of being understood. “As a general principle, minimum 

conspicuity standards are not a requirement to establish the formation of a 

contract.” Hinkal, 133 A.3d at 745. “[C]onspicuity per se is not an 

essential element of contract formation.” Id. 

Moreover, the agreement contains a conspicuous statement at the 

very top, written in bold, capital letters and surrounded by a text box, which 

reads as follows:

 PRIOR TO THE INSPECTION, PLEASE READ CAREFULLY BEFORE SIGNING
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If, as the Fellermans argue, the agreement was “smudged, blurry, [in] small 

print [and] incomplete,” Mr. Fellerman could have requested that he be 

provided with a legible copy prior to signing. There is nothing in the record 

to suggest that he ever did so. 

The Fellermans also argue that Historic actually intended, by virtue of 

the physical characteristics of the document, “to dissuade the signor from 

even reading the document, let alone understanding and questioning it.” 

Brief of Appellees, at 16. This argument is unavailing. First, the Fellermans 

present no proof to support that assertion. Second, it is “well established 

that, in the absence of fraud, the failure to read a contract before signing it 

is ‘an unavailing excuse or defense and cannot justify an avoidance, 

modification or nullification of the contract’; it is considered ‘supine 

negligence.’” In re Estate of Boardman, 80 A.3d 820, 823 (Pa. Super. 

2013), quoting Germantown Sav. Bank v. Talacki, 657 A.2d 1285, 1289 

(Pa. Super. 1995). Accordingly, the consequences of any failure to actually 

read the document – or request a more legible copy – prior to signing must 

be borne by the Fellermans. 

The Fellermans also assert that the agreement is void because it 

unreasonably favors Historic by seeking to limit damages to $780.00, the 

amount paid by the Fellermans for the inspection fee. In so arguing, the 

Fellermans rely upon this Court’s decision in Carll v. Terminix 

International Co., L.P., 793 A.2d 921 (Pa. Super. 2002), in which we held 
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to be unconscionable an arbitration agreement containing a limitation of 

damages on the basis of public policy concerns. 

In Carll, homeowners sued Terminix, a pest control company, alleging 

they sustained severe and permanent injuries as a result of negligent 

application of pesticides in and around their home. The contract signed by 

the homeowners contained an arbitration agreement as well as a limitation 

of liability provision, providing that, notwithstanding any claim of negligence 

on the part of Terminix, the company’s sole responsibility was to “re-treat” 

the homeowners’ property. The Court found that the limitation of liability 

provision was incapable of being severed from the arbitration clause. 

Emphasizing that Terminix was “in the business of applying insecticides in a 

residential setting,” the Court concluded that the clause limiting liability for 

injury to the person was unconscionable and unenforceable as against public 

policy. Id. at 925. While not explicitly relying on it, the Court noted the 

UCC’s limitation of consequential damages provision, recognizing that a 

provision limiting consequential damages for injury to the person in the case 

of consumer goods is prima facie unconscionable, finding that it lent support 

to its conclusion. See 13 Pa.C.S.A. § 2719(c). We find Carll to be 

distinguishable. 

The phrase “public policy” has been used in a general sense to 

mean that in certain egregious circumstances a contract will be 

declared void if it is “so obviously for or against the public 

health, safety, morals or welfare that there is virtual unanimity 

in regard to it, that a court may constitute itself the voice of the 

community.” 
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Carll, 793 A.2d at 924, quoting Jeffrey v. Erie Ins. Exch., 621 A.2d 635, 

640 (Pa. Super. 1993). 

In Carll, the Court emphasized the hazardous nature of Terminix’s 

business, i.e., the application of insecticidal chemicals in a residential 

setting, and concluded that public policy considerations would not permit the 

limitation of damages where severe and permanent injuries resulted. Here, 

however, the service Historic performed for the Fellermans was not, by its 

very nature, dangerous. While providing a general overview of the safety 

and stability of a potential residence is arguably one aspect of a home 

inspection, the task of a home inspector is not to guarantee the safety of the 

premises. Rather, it is to provide the homebuyer with a non-invasive 

examination of the structure and the systems contained therein in order to 

enable the buyer to make a more informed purchasing decision.2 

Accordingly, Carll does not compel a finding that the contract at issue here 

is void as against public policy. 

____________________________________________

2 According to the website of the American Society of Home Inspectors, a 

home inspection is “an objective visual examination of the physical structure 

and systems of a house, from the roof to the foundation.” 

http://www.homeinspector.org/FAQs-on-Inspection#1. A standard home 

inspector’s report covers: (1) the heating system; (2) the central air 

conditioning system; (3) interior plumbing and electrical systems; (4) the 

roof, attic and visible insulation; (5) walls, ceilings, floors, windows and 

doors; and (6) the foundation, basement and structural components. Id. A 

home inspection may identify the need for major repairs or builder 

oversights, as well as the need for maintenance. Id.
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Indeed, we need not reach the issue of whether the limitation of 

liability clause is valid, as, unlike in Carll, we find the provision to be 

severable from the arbitration agreement itself. Again, this case is 

distinguishable from Carll. In Carll, the arbitration provision was 

inextricably intertwined with the liability limitation. As the Court noted,

The arbitration provision not only provides for arbitration but at 

the same time limits the arbitrator’s authority. The limitation of 

liability language is not independent of the agreement to 

arbitrate. These provisions are not distinct. The same 

contractual provision that directs arbitration limits the authority 

of the individual conducting that arbitration. 

Carll, 793 A.2d at 926.

Conversely, here, the arbitration provision is separate and distinct 

from the damage limitation portion of the agreement, both location-wise and 

functionally. As such, the damage limitation may be stricken from the 

agreement without affecting the parties’ agreement to arbitrate. Moreover, 

unlike the agreement in Carll, the agreement between the Fellermans and 

Historic contains an explicit severability clause. Thus, the remainder of the 

contract remains enforceable even if the limitation clause is ultimately 

deemed void. However, because we need not reach the validity of the 

limitation of liability clause, we leave that determination to the arbitrator. 

See Shannon v. Pennsylvania Edison Co., 72 A.2d 564, 567 (Pa. 1950) 

(unless restricted by agreement, arbitrators possess authority to determine 

questions of both law and fact). 
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For the foregoing reasons, we conclude that Historic and the 

Fellermans entered into a valid agreement to arbitrate. We must now 

determine whether the instant dispute falls within the scope of the 

agreement. 

In its brief, Historic claims that the trial court erred in denying its 

request to arbitrate because the Fellermans’ claims all arise from the 

Agreement, which contains a broadly worded arbitration clause. Given the 

breadth of the arbitration clause, Historic argues that it encompasses the 

tort claims asserted by the Fellermans. 

In response, the Fellermans argue that the bodily injury claims they 

assert in their complaint are not within the scope of the agreement. They 

assert that, “as evidenced by the damages limitation provision, the 

Agreement merely contemplated the Fellermans having to secure a new 

home inspection for the claimed failures of [Historic].” Brief of Appellees, at 

19. 

This Court has explained the interpretation of arbitration agreements 

as follows: 

(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.
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Callan, 858 A.2d at 1233, quoting Highmark Inc. v. Hospital Service 

Ass'n. of Northeastern Pennsylvania, 785 A.2d 93, 98 (Pa. Super. 

2001). “To resolve this tension, courts should apply the rules of contractual 

construction[], 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.” Callan, 858 A.2d at 1233. 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. Id.

Where a contract dispute arises between parties to a contract 

containing an unlimited arbitration clause, the parties must 

resolve their dispute through arbitration. Unless the parties 

impose some limitation on the arbitrator’s authority, the 

arbitrator may decide all matters necessary to dispose of any 

disputed claims subject to arbitration and, the court may not 

impose any restrictions sua sponte. Accordingly, “all” contract 

disputes does mean “all” contract disputes unless otherwise 

agreed by the parties. 

An agreement to arbitrate disputes arising from a contract 

encompasses tort claims where the facts which support a tort 

action also support a breach of contract action. A claim’s 

substance, not its styling, controls whether the complaining 

party must proceed to arbitration or may file in the court of 

common pleas. 

Callan, 858 A.2d at 1233 (citations omitted).

Here, the arbitration clause at issue provides that the parties 

agree that any dispute between [them], except those for 

nonpayment of fees, that in any way, directly or indirectly, 

arising out of, connected with, or relating to the interpretation of 

this Agreement, the inspection service provided, the report or 
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any other matter involving our service, shall be submitted to 

binding arbitration[.] 

Inspection Agreement, 1/21/13, at 1-2. 

The Fellermans’ claims against Historic are all grounded in Historic’s 

alleged failure to properly provide services, in breach of its contract with the 

Fellermans. See Second Amended Complaint, 5/22/15, at ¶¶ 95-96. 

(“Pursuant to [the] contract, [Historic] agreed to provide certain services 

and performed certain duties in connection with the inspection of the real 

property[.] . . . [Historic] failed to properly provide those services and duties 

and, as such, breached the subject contract.”). The Fellermans claim that 

they sustained injuries as a result of Historic’s alleged failure to disclose 

certain information regarding the power pole, in breach of its obligation 

under the contract. They also assert that Historic made negligent and 

intentional misrepresentations with regard to the power pole, also in 

violation of their contractual obligations. In short, the Fellermans’ tort 

claims all arise from duties they claim were owed them by Historic pursuant 

to the inspection agreement. Accordingly, “the facts which support a tort 

action also support a breach of contract action,” Callan, supra, and the tort 

claims are therefore subject to the arbitration clause contained within the 

agreement.

Order reversed. Case remanded for proceedings consistent with the 

dictates of this opinion. Jurisdiction relinquished.

Judge Panella joins the Opinion.

Justice Fitzgerald concurs in the result.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/30/2017