J-A25030-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

PATRICK J. CARR, PATRICK K. CARR, 

AND DANIEL K. CARR 

v.

FIRST COMMONWEALTH BANK

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1130 WDA 2021

Appeal from the Order Entered August 25, 2021

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

No(s): GD-19-13839

PATRICK J. CARR, PATRICK K. CARR, 

AND DANIEL K. CARR

Appellants

v.

FIRST COMMONWEALTH BANK

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1180 WDA 2021

Appeal from the Order Entered August 25, 2021

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

No(s): GD-19-013839

BEFORE: KUNSELMAN, J., NICHOLS, J., and McCAFFERY, J.

MEMORANDUM BY NICHOLS, J.: FILED: FEBRUARY 7, 2023

In these cross-appeals,1 Patrick J. Carr, Patrick K. Carr, and Daniel K. 

Carr (the Carrs) and First Commonwealth Bank (FCB) appeal from the order 

____________________________________________

1 This Court sua sponte consolidated these appeals as cross-appeals. See

Order, 10/14/21. This Court subsequently designated the Carrs’ appeal at 

1180 WDA 2021 as the lead appeal, the Carrs as the appellants/crossappellees, and FCB as the appellee/cross-appellant. See Order, 10/28/21. 
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confirming in part and vacating in part an arbitration award in favor of FCB. 

In the appeal at 1180 WDA 2021, the Carrs challenge the trial court’s denial 

of their motion to vacate the arbitration award, and in the cross-appeal at 

1130 WDA 2021, FCB contends that the trial court erred by vacating the 

attorney’s fees and costs portion of the arbitration award. We vacate and 

remand for further proceedings. 

The underlying facts of this matter are well known to the parties. See

Trial Ct. Op., 11/24/21, at 1-6. Briefly, on January 22, 2019, Patrick K. Carr 

and Daniel K. Carr (Sons) opened an account at the FCB in McKeesport, 

Pennsylvania naming their father, Patrick J. Carr (Father) as the beneficiary. 

The Carrs deposited a settlement check made out to Father into that account. 

Sons executed an account agreement at the time they opened the account. 

The account agreement refers to additional documents, which FCB provided 

to the Carrs in a folder. Subsequently, a civil judgment was entered against 

Daniel K. Carr in an unrelated matter. The judgment creditor garnished 

$38,046.97 from the Carrs’ account to satisfy the judgment against Daniel K. 

Carr. 

The Carrs filed a complaint against FCB alleging breach of contract, 

breach of fiduciary duty, and a violation of the Unfair Trade Practices and 

Consumer Protection Law. FCB filed preliminary objections in the nature of a 

petition to compel arbitration, asserting that the account agreement 

incorporated an agreement to arbitrate. In support of its preliminary 

objections, FCB filed the affidavit of Brittany Andreoli, a branch manager for 
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FCB in McKeesport. Andreoli Aff. at 1, R.R. at 110a.2 In the affidavit, Andreoli 

stated that she provided the Carrs with a copy of the arbitration agreement 

with other account documents before they signed the account agreement. 

R.R. at 110a-11a. Andreoli also indicated that she specifically showed the 

arbitration agreement to the Carrs and explained that the account agreement 

stated that the account holders acknowledged receipt of the other documents. 

R.R. at 112. After Sons signed the account agreement, Andreoli placed the 

arbitration agreement and other documents related to the account in a red 

folder and handed it to one of the Sons. R.R. at 112a-13a. 

The Carrs subsequently filed a response to FCB’s first set of requests for 

admission and first set of interrogatories. Therein, the Carrs asserted that no 

one at the FCB branch provided them with a copy of the arbitration agreement 

or the folder containing the additional documents until after Sons had already 

signed the account agreement. Carrs’ Resp. to Interrog. at 8 (unpaginated), 

R.R. at 169a. The Carrs further claimed that none of FCB’s employees

informed them that the documents folder contained an arbitration agreement. 

Id. 

On February 4, 2020, the trial court sustained FCB’s preliminary 

objections, ordered that this matter be transferred to arbitration, and stayed 

civil proceedings. The arbitrator ultimately found in favor of FCB and awarded 

FCB $10,245.32 in attorney’s fees and costs. FCB then filed a petition to 

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2 We may cite to the reproduced record for the parties’ convenience. 
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confirm the arbitrator’s award and enter judgment against the Carrs. The 

Carrs filed a motion to vacate arbitration award arguing that they had not 

agreed to arbitrate, that the award should be set aside as unjust, inequitable, 

and unconscionable, and that the award of attorney’s fees should be vacated. 

On August 25, 2021,3the trial court entered an order confirming the 

arbitration award in part and vacating the award of attorney’s fees and costs 

to FCB.

FCB and the Carrs timely filed separate notices of appeal. Both FCB and 

the Carrs filed timely court-ordered Pa.R.A.P. 1925(b) statements. The trial 

court issued a Rule 1925(a) opinion addressing the parties’ issues.

Jurisdiction

Before we address the merits of the parties’ claims, we first consider 

whether we have jurisdiction over this appeal. See Massaro v. Tincher 

Contracting LLC, 204 A.3d 932, 933 (Pa. Super. 2019) (explaining that “[w]e 

may raise whether this Court has jurisdiction sua sponte” (citation omitted)). 

“[T]he appealability of an order directly implicates the jurisdiction of the court 

asked to review the order.” Knopick v. Boyle, 189 A.3d 432, 436 (Pa. Super. 

2018) (citation omitted). 

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3 The trial court’s order is dated August 24, 2021. However, according to the 

trial court docket entries, the trial court served the parties with notice of the 

order on the following day. See Pa.R.A.P. 108(a)(1) (providing that the date 

of entry of an order is the day the clerk of court mails or delivers copies of the 

order to the parties); see also Pa.R.C.P. 236. We have amended the captions

accordingly. 
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Generally, “[f]or an order to be appealable, it must be (1) a final order, 

Pa.R.A.P. 341-342; (2) an interlocutory order appealable by right or 

permission, 42 Pa.C.S. § 702(a)-(b); Pa.R.A.P. 311-312; or (3) a collateral 

order, Pa.R.A.P. 313.” Ashdale v. Guidi Homes, Inc., 248 A.3d 521, 525 

(Pa. Super. 2021). 

Rule of Appellate Procedure 311 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:

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(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); see also Civan v. Windermere Farms, Inc., 180 A.3d 

489, 492 (Pa. Super. 2018) (explaining that an order vacating an arbitration 

award and an order denying a petition to confirm an arbitration award were 

both appealable under Pa.R.A.P. 311(a)(8)). 
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42 Pa.C.S. § 7342,4 which governs common law arbitration,5 provides 

that Section 7320 (except for subsection (a)(4)) of the UAA, 42 Pa.C.S. § 

7320, is applicable to common law arbitration proceedings. 42 Pa.C.S. § 

7342(a). Section 7320 states, in relevant part, that “[a]n appeal may be 

taken from . . . a court order confirming or denying confirmation of an 

[arbitration] award” and “[t]he appeal shall be taken in the manner, within 

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4 Subsequent to the Sons signing the account agreement with FCB, Section 

7342 was amended. See 42 Pa.C.S. § 7342 (am. eff. July 1, 2019). We apply 

the prior version of Section 7342 which was in effect on the date the parties 

entered into the account agreement. See 42 Pa.C.S. § 7342 (eff. from Feb. 

18, 1983 to June 30, 2019). Nevertheless, the prior version of Section 7342 

is substantially similar to the current version. Because the revised sections 

do not affect our disposition of the instant case, we need not discuss the 

revisions here.

5 At the time the Carrs entered into the account agreement with FCB, 

Pennsylvania law provided “two statutory schemes for arbitration of cases not 

filed in court. One, the Uniform Arbitration Act [(UAA)], 42 Pa.C.S. §§ 7301-

7320, governs arbitrations under agreements that expressly provide that they 

are subject to that Act or any other similar statute.” Weinar v. Lex, 176 A.3d 

907, 913-14 (Pa. Super. 2017) (citation omitted and formatting altered). “All 

other arbitration agreements are conclusively presumed to be governed by 

what the Judicial Code calls “common law arbitration” under 42 Pa.C.S. §§ 

7341-7342.” Id. at 914 (citation omitted and formatting altered). Here, none

of the parties contend that the arbitration agreement falls under the UAA, and 

nothing in the arbitration agreement indicates that it is subject to the UAA. 

See R.R. at 69a-71a. Therefore, the Judicial Code’s common law arbitration 

provisions apply to the instant agreement. See Weinar, 176 A.3d at 913-

14; see also Moscatiello v. Hilliard, 939 A.2d 325, 330 (Pa. 2007) (stating 

that “[b]ecause the agreements do not expressly provide for statutory 

arbitration, the agreements are conclusively presumed to be pursuant to the 

procedural rules of common law arbitration”). 

Additionally, although not applicable here, we note that after the parties 

signed the account agreement, a third statutory scheme for arbitration, the 

Revised Statutory Arbitration Act, 42 Pa.C.S. §§ 7321.1-7321.31, became 

effective, July 1, 2019. 
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the time and to the same extent as an appeal from a final order of court in a 

civil action.” 42 Pa.C.S. § 7320(a)(3), (b). Additionally, Section 7342 

provides that “[o]n application of a party made more than 30 days after an 

award is made by an arbitrator under section 7341 (relating to common law 

arbitration), the court shall enter an order confirming the award and shall 

enter a judgment or decree in conformity with the order.” 42 Pa.C.S. 

§ 7342(b) (emphases added). 

Generally, “the entry of judgment is a prerequisite to our exercise of 

jurisdiction.” Mackall v. Fleegle, 801 A.2d 577, 580 (Pa. Super. 2002)

(citations omitted). However, this Court has also acknowledged that “there 

are some instances wherein a party has failed to enter judgment and our 

appellate courts may regard as done that which ought to have been done[,]” 

and consider the merits of an appeal instead of quashing. Id. (citations 

omitted). As stated above, after confirming a common law arbitration award, 

the trial court, not the parties, has the responsibility to enter judgment. See 

42 Pa.C.S. § 7342(b). 

Here, FCB filed a petition to confirm the arbitrator’s award and enter 

judgment against the Carrs, and the Carrs filed a motion to vacate the 

arbitration award. The trial court entered an order confirming in part and 

vacating in part the arbitration award, but the trial court failed to enter 

judgment on its order. See id. Therefore, although the trial court failed to 

enter judgment as required by Section 7342, we will regard as done that which 

ought to have been done and address the parties’ issues instead of remanding 
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for the entry of judgment or quashing these cross appeals. See Mackall, 801 

A.2d at 580. 

The Carrs’ Appeal

On appeal, the Carrs present the following issues: 

1. Whether the trial court committed an error of law when it 

found, as a matter of fact, based on the pleadings and briefs 

alone and without ordering discovery, that [the Carrs] had 

entered into a valid arbitration agreement despite the fact that 

the agreement in question was a separate document which was 

not signed nor initialed by either party and where the [Carrs’]

pleadings denied knowledge of such agreement and denied 

that [FCB] had provided a copy of it to either account owner.

2. Whether the trial court committed an error of law when it 

sustained the private arbitrator’s conclusion that a bank does 

not have a fiduciary duty to notify all holders of a joint account 

when there is a garnishment action against only one of the 

account holders.

3. Whether the trial court committed an abuse of discretion when 

it ruled that it was a legislative matter, and not a matter for 

the courts, to determine whether private arbitration in 

consumer cases should be disqualified due to the appearance 

of a conflict of interest where the arbitration service is a 

private, for-profit enterprise, the vendor/merchant paid 

substantially all of the arbitration fees and costs, and where 

the arbitrator and arbitration service can anticipate repeat 

business in the future from the vendor/merchant but not from 

the consumer.

The Carrs’ First Step Brief at 4-5. 

Existence of Arbitration Agreement

In their first issue, the Carrs argue that the trial court erred in concluding 

that the parties had entered into an agreement to arbitrate. Id. at 16-26. 

Specifically, the Carrs contend that there was no meeting of the minds
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between the parties regarding an agreement to arbitrate. Id. at 16-17. The 

Carrs claim that FCB did not provide them with a copy of the arbitration 

agreement, they did not sign an arbitration agreement, FCB’s terms and 

conditions do not refer to an arbitration agreement, and that the executed 

account agreement did not properly incorporate the arbitration agreement by 

reference. Id. at 22-24. The Carrs argue that an account agreement cannot 

incorporate an arbitration agreement by reference when the bank fails to 

deliver a copy of the arbitration agreement to the customer. Id. at 19. The 

Carrs further contend that some of the terms in the account agreement are 

not enforceable because they are not sufficiently conspicuous. Id. at 20-21, 

23. Specifically, the Carrs refer to a provision stating that “[t]he undersigned 

personally and as, or on behalf of, the account owner(s) agree to the terms 

of, and acknowledge receipt of copy(ies) of, th[is] document and the 

following” and argue that it is the only language in the agreement that 

incorporates by reference other documents, such as the terms and conditions 

and the arbitration agreement, and was printed in small font. Id. at 23. 

The Carrs additionally argue that the trial court erred in concluding that 

a valid and binding agreement to arbitrate existed without taking any 

evidence, either by holding an evidentiary hearing or issuing a rule to show 

cause and reviewing depositions. Id. at 16, 20, 24-26; see also the Carrs’ 

Third Step Brief at 9-11. The Carrs also assert that the Andreoli affidavit that 

FCB submitted in support of its preliminary objections was not credible. The 

Carrs’ First Step Brief at 24-25. Therefore, the Carrs conclude that the trial 
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court erred in sustaining FCB’s preliminary objections and transferring this 

matter to arbitration without first resolving the factual dispute as to whether 

the parties agreed to arbitration. 

“[O]ur standard of review of an order deciding a petition to compel 

[arbitration] 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). To the extent that we review the language of 

the arbitration agreement, that is a question of law, therefore “our review of 

the trial court’s decision is de novo and our scope is plenary.” Bair v. Manor 

Care of Elizabethtown, PA, LLC, 108 A.3d 94, 96 (Pa. Super. 2015)

(citation omitted). 

Arbitration cannot be compelled in the absence of an express 

agreement to arbitrate. The touchstone of any valid contract is 

mutual assent and consideration. The issue of whether parties 

agreed to arbitrate is generally one for the court, not the 

arbitrators. When addressing that issue, courts generally apply 

ordinary state law contract principles, but in doing so, must give 

due regard to the federal policy favoring arbitration. If the court 

determines there is a valid agreement, it must then determine if 

the dispute in question is within the scope of the agreement.

Id. (citations omitted and formatting altered). In other words, this Court 

employs “a two-part test to determine whether the trial court should have 

compelled arbitration: 1) whether a valid agreement to arbitrate exists, and 

2) whether the dispute is within the scope of the agreement.” Washburn v. 

Northern Health Facilities, Inc., 121 A.3d 1008, 1012 (Pa. Super. 2015). 
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This Court has explained:

Contracting parties are normally bound by their agreements, 

without regard to whether the terms thereof were read and fully 

understood and irrespective of whether the agreements embodied 

reasonable or good bargains. Once a person enters into a written 

agreement, he builds around himself a stone wall, from which he 

cannot escape by merely asserting he had not understood what 

he was signing. It should not be assumed that the parties were 

ignorant of the meaning of the language employed.

Nicholas v. Hofmann, 158 A.3d 675, 693 (Pa. Super. 2017) (citations 

omitted and formatting altered). 

The party seeking to compel arbitration bears the burden to 

demonstrate that a valid agreement to arbitrate exists and the dispute is 

within the scope of that agreement. Bair, 108 A.3d at 96 (applying the UAA); 

see also Johnston the Florist, Inc. v. TEDCO Const. Corp., 657 A.2d 511, 

516 (Pa. Super. 1995) (explaining that the party seeking to enforce a contract 

has the burden to prove the existence of the contract). 

This Court has explained that Pennsylvania Rule of Civil Procedure 

1028(c)(2)

states that the trial court “shall determine promptly all preliminary 

objections. If an issue of fact is raised, the court shall consider 

evidence by depositions or otherwise.” Pa.R.C.P. 1028(c)(2).

Furthermore, preliminary objections in the nature of a petition to 

compel arbitration filed pursuant to Pa.R.C.P. 1028(a)(6) cannot 

be determined from facts of record. In other words, a dispute 

raising an issue under Rule 1028(a)[(6)] cannot be resolved by 

reference to facts pled in the complaint. Additional evidence is 

required. 
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Davis v. Ctr. Mgmt. Group, LLC, 192 A.3d 173, 183 (Pa. Super. 2018) 

(some citations omitted and formatting altered). 

In Quiles v. Financial Exchange Co., 879 A.2d 281 (Pa. Super. 2005), 

the trial court conducted an evidentiary hearing6 after which it concluded that 

there was no agreement to arbitrate between the employer and the employee 

because the employer never gave the employee a copy of the employee 

handbook which explained the employer’s dispute resolution program (DRP) 

and arbitration provisions. Quiles, 879 A.2d at 283-84. In that case, the 

employee had signed a form acknowledging that she had received and read 

the employee handbook and agreed to be bound by its terms, which included

“the dispute resolution program and [the] provision related to arbitration.” 

Id. at 284 (formatting altered). On appeal, this Court held that although the 

employee signed that form, the employee “could not validly agree to arbitrate 

her claims without first having been given a copy of the [h]andbook, the only 

document that detailed and explained DRP and the company’s proposed 

arbitration process. In essence, the terms of the process were never fully 

communicated to her.” Id. at 288. Therefore, the Quiles Court affirmed the 

trial court’s conclusion that the employee had never accepted the terms of the 

agreement to arbitrate. Id.; cf. Nicholas, 158 A.3d at 693. 

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6 The trial court found the employee’s testimony credible and the manager’s 

testimony not credible. Quiles, 879 A.2d at 284 & n.6. 
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In Stern v. Prudential Fin., Inc., 836 A.2d 953 (Pa. Super. 2003), this 

Court considered an appeal from an order sustaining preliminary objections 

and compelling the parties to arbitrate. Stern, 836 A.2d at 953. In Stern, 

the plaintiff filed an affidavit in which he stated that he and the defendant 

broker had agreed to waive the arbitration clause of his client agreement. Id.

at 954. The defendant broker submitted two affidavits from its employees 

disputing the plaintiff’s version of events. Id. However, the statements in 

the two employee affidavits also partially contradicted each other. Id. The 

trial court concluded that based on these three affidavits, there was no 

evidence that the broker agreed to waive the arbitration clause. Id. On 

appeal, the Stern Court explained that

the resolution of preliminary objections . . . through an affidavit 

alone, rather than through depositions or interrogatories, while 

not recommended, [is] not error where the facts attested to in the 

affidavit were clear and specific. Here, however, while each 

affidavit is clear, each person tells a different version of what 

happened. There are no undisputed facts or language. . . .

While we have found no cases where the effect of a waiver of an 

arbitration clause was determined on preliminary objections based 

merely on affidavits, cases involving summary judgment are 

instructive here. Our Court has said that the general rule that 

flows from Nanty-Glo Borough v. American Surety Co., [163 

A. 523 (Pa. 1932)], is that summary judgment may not be had 

where the moving party relies exclusively upon oral testimony, 

either through testimonial affidavits or deposition testimony, to 

establish the absence of a genuine issue of material fact. . . .

Although the Nanty-Glo rule primarily has been applied in the 

context of summary judgment, there is no logical reason not to 

apply it to preliminary objections where there are disputed 

questions of fact as in this case. Once the facts were disputed in 

conflicting affidavits, [the trial court] should have ordered the 
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parties to present additional evidence by depositions, written 

interrogatories, or other discovery.

Id. at 955 (citations and quotation marks omitted, emphasis in original). 

Therefore, the Stern Court reversed the order compelling arbitration and 

remanded for resolution of the factual issue “at a hearing or [through] 

depositions.” Id. (footnote omitted). 

This Court employs “[w]ell-settled principles of contract interpretation” 

in construing an arbitration agreement. Neuhard v. Travelers Ins. Co., 831 

A.2d 602, 604 (Pa. Super. 2003). In Provenzano v. Ohio Valley Gen. 

Hosp., 121 A.3d 1085 (Pa. Super. 2015), this Court explained that

arbitration agreements are to be strictly construed and not 

extended by implication; and . . . 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.

. . . [C]ourts 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. 

The court may take into consideration the surrounding 

circumstances, the situation of the parties, the objects they 

apparently have in view, and the nature of the subject-matter of 

the agreement. The court will adopt an interpretation that is most 

reasonable and probable bearing in mind the objects which the 

parties intended to accomplish through the agreement.
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Provenzano, 121 A.3d at 1095 (citations omitted and formatting altered). 

As the Neuhard Court noted, the “scope or the application of the arbitration 

clause itself may be an arbitrable issue, which the arbitrators are to decide.” 

Neuhard, 831 A.2d at 605 (citation omitted); see also Provenzano, 121 

A.3d at 1095 (stating that “[i]f it appears that a dispute relates to a contract’s 

subject matter and the parties agreed to arbitrate, all issues of interpretation 

and procedure are for the arbitrators to resolve” (citation omitted)). 

“The terms of a contract include terms in documents that a signed 

contract document specifically and clearly identifies and expressly 

incorporates by reference.” In re Est. of Atkinson, 231 A.3d 891, 899 (Pa. 

Super. 2020) (citations omitted) (concluding that an arbitration agreement 

was binding on the account holder trust because the account application 

expressly incorporated by reference the arbitration agreement, the account 

application stated the signer acknowledged receipt of a copy of the arbitration 

agreement, the trustee signed the application, and the trustee testified that 

he could not recall which documents he reviewed and received before signing 

the account application); see also Nicholas, 158 A.3d at 693. 

Here, the trial court explained:

[T]he [Carrs] continue to maintain that they never “willingly 

engaged”, “agreed to”, nor even considered entering an 

alternative dispute with FCB. As posed as this trial court’s first 

decision, the Superior Court must first determine whether the 

parties present a binding arbitration agreement.

* * *
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FCB presents as evidence of same, a signed document, entitled 

account agreement[.] (Exhibit 3, complaint). At the name 

request for “Owner/Signor Information 1” of the account, the 

name listed is as, “Patrick Kenneth Carr” and indicated at the

relationship query as “primary”. (Complaint, Ex. 3, p. 1). The 

ownership of the account is designated as “joint with survivorship 

(not as tenants in common).” (Id.). When questioned as to the 

beneficiary designation on this account agreement, the agreement 

is selected and determined to be a “revocable trust”. (Id.). As to 

the account title and address, the account displays “Daniel K. Carr, 

Patrick Kenneth Carr ITF Patrick J. Carr”.

FCB maintains that the “owners of the account are two [] of the 

plaintiffs, both Patrick Kenneth Carr and Daniel K. Carr (account 

agreement); distinguished on the agreement as ‘owner/signer 

information 1’ and ‘owner/signer information 2’”; and that there 

are “no other owners of the account on the account agreement.” 

Further, “the beneficiary of the account on the account agreement 

is the additional plaintiff, Patrick J. Carr, who is the father of the 

other two plaintiffs.” And further, “[t]here are no other named 

beneficiaries of the account on the account agreement.” 

On page 1 of the account [agreement], a paragraph is entitled 

“signatures” and states:

[t]he undersigned authorize the financial institution to 

investigate credit and employment history and obtain 

reports from consumer reporting agency(ies) also on them 

as individuals. Except as otherwise provided by law or other 

documents, each of the undersigned is authorized to make 

withdrawals from the account(s), provided the required 

number of signatures indicated above is satisfied. The 

undersigned personally and as, or on behalf of, the 

account owner(s) agree[s] to the terms of, and 

acknowledge receipt of copy(ies) of, this document 

and the following:

Terms and Conditions

Truth in Savings

Funds Availability

Electronic Fund transfer

Privacy
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Arbitration Agreement

(Complaint, Exhibit 3, p.1, emphasis added)[.]

The documents included in this particular Account Agreement are 

indicated by the use of an X in each corresponding box with the 

exception of “Arbitration Agreement.” The words “Arbitration 

Agreement” are underlined and in larger font and found to be 

conspicuous by this writer in relation to all other terms of this 

agreement. The account agreement contains the purported 

signatures of “Daniel K. Carr”, and “Patrick Kenneth Carr” as well 

as their respective birth dates. 

Page 2 of the account agreement indicates as owner/signor 

information 2 as “Patrick Kenneth Carr” and further indicates the 

relationship as “joint”. (Id. at [1-2]). The account is further 

described as a “Hometown Money Market with an initial deposit 

totaling $83,526.75.” [Id. at 2.]

Further, paragraph 1 of the “Arbitration Provision” is entitled “Your 

Right to Reject Arbitration:”; and states:

If you don’t want this Arbitration Provision to apply to your 

account, you may reject arbitration by mailing us a written 

rejection notice which gives your name(s) and account 

number and contains a statement that you (both or all of 

you[, if more than one]) reject arbitration of disputes 

concerning your account[.]

[Arbitration Provision, ¶ 1, R.R. at 69a.]

The [Carrs] never objected to receipt of just one (1) copy of 

“paperwork” associated with this one (1) account; this was a 

signed agreement, to be treated “in law” as a contract. Because 

a party may choose either a lack of interest or indifference to the 

obligations assumed; a court cannot just choose to alleviate a 

party of those contracted obligations. Any other holding would 

promote lawlessness and chaos. Any argument as to the “lack of 

numbers of copies provided . . .” should be rejected for the

[Carrs’] failure to object to same at the time of receipt of the “sole 

copy” or any time prior to the garnishment.

Pursuant to the parties’ arbitration agreement, “arbitration is 

elected by giving a written demand for arbitration to the other 

party, by filing a motion to compel arbitration in court or by 

initiating an arbitration against the other party.” (Arbitration 
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Agreement, [¶ 4, R.R. at 69a]). In accordance with that same 

agreement, “[i]f a party files a lawsuit in court asserting claim(s) 

that are subject to arbitration and if a court grants the other 

party’s motion to compel arbitration of such claim(s), it will be the 

responsibility of the party prosecuting the claim(s) to commence 

the arbitration proceeding.” [Id.]

Despite this provision, the [Carrs] sued . . . FCB, in the Court of

Common Pleas [alleging breach of contract, breach of fiduciary 

duty, and a violation of the Unfair Trade Practices and Consumer

Protection Law]. Prior to the filing of preliminary objections, 

counsel for the [Carrs] was notified by letter on October 29, 2019, 

entitled “written demand for arbitration” that any claim regarding 

the beneficiary of the account was to subject to an arbitration 

agreement. ([FCB’s] Preliminary Objections, 11/4/19, Exhibit 1).

Trial Ct. Op. at 11-14 (footnotes and some citations omitted and formatting 

altered). 

Here, the trial court based its conclusion that there was a valid 

agreement to arbitrate solely on the terms of the account agreement, which 

incorporates by reference several other documents including the arbitration 

agreement. See id. While parties to a contract may agree to incorporate by 

reference multiple documents into a single contract, a party cannot accept 

terms contained in other documents if that party did not receive them when

he or she signed the contract. Compare Est. of Atkinson, 231 A.3d at 899

(trustee agreed to incorporate by reference the terms of an arbitration 

agreement into an account application that the trustee signed) with Quiles, 

879 A.2d at 287-88 (employee did not agree to the terms of the arbitration 

provision even though employee signed a form acknowledging receipt of, and 

agreeing to the contents of, the employee handbook with an arbitration 
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provision because the trial court found that because the employer did not 

provide the employee with a copy of the handbook). 

The record before this Court establishes a factual dispute as to whether 

the Carrs received a copy of the arbitration agreement prior to signing the 

account agreement. Compare R.R. at 110a-13a (Andreoli affidavit) with R.R. 

at 169a (Carrs’ responses to FCB’s interrogatories7). Specifically, Andreoli

attested that she provided Sons with a copy of the arbitration agreement, 

among other documents, before they signed the account agreement and 

specifically informed them that the arbitration agreement affected their rights 

in the event of a dispute. See R.R. at 111a-12a. In their responses to FCB’s 

interrogatories, the Carrs stated that FCB employees did not provide them 

with any other documents until after Sons had signed the account agreement, 

and that none of FCB’s employees specifically mentioned an arbitration 

agreement. See id. at 169a. Based on our review of the record, we conclude 

there is a factual dispute as to whether the Carrs accepted the terms of the 

arbitration agreement. See Quiles, 879 A.2d at 283-88. 

The trial court cannot rely solely on the Andreoli affidavit to resolve that 

factual dispute. See Stern, 836 A.2d at 955 (holding that a trial court may 

____________________________________________

7 We note that answers to interrogatories must be verified. See Pa.R.C.P. 

4006(a)(1). Verification means that a written statement is supported by oath 

or affirmation or is made subject to the penalties of 18 Pa.C.S. § 4904 relating 

to unsworn falsification to authorities. See Pa.R.C.P. 76 (defining “verified”). 

Here, each of the Carrs signed a verification page indicating that their 

responses to the interrogatories were subject to the penalties of 18 Pa.C.S. § 

4904. See R.R. at 199a-201a.
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resolve a factual issue raised in preliminary objections through affidavits alone 

only when the facts set forth in the affidavits are clear, specific and 

undisputed; and applying the Nanty-Glo rule to the resolution of preliminary 

objections that raise factual issues). Therefore, the trial court abused its 

discretion in granting FCB’s preliminary objections without receiving additional 

evidence to resolve the factual dispute regarding the existence of a valid 

agreement to arbitrate. See Del Ciotto, 177 A.3d at 348; Stern, 836 A.2d 

at 955. 

For these reasons, we vacate the trial court’s order confirming in part 

and vacating in part an arbitration award in favor of FCB and remand for 

further proceedings. On remand, the trial court is directed to conduct further 

proceedings to resolve the factual dispute as to whether a valid agreement to 

arbitrate exists.

8

 See Davis, 192 A.3d at 183; Stern, 836 A.2d at 955. 

Order vacated. Case remanded for further proceedings consistent with 

this memorandum. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/7/2023

____________________________________________

8 Because of our disposition, we need not address the Carrs’ second and third 

issues and the issue FCB raises in its cross-appeal.