J

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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

STACY BUCKLAW AND DIANE

BUCKLAW

v.

TOLL BROTHERS, INC., TOLL BROS., INC., TOLL PA IV, L.P., TOLL PA GP CORP., AND ANDERSEN WINDOWS,

INC.

APPEAL OF: TOLL BROTHERS, INC., TOLL BROS., INC., TOLL PA IV, L.P.,

TOLL PA GP CORP :

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: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 3255 EDA 2018

Appeal from the Order Entered October 10, 2018 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 170600001

ANDREW L. PALSKY AND CHRISTINA

M. PALSKY

v.

TOLL BROTHERS, INC., AND TOLL PA IV, L.P., AND TOLL PA VI, L.P., AND TOLL PA GP CORP., AND TOLL BROS., INC. AND ANDERSEN WINDOWS, INC.

APPEAL OF: TOLL BROTHERS, INC., AND TOLL PA IV, L.P., AND TOLL PA VI, L.P., AND TOLL PA GP CORP., AND TOLL BROS., INC. :

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: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 423 EDA 2019

Appeal from the Order Entered December 20, 2018J

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In the Court of Common Pleas of Philadelphia County Civil Division at No(s): No. 180703480

KALPESH SHAH AND SEJAL SHAH

v.

TOLL BROTHERS INC., TOLL BROS., INC., TOLL PA IV,. L.P., AND TOLL PA GP CORP. (COLLECTIVELY, "TOLL DEFENDANTS”)

ANDERSEN WINDOWS, INC.

APPEAL OF: TOLL BROTHERS INC., TOLL BROS., INC., TOLL PA IV,. L.P.,

AND TOLL PA GP CORP. (COLLECTIVELY, "TOLL DEFENDANTS”) :

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: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 620 EDA 2019

Appeal from the Order Dated January 7, 2019 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 180701952

ANDREW BONAS AND LAURA L.

BONAS

v.

TOL BROTHERS INC., TOLL BROS INC., TOLL PA IV L.P., TOLL PA VI

L.P. AND TOLL PA GP CORP. AND

ANDERSON WINDOWS :

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: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1037 EDA 2019

Appeal from the Order Entered March 26, 2019J

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In the Court of Common Pleas of Philadelphia County Civil Division at No(s): No. 1807001954

BILLY ERNEST FLURRY AND MISTY

LAW FLURRY

v.

TOLL BROTHERS, INC., ET AL.

Appellant :

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: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1066 EDA 2019

Appeal from the Order Entered March 26, 2019 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): NO. 180701953

AJITH MANJAMATTATHIL AND

MARINA JOSEPH

v.

TOLL BRO THERS, INC.; TOLL BROS., INC.; TOLL PA II, L.P. AND TOLL GP CORP. AND ANDERSEN WINDOWS,

INC.

Appellant :

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: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1080 EDA 2019

Appeal from the Order Entered March 26, 2019 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): No 180701242

THOMAS LEVIEN

v.

TOLL BROTHERS, INC., AND TOLL PA IV, L.P. AND TOLL PA VI, L.P. AND TOLL PA GP CORP., AND TOLL :

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: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1426 EDA 2019J

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BROS., INC., AND ANDERSEN WINDOWS, INC.

APPEAL OF: TOLL BROTHERS, INC., TOLL BROS., INC., TOLL PA IV, L.P., TOLL PA VI, L.P. AND TOLL PA GP CORP. (COLLECTIVELY, "TOLL DEFENDANTS”) :

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Appeal from the Order Entered April 4, 2019 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): No. 180703136

BEFORE: DUBOW, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY DUBOW, J.: FILED APRIL 21, 2020

In this consolidated appeal , Toll Brothers , Inc., Toll Bros., Inc., Toll PA,

II, L.P., Toll PA IV, L.P., Toll PA IV, and Toll PA, GP, Corp. (collectively,

“Appellant”), appeals from the trial court’s O rders denying Appellant’s

Petitions to C ompel Arbitration. Appellant avers that the trial court erred in

finding that the mandatory arbitration clauses in the warranties provi ded by

Appellant to the original purchasers of the homes built and sold by Appellant

did not bind Appellees, all of whom were subsequent purchasers of those

homes. After careful review, we conclude that we are bound by this Court’s

recent holding in Porter v. Toll Brothers, Inc.

, 217 A.3d 337 (Pa. Super.

2019). 1 We, therefore, affirm.

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1 On October 23, 2019, this Court denied Appellant’s Petition for Reargument

in Porter . Appellant’s Petitions for Allowance of Appeal, filed on November 22, 2019, remain pending before the Pennsylvania Supreme Court.J

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Briefly, Appellant is a builder and seller of residential homes. For the

benefit of “homeowners,” A ppellant provides a 10

- year limited warranty

(“Limited Warranty”) on all of its homes. T he Limited W arranty defines

“homeowner” as “the first person to whom a home . . . is sold . . . and such

person’s successors . . . provided a Subsequent Home Buyer

Acknowledgement form ( TB Form 1302 ) is signed by the subsequent

homeowner .” Limited Warranty at 12 (some capitalization removed and

em phasis added).

The Limited Warranty is transferrable from original purchasers of

Appellant’s homes to subsequent purchasers “ provided that you or the new

owners notify the warranty program administrator in writing, utilizing

the Subsequent Home Buyer Ackn owledgement and Assignment Form

[( TB Form 1302 )] attached to this limited warranty after ownership is

transferred.” Id. at 9 (some capitalization removed and emphasis added).

TB Form 1302 provides for the transfer of any coverage remaining under

the Limi ted Warranty from the original purchaser of a home built and sold by

Appellant to a subsequent purchaser “[ u ] pon execution of this form [.]” Id.

at 37 (some capitalization removed and emphasis added). TB Form 1302

include s a mandatory arbitration clause. Id.

Appellees purchased their homes, built and originally sold by Appellant,

from the homes’ original owners between 2005 and 2016. It is undisputed

that no Appellee executed TB Form 1302.J

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Between September and November 2018, Appellees each filed

Compl aints in the Philadelphia County Court of Common Pleas against

Appellant and Andersen Windows, Inc., 2 generally alleging construction

defects in their homes and raising, variously, counts of violations of the

Uniform Trade Practices and Consumer Protection Law, 3 negligent

representation, fraud, and negligence. Between September and December

2018, Appellant filed a Petition to Compel Arbitration in every case arguing:

(1) the home warranty transferred from the original purchasers to Appellees

and, thus, App ellees were third

- party beneficiaries of the warranties; and (2)

all of Appellees’ rights against Appellant arise from the home warranty that

requires that disputes be resolved by arbitration.

One of Appellant’s Petitions was assigned to the Honorable Shelley

Robbins New, four were assigned to the Ho n orable John M. Younge, and two

were assigned to the Honorable Linda A. Carpenter ( collectively, the “trial

court”) . The trial court denied Appellant’s Petitions, generally concluding that

execution by the subsequent purchasers of the TB Form 1302 was a condition

precedent to transference of the Limited Warranty. Because no Appellee had

executed the TB Form 1302, the trial court concluded that Appellees had not

agreed to, and were, therefore, not bound by, the Limited Warranty or its

arbitration clause. See also Porter

, 217 A.3d at 348

- 52.

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2 Andersen Window s, Inc. supplied the windows installed in the homes built by Appellant.

3 See 73 P.S §§ 201

- 1 to 201.93.J

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This timely appeal followed , in which Appellant raises the following two

issues :

1. Did the trial court err as a matter of law by denying [P]etitions to [C]ompel [A]rbit ration filed by [Appellant] when (a) the limited warranty (on which [Appellees] rely to state their claims) contains a valid arbitration agreement; (b) [Appellees] are bound by the valid arbitration agreement that transferred to them with the home they sub sequently purchased from the original home buyer

either as third

- party beneficiaries or by estoppel; and (c) the unlimited arbitration agreement expressly states that [Appellees’] claims are subject to arbitration?

2. Did the trial court err as a matter of law by denying a [P]etition to [C]ompel [A]rbitration filed by [Appellant] when, contrary to the trial court’s conclusions, (a) [Appellees] are bound by the arbitration provision whether or not they signed it or any particular form, whether or not the agr eement identifies them by name, and whether or not [Appellees] invoke third

- party beneficiary status; and (b) [Appellees’] claims fall within the scope of the arbitration agreement regardless of the label they use or the relief they seek?

Appellant’s Brief at 11.

Appellant’s issues are identical to those decided by this Court in Porter

.

See Porter , 217 A.3d at 346

- 47. In addition, in its appellate Brief, Appellant

concedes that “[t]hese cases are controlled by legal issues briefed, argued,

and recently d ecided by this Court in [ Porter ]. 4 Appellant’s Brief at 1.

Because Appellant raises the same issues and provides essentially the same

analysis as it did in Porter , we adopt the Porter analysis and conclude that

we are bound by its holding. We, thus, aff irm the Orders denying Appellant’s

Petitions to Compel Arbitration.

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4 The Porter plaintiffs are the subsequent purchasers of 30 homes built and sold by Appellant.J

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Orders affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 04/21/2020