NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P 65.37

Transcription

1 NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P PETER BRUNI AND MICHELE BRUNI, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellees : : v. : : MICHAEL JASON BADER, : : Appellant : No EDA 2012 Appeal from the Judgment entered November 21, 2012, Court of Common Pleas, Philadelphia County, Civil Division at No. August Term, 2012; #02961 BEFORE: GANTMAN, DONOHUE and PLATT*, JJ. CONCURRING MEMORANDUM BY DONOHUE, J.: FILED OCTOBER 01, 2013 I concur with the learned Majority s determination that the trial court properly entered judgment against the Appellant, Michael Jason Bader ( Bader ). I cannot agree, however, with the reasoning employed by the Majority to reach this conclusion. In particular, I disagree that Bader waived the New York choice of law provision in the agreement between the parties compelling arbitration. Instead, in my view, judgment was properly entered in accordance with sections 7318 and 7342(b) of Pennsylvania s Uniform Arbitration Act, 42 Pa. C.S.A et seq. Accordingly, I concur only in the result. The finding of the trial court that is adopted here by the Majority, namely that Bader waived the New York choice of law contract provision, is wholly unsupported by the certified record on appeal. The trial court claims that Bader, during the arbitration, at no time argued that New York *Retired Senior Judge assigned to the Superior Court.

2 common law applies to this matter and that the parties and the FINRA [a]rbitration [p]anel conducted the arbitration under Pennsylvania [l]aw. Trial Court Opinion, 1/28/2013, at 5-6. The certified record on appeal, however, contains no transcripts, pleadings, motions, or other documentation from the arbitration of this matter. As a result, even to the extent that a choice of law provision may be waived during an arbitration proceeding (an issue on which no Pennsylvania appellate court has ever ruled), this Court has no basis on which to corroborate the trial court s conclusion that Bader at no time argued that New York law was to be applied. Due to the absence of relevant information regarding the arbitration proceedings in the certified record, we do not know what positions Bader took during the arbitration, including whether or not he brought the choice of law provision to the attention of the arbitrators and/or attempted to seek its enforcement. For the same reasons, we cannot possibly determine whether the parties and the arbitration panel conducted the arbitration under Pennsylvania [l]aw. Moreover, contrary to the trial court s assertion, the Award of the arbitrators does not reflect that they applied Pennsylvania law. The Case Summary section of the Award indicates that Appellees Peter and Michele Bruni (the Brunis ) asserted approximately a dozen claims against Bader, including various common law claims as well as state and federal securities law claims (including one under the Pennsylvania Securities Act). Petition to - 2 -

3 Confirm Arbitration Award, 8/27/2012, at Ex. A. Without identifying the law of any particular state, the Award then sets forth the amount of compensatory damages awarded to the Brunis. Nowhere in the Award do the arbitrators state which claims the Brunis had successfully proven or whether they had awarded any compensatory damages under the Pennsylvania Securities Act or any common law cause of action under Pennsylvania law (or any other state). In other words, the Award provides no basis for concluding that the arbitrators applied Pennsylvania law. Finally, the trial court argued that a brief filed with the arbitrators by Bader s former employers (Ryan Beck & Co., Inc. and Stifel, Nicolaus & Company, Inc.) confirms the application of Pennsylvania law during the arbitration. 1 According to the trial court, this brief repeatedly refers to Pennsylvania law as the governing law while New York law is not mentioned one time in this document. Trial Court Opinion, 1/28/2013, at 6. A review of this brief, however, reflects that it does not refer to Pennsylvania law as the governing law for the arbitration. While it does contain citations to Pennsylvania authorities, it also contains citations to authorities in other states as well (including California, Illinois, and Texas). Contrary to the trial court s assertion that New York law is not mentioned, 1 The Brunis attached this brief as an exhibit to their Reply Memorandum of Law in Support of Petition to Confirm Arbitration Award, filed during the confirmation proceedings in the trial court

4 the first case citation in the brief is to Nay v. Merrill Lynch, 2006 WL (S.D.N.Y. July 25, 2006), which lists the elements of a claim for fraud under New York state common law. Reply Memorandum of Law in Support of Petition to Confirm Arbitration Award, 10/18/2012, at Ex. A (at 2). More importantly, the trial court offers no explanation as to why a brief filed by other parties to the arbitration could be evidence that Bader waived the choice of law provision. To the contrary, the brief reflects that Bader and his former employers were adversaries during the arbitration, as a substantial portion of the brief is devoted to arguments that Bader s actions vis-à-vis the Brunis were outside the scope of his employment. As such, even if the brief reflected that Bader s former employers believed that Pennsylvania law governed during the arbitration (as argued above, a dubious conclusion), the trial court offers no reasons why this position should be attributed to Bader, resulting in his waiver of the choice of law provision. For these reasons, the certified record on appeal provides no support for the view that Bader has taken any action or position that provides any basis for a finding that he waived the New York choice of law provision in the contract with the Brunis, and I cannot join in affirming on that basis. However, no such finding of waiver is necessary in this case to affirm the - 4 -

5 trial court s entry of judgment against Bader. 2 Section 7318 of Pennsylvania s Uniform Arbitration Act provides as follows: Court and jurisdiction 42 Pa. C.S.A The following words and phrases when used in this subchapter shall have, unless the context clearly indicates otherwise, the meanings given to them in this section: Court. As used in this subchapter means any court of competent jurisdiction of this Commonwealth. Jurisdiction. The making of an agreement described in section 7303 (relating to validity of agreement to arbitrate) 3 providing for arbitration in this Commonwealth confers jurisdiction on the courts of this Commonwealth to enforce the agreement under this subchapter and to enter judgment on an award made thereunder. 2 The Superior Court is not bound by the rationale of the trial court and may affirm its decision on any available basis. Volkswagen Group of America, Inc. v. Kimmel & Silverman, A.3d, 2013 WL , at *3 (Pa. Super. July 17, 2013) (citing Richmond v. McHale, 35 A.3d 779, 786 n. 2 (Pa. Super. 2012)) Validity of agreement to arbitrate A written agreement to subject any existing controversy to arbitration or a provision in a written agreement to submit to arbitration any controversy thereafter arising between the parties is valid, enforceable and irrevocable, save upon such grounds as exist at law or in equity relating to the validity, enforceability or revocation of any contract. 2 Pa. C.S.A

6 Under the plain language of this provision, an agreement that provides for arbitration in this Commonwealth confers jurisdiction on the courts of this Commonwealth to enforce the agreement and to enter judgment on an award made thereunder. In this case, the agreement with the Brunis authorized the filing of an arbitration claim with the Financial Industry Regulatory Authority ( FINRA ), and in his appellate brief Bader concedes that FINRA rules required the arbitration to be conducted in Philadelphia. Bader s Brief at 7 ( The location was mandated by FINRA. ). As a result, the agreement at issue here provided for arbitration in this Commonwealth, and thus the Court of Common Pleas of Philadelphia County had jurisdiction, without regard to the agreement s choice of law provision, to enforce the agreement under this subchapter and to enter judgment on an award made thereunder. 42 Pa. C.S.A The phrase this subchapter refers to Subchapter B (common law arbitration), 42 Pa. C.S.A , 4 of which section 7342(b) provides in relevant part as follows: 4 42 Pa. C.S.A provides that [a]n agreement to arbitrate a controversy on a nonjudicial basis shall be conclusively presumed to be an agreement to arbitrate pursuant to Subchapter B (relating to common law arbitration) unless the agreement to arbitrate is in writing and expressly provides for arbitration pursuant to this subchapter or any other similar statute, in which case the arbitration shall be governed by this subchapter. 42 Pa.C.S.A Having no evidence that the parties in the instant case, either expressly or by implication, agreed to statutory arbitration, we conclude that this case is governed by Subchapter B (common law arbitration), 42 Pa. C.S.A See Andrew v. CUNA Brokerage - 6 -

7 (b) Confirmation and judgment.--on 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.A. 7342(b). The certified record on appeal reflects that the trial court followed this procedure in entering the arbitration award against Bader as a judgment in favor of the Brunis. I would affirm the trial court s entry of judgment solely on this basis, and therefore I concur in the result of the Majority. Services, Inc., 976 A.2d 496, 500 n.1 (Pa. Super. 2009); Elkins & Co. v. Suplee, 538 A.2d 883, 886 (1988). Section 7342(a) incorporates section 7318 into Subchapter B by reference