J-A18022-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JESSICA RODRIGUEZ, INDIVIDUALLY                 IN THE SUPERIOR COURT OF
AND ON BEHALF OF ALL OTHERS                           PENNSYLVANIA
SIMILARLY SITUATED

                         Appellee

                    v.

FULTON BANK, N.A.

                         Appellant                   No. 1805 MDA 2013


           Appeal from the Order Entered on September 17, 2013
              In the Court of Common Pleas of Berks County
                       Civil Division at No.: 13-3748


BEFORE: LAZARUS, J., WECHT, J., and MUSMANNO, J.

MEMORANDUM BY WECHT, J.:                         FILED OCTOBER 02, 2014

      Fulton Bank, N.A. (“Fulton”) appeals from the order entered on

September 17, 2013, denying Fulton’s petition to compel arbitration.       We

affirm.

      The trial court set forth the pertinent factual and procedural history of

this case as follows:

      Jessica Rodriguez (“Rodriguez”) purchased a 2005 Honda Pilot
      SUV from a used car dealer in July 2008. Fulton financed the
      transaction for the vehicle through a promissory note and took a
      security interest in the vehicle. In the fall of 2009, Fulton
      declared a default on the note and repossessed Rodriguez’
      automobile on November 23, 2009.

      Rodriguez filed a class action complaint on November 5, 2012 in
      Philadelphia County. Rodriguez alleges that[,] as a result of
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       Fulton’s systematic violations of [the notice requirements of
       Pennsylvania’s Uniform Commercial Code1 (“UCC”)], she and the
       class she represents are entitled to a minimum of statutory
       damages [as] prescribed by the legislature in the UCC.[2] On
       December 19, 2012, Fulton filed its preliminary objections to the
       class complaint seeking dismissal on the merits for claimed lack
       of damages and lack of standing. Fulton asked that[,] if the
       case was not dismissed on the merits[,] the suit be transferred
       to [the Berks County Court of Common Pleas], based on a venue
       clause in the consumer security agreement. The Philadelphia
       County Court of Common Pleas did not grant Fulton’s preliminary
       objections, but did grant [its] request to transfer the matter to
       [Berks County].

Trial Court Opinion (“T.C.O.”), 12/9/2013, at 1-2 (minor modifications for

clarity; unnumbered).

       On March 18, 2013, after the Berks County Court of Common Pleas

docketed the case, Fulton filed a petition to compel arbitration.      Therein,

Fulton alleged that Rodriguez’ checking account agreement contained an

arbitration provision that also controlled the instant dispute between

Rodriguez and Fulton. On September 17, 2013, after extensive briefing and

oral argument, the trial court denied Fulton’s petition to compel arbitration.




____________________________________________


1
       13 Pa.C.S. §§ 9601, et seq.
2
      See 13 Pa.C.S. § 9625(c)(2) (“[A] debtor . . . at the time a secured
party failed to comply with this chapter may recover for that failure in any
event an amount not less than the credit service charge plus 10% of the
principal amount of the obligation or the time price differential plus 10% of
the cash price.”).




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     On October 8, 2013, Fulton filed a notice of appeal.3 On October 15,

2013, the trial court ordered Fulton to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b).      Fulton timely

complied.   On December 9, 2013, the trial court filed its Rule 1925(a)

opinion.

     Fulton presents two issues for our consideration:

     1.




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      Both of Fulton’s arguments relate to the trial court’s denial of its

motion to compel arbitration. Fulton’s primary contention before us is that

Rodriguez’ claim falls within the scope of an arbitration provision into which

Rodriguez entered when she opened a checking account with Fulton.

However, we must first determine whether Fulton has waived any right that

it may have had to compel arbitration. Accordingly, we begin with Fulton’s

second issue.

      It is well-settled that “[a]s a matter of public policy, our courts favor

the settlement of disputes by arbitration.” Goral v. Fox Ridge, Inc., 683

A.2d 931, 933 (Pa. Super. 1996). Nevertheless, a party may waive its right

to enforce an arbitration clause either by (1) an express declaration, or

(2) undisputed acts or language that are “so inconsistent with a purpose to

stand on the contract provisions as to leave no opportunity for a reasonable

inference to the contrary.”    Samuel J. Marranca Gen. Contr. Co., v.

Amerimar Cherry Hill Assocs. Ltd. P’ship, 610 A.2d 499, 501 (Pa. Super.

1992) (citation omitted).     With regard to the latter avenue, a party’s

acceptance of the regular channels of the judicial process is sufficient to

demonstrate that it has waived its right to seek arbitration. Smay v. E.R.

Stuebner, Inc., 864 A.2d 1266, 1278 (Pa. Super. 2004).

      In determining whether a party has accepted the judicial process, we

may consider the degree to which the party has:

      (1) fail[ed] to raise the issue of arbitration promptly, (2)
      engage[d] in discovery, (3) file[d] pretrial motions which do not
      raise the issue of arbitration, (4) wait[ed] for adverse rulings on

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      pretrial motions before asserting arbitration, or (5) wait[ed] until
      the case is ready for trial before asserting arbitration.

Stanley-Laman Grp., Ltd. v. Hyldahl, 939 A.2d 378, 387 (Pa. Super.

2007) (quoting St. Clair Area Sch. Dist. Bd. of Ed. v. E.I. Assocs., 733

A.2d 677, 682 n.6 (Pa. Cmwlth. 1999)).        We remain cognizant, however,

that “a waiver of a right to proceed to arbitration pursuant to the term of a

contract providing for binding arbitration should not be lightly inferred[,] and

unless one’s conduct has gained him an undue advantage or resulted in

prejudice to another he should not be held to have relinquished the right.”

Kwalick v. Bosacco, 478 A.2d 50, 52 (Pa. Super. 1984).

      Instantly, Fulton maintains that it has not waived its right to pursue

arbitration because its “actions came nowhere near the level required” to

establish waiver. Brief for Fulton at 16. Specifically, Fulton emphasizes that

it has not obtained a decision on the merits of the case, and that it did not

seek discovery from Rodriguez. Id. Nonetheless, a finding of waiver does

not hinge on these two factors alone. We also must consider whether the

record as a whole demonstrates that Fulton accepted the regular channels of

the judicial process, Smay, 864 A.2d at 1278, and we must verify for

ourselves the veracity of Fulton’s assertions regarding the other factors.

      The trial court reasoned that Fulton waived its right to compel

arbitration because its conduct throughout the litigation was inconsistent

with the intent to arbitrate. Specifically, the trial court noted that Fulton’s

preliminary objections (which made no mention of arbitration) sought



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dismissal of Rodriguez’ claim on the merits. T.C.O., 12/9/2013, at 7. In the

event that the Philadelphia Court of Common Pleas did not grant Fulton’s

demurrer on the merits, Fulton asked that the court transfer venue to Berks

County. Fulton did not, at this time, seek to compel Rodriguez to submit to

arbitration.

      In Samuel J. Marranca, Marranca filed a writ of summons and a

subsequent complaint against Amerimar for breach of contract. 610 A.2d at

499. Amerimar filed preliminary objections to the complaint alleging forum

non conveniens and improper venue, which the trial court denied.              Id. at

500. Thereafter, Amerimar filed an answer to the complaint. Id. Amerimar

then filed a motion to compel arbitration.      Id.    The trial court held that

Amerimar had waived its right to arbitration. Id. On appeal, we affirmed,

holding that Amerimar could not pursue arbitration once it had taken steps

toward accepting the judicial process.      Id. at 501.    Specifically, we found

that Amerimar’s conduct—namely, its choosing not to file initially a petition

to compel arbitration, not asserting arbitration as an affirmative defense,

and waiting until it received an adverse ruling on pretrial motions before

seeking to enforce the arbitration clause—all demonstrated waiver. Id.

      Similarly, in Goral, 683 A.2d at 931, the plaintiffs filed a complaint

against   multiple   defendants   raising   numerous      claims   relating   to   an

agreement for the sale of property. In response, the defendants filed a new

matter wherein they set forth various substantive challenges to the plaintiffs’

claims. Id. at 932. The defendants alternatively pleaded that the plaintiffs’

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claims were required to be submitted to common law arbitration.              Id.

Thereafter, the plaintiffs served interrogatories and a request for production

of documents, which the defendants objected to, arguing again that the

claims should be submitted to arbitration. Id. The trial court granted the

plaintiffs’ motion to compel discovery.     Id.   Subsequently, the defendants

finally filed a motion to compel arbitration, which the trial court denied,

finding that the defendants had waived their right to arbitration. Id. at 932–

33.

      We affirmed the trial court’s denial, concluding that the defendants’

“repeated references to the arbitration agreement [were] not sufficient to

avoid a finding of waiver.”    Id. at 933.    Moreover, we found that, even

though the defendants had raised arbitration in their new matter, they did so

“only as an alternative to their preferred option of winning a favorable ruling

from the trial court.” Id. We also noted that the defendants initially “did

nothing to move the matter to arbitration[,]” instead “allow[ing] the case to

linger on the trial court’s docket and await discovery.” Id. at 934.

      As in the above cases, Fulton’s actions throughout the pendency of

this litigation plainly indicate a preference for judicial proceedings to resolve

the instant dispute for as long as there was a chance that it would prevail

without the burden of a trial.         Significantly, Fulton filed preliminary

objections, which did not raise the issue of arbitration, in Philadelphia

County. See Pa.R.C.P. 1028(a)(6) (noting that an “agreement to arbitrate

may be asserted by preliminary objection or by petition to compel

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arbitration”).    Fulton’s first preliminary objection was in the nature of a

demurrer.     Therein, Fulton sought dismissal of Rodriguez’ complaint with

prejudice for failure to state a claim upon which the trial court could grant

relief.4   In its second preliminary objection, Fulton alleged improper venue

pursuant to Pa.R.C.P. 1028(a)(1) and requested that the case be transferred

to Berks County only in the event that the court did not sustain Fulton’s first

preliminary objection.        Memorandum in Support of Fulton’s Preliminary

Objections, 12/19/2012, at 9.              Moreover, Fulton filed responses and

objections to Rodriguez’ interrogatories and requests for production of

documents, provided Rodriguez with documents, participated in discovery

conferences, and pursued a confidentiality stipulation. T.C.O., 12/9/2013, at

8.

       These actions are “so inconsistent with a purpose to stand on the

contract provisions as to leave no opportunity for a reasonable inference to

the contrary.” Goral, 683 A.2d at 933. The record belies Fulton’s assertion

that it engaged in only “a nominal amount of litigation” and a “small amount

of written discovery.”       Brief for Fulton at 33, 35.   Our determination of

whether a party has waived its right to proceed to arbitration is not merely

an exercise in arithmetic. As explained, supra, any significant conduct that
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4
       The basis of Fulton’s objection was that Rodriguez’ complaint failed to
allege that she had suffered any damages due to Fulton’s purportedly
deficient repossession notice.       Memorandum in Support of Fulton’s
Preliminary Objections, 12/19/2012, at 5.



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evidences a party’s acceptance of the regular channels of the judicial process

is sufficient to support a finding of waiver.       Smay, 864 A.2d at 1278.

Hence, we reject Fulton’s attempts to distinguish this case based upon the

quantity of docket entries.

      This leaves us with only the question of whether Rodriguez has

demonstrated that she suffered prejudice due to Fulton’s delay in seeking

arbitration. Fulton argues that she has not. Id. at 36. We disagree. Had

Fulton promptly raised the arbitration provision, either in its preliminary

objections to Rodriguez’ complaint, or in a petition to compel arbitration,

Rodriguez would have been spared the time, effort, and expense of

defending against Fulton’s substantive challenge to her claim and its

corresponding challenge to Rodriguez’ choice of venue.        In addition to the

costs that Rodriguez has incurred to date, she would suffer further expense

if the matter were to be remitted to arbitration at this juncture.       See GE

Lancaster Investments, LLC v. Am. Exp. Tax & Bus. Servs., Inc., 920

A.2d 850, 856 (Pa. Super. 2007); Goral, 683 A.2d at 934.

      Permitting Fulton to avail itself of the judicial process initially, only to

subsequently reverse course and pursue arbitration, would be manifestly

unfair to Rodriguez.   “To allow litigants to pursue that course and thereby

avoid the waiver doctrine and our rules of court is to advocate judicial

inefficiency; this we are unwilling to do.” Samuel J. Marranca, 610 A.2d at

502. Fulton unquestionably sought relief through the judicial process, failed

to raise the arbitration clause promptly, and engaged in pre-trial discovery.

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Each of these acts began well before Fulton so much as uttered the word

“arbitration.”   Accordingly, the trial court did not abuse its discretion in

denying Fulton’s petition to compel arbitration.

      Fulton’s remaining issue challenges the trial court’s determination that

Fulton failed to meet its burden of demonstrating that the agreement to

arbitrate was susceptible to an interpretation that would cover the instant

dispute.   However, our conclusion that Fulton has waived any right that it

had to seek arbitration renders that issue moot.

      Order affirmed.

      Lazarus, J. joins the memorandum.

      Musmanno, J. concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/2/2014




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