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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

SALLY JO BEAM, ADMINISTRATOR OF        :     IN THE SUPERIOR COURT OF
THE ESTATE OF DUANE L. BEAM            :           PENNSYLVANIA
                                       :
                   v.                  :
                                       :
JOSEPH O. GEBRON AND ANTHONY           :
SALINO                                 :
                                       :         No. 1985 WDA 2013
APPEAL OF: JOSEPH O. GEBRON,           :
                                       :
                        Appellant      :


            Appeal from the Order Entered November 20, 2013,
             in the Court of Common Pleas of Allegheny County
                     Civil Division at No. GD 13-000470


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND ALLEN, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:             FILED JANUARY 14, 2015

     Joseph O. Gebron (“Gebron”) appeals from the order of November 20,

2013, denying his petition to compel arbitration. We affirm.

     On January 7, 2013, plaintiff/appellee Duane L. Beam (“Beam”)1 filed

a complaint against Gebron and Anthony Salino (“Salino”).2     According to

the complaint, Gebron and Salino were employees of Mercer Capital, Ltd.

(“Mercer”), a New York brokerage firm. Beam brought claims for fraudulent


1
  On May 21, 2014, we granted the application for substitution of
Sally Jo Beam, administratrix of the estate of Duane L. Beam, and
substituted Sally Jo Beam as appellee.
2
  On November 19, 2013, the trial court granted judgment on the pleadings
in favor of Beam and against Salino.
J. S50015/14


misrepresentation under the Unfair Trade Practices and Consumer Protection

Law (“UTPCPL”), 73 Pa.C.S.A. § 201-1 et seq., in connection with Beam’s

purchase from Mercer of five unregistered private placement common stock

investments. Default judgment was entered against Gebron, who proceeded

to file a petition to open and/or strike the default judgment, as well as a

petition to compel arbitration. Beam denied that he signed any pre-dispute

arbitration agreement. Following hearings before the Honorable Timothy P.

O’Reilly, the trial court granted the petition to open judgment but denied

Gebron’s petition to compel arbitration. The trial court found that there was

a legitimate dispute of fact as to whether Beam had actually signed the

documents in question, including an October 27, 2008 Options Agreement.

(Trial court opinion, 1/14/14 at 2.) The trial court also noted that Mercer

had gone into bankruptcy and all records were lost or destroyed. (Id.) The

trial court ordered that all other pending defenses, with the exception of

arbitration, remained and directed the parties to proceed to litigation on the

remaining claims and defenses. This timely appeal followed.3

     Gebron has raised the following issues for this court’s review:

           1.    Did the court err in denying defendant
                 Gebron’s request to compel arbitration?

           2.    Did the Options Client Agreement and Approval
                 Form, along with FINRA industry rules,
                 constitute   a    binding   and   enforceable

3
 An order denying a petition to compel arbitration is appealable as of right.
Elwyn v. DeLuca, 48 A.3d 457, 460 n.4 (Pa.Super. 2012) (citations
omitted).


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                  agreement as between the relevant parties to
                  require arbitration?

            3.    Assuming, arguendo, there were not a validly
                  signed    arbitration  agreement     in    this
                  circumstance, would the law compel arbitration
                  under theories of estoppel and other principles
                  espoused in Brodene v. Biltmore Securities,
                  Inc., 1998 WL 214766 (W.D.N.Y. 1998)[?]

Gebron’s brief at 6.

            We review a trial court’s denial of a motion to compel
            arbitration for an abuse of discretion and to
            determine whether the trial court’s findings are
            supported by substantial evidence. In doing so, we
            employ a two-part test to determine whether the
            trial court should have compelled arbitration. The
            first determination is whether a valid agreement to
            arbitrate exists.     The second determination is
            whether the dispute is within the scope of the
            agreement.

Elwyn, 48 A.3d at 461, quoting Smay v. E.R. Stuebner, Inc., 864 A.2d

1266, 1270 (Pa.Super. 2004) (citations omitted).

            By now it has become well established that
            ‘(S)ettlement of disputes by arbitration are no longer
            deemed contrary to public policy.        In fact, our
            statutes encourage arbitration and with our dockets
            crowded and in some jurisdictions congested
            arbitration is favored by the courts.’ Mendelson v.
            Shrager, 432 Pa. 383, 385, 248 A.2d 234, 235
            (1968).     When one party to an agreement to
            arbitrate seeks to enjoin the other from proceeding
            to arbitration, judicial inquiry is limited to the
            questions of whether an agreement to arbitrate was
            entered into and whether the dispute involved falls
            within the scope of the arbitration provision.
            Borough of Ambridge Water Authority v. J. Z.
            Columbia, 458 Pa. 546, 328 A.2d 498 (1974). Thus
            a party who can establish that he did not agree to
            arbitrate, or that the agreement to arbitrate, limited


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            in scope, did not embrace the disputes in issue, may
            be entitled to enjoin an arbitration proceeding. See
            Westmoreland         Hospital      Association    v.
            Westmoreland Construction Company, 423 Pa.
            255, 223 A.2d 681 (1966); Emmaus Municipal
            Authority v. Eltz, 416 Pa. 123, 204 A.2d 926
            (1964); Goldstein v. International Ladies’
            Garment Worker’s Union, 328 Pa. 385, 196 A. 43
            (1938).

Flightways Corp. v. Keystone Helicopter Corp., 331 A.2d 184, 185 (Pa.

1975).

       In his first issue on appeal, Gebron claims that although the original

Account Opening agreement could not be located, Beam also signed an

Options Agreement which contained an arbitration clause. (Gebron’s brief at

13.)   The Options Agreement provided that “The arbitrability of disputes

under this agreement shall be governed by the Federal Arbitration Act.”

(Id.) According to Gebron, this agreement was part of the set of account

opening documents Beam signed when he opened his account.            (Id. at

13-14.)

            Before a party to a lawsuit can be ordered to
            arbitrate and thus be deprived of a day in court,
            there should be an express, unequivocal agreement
            to that effect. If there is doubt as to whether such
            an agreement exists, the matter, upon a proper and
            timely demand, should be submitted to a jury. Only
            when there is no genuine issue of fact concerning the
            formation of the agreement should the court decide
            as a matter of law that the parties did or did not
            enter into such an agreement.

Par-Knit Mills, Inc. v. Stockbridge Fabrics Co., Ltd., 636 F.2d 51, 54

(3rd Cir. 1980) (footnote omitted).


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      Beam argued that his signature on the Options Agreement was

fraudulent. Beam claimed that his signature on the Options Agreement bore

little resemblance to the authentic signatures he presented to the trial court.

(Beam’s brief at 27.) The trial court, after hearing argument on the issue,

ruled that arbitration was not appropriate, “Based on this alleged forgery

and Beam’s denial of any agreement to arbitrate . . . .” (Trial court opinion,

1/14/14 at 2.) The trial court concluded that the disputed fact of signature

was a jury question. (Id.) As this is not a fact-finding court, we are not

inclined to disturb the trial court’s ruling in this regard.

      Gebron relies on Brodene v. Biltmore Securities, Inc., 1998 WL

214766 (W.D.N.Y. 1998), which is readily distinguished.        There, the court

enforced the pre-dispute arbitration provision even though Brodene never

actually signed the new account application. The court noted that a party

may be bound by an agreement to arbitrate even absent a signature, and

that a party’s intent to agree to an arbitration provision may be inferred

from his conduct.     Id. at *6 (citations omitted).     In Brodene, there was

evidence that he had received the new account package containing the

arbitration clause but simply shelved it without reading it.     Id. at *2.   In

addition, Brodene was requested several times, both in writing and in

recorded telephone conversations, to sign and return the agreement.           In

fact, Brodene acknowledged having received the customer agreement but

told Biltmore that his attorneys advised him not to sign it. Id. at *4. In the



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meantime, Brodene continued to invest funds with Biltmore, totaling

$343,000.    Id.   The court concluded that by his conduct, Brodene had

assented to proceed pursuant to the customer agreement:

             . . . this Court concludes that, in light of the facts
             that after opening an account with Biltmore, Brodene
             was sent and had received a copy of the Customer
             Agreement and multiple copies of the Application
             referring to the arbitration provision and yet
             continued his business relationship with Biltmore
             without objection prior to November 30, 1995, by
             which time he had conducted nine transactions over
             the course of more than nine weeks and had
             invested in excess of $343,000, Brodene assented to
             and was and is bound by the Customer Agreement
             and its arbitration provision.

Id. at *7.

      Instantly, Beam submitted a sworn affidavit denying that he signed

the disputed Options Agreement or an account opening agreement with

Mercer containing a pre-dispute arbitration clause.     Beam also submitted

evidence, in the form of authenticated signatures, that his signatures on the

disputed documents were fraudulent. According to Beam, his authenticated

signatures and those on the disputed documents vary considerably. (Beam’s

brief at 26.) Gebron did not conduct any depositions, submit any affidavits,

or any other evidence to contradict Beam’s assertions, other than copies of

the disputed documents themselves.       Cf. Brodene, supra at *3 (where

there was evidence of Biltmore’s business practices, including that it was

their policy that a customer could undertake transactions even if he or she

had not yet signed and returned the new account application).


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      In addition to the FAA, Gebron argues that Pennsylvania law,

specifically 42 Pa.C.S.A. § 7304(a), requires arbitration.4       Gebron also

argues that as an agent of Mercer, he is a third-party beneficiary of the

Options Agreement between Beam, Mercer, and RBC, Mercer’s clearing firm.

Obviously, these arguments are dependent upon first establishing that

Beam, in fact, signed the disputed documents containing the pre-dispute

arbitration provision. The trial court, after several hearings on the matter,

concluded that Gebron did not meet his burden in this regard. Therefore,

the initial hurdle, that the parties entered into an agreement to arbitrate,

was not cleared.    For these reasons, we determine the trial court did not

abuse its discretion in denying Gebron’s petition to compel arbitration and in

ordering the parties to litigate this matter in court.

      Order affirmed. Beam’s application for an order taxing fees and costs,

including attorney’s fees, against Gebron for filing an arbitrary and frivolous

appeal is hereby denied.


4
            On application to a court to compel arbitration made
            by a party showing an agreement described in
            section 7303 (relating to validity of agreement to
            arbitrate) and a showing that an opposing party
            refused to arbitrate, the court shall order the parties
            to proceed with arbitration. If the opposing party
            denies the existence of an agreement to arbitrate,
            the court shall proceed summarily to determine the
            issue so raised and shall order the parties to proceed
            with arbitration if it finds for the moving party.
            Otherwise, the application shall be denied.

42 Pa.C.S.A. § 7304(a).


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/14/2015




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