J-A28032-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

SCOTT P. SIGMAN                                IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellant

                    v.

GEORGE BOCHETTO, GAVIN P. LENTZ
AND BOCHETTO & LENTZ, P.C.

                         Appellees                 No. 1009 EDA 2014


                Appeal from the Order Entered March 19, 2014
             In the Court of Common Pleas of Philadelphia County
               Civil Division at No(s): June Term, 2011 No. 2534

BEFORE: GANTMAN, P.J., WECHT, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                     FILED DECEMBER 09, 2014

      Scott Sigman appeals from the trial court’s order overruling his

preliminary objections to the counterclaims of Bochetto & Lentz, P.C. (“the

law firm”). We quash this appeal.

      From July 5, 2005 through March 6, 2009, Sigman was employed as

an associate attorney at the law firm.    During Sigman’s employment, he

breached his fiduciary duties by stealing money from clients, the firm and

third parties.   The Office of Disciplinary Counsel filed charges against

Sigman, and the Supreme Court suspended him from the practice of law for

30 months.

      On February 26, 2009, Sigman and the law firm entered into an

agreement both to terminate Sigman’s employment and provide Sigman

with referral fees for the cases that he worked on or played a role in
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generating at the law firm. The agreement provided that each party “agrees

to indemnify and hold the other harmless from and against any claim or

liability that may result from each party’s past acts, conduct or practices.”

The agreement also provided an arbitration clause that “[i]n the event the

parties have any dispute or disagreement, they shall submit same to Harris

Bock [(arbitrator)] for final and binding mediation.”

      On June 27, 2011, Sigman filed an action against the law firm and

individual defendants Bochetto and Lentz for breach of contract and unjust

enrichment and sought to recover fees owed to him under the terms of the

termination agreement.       On July 19, 2011, Sigman filed an amended

complaint.     The law firm filed preliminary objections to the amended

complaint asserting that Sigman’s claims were subject to arbitration under

the arbitration clause.   On August 22, 2011, the trial court sustained the

firm’s preliminary objections and ordered the transfer of Sigman’s breach of

contract claim to arbitration.

      The parties conducted discovery followed by two days of arbitration

hearings. The firm stipulated during these proceedings that but for Sigman’s

malfeasance as an employee of the firm, he was entitled to $227,350.03 in

referral fees. The firm also claimed, however, that Sigman was liable to the

firm for attorney fees that the firm allegedly incurred during Sigman’s

disciplinary   proceedings   –   specifically,   “in-house”   attorney   fees   of




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$69,590.00      and    “outside”    attorney     fees   of   $52,669.70,   a   total   of

$132,259.70.

       On June 19, 2013, the arbitrator issued an interlocutory decision that

Sigman engaged in multiple violations of his fiduciary obligations to the firm

and its clients but nonetheless was entitled to a portion of these referral fees

under the termination agreement. As to the firm’s claim for attorney fees,

the arbitrator found “that the fees with respect to the disciplinary matter are

outside the scope of the Termination Agreement and are denied.”

       On June 24, 2013, the arbitrator entered a final award in favor of

Sigman in the amount of $123,942.92, significantly less than the amount

requested by Sigman.

       At this point, the law firm took two steps. First, on July 2, 2013, the

law firm filed a motion to vacate the arbitration award on the basis that

public policy barred Sigman from any recovery due to his violations of the

Rules of Professional Conduct and his unethical attorney misconduct.                   On

August 6, 2013, the trial court entered an order denying the firm’s motion to

vacate1.    Second, on July 19, 2013, the law firm filed an answer, new

matter and counterclaims to the amended complaint. The first counterclaim,
____________________________________________


1
 On August 8, 2013, the law firm filed an appeal in this Court at 2349 EDA
2013 from the order denying the motion to vacate. On June 19, 2014, a
panel of this Court affirmed the trial court’s order. On August 20, 2014, this
Court denied the law firm’s application for reargument. On September 18,
2014, the law firm filed a petition for allowance of appeal in the Supreme
Court at 471 EAL 2014. This petition is awaiting decision.



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entitled “Breach of Contract,” alleged that Sigman was liable under the

indemnification clause of the February 26, 2009 agreement for the same

attorney fees that the firm demanded, but was not awarded, during

arbitration proceedings. Counterclaim, ¶¶ 82-85. The second counterclaim,

entitled “Equitable Indemnification,” alleged that Sigman violated his

fiduciary duty to the law firm by committing serious ethical breaches,

stealing the law firm’s clients and other malfeasance. Id., ¶¶ 87-91.

     On December 31, 2013, Sigman filed preliminary objections to the law

firm’s answer, new matter and counterclaims.      He requested the court to

dismiss the counterclaims under the doctrine of res judicata, because “every

claim raised by defendant law firm in its counterclaim previously was raised

and litigated during the court[-]ordered arbitration.”   Sigman’s Preliminary

Objections To Law Firm’s Answer, New Matter and Counterclaims, ¶¶ 28-29.

Sigman also requested the court to dismiss the counterclaims with prejudice

under the law of the case doctrine and coordinate jurisdiction rule.      He

argued:

           [I]t was defendants who specifically requested that
           all claims be resolved by arbitration when they filed
           their preliminary objections on July 26, 2011...Thus,
           when this Court entered its August 22, 2011 order,
           the issue of whether all disputes between Mr.
           Sigman and defendant law firm should be settled via
           arbitration was fully litigated and became not only
           subject to the law of the case doctrine but also the
           coordinate jurisdiction rule. As such, any attempt to
           relitigate this issue or to present any dispute
           between Mr. Sigman and defendant law firm in the


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            court of common pleas is precluded based upon the
            law of the case and the coordinate jurisdiction rule.

Sigman’s Preliminary Objections To Law Firm’s Answer, New Matter and

Counterclaims, ¶¶ 32-33.      Notably, Sigman did not request an alternative

remedy to dismissal – that is, he did not ask the court to transfer the

counterclaims to the arbitrator in the event it declined to dismiss the

counterclaims with prejudice.     To the contrary, Sigman argued that this

dispute should not go back to arbitration. Id., ¶ 31 (“Because all of these

disputes previously have been arbitrated before [the arbitrator], there is no

reason to send them to be re-litigated for a second time. Instead, defendant

law firm’s counterclaim should be dismissed with prejudice”).

      On March 19, 2014, the trial court overruled Sigman’s preliminary

objections to the law firm’s answer, new matter and counterclaims.             On

March 24, 2014, Sigman filed a notice of appeal. On April 9, 2014, without

requesting Sigman to file a statement of matters complained of on appeal,

the trial court issued a Pa.R.A.P. 1925(a) opinion recommending that this

Court quash Sigman’s appeal as interlocutory.

      Sigman’s   brief   on   appeal   raises   different   arguments   than   his

preliminary objections in the trial court. Instead of seeking dismissal of the

counterclaims with prejudice, as he did in the trial court, he now argues that




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this   Court    should   reverse     the   trial   court’s   order   and   transfer   the

counterclaims to the arbitrator2.

       A court may raise the issue of subject matter jurisdiction at any time.

LeFlar v. Gulf Creek Industrial Park # 2, 515 A.2d 875, 879 (Pa.1986).

Exercising this authority, we conclude that we lack subject matter

jurisdiction over this appeal, because the trial court’s order overruling

Sigman’s preliminary objections is a non-appealable interlocutory order.

       Pennsylvania      Rule   of   Appellate     Procedure    311   enumerates      14

categories of interlocutory orders which are appealable as of right.              Under
____________________________________________


2
  The principal heading for Sigman’s argument is: “AS THE TRIAL COURT
ERRED IN OVERRULING MR. SIGMAN'S PRELIMINARY OBJECTIONS, [THE
LAW    FIRM’S] COUNTERCLAIM SHOULD BE SENT               TO BINDING
ARBITRATION.”

Sigman divides this argument into three subsections:

       I.      The Trial Court's Order Should Be Reversed And This
               Case Should Be Transferred To Binding Arbitration
               Because B&Lts Counterclaim Literally Is A Breach Of
               Contract     Action   Alleging   Breach    Of   The
               Indemnification Clause Contained Within The
               Termination Agreement And Is Subject To The
               Arbitration Clause Contained Within The Agreement

       II.     The ‘Law Of The Case’ Dictates That The Trial Court's
               Order Should Be Reversed And This Case Should Be
               Transferred To Binding Arbitration

       III.    Judicial Efficacy And Fairness Support Transferring
               This Case To Binding Arbitration.


Brief For Appellant, pp. 14-28.



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Rule 311(a)(8), an order overruling preliminary objections seeking to compel

arbitration is appealable as of right.   Thibodeau v. Comcast Corp., 912

A.2d 874, 877 n. 2 (Pa.Super.2006).        Sigman contends in his notice of

appeal and appellate brief that the trial court’s order is appealable under

Rule 311(a)(8).

      We disagree. All that Sigman requested in his preliminary objections

below was dismissal of the law firm’s counterclaims with prejudice. He did

not file preliminary objections requesting transfer of the counterclaims to

arbitration.   Consequently, the trial court’s order was only a denial of

Sigman’s request to dismiss the counterclaims with prejudice.    This order

was not a denial of a request to compel arbitration.      Thus, it was not

appealable under Rule 311(a)(8); nor do we know of any other rule which

made this interlocutory order appealable as of right.

      Had Sigman filed preliminary objections seeking transfer of the

counterclaims to arbitration, an order overruling such objections might well

have been appealable under Rule 311(a)(8). Sigman, however, did not take

this step below. Although he now argues belatedly on appeal that this Court

should transfer the counterclaims to arbitration, he cannot request a remedy

on appeal that he did not first request below. Cf. Majorsky v. Douglas, 58

A.3d 1250, 1259 (Pa.Super.2012) (in appeal from order granting summary

judgment, appellant may not raise argument that he did not make in trial

court).


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     Appeal quashed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/9/2014




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