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Connelly v. PNC Bank

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 9, 2007

MARYAM CONNELLY AND WILLIAM CONNELLY, PLAINTIFFS-APPELLANTS,
v.
PNC BANK, N.A., PNC INVESTMENTS AND METLIFE INVESTORS U.S.A. INSURANCE CORP., DEFENDANTS-RESPONDENTS, AND GEORGE SEPERO, DEFENDANT.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, L-1989-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 18, 2007

Before Judges Grall and Chambers.

Plaintiffs, Maryann and William Connelly, appeal from the trial court's decision ordering to arbitration, pursuant to a contractual arbitration clause, their dispute with defendants PNC Bank, N.A., PNC Investments, Metlife Investors U.S.A. Insurance Corp., and George Sepero. This appeal is dismissed as interlocutory in light of the provisions of N.J.S.A. 2A:23B-28 and R. 2:2-3(a)(1).

Plaintiffs contend that in April 2003, they contacted defendant PNC Bank in order to invest a sum of $400,000, held in Mrs. Connelly's name. They were referred to defendant, George Sepero, a PNC wealth management advisor. Plaintiffs contend that they told Sepero that they wanted an investment vehicle with a high return and, also, high liquidity, so that they could access the money upon ten days notice as investment opportunities in real estate arose.

On April 11, 2003, Mrs. Connelly signed an account application and a document investing the funds with defendant Metlife Investors U.S.A. Insurance Corp. She maintains that she signed the papers without reading them. Plaintiffs, thereafter, learned that the papers were for a long term investment, and that, for a period of seven years, Mrs. Connelly would incur substantial penalties if she withdrew the funds.

The investment agreement signed by Mrs. Connelly provides that any dispute under the agreement must be submitted to binding arbitration. Paragraphs nine and ten of the investment agreement are in bold face type and provide that disputes will be submitted to binding arbitration. In addition, the account application, also signed by Mrs. Connelly, contains in the block immediately above her signature the following notice, with the reference to the arbitration provision also in bold face type:

To PNC Investments. In consideration of your accepting this account, I/we hereby acknowledge that I/we understand and agree to the terms and certification statements set forth in this application and agreement. (including the arbitration clause set forth in paragraph 10).

On July 20, 2006, plaintiffs filed their complaint, suing defendants for rescission, fraud, unjust enrichment and consumer fraud. Defendants PNC Bank, N.A. and PNC Investments, thereafter, moved to send the dispute to binding arbitration in accordance with the provisions of the investment agreement. Defendant Metlife Investors U.S.A. Insurance Corp. joined in this motion. An order was entered on October 26, 2006, granting the motion, referring the dispute to arbitration, and dismissing the case without prejudice.*fn1

This appeal is not properly before this court. The court rules authorize an appeal as of right from an order of the trial court only when a final order has been entered resolving the entire case. R. 2:2-3(a)(1). An order sending a dispute to arbitration is not final "because it inherently anticipates further proceedings prior to the entry of a final judgment." Wein v. Morris, 388 N.J. Super. 640, 654 (App. Div. 2006), certif. granted, 190 N.J. 254 (2007). Where a litigant seeks to appeal an interlocutory decision of the trial court, the litigant must file a notice of motion for leave to appeal. R. 2:5-6(a). This court may grant leave to appeal in the "interest of justice." R. 2:2-4. In light of judicial policy discouraging piecemeal appeals and preferring a single and complete review at the end of the case, interlocutory appeals are granted "sparingly." State v. Reldan, 100 N.J. 187, 205 (1985); S.N. Golden Estates, Inc. v. Continental Cas. Co., 317 N.J. Super. 82, 88 (App. Div. 1998).

The New Jersey Arbitration Act (the "Act"), N.J.S.A. 2A:23B-1 to -32, does not provide for interlocutory review of an order compelling arbitration. Since the Act applies to agreements to arbitrate made on or after January 1, 2003, it governs this case. N.J.S.A. 2A:23B-3(a). The Act provides for appeals from the following orders:

(1) an order denying a summary action to compel arbitration;

(2) an order granting a summary action to stay arbitration;

(3) an order confirming or denying confirmation of an award;

(4) an order modifying or correcting an award;

(5) an order vacating an award without directing a rehearing; or

(6) a final judgment entered pursuant to this act.

[N.J.S.A. 2A:23B-28(a).]

The Act does not authorize an appeal from a decision to send a case to arbitration. This is consistent with prior law under the preceding arbitration statute, where this court held that "[a] stay of an action pending arbitration does not constitute a final, appealable order." Wein v. Morris, supra, 388 N.J. Super. at 654.

The fact that the order entered below dismissed the case, rather than stayed the litigation, does not make the decision final for the purposes of this appeal. The Act provides for a stay of the case when the dispute goes to arbitration, not for a dismissal. N.J.S.A. 2A:23B-7(g). In determining whether an order is appealable, we look at its substance and not its "inaccurate choice of wording which ostensibly, but incorrectly, suggests its finality." Wein v. Morris, supra, 388 N.J. Super. at 654. An order dismissing all pending claims, rather than staying the case, as the statute provides, does not render the case appealable as of right. Ibid.

This appeal is dismissed as interlocutory.


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