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Connelly v. PNC Bank

October 9, 2007


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

Per curiam.


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 ...

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