On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2934-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano, Espinosa and Kennedy.
This matter is before us for a second time. Third-party defendant, Pine Belt Enterprises, Inc., appeals from the August 5, 2011 order of the Law Division that denied its motion for summary judgment seeking to compel arbitration of Rosanna Pittella's third-party complaint.*fn1 The facts and procedural history relevant to the issues on appeal are essentially undisputed and contained in our earlier opinion, GMAC v. Pittella, No. A-3876-08T3 (App. Div. May 26, 2010) ("Pittella I"), and the Supreme Court's opinion, GMAC v. Pittella, 205 N.J. 572 (2011)("Pittella II").
On February 27, 2003, plaintiff entered into an installment sales agreement with defendant to purchase a new car and an extended warranty for the vehicle. Pittella II, supra, 205 N.J. at 575. In furtherance of the sale, plaintiff signed various documents including a separate one-page "Option to Arbitrate Disputes" (the arbitration agreement). Ibid. It stated in relevant part:
IF ARBITRATION IS CHOSEN BY ANY PARTY WITH RESPECT TO A CLAIM, DISPUTE OR CONTROVERSY, NEITHER YOU NOR WE WILL HAVE THE RIGHT TO LITIGATE THAT CLAIM IN COURT OR TO HAVE A JURY TRIAL ON THAT CLAIM, OR TO ENGAGE IN PRE-ARBITRATION DISCOVERY, EXCEPT AS PROVIDED IN THE ARBITRATION RULES. FURTHER, YOU WILL NOT HAVE THE RIGHT TO PARTICIPATE AS A REPRESENTATIVE OR MEMBER OF ANY CLASS OF CLAIMANTS PERTAINING TO ANY CLAIMS SUBJECT TO ARBITRATION. THE ARBITRATOR'S DECISION WILL GENERALLY BE FINAL AND BINDING. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO NOT BE AVAILABLE IN ARBITRATION. IT IS IMPORTANT THAT YOU READ THE ENTIRE ARBITRATION PROVISION CAREFULLY BEFORE SIGNING THESE DOCUMENTS. [Id. at 575-76.]
Defendant assigned its rights to GMAC, and, when plaintiff defaulted on her payments, GMAC filed suit in the Special Civil Part. Ibid. Plaintiff answered and filed a third-party putative class action complaint against defendant, asserting claims for breach of contract, breach of the covenant of good faith and fair dealing, fraud, and violations of the Consumer Fraud Act, N.J.S.A. 56:8-1 to -184 (CFA). Ibid. After the action was transferred to the Law Division and in lieu of filing an answer, defendant moved for summary judgment dismissing plaintiff's third-party complaint and compelling arbitration. Ibid. The trial court granted defendant's motion, entered an order compelling arbitration and dismissed plaintiff's putative class action claim with prejudice. Id. at 576-77.
GMAC settled its claims against plaintiff, and she appealed the dismissal of her complaint against defendant. Ibid. We denied defendant's motion to dismiss the appeal as untimely, reversed the decision of the trial court and remanded the matter for further proceedings.*fn2 Ibid.; Pittella I, supra, slip op. at 7, 17. After reciting relevant precedent, we noted:
[T]he arbitration agreement is entitled "Option to Arbitrate Disputes" and was executed only by plaintiff and not by any of defendant's representatives. In reality, however, the option to arbitrate was available to both plaintiff and defendant, and plaintiff could not resist defendant's unilateral request to arbitrate under its terms. In short, unlike the arbitration provisions in the cases cited above that clearly indicated the consumer was agreeing to arbitrate his claims ab initio, in this case, defendant possessed the ability to unilaterally invoke the provisions, effectively denying plaintiff any "option" at all, the document's title to the contrary.
. . . Because we construe any agreement to arbitrate using substantive contract law, "only those issues may be arbitrated which the parties have agreed shall be." [Pittella I, supra, (slip op. at 13) (quoting Garfinkel v. Morristown Obstetrics & Gynecology Assocs., P.A., 168 N.J. 124, 132 (2001)).]
[I]t is the language of the arbitration agreement, or more aptly, what it fails to say, that compels us to reverse in this case. It does not explicitly reference plaintiff's agreement to waive any of her statutory rights. . . . Nor did it affirmatively advise plaintiff that her statutory rights, whatever they may be, will be preserved in the arbitral forum.
. . . [T]he issue presented . . . is whether the language of the arbitration agreement itself was sufficiently clear and unambiguous so as to evidence plaintiff's intention to waive any of her rights under the CFA. We think it clear that such is not the case. As a result, we are not convinced that "[c]ompelling arbitration under these circumstances is fair and equitable." ...