J-A05036-19

2019 PA Super 78

JOYCE A. MORSE

Appellant

v.

FISHER ASSET MANAGEMENT, LLC, 

STEWART HOLLINGSHEAD, AND 

SHAWN WEIDMANN

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1104 WDA 2018

Appeal from the Judgment Entered July 5, 2018

In the Court of Common Pleas of Allegheny County Civil Division at 

No(s): GD-09-010627

BEFORE: GANTMAN, P.J.E., SHOGAN, J., and MURRAY, J.

OPINION BY MURRAY, J.: FILED MARCH 15, 2019

Joyce A. Morse (Appellant) appeals from the judgment entered after the 

trial court denied her petition to vacate arbitration award with respect to Fisher 

Asset Management, LLC (Fisher Asset), Stewart Hollingshead, and Shawn 

Weidmann (collectively Appellees). We hold, inter alia, that if a trial court 

sustains preliminary objections that seek enforcement of an agreement for 

alternate dispute resolution pursuant to Pa.R.C.P. 1028(a)(6), and accordingly 

dismisses a complaint, then the dismissal does not stay the action for purposes 

of the statute of limitations.

Appellee Fisher Asset is an investments-adviser firm, and Appellees 

Hollingshead and Weidmann were its employees. On January 4, 2008, 

Appellant executed a contract with Fisher Asset to retain its services. The 

contract included the following arbitration clause:
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Any dispute, claim or controversy arising out of this Agreement or 

otherwise between [Appellees] and [Appellant], including but not 

limited to the breach, termination, enforcement, interpretation or 

validity of this Agreement and the scope and applicability of the 

agreement to arbitrate contained in this paragraph, shall be 

determined by an arbitration before the Judicial Arbitration and 

Mediation Service (“JAMS”) office closest to [Appellant’s] principal 

place of residence before one arbitrator who shall be a retired 

judicial officer. . . . The arbitration shall be administered by JAMS 

pursuant to the Comprehensive Arbitration Rules and Procedures. 

The laws of the State of Delaware shall govern the substantive 

rights of the parties. The arbitration shall be final and binding, 

and judgment on the award may be entered in any court having 

jurisdiction. [Appellant] understands that by agreeing to 

arbitration, [Appellant] is waiving all rights to seek remedies in 

court, unless otherwise mandated by federal or state securities 

laws.

Appellees’ Brief in Support of Preliminary Objections, 5/5/10, Exhibit A 

(Letters of Agreement, 1/4/08, at 5).

On June 11, 2009, Appellant filed a civil complaint against Appellees in 

the trial court, raising six counts: breach of fiduciary duty, common law fraud, 

violations of the Unfair Trade Practices and Consumer Protection Law1

(UTPCPL), negligence, breach of contract, and failure to supervise. Appellees 

filed preliminary objections, seeking dismissal of Appellant’s complaint on the 

basis that the parties’ contract required that the dispute be submitted to 

arbitration. The trial court agreed, and on May 13, 2010, it sustained the 

preliminary objections and dismissed Appellant’s complaint. Appellant did not 

appeal.

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1 73 P.S. §§ 201-1 to 201-9.3.
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Nearly six years later, on March 4, 2016, Appellant filed an “Arbitration 

Statement of Claim” with JAMS. Appellant acknowledged that this statement 

of claim was substantially identical to her 2009 complaint. Appellant’s Petition 

to Vacate, 4/17/17, at 2. Appellees moved to dismiss Appellant’s arbitration 

claim, arguing that it was time-barred by statutes of limitations. The 

arbitrator agreed, and without holding a hearing, dismissed Appellant’s claim

with prejudice on March 10, 2017. According to Appellant, she was served 

with the arbitrator’s decision on March 16, 2017.

On March 17, 2017, Appellant filed, in the trial court, the instant petition 

to vacate the arbitration award. She alleged that her claim with JAMS was 

timely because: (1) her 2009 civil complaint was timely under the applicable 

statutes of limitation; and (2) the trial court’s May 13, 2010 order dismissing 

her complaint stayed the proceedings. Appellant further asserted that the 

arbitrator improperly denied her a hearing. The trial court issued an order on 

September 8, 2017, finding that Appellant’s arbitration claim was time-barred.

Appellant appealed to this Court, but on December 22, 2017, 

discontinued her appeal after acknowledging that an order denying a petition 

to vacate an arbitration award is not appealable. See Morse v. Fisher Asset 

Management, LLC, 1667 WDA 2017, Rule to Show Cause (per curiam) (Pa. 

Super. Dec. 6, 2017) (“The proper procedure following entry of such order is 

for the trial court to enter an order confirming the arbitration award, and an 

appeal properly lies from entry of judgment following confirmation.”). 
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Seven months later, on July 5, 2018, Appellant filed a praecipe to enter 

judgment, and the trial docket reflects that judgment was entered.

2

 Appellant 

filed a second notice of appeal on August 2, 2018.3 The trial court ordered 

Appellant to file a Pa.R.A.P. 1925(b) statement, and she timely complied. The

trial court’s Rule 1925(a) statement referenced its prior November 3, 2017 

memorandum as explaining the reasons for its ruling.

On appeal, Appellant presents the following issues:

1. Whether the lower court committed reversible error by denying 

Appellant’s Petition to Vacate Arbitration Award and Appoint 

Arbitrator, where (i) Appellant commenced the action and satisfied 

all applicable limitations periods by timely filing and serving her 

Complaint, (ii) the arbitrator exceeded the power and authority 

given to him by the parties in their agreement and the applicable 

rules adopted therein, and (iii) the arbitrator denied Appellant a 

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2 We note irregularities in the electronic certified record transmitted on appeal. 

First, Appellant’s praecipe to enter judgment does not bear a “filed” time 

stamp, nor is the praecipe entered as “filed” on the docket. Further, 

Appellant’s proposed “Notice of Order, Decree or Judgment” includes a 

signature line for the Department of Court Records, but is not signed. 

Nevertheless, there are five identical docket entries, dated July 5, 2018, 

entitled “Judgment on Order of Court,” which state “Notice of judgment sent.” 

The “filing party,” however, is listed as Appellant, whereas judgment is 

properly entered by the Department of Court Records.

3 To date, the trial court has not entered an order confirming the arbitration 

award. See Sherman v. Amica Mut. Ins. Co., 782 A.2d 1006, 1007 n.1 

(Pa. Super. 2001) (“Following the denial or dismissal of a petition to vacate or 

modify an arbitration award, proper procedure requires the trial court to issue 

an order confirming the arbitration award and to enter judgment on this 

order.”). However, where the court has entered judgment, and “as it was the 

court’s responsibility to issue a separate confirming order prior to the entry of 

judgment, it is not appropriate to punish Appellant[ ] for this procedural 

failure.” See id.
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hearing, all of which constituted an irregularity resulting in an 

unjust, inequitable or unconscionable award?

2. Whether, upon vacating the arbitration award, the court should 

appoint an arbitrator as requested in Appellant’s Petition to Vacate 

Arbitration Award and Appoint Arbitrator?

Appellant’s Brief at 4-5.4

At the outset, we note our standard of review:

Judicial review of a common law arbitration award is very narrow.

Arbitrators are the final judges of law and fact and their award will 

not be disturbed for mistakes of either. Such awards are binding 

and may not be vacated or modified “even if blatantly at odds with 

the contract involved” absent “a showing of a denial of a hearing 

or fraud, misconduct, corruption, or similar irregularity leading to 

an unjust, inequitable, or unconscionable award.” [See] 42 

Pa.C.S.A. § 7341[.]

Vogt v. Liberty Mut. Fire Ins. Co., 900 A.2d 912, 919 (Pa. Super. 2006) 

(citations omitted). This Court has stated:

[A]n appellant “bears the burden to establish both the underlying 

irregularity and the resulting inequity by ‘clear, precise and 

indubitable evidence.’” “In this context, irregularity refers to the 

process employed in reaching the result of the arbitration, not the 

result itself.” A cognizable irregularity may appear in the conduct 

of either the arbitrators or the parties. Our Supreme Court has 

stated that the phrase “other irregularity” in the process employed 

imports “such bad faith, ignorance of the law and indifference to 

the justice of the result” as would cause a court to vacate an 

arbitration award.

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4 Although Appellant raises two issues in her statement of questions 

presented, the summary of her argument presents three issues, and her 

argument is divided under six headings. We remind counsel that “[t]he 

argument shall be divided into as many parts as there are questions to be 

argued.” See Pa.R.A.P. 2119(a).
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F.J. Busse Co. v. Zipporah, L.P., 879 A.2d 809, 811 (Pa. Super. 2005).

In her first issue, Appellant characterizes the arbitrator’s dismissal of 

her claim as an “irregularity” which must be vacated because her claims were 

timely filed.

5

 Appellant’s Brief at 20. Appellant maintains that her timely-filed 

2009 complaint in the trial court “stopped the running of any limitations 

period”; that the court’s May 13, 2010 order (directing the parties to 

arbitration) “automatically stayed” the case; and therefore “the original action 

filed [in 2009] remains pending and, indeed, gave birth to this appeal.” Id.

at 20-23. Additionally, Appellant contends that JAMS does not impose any 

time limitations for the filing of an arbitration claim, and thus the arbitrator 

had no authorization to impose any on her.

With respect to the application of a statute of limitations to an arbitration 

matter, this Court has explained:

Once it has been determined that the substantive 

dispute is arbitrable, all matters necessary to dispose 

of the claim are normally arbitrable as well. Such 

ancillary matters include procedural questions which 

grow out of the substantive dispute and bear on its 

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5 Appellant appropriately contends that because the parties’ arbitration clause 

did not expressly state that statutory arbitration would apply, any arbitration 

would be governed by common law. See Appellant’s Brief at 18, citing 42 

Pa.C.S.A. § 7302(a) (agreement to arbitrate a controversy shall be 

conclusively presumed to be an agreement to arbitrate pursuant to common 

law unless the agreement expressly provides for arbitration pursuant to 

statute). See also id., citing 42 Pa.C.S.A. § 7341 (arbitration award “may 

not be vacated or modified unless it is clearly shown that a party was denied 

a hearing or that fraud, misconduct, corruption or other irregularity caused 

the rendition of an unjust, inequitable or unconscionable award”).
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final disposition. Where the underlying dispute is 

arbitrable, the applicability of a statute of limitations 

is also.

See also Merchants Mut. Ins. Co. v. American Arbitration 

Ass’n, . . . 248 A.2d 842[, 844] (Pa. 1969) (where arbitration 

clause provided that arbitrator has the power to consider all 

issues, the issue of the applicability of the statute of limitations 

came within the arbitrator’s purview); Woodward Heating & Air 

Conditioning Co. v. American Arbitration Ass’n, . . . 393 A.2d 

917, 920, n.4. (Pa. Super. 1978) (“whether a claim is barred by 

the statute of limitations should be determined by arbitration”)[.]

Andrew v. CUNA Brokerage Servs., 976 A.2d 496, 502 (Pa. Super. 2009)

(some citations omitted). See also Appellees’ Brief at 22-23, citing 

Woodward Heating & Air Conditioning Co., 393 A.2d at 920 n.4 (“It has 

been held that whether a claim is barred by the statute of limitations should 

be determined by arbitration.”).

The statute of limitations for an action to recover damages for injury to 

property which is founded on negligent tortious conduct is 2 years. 42 

Pa.C.S.A. § 5524(7). The statute of limitations for an action upon a contract 

is 4 years. 42 Pa.C.S.A. § 5525(a)(8). A UTPCPL claim is subject to the 6-

year statute of limitations under 42 Pa.C.S.A. § 5527(6); Fazio v. Guardian 

Life Ins. Co. of Am., 62 A.3d 396, 411 (Pa. Super. 2012) (citation omitted).

We first consider Appellant’s contention that the trial court’s dismissal 

of her 2009 complaint, on May 13, 2010, acted to stay the proceedings and 

toll the statute of limitations. Appellees argue that when Appellant filed her 

2009 complaint, Appellees had two procedural avenues to compel arbitration: 

they could either file an application pursuant to 42 Pa.C.S.A. § 7304 and 
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§ 7342 to compel arbitration and thus prompt a stay, or they could file 

preliminary objections under Pa.R.C.P. 1028 to dismiss Appellant’s complaint. 

Appellees contend that because they filed preliminary objections, which were 

granted, Appellant’s complaint was dismissed. Appellees’ Brief at 29-30. We 

examine Section 7304 and Rule of Civil Procedure 1028.

Section 7342 of our Judicial Code provides that Section 7304 applies to 

common law arbitrations. 42 Pa.C.S.A. § 7342(a). Section 7304, in turn,

provides:

§ 7304. Court proceedings to compel or stay arbitration.

(a) Compelling arbitration. — On application to a court to 

compel arbitration . . . and a showing that an opposing party 

refused to arbitrate, the court shall order the parties to proceed 

with arbitration. . . .

* * *

(d) Stay of judicial proceedings. — An action or 

proceeding, allegedly involving an issue subject to arbitration, 

shall be stayed if a court order to proceed with arbitration has 

been made or an application for such an order has been made 

under this section. . . . If the application for an order to proceed 

with arbitration is made in such action or proceeding and is 

granted, the court order to proceed with arbitration shall include 

a stay of the action or proceeding.

42 Pa.C.S.A. § 7304(a), (d).

Of further relevance, Rule of Civil Procedure 1028, “Preliminary 

Objections,” states:

(a) Preliminary objections may be filed by any party to any 

pleading and are limited to the following grounds:

* * *
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(6) . . . agreement for alternative dispute resolution[.]

Note: An agreement to arbitrate may be asserted by 

preliminary objection or by petition to compel arbitration 

pursuant to the Uniform Arbitration Act, 42 Pa.C.S.[A.] § 

7304, or the common law, 42 Pa.C.S.[A.] § 7342(a).

Pa.R.C.P. 1028(a)(6) & note.

Mindful of the foregoing, we agree with Appellees that when presented 

with Appellant’s complaint in 2009, they could have sought enforcement of 

the arbitration agreement by either filing preliminary objections or a petition 

to compel arbitration. Had they opted to proceed with a petition to compel 

under Section 7304 and the trial court granted it, the resulting court order 

would have, consistent with Appellant’s argument, had to include a stay of the 

proceeding. See 42 Pa.C.S.A. § 7304(d). However, Appellees opted to file 

preliminary objections under Rule 1028, seeking dismissal. Neither Rule 

1028, nor any other Rule of Civil Procedure or other Pennsylvania authority, 

provides that an order sustaining preliminary objections, with respect to 

enforcing an agreement to arbitrate, stays an action. We thus agree with 

Appellees that when the court sustained their preliminary objections and 

dismissed Appellant’s 2009 complaint, the action was not stayed. As 

Appellees note, Appellant did not appeal from the order dismissing her action. 

Accordingly, the court’s May 13, 2010 order did not stay the 2009 action and 

did not toll the statute of limitations.

In reviewing Appellant’s additional argument — that no statute of 
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limitations applied to her arbitration claim — we reiterate the language of the 

parties’ arbitration clause: 

Any dispute, claim or controversy arising out of this Agreement . 

. . including . . . the scope and applicability of the agreement to 

arbitrate . . . shall by determined by an arbitration before [JAMS]. 

The arbitration shall be administered by JAMS pursuant to the 

Comprehensive Arbitration Rules and Procedures. 

See Appellees’ Brief in Support of Preliminary Objections, 5/5/10, Exhibit A 

(Letters of Agreement, 1/4/08, at 5) (emphasis added).

Instantly, the trial court found no error in the arbitrator’s decision, which 

the court “incorporated” in its November 3, 2017 memorandum. See Trial 

Court Memorandum, 11/3/17, at 2. The arbitrator observed that the parties 

did not “expressly incorporate a statute of limitations into the arbitration 

clause of their agreement.” Arbitrator’s Decision, 3/10/17, at 3. The 

arbitrator recognized, as Appellant argued, that JAMS rules “do not expressly 

mention whether statutes of limitations will apply if a dispute is filed in 

arbitration.” Id. Nevertheless, the arbitrator emphasized that “JAMS does 

recognize that statute of limitation arguments may arise in defending claims, 

and . . . JAMS Rule 18 allows arbitrators to hear dispositive motions on this 

issue.” Id. On appeal, Appellant does not acknowledge nor challenge the 

arbitrator’s reliance on the JAMS rule.

After careful consideration of the parties’ arguments, the certified 

record, and prevailing legal authority, we agree with the trial court that the 

issue of the applicability of the statutes of limitations was properly before the 
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arbitrator. See Andrew, 976 A.2d at 502 (restating that where an arbitration 

clause provided that an arbitrator has the power to consider all issues, the 

issue of the applicability of the statute of limitations came within the 

arbitrator’s purview). Further, our review has yielded no “irregularity” in the 

arbitrator’s decision, nor any error by the trial court. 

Appellant also contends that the arbitrator erred in dismissing her claim 

without a hearing. Appellant disregards the JAMS rules, to which the parties 

agreed when they entered the contract, and which, as Appellees emphasize, 

“specifically allow for summary disposition without a hearing.” Appellees’ Brief 

at 38.

To the extent Appellant relies on Andrew, 976 A.2d 496, which held 

that the plaintiff was entitled to an evidentiary hearing before the arbitrator

on the issue of whether his claims were time-barred by the statute of 

limitations, we find that case to be distinguishable. In Andrew, the plaintiff 

filed an arbitration claim against an investment firm pursuant to an arbitration 

clause in the parties’ contract. Andrew, 976 A.2d at 498. The defendant 

firm filed a motion to dismiss, arguing that all of the plaintiff’s claims were 

barred by the applicable statute of limitations. Id. The plaintiff responded 

that one of the defendant’s employees “made material misrepresentations and 

omissions to him about the status of his investments upon which he 

reasonably relied, such that he did not become aware of his losses until 

[later],” and “that an evidentiary hearing was necessary in order to determine 
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when he knew or reasonably should have known that losses had occurred.” 

Id. On appeal, this Court agreed, reasoning “that the arbitration panel should 

have conducted a hearing to consider evidence and testimony as to whether 

[the plaintiff’s] causes of action [were] timely.” Id. at 503.

In this case, the trial court rejected Appellant’s reliance on Andrew, 

pointing out that in Andrew, the plaintiff sought an arbitration hearing to 

adduce facts as to when his cause of action arose and “involved the 

applicability of the discovery rule . . . which is not an issue herein.”6 On 

appeal, Appellant does not dispute the trial court’s distinguishing the facts and 

posture of the Andrews decision from this case, nor does she claim that an 

evidentiary hearing is warranted to determine when her cause of action arose. 

There is no dispute as to when Appellant’s cause of action arose, and 

moreover, our review reveals no “irregularity . . . in the conduct of the 

arbitrator.” See F.J. Busse Co., 879 A.2d at 811. In sum, we find no merit 

to Appellant’s claim that she was entitled to a hearing before the arbitrator.

Finally, Appellant asserts that the arbitrator “doomed” her case, and 

asks this Court to appoint “one or more arbitrators, from the Pittsburgh bar. . . 

to hear this case.” Appellant’s Brief at 31. Appellees, citing the language in 

____________________________________________

6 The trial court also reasoned that Appellant waived this issue because

Appellant “never sought a hearing before the arbitrator.” Trial Court 

Memorandum, 11/3/17, at 2. As the certified record does not include the 

pleadings filed with the arbitrator, we do not consider whether Appellant 

waived this claim.
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the parties’ arbitration clause, counter that the “agreement unequivocally 

requires that [arbitration] be heard by a retired judge from JAMS in 

Philadelphia.” Appellees’ Brief at 42. While we agree with Appellees, the issue 

is moot because our disposition negates any need for the appointment of an 

arbitrator.

For the foregoing reasons, we affirm the trial court’s order denying 

Appellant’s petition to vacate arbitration award.

Judgment affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/15/2019