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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
KEB HANA BANK USA, NATIONAL : IN THE SUPERIOR COURT OF
ASSOCIATION, F/K/A BNB HANA : PENNSYLVANIA
BANK, NATIONAL ASSOCIATION, :
F/K/A BNB BANK NATIONAL :
ASSOCIATION :
:
:
v. :
: No. 207 EDA 2020
:
FIDELITY NATIONAL TITLE :
INSURANCE COMPANY, SUCCESSOR :
IN INTEREST TO LAWYERS TITLE :
INSURANCE CORPORATION :
:
Appellant :
Appeal from the Order Entered December 9, 2019
In the Court of Common Pleas of Monroe County
Civil Division at No(s): No. 7113-CV-2019
BEFORE: PANELLA, P.J., McLAUGHLIN, J., and COLINS, J.*
MEMORANDUM BY PANELLA, P.J.: FILED SEPTEMBER 29, 2020
Fidelity National Title Insurance Company (“Fidelity”) (defendant
below), appeals from the trial court’s December 9, 2019 order, entered in the
Court of Common Pleas of Monroe County, sustaining in part and denying in
part its preliminary objection in the nature of a motion to compel arbitration.1
On appeal, Fidelity contends the trial court erred in failing to compel
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*Retired Senior Judge assigned to the Superior Court.
1An order denying a motion to compel arbitration is immediately appealable.
See 42 Pa. C.S.A. § 7320(a)(1); Pa.R.A.P. 311(a)(8).
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arbitration of Appellee’s, KEB Hanna Bank USA (KEB) (plaintiff below), bad
faith claim. After careful review, we affirm.
Because we write primarily for the parties and because of the nature of
the issues raised in this matter, we need not provide a detailed summary of
the facts underlying this case. We briefly note, on September 11, 2019, KEB
filed a complaint against Fidelity. The complaint arose out of Fidelity’s policy
insuring title to which KEB had a mortgage interest. See Complaint, 9/11/19,
at 1-6. KEB claimed that due to Fidelity’s numerous errors, KEB’s “insured
first lien priority [m]ortgage had been compromised.” Id. at 4.
KEB’s complaint included two counts, the first for breach of contract and
the second for bad faith in violation of 42 Pa.C.S.A. § 8371.2 Id. at 6-8. Count
II of the complaint states, in pertinent part:
28. [KEB] has suffered a covered loss pursuant to the terms of
the [t]itle [p]olicy.
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2 Section 8371 provides:
In an action arising under an insurance policy, if the court finds
that the insurer has acted in bad faith toward the insured, the
court may take all of the following actions:
(1) Award interest on the amount of the claim from
the date the claim was made by the insured in an
amount equal to the prime rate of interest plus 3%.
(2) Award punitive damages against the insurer.
(3) Assess court costs and attorney fees against the
insurer.
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29. As of the date hereof, [Fidelity] has neither denied nor
accepted [KEB’s] claims.
30. [Fidelity] has no reasonable basis for denial of [KEB’s] claims.
31. [Fidelity] has delayed, obstructed and frustrated the
processing of [KEB’s] claims.
32. As a result thereof, [KEB] has incurred unnecessary costs and
expenses and has further been delayed in enforcement of its rights
and remedies under its [m]ortgage. Moreover, [KEB] has been
compelled to institute the above-captioned litigation in order to
enforce its just and valid claims under the [t]itle [p]olicy.
33. [Fidelity’s] actions and omissions constitute bad faith under
Pennsylvania law.
Id. at 7-8.
Fidelity responded a month later by filing preliminary objections seeking
to compel arbitration. It contended paragraph 13 of the title insurance policy
contained an arbitration clause. Preliminary Objections, 10/11/19, at 4. This
clause reads in pertinent part:
Either [Fidelity] or the insured may demand that the claim or
controversy shall be submitted to arbitration . . . Arbitrable
matters may include but are not limited to, any controversy or
claim between the Company and the insured arising out of or
relating to this policy, any service in connection with its insurance
or the breach of a policy provision, or to any other controversy or
claim arising out of the transaction giving rise to this policy.
All arbitrable matters when the [a]mount of [i]nsurance is
$2,000,000 or less shall be arbitrated at the option of either
[Fidelity] or the insured.
Id. at Exhibit 1 D, Conditions § 13.
The trial court subsequently overruled the preliminary objections in part
and granted them in part. It sustained the preliminary objections as to the
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breach of contract claim but denied them as to the statutory bad faith claim,
stating:
The bad faith claim is separate and apart from the breach of
contract issue. A bad faith claim pursuant to 42 Pa.C.S.A. Section
8371 cannot be heard by an arbitration panel and must remain in
the Court of Common Pleas. See Nealy v. State Farm Mutual
Auto Insurance Co., 695 A.2d 79 (Pa. Super. 1997).
Order, 12/09/19, at 2.
The instant, timely appeal followed. The trial court ordered Fidelity to
file a concise statement of errors complained of on appeal. See Pa.R.A.P.
1925(b). Fidelity timely filed its Rule 1925(b) statement on January 23, 2020,
and on that same day, the trial court issued a statement declining to write an
opinion and instead adopting its December 9, 2019 Order.
In its first issue, Fidelity argues that the title insurance policy contains
a valid, enforceable agreement to arbitrate. See Fidelity’s Brief, at 2, 11-13.
However, this issue is not in dispute on appeal. It appears the trial court,
because it sustained the preliminary objection as to the breach of contract
claim, found there was a valid, enforceable agreement to arbitrate. 3 Fidelity
prevailed on this argument in the court below, as the court compelled
arbitration on the breach of contract claim. Nor has Fidelity demonstrated that
____________________________________________
3 The trial court’s decision to rely on its brief December 9, 2019 order rather
than writing a proper Rule 1925(b) opinion may have cause some confusion
or uncertainty on the part of Fidelity. The order does not contain any findings
of fact and provides little explanation of its conclusions of law. See Order,
12/09/19, at 1-2.
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it was aggrieved by this conclusion. Fidelity therefore lacks standing to raise
it on appeal. See In re J.G., 984 A.2d 541, 546 (Pa. Super. 2009). KEB did
not file a cross-appeal, and we see nothing which demonstrates it intended to
raise the issue of lack of an agreement to arbitrate on appeal. Therefore, we
will not further address this issue.
In its second issue and third issues, Fidelity argues that the trial court
erred in declining to enforce the arbitration agreement with respect to its bad
faith claim. See Fidelity’s Brief, at 2, 13-26. Specifically, Fidelity contends:
(1) the trial court erred in finding the bad faith claim was outside the scope of
the arbitration agreement; and (2) it erred in finding this Court’s decision in
Nealy controls this matter. Id. We disagree.
We review claims that a court improperly refused to enforce an
arbitration clause according to contract interpretation principles:
We begin by noting that our review of a claim that the trial court
improperly denied preliminary objections in the nature of a
petition to compel arbitration is limited to determining whether
the trial court’s findings are supported by substantial evidence and
whether the trial court abused its discretion in denying the
petition. As contract interpretation is a question of law, our review
of the trial court’s decision is de novo and our scope is plenary.
Petersen v. Kindred Healthcare, Inc., 155 A.3d 641, 644 (Pa. Super.
2017) (citations omitted).
Pennsylvania law favors settlement of disputes by arbitration. See
Provenzano v. Ohio Valley General Hosp., 121 A.3d 1085, 1096 (Pa.
Super. 2015). When deciding whether a trial court should have compelled
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arbitration, we employ a two-part test: (1) does a valid agreement to arbitrate
exist, and (2) is the dispute within the scope of the agreement. See Smay
v. E.R. Stuebner, Inc., 864 A.2d 1266, 1270 (Pa. Super. 2004). “[I]f a valid
arbitration agreement exists between the parties and [the plaintiff’s] claim is
within the scope of the agreement, the controversy must be submitted to
arbitration.” Highmark Inc. v. Hospital Service Ass'n. of Northeastern
Pennsylvania, 785 A.2d 93, 98 (Pa. Super. 2001). “[T]he scope of arbitration
is determined by the intention of the parties as ascertained in accordance with
the rules governing contracts generally.” Henning v. State Farm Mut. Auto.
Ins. Co., 795 A.2d 994, 996 (Pa. Super. 2002) (citations and internal
quotation marks omitted).
Here, however, we need not address Fidelity’s contention the bad faith
claim fell within the scope of the arbitration agreement. The record does not
demonstrate that the trial court found the claim to be outside the scope of the
agreement; rather, it found Nealy to be binding. See Order, 12/09/19, at 2.
Nealy arose out of a motor vehicle accident, the Nealys sued their insurance
company after it denied coverage under their uninsured/underinsured motor
vehicle coverage (“UM/UIM”). See id., 695 A.2d at 790-91. At the request
of the Nealys, the trial court severed its claims against the insurance company
from its claims against its insurance agent, and the claims against the
insurance company proceeded to mandatory arbitration. See id. at 791.
Initially, the arbitrators agreed they could not hear the Nealys’ bad faith claim
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pursuant to 42 Pa.C.S.A. § 8371. See id. Despite this, the arbitrators
ultimately ruled in favor of the insurance company on the bad faith claim. See
id. The Nealys filed an application to vacate, modify and/or correct the
arbitration order in the Court of Common Pleas. See id. The trial court
denied the application and the Nealys appealed. See id.
On appeal, this Court held bad faith claims pursuant to Section 8371,
“are distinct from the underlying contractual insurance claims from which the
dispute arose.” Id. at 792. Instead, section 8371 “provide[s] an independent
cause of action to an insured that is not [dependent] upon success on the
merits, or trial at all, of the contract claim.” Id. at 793. We went on to hold:
Both this Court and our sister federal courts have decided a myriad
of cases that impinge in some respect upon the workings of §
8371. No court, however, has squarely decided the question of
whether an arbitration panel is vested with the jurisdiction to
entertain such a claim. After careful consideration, we conclude
that original jurisdiction to decide issues of § 8371 bad faith
is vested in our trial courts.
Our research shows that, as a procedural norm, virtually all § 8371
claims have been commenced in our courts of common pleas
without first being submitted to arbitration. Although some of
these cases remained in our state courts throughout litigation, a
vast majority were removed to federal court upon motion by the
defendants, [invoking] federal diversity jurisdiction. Although
federal caselaw interpreting and applying Pennsylvania state law
is not binding upon this Court, it remains a valuable source of
judicial interpretation and should be carefully considered when
deciding issues of first impression.
In Winterberg v. Transportation Insurance Co., 72 F.3d 318
(1995), the Court of Appeals for the Third Circuit was called upon
to determine the interplay between this state’s workman’s
compensation statute and the bad faith provision embodied in §
8371. After a thorough and comprehensive review of the inner
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workings and intent of the worker’s compensation scheme, the
Court held that referees appointed to hear compensation claims
“have no authority to hear actions brought under the ‘bad faith’
statute” and that “[t]he language of the statute plainly focuses on
suits in courts of law based on insurance policies.” Id. at 324
(emphasis added).
We find Winterberg to be both factually similar and legally
persuasive. Although involving the jurisdiction of a workman’s
compensation board and not an arbitration panel, the Court
correctly recognized that the jurisdiction granted to these types of
non-judicial panels is limited in nature and should not be
expanded merely because the events which gave rise to the initial
cause of action may or must be initiated in a non-judicial or quasi-
judicial forum.
****
Arbitration panels are designed to ease the burden on our courts
by deciding issues of damages and liability as they pertain to the
factual dispute that gave rise to the contractual insurance claim.
A § 8371 bad faith claim, however, is initiated based upon
behavior of the insurance company occurring subsequent
to the negligent or intentional behavior of a third party that
spawned the contractual suit. Thus, because the behavior
complained of is temporally and factually distinct from any
behavior that would impact upon the outcome of the
damages and liability disposition of the contract claim, we
see no reason to expand upon the panels’ jurisdiction.
We therefore hold that the trial court in the instant matter properly
concluded that the arbitration panel did not have jurisdiction to
decide the § 8371 bad faith claim and that the arbiters’ gratuitous
comments to the effect that State Farm did not act in bad faith
were merely dicta. Just as appellants were contractually required
to initially litigate their insurance claims at the arbitration level,
they were statutorily required to commence their bad faith claim
against their insurer in the court of common pleas.
Id. at 793-94 (emphases added, footnotes and some case citations omitted).
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Fidelity argues, without citation to pertinent authority, the holding in
Nealy is limited to UM/UIM cases. See Fidelity’s Brief, at 20-21. This
argument lacks merit. Section 8371 applies to, “action[s] arising under an
insurance policy[.]” 42 Pa.C.S.A. § 8371. It does not just apply to UM/UIM
actions. See, e.g., Michael v. Stock, 162 A.3d 465, 480 (Pa. Super. 2017)
(applying Nealy in to a bad faith claim against a title insurer).
Further, there is nothing in the above-quoted language from Nealy
which limited its holding to UM/UIM cases. Rather, the Nealy court based its
decision on the language of section 8371, the types of damages it provided,
and the differences between bad faith claims and claims arising under the
insurance contracts. See Nealy, 695 A.2d at 793-94. Moreover, in reaching
its conclusion the Nealy court relied upon a case that arose out of a worker’s
compensation dispute, not a UM/UIM dispute. See id. Lastly, if we were to
adopt Fidelity’s argument, it would result in an untenable situation where
UM/UIM bad faith claims would be filed in the Courts of Common Pleas, while
other insurance bad faith claims would be subject to arbitration.
Moreover, we find Fidelity’s attempts to distinguish Nealy unpersuasive.
Despite Fidelity’s arguments to the contrary, the language of the complaint,
quoted above, clearly shows KEB’s bad faith claim, like the bad faith claim in
Nealy, was based upon Fidelity’s post-breach conduct and thus is temporally
and factually distinct from its breach of contract claim. See Complaint,
9/11/19, at 7-8; Nealy, 659 A.2d at 794.
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Nor are we persuaded by Fidelity’s contention Nealy is not good law.
Some of the cases Fidelity cites to predate Nealy, and thus are of no utility.
Others do not discuss Nealy, do not concern bad faith claims, or discuss a
different issue with respect to bad faith claims. The remainder are not binding
on this Court because they are either federal cases or Court of Common Pleas
cases. See Sears, Roebuck & Co. v. 69th St. Retail Mall, L.P., 126 A.3d
959, 972 (Pa. Super. 2015) (holding that “court of common pleas decisions
provide, at most, persuasive but not binding authority”); Kleban v. Nat.
Union Fire Ins. Co. of Pittsburgh, 771 A.2d 39, 43 (Pa. Super. 2001)
(citation omitted) (noting that federal court decisions are not binding upon
this Court). The decision in Nealy controls this matter and thus is binding on
this Court. See Commonwealth v. Pepe, 897 A.2d 463, 465 (Pa. Super.
2006). Fidelity’s second and third claims do not merit relief.
Accordingly, for the reasons discussed above, we affirm the order of
the trial court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/29/20
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