Morris Lapidus Associates v. Airportels, Inc.

Concurring Opinion by

Spaeth, J.:

I agree with the majority that the order striking appellant’s judgment must be reversed. However, I cannot agree with the majority’s statement that “the due process guarantees of the Constitution, although desirable in the eyes of many, are not mandatory in an arbitration proceeding.” (Majority Opinion at p. 84).

*88First, it is unnecessary to decide that issue here; in my view, we should wait until it is presented by the facts before commenting upon it. As the majority says, the New York courts considered and decided the issue adversely to appellees, and the issue now before us is whether we must accord full faith and credit to that decision.

Second, the statement by the majority that we did not decide Bole v. Nationwide Insurance Co., 238 Pa. Superior Ct. 138, 352 A.2d 472 (1975), on constitutional grounds is not, at least so it seems to me, entirely accurate. In Bole, we spoke of the courts’ particular responsibility to ensure impartiality and fairness in arbitration proceedings. We said there that because judicial review of a common law arbitration award is extremely limited, courts must be especially careful to make certain that the arbitration is impartial. In enunciating this principle, we relied on Commonwealth Coatings Corp. v. Continental Casualty Co., 393 U.S. 145 (1968), in which Mr. Justice BLACK drew an analogy to the constitutional mandate of fairness and impartiality within the judicial system to find that Section 10 of the United States Arbitration Act, 9 U.S.C. §10 (1970) required an impartial proceeding. Thus, considerations of due process were important both in Commonwealth Coatings and in Bole.

The majority also says in dictum that “the Supreme Court of the United States has indicated that... if a state refuses to allow a particular cause of action to be brought in its courts, then it need not provide a forum for foreign judgments based op that cause of action.” (Majority Opinion at p. 87). However, in Fauntleroy v. Lum, 210 U.S. 230 (1908), Mr. Justice HOLMES, speaking for the Court, stated that “the illegality of the original cause of action in Mississippi [could not] be relied upon there as a ground for denying a recovery upon a judgment of another State.” Id. at 236. In any *89event, as the majority says, the issue is not relevant, as appellant’s cause of action would have been heard in our courts.

Hoffman, J., joins in this opinion.