ELIZABETH HALLOWELL v. BLUE HAVEN POOLS NATIONAL, INC.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3266-04T23266-04T2

ELIZABETH HALLOWELL,

Plaintiff-Appellant,

v.

BLUE HAVEN POOLS NATIONAL,

INC.; EAST METRO INC., d/b/a

BLUE HAVEN POOLS; RAYMOND

CALVITTI; and DOMINIC DICESARE,

Defendants-Respondents.

________________________________________________________________

 

Submitted October 3, 2005 - Decided

Before Judges Kestin and Lefelt.

On appeal from the Superior Court of

New Jersey, Law Division, Camden

County, Docket No. L-7746-04.

Appellant, Elizabeth A. Hallowell,

submitted a pro se brief.

Sandler & Marchesini, attorneys for

respondents (Gregory Marchesini, on

the brief).

PER CURIAM

Plaintiff, Elizabeth Hallowell, contracted with Blue Haven Pools for the construction of an in-ground pool at her home. Blue Haven excavated and began the construction work. Despite plaintiff having paid in full, plaintiff claims the pool was improperly installed and the work never completed. After having her initial complaint dismissed in federal court for lack of diversity, plaintiff re-filed her suit in the Camden County Law Division, naming as defendants Blue Haven Pools National, Inc., a California corporation; East Metro Inc., a New Jersey corporation doing business as Blue Haven Pools; and three individuals associated with these entities, Raymond Calvitti, Dominic DiCesare, and Ron Zaberer. Plaintiff's Law Division complaint alleged various counts, including breach of contract and violation of the New Jersey Consumer Fraud Act. East Metro, Calvitti, and DiCesare each moved to dismiss the complaint on lack of jurisdiction and other grounds. Judge Colalillo found that the New Jersey courts lacked jurisdiction over this dispute because the parties' contract specifically required disputes to be resolved through arbitration or in the Pennsylvania courts. In addition, the judge found that plaintiff failed to show sufficient activities or contacts with New Jersey to support the court's personal jurisdiction over Calvitti, President of East Metro, and DiCesare, general manager of Blue Haven. Consequently, the judge dismissed the complaint, and plaintiff appealed. We affirm.

On appeal, plaintiff argues pro se in a concise and well-drafted brief that the trial court erred. Plaintiff asserts that the arbitration and forum selection provisions, which are contained in the contract, are ambiguous and unenforceable. Because all the relevant events took place in this State and involved a New Jersey corporation, East Metro, plaintiff maintains that jurisdiction and venue with regard to all defendants, including the individual defendants, are within the Superior Court of New Jersey.

On the back of the contract among sixteen other unrelated provisions in the same small type, the contract between plaintiff and Blue Haven contains a clause, numbered "16" and entitled "Miscellaneous," that provides "[a]ny controversy, action, claim, dispute, breach or question of interpretation relating to or arising out of this contract shall be resolved in the Court of Common Pleas of Montgomery County Pennsylvania." The clause continues by providing Blue Haven with the right, "at its discretion," to elect to resolve claims or questions "relating to or arising out of this contract by arbitration in Montgomery County, Pennsylvania in accordance with the Commercial Arbitration Rules of the American Arbitration Association." This is the only reference to arbitration in the entire contract. Whether the parties engage in arbitration or court resolution of disputes, however, the clause further provides that Pennsylvania law applies.

We have serious concerns regarding the enforceability of the arbitration clause in the face of plaintiff's statutory consumer fraud claim. Compare Rockel v. Cherry Hill Dodge, 368 N.J. Super. 577, 580 (App. Div. 2004), with Gras v. Associates First Capital Corp., 346 N.J. Super. 42, 57 (App. Div. 2001). However, we conclude that the forum selection clause is separately enforceable and supports the trial court's dismissal of the complaint.

In M/S Bremen v. Zapata Off-Shore Company, 407 U.S. 1, 10-15, 92 S. Ct. 1907, 1913-16, 32 L. Ed. 2d 513, 520-23 (1972), the United States Supreme Court established a general rule regarding the enforceability of a forum selection clause. Such a clause will be enforced unless it is the product of "fraud, undue influence, or overwhelming bargaining power," or unreasonable or offends a "strong public policy." Id. at 12-15, 92 S. Ct. at 1914-16, 32 L. Ed. 2d at 521-23.

In New Jersey, forum selection clauses are "prima facie valid," Caspi v. Microsoft Network, 323 N.J. Super. 118, 122 (App. Div.), certif. denied, 162 N.J. 199 (1999), and have "long been enforced." Wilfred MacDonald Inc. v. Cushman Inc., 256 N.J. Super. 58, 63 (App. Div.), certif. denied, 130 N.J. 17 (1992). The only exceptions precluding enforcement are when the clause (1) results from "fraud or overweening bargaining power"; or (2) would contravene a strong New Jersey public policy, e.g., Kubis & Perszyk Assocs. v. Sun Microsystems, 146 N.J. 176, 193 (1996) (holding forum selection clauses in franchise agreements presumptively invalid); or (3) would seriously inconvenience the trial. Wilfred MacDonald, supra, 256 N.J. Super. at 63-64. The party opposing enforcement of the clause bears the burden of "show[ing] that the clause in question fits within one of these exceptions." Caspi, supra, 323 N.J. Super. at 122.

Here, plaintiff has not demonstrated that the pertinent forum selection clause "fits within one of these exceptions." Although Blue Haven occupied a stronger bargaining position, there is no evidence that it was "overweening." Fraud in the inception of the contract has not been alleged. The front of the contract contains a clause typed in uppercase letters that cautions: "the terms and conditions of the reverse side," which included the forum selection clause, "are part of the agreement and that this writing contains the entire agreement between the buyer(s) and [Blue Haven Pools.]" In a specific "note to the buyer," the clause continues by cautioning the buyer to "not sign this contract before you read it . . . . Do not sign this contract until you have read in full and understand the additional terms and conditions to this contract contained on the back of this document." At the end of this entire clause, plaintiff supplied her initials in the space provided.

Considering the contract as a whole, the forum selection clause does not implicate strong public policy considerations. Requiring plaintiff to bring suit in Pennsylvania would not offend any established New Jersey public policy. Moreover, plaintiff has not shown that holding trial in Pennsylvania would be especially inconvenient to her, any of the other parties, or the court. Calvitti and DiCesare are both Pennsylvania residents. Finally, there is no showing that the Court of Common Pleas of Montgomery County would not afford plaintiff a full and fair opportunity to litigate her claim.

Because we agree with the trial court that the forum selection clause is enforceable, plaintiff's New Jersey complaint was correctly dismissed and her claims must be re-pled in Pennsylvania. We defer to the courts of that State for the ultimate resolution of the arbitration provision's enforceability, assuming it remains an issue. The enforcement of the forum selection clause renders moot the question whether New Jersey had personal jurisdiction over the individual defendants.

 
Affirmed.

Although named as a defendant, Zaberer was apparently not served and was not mentioned in Judge Colalillo's decision.

(continued)

(continued)

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A-3266-04T2

October 18, 2005