Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Andrew v. Cuna Brokerage Services

May 27, 2009

FRED G. ANDREW, APPELLANT
v.
CUNA BROKERAGE SERVICES, INC. AND EMMOR E. BOSLET, APPELLEES



Appeal from the Judgment entered September 3, 2008, in the Court of Common Pleas of Dauphin County, Pennsylvania. Civil, at No. 2007-CV-3772 MP.

The opinion of the court was delivered by: Allen, J.

BEFORE: ALLEN, CLELAND and FITZGERALD*fn1, JJ.

OPINION

¶ 1 This case arises out of a statement of claim filed by Fred G. Andrew ("Appellant") against CUNA Brokerage Services and Emmor E. Boslet ("Appellees"). The pertinent facts may be summarized as follows:

¶ 2 On September 22, 1998, Appellant opened an IRA Brokerage Account with CUNA Brokerage Services ("CUNA") and transferred stocks and retirement funds into the account for investment purposes. The account application signed by Appellant contained a provision by which the parties agreed to submit disputes to arbitration. On July 19, 2006, Appellant filed a Statement of Claim with the National Association of Securities Dealers ("NASD"). Appellant alleged that Emmor E. Boslet ("Boslet"), a financial professional representing CUNA, promised Appellant that his investments would generate a minimum of $3,200 per month. However, Appellant alleged that his accounts sustained a loss of approximately $20,000 in value. The Statement of Claim asserted the following causes of action: unjust enrichment, unsuitability, misrepresentations and omissions, negligence, breach of fiduciary duty, breach of contract, violation of Federal Securities Law, violation of Pennsylvania Unfair Trade Practices and Consumer Protection Law [UTP-CPL], failure to supervise, secondary and vicarious liability, respondeat superior, and common law fraud.

Trial Court Opinion, 08/20/2007, at 2.

¶ 3 On February 6, 2007, Appellees filed a motion to dismiss Appellant's claims contending that the claims were not eligible for arbitration and that all of Appellant's claims were barred by the applicable statutes of limitation. R. 169-253. Specifically, Appellees argued that Rule 12206 of the NASD Code of Arbitration Procedure provided that claims were not eligible for arbitration where six years had elapsed from the occurrence or event giving rise to the claim. Appellees asserted that the events giving rise to Appellant's claims arose out of meetings with Ms. Boslet that occurred in 1996 and 1998, outside of the six-year period prior to the filing of the July 19, 2006 statement of claim. Accordingly, Appellees contended that Appellant's claims should be dismissed.

¶ 4 Appellees further argued that Appellant's causes of actions asserting violations of federal securities law were time-barred pursuant to the two and five year limitation periods set forth in the Sarbanes-Oxley Act, 28 U.S.C. § 1658(b)(1). With respect to Appellant's claims under the Pennsylvania Securities Act of 1972, 70 P.S. § 1-101 et. seq., Appellees contended that the one, two and five year limitation periods set forth therein rendered Appellant's claims under that Act untimely. Appellees further argued that Appellant's claims for negligence, breach of fiduciary duty and fraud, were subject to the two-year limitation period set forth in 42 Pa.C.S. § 5524, while his claims for breach of contract and unjust enrichment were barred by the four-year limitation period set forth in 42 Pa.C.S. 5525. Finally, Appellees maintained that Appellant's claims under the Pennsylvania UTPCPL, 73 P.S. § 201-1 et seq., were barred by the applicable six-year limitation period set forth therein. R. 169-253.

¶ 5 Appellant submitted a response to the motion to dismiss in which he asserted, inter alia, that Ms. Boslet 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 2006. He further asserted that an evidentiary hearing was necessary in order to determine when he knew or reasonably should have known that losses had occurred. R. 235-253.

¶ 6 The arbitration panel conducted a telephone conference and heard arguments on the motion to dismiss. Trial Court Opinion, 08/20/2007, at 9, 10. On March 15, 2007, the arbitration panel entered the following award: After considering the pleadings, the testimony and evidence presented at the pre-hearing conference, the Panel has decided in full and final resolution of the issues submitted for determination as follows:

1. The Panel finds that the claims asserted by [Appellant] are eligible for arbitration. [Appellees'] Motion to Dismiss is therefore denied to the extent that it seeks dismissal of the claims pursuant to Rule 10304(a) of the Code of Arbitration.

2. The Panel finds that the claims asserted by Claimant are each time-barred by an applicable statute of limitations. The Panel finds no genuine issue of material fact to be presented for trial, and the Panel finds that each claim asserted by [Appellant] is time-barred by an applicable statute of limitations as a matter of law. [Appellees'] Motion to Dismiss is therefore granted in part to the extent that it seeks dismissal of the claims asserted based upon the applicable statutes of limitation.

3. [Appellant's] claims are dismissed in their entirety, with prejudice.

4. Any and all relief not specifically addressed herein, including punitive and ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.