# PAINEWEBBER INCORPORATED v. Willard S. HARTMANN, Leona R. Hartmann, Appellants

> Court of Appeals for the Third Circuit · December 31, 1990 · 921 F.2d 507

URL: https://www.frixlaw.com/law-library/cases/9481133

## Case

- **Full name:** Fed. SEC. L. Rep. P 95,738 Painewebber Incorporated v. Willard S. Hartmann, Leona R. Hartmann
- **Court:** Court of Appeals for the Third Circuit
- **Decided:** December 31, 1990
- **Citations:** 921 F.2d 507; 1990 U.S. App. LEXIS 22427; 1990 WL 214958
- **Precedential status:** Published
- **Opinion:** Dissent by Sloviter
- **Judges:** Sloviter, Becker, Stapleton
- **Cited by:** 240 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled on other grounds by Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79 (2002).
- Negative treatments: 2
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9481133

## How later opinions describe it (automated extraction)

- stating “we think it obvious that the harm to a party would be per se irreparable if a court were to abdicate its responsibility to determine the scope of an arbitrator's jurisdiction”, overruled on other grounds by Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 85 (2002)
- stating it is "per se irreparable harm if a court were to abdicate its responsibilities to determine the scope of an arbitrator's jurisdiction and, instead, were to compel a party who has not agreed to do so, to submit to an arbitrator’s own determination of his authority.”
- holding party “would suffer irreparable harm if it were forced to submit to the arbitrator's jurisdiction, if even just for a determination of the scope of that jurisdiction” (footnote omitted)
- holding that the "plain language" of the parties' contract, which limited the cases "eligible for submission to arbitration," rendered the underlying dispute not arbitrable
- holding that “[a]s a matter of contract, no party can be forced to arbitrate unless that party has entered into an agreement to do so.”

## Opinion text

SLOVITER, Circuit Judge,
dissenting.
I respectfully dissent. The majority opinion has fully set forth the issue and the relevant case law, and therefore no extended discussion is necessary.
I am concerned that the majority’s approach will unnecessarily derogate from the strong policy to leave disputed issues to the arbitrator. I agree that the court must decide the scope of the parties’ agreement to arbitrate. However, the issue in this case is not whether the dispute falls within the scope of the arbitration clause. The parties agree that it does. Instead, the majority elevates a time limitation provision, which is at most a defense to the claim, to the same level as a limitation imposed upon the subject matter of the agreement to arbitrate. This I believe is error.
I would agree with those courts that have held that the question whether a demand to arbitrate was time barred is within the exclusive province of the arbitrator. See, e.g., ContiCommodity Services, Inc. v. Philipp & Lion, 613 F.2d 1222, 1226 (2d Cir.1980); accord County of Durham v. Richards & Associates, Inc., 742 F.2d 811, 815 (4th Cir.1984); O’Neel v. National Ass’n of Securities Dealers, 667 F.2d 804 , 807 (9th Cir.1982); see also Muhlenberg Township School Dist. Auth. v. Pennsylvania Fortunato Constr. Co., 460 Pa. 260, 265 , 333 A.2d 184, 187 (Pa.1975) (question whether demand for arbitration was timely is for arbitrator and is outside the bounds of the court’s review). We cannot assume that the arbitrator will not fairly decide the issue of the timeliness of the demand.
I would therefore reverse the district court’s entry of the preliminary injunction.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9481133. Public record. Not legal advice.