Chemtob v Il Padrone Constr. II, LLC (2017 NY Slip Op 02964)

Chemtob v Il Padrone Constr. II, LLC

2017 NY Slip Op 02964

Decided on April 19, 2017

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 19, 2017
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

CHERYL E. CHAMBERS, J.P.
L. PRISCILLA HALL
JOSEPH J. MALTESE
VALERIE BRATHWAITE NELSON, JJ.

2015-11032
 (Index No. 500323/15)

[*1]Marc Chemtob, appellant,
vIl Padrone Construction II, LLC, et al., respondents, et al., defendants.

Kordas & Marinis, LLP, Long Island City, NY (Ross Kordas of counsel), for appellant.
Cuomo, LLC, Mineola, NY (Oscar Michelen of counsel), for respondents.

DECISION & ORDER
In an action for specific performance of a contract to purchase two parcels of real property, the plaintiff appeals from an order of the Supreme Court, Kings County (Solomon, J.), dated November 12, 2015, which granted the motion of the defendants Il Padrone Construction II, LLC, Amner, Ltd., and Nessim Tammam for summary judgment dismissing the complaint insofar as asserted against them and cancelling a notice of pendency filed in connection with the two parcels of real property, and denied his cross motion for summary judgment on the complaint and for a judgment declaring that a certain writing is a valid and enforceable contract.
ORDERED that the order is affirmed, with costs.
On December 29, 2014, the plaintiff and the defendant Nessim Tammam signed a writing whereby Tamman, as seller, and the plaintiff, as purchaser, agreed to the sale of two parcels of real property for the purchase price of $20,000,000, with a down payment of $2,000,000. The writing also contained the following notations: "on or about 60 Days Closing," "As is — Condition," "Violations: Subject to Monetary sums to be paid by Seller," "all Cash," and "Seller to pay broker under separate Contract." Thereafter, according to the plaintiff, Tammam attempted to "back out of the agreement" and renegotiate some of the terms. As a result, on January 9, 2015, the plaintiff commenced this action against Tammam and the defendants Il Padrone Construction II, LLC, and Amner, Ltd. (hereinafter collectively the Tammam defendants), among others, seeking specific performance of the writing. The Tammam defendants moved for summary judgment dismissing the complaint insofar as asserted against them and cancelling a notice of pendency filed in connection with the two parcels of real property. The plaintiff cross-moved for summary judgment on the complaint and for a judgment declaring that the writing is a valid and enforceable contract. The Supreme Court granted the defendants' motion and denied the plaintiff's cross motion. The plaintiff appeals.
Contrary to the Tammam defendants' contention, the writing satisfies the statute of frauds, as it identifies the parties to the transaction, describes the properties to be sold with sufficient [*2]particularity, states the purchase price and the down payment required, and is subscribed by the party to be charged (see Simpson v 1147 Dean, LLC, 116 AD3d 835, 836; Triple A Supplies, Inc. v WPA Acquisition Corp., 95 AD3d 1301, 1302; Atai v Dogwood Realty of N.Y., Inc., 24 AD3d 695, 697; 160 Chambers St. Realty Corp. v Register of City of N.Y., 226 AD2d 606).
However, the evidence submitted in support of the Tammam defendants' motion raised triable issues of fact regarding whether there was a meeting of the minds between the plaintiff and Tammam sufficient to give rise to a binding and enforceable contract (see Agosta v Fast Sys. Corp., 136 AD3d 694, 695).
Nonetheless, the Tammam defendants satisfied their prima facie burden of establishing their entitlement to judgment as a matter of law. "Before specific performance of a contract for the sale of real property may be granted, a plaintiff must demonstrate that it substantially performed its contractual obligations and that it is ready, willing, and able to satisfy those obligations not yet performed, regardless of any alleged anticipatory breach by the defendant" (Johnson v Phelan, 281 AD2d 394, 395; see Bowen v Horgan, 259 NY 267; Dixon v Malouf, 70 AD3d 763, 763). "An anticipatory breach by the party from whom specific performance is sought excuses the party seeking specific performance from tendering performance, but not from the requirement that the party seeking specific performance establish that he or she was ready, willing, and able to perform" (Zeitoune v Cohen, 66 AD3d 889, 891; see 3M Holding Corp. v Wagner, 166 AD2d 580).
The evidence submitted by the Tammam defendants in support of their motion established that the plaintiff never demanded performance of the writing on a specific date (see Weiss v Feldbrand, 50 AD3d 673, 674; Decatur [2004] Realty, LLC v Cruz, 30 AD3d 367; Cave v Kollar, 296 AD2d 370), and never tendered the $2,000,000 down payment. In addition, the Tammam defendants made a prima facie showing that the plaintiff was not ready, willing, and able to perform on the writing (see Sutphin Mgt. Corp. v REP 755 Real Estate, LLC, 73 AD3d 738, 741-742; Zeitoune v Cohen, 66 AD3d at 891; ADC Orange, Inc. v Coyote Acres, Inc., 20 AD3d 493, 495, mod 7 NY3d 484; Ferrone v Tupper, 304 AD2d 524). In opposition, the plaintiff failed to raise a triable issue of fact. For the same reasons, the plaintiff failed to meet his prima facie burden on that branch of his cross motion which was for summary judgment on the complaint.
Accordingly, the Supreme Court properly granted the Tammam defendants' motion for summary judgment and properly denied that branch of the plaintiff's cross motion which was for summary judgment on the complaint. Furthermore, inasmuch as the plaintiff did not seek declaratory relief in some form of pleading, that branch of his cross motion which was for a judgment declaring that the subject writing is a valid and enforceable contract was also properly denied (see CPLR 3017; Derfner Mgt. Inc. v Lenhill Realty Corp., 105 AD3d 683; McHugh v Weissman, 46 AD3d 369; Matter of Seplow v Century Operating Co., 56 AD2d 515).
CHAMBERS, J.P., HALL, MALTESE and BRATHWAITE NELSON, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


693 F.Supp.2d 513 (2010)
Marcus C. SEAY, Petitioner,
v.
The UNITED STATES and Bank of America, Respondents.
No. 3:08-mc-159-RJC-DLH.
United States District Court, W.D. North Carolina, Charlotte Division.
February 17, 2010.
*514 Marcus C. Seay, Gastonia, NC, pro se.
James Michael Sullivan, U.S. Attorney's Office, Charlotte, NC, for Respondents.

ORDER
ROBERT J. CONRAD, JR., Chief Judge.
THIS MATTER is before the Court pursuant to petitioner's motion to quash summons (Doc. No. 1) and the government's motion to dismiss (Doc. No. 3) to which petitioner filed a response (Doc. No. 4). The magistrate judge issued a memorandum and recommendation ("M & R"), recommending that the government's motion to dismiss be granted, the petitioner's motion to quash be denied with prejudice, and the administrative summons be enforced. (Doc. No. 6). Petitioner filed objections (Doc. No. 7), the government filed a reply (Doc. No. 8), and the petitioner filed a surreply (Doc. No. 9), which are now ripe for review. For the following reasons, the Court denies petitioner's motion to quash summons and grants the government's motion to dismiss.

I. BACKGROUND
The Internal Revenue Service ("IRS") is conducting an investigation into the collection of federal income tax liabilities of Petitioner Marcus Seay for the years 1999, 2000 and 2002. In connection with the investigation, the IRS issued a summons to Bank of America, seeking the production of records, including statements, deposits, and checks over $500 for certain accounts of petitioner. Bank of America provided notice of the summons to petitioner. In response, Petitioner Seay filed a petition to quash the summons against the government and Bank of America. Upon receiving a copy of the petition to quash, Bank of America did not provide the requested information to the IRS. The government moves to dismiss, or alternatively, summarily deny the petition to quash. The government also requests that the Court enforce the third-party summons issued to Bank of America. The motions are now ripe for review.

II. STANDARD OF REVIEW
The Federal Magistrate Act provides that "a district court shall make a de novo determination of those portions of the report or specific proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1); Camby v. Davis, 718 F.2d 198, 200 (4th Cir.1983). "By contrast, in the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must `only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir.2005) (quoting Fed. R.Civ.P. 72 advisory committee's note).

III. DISCUSSION
Petitioner objects to the government's potential use of the civil summons in a *515 criminal case. Petitioner states that he "has no objection to a court order allowing access to his bank records if the court order limits their use to a civil investigation." (Doc. No. 7 at 2). To support his objection, petitioner relies on United States v. LaSalle National Bank, 437 U.S. 298, 98 S.Ct. 2357, 57 L.Ed.2d 221 (1978). In LaSalle, the Supreme Court held that § 7602 of the Internal Revenue Code did not authorize the issuance of a summons for the purpose of obtaining additional evidence to aid criminal prosecution. Id. at 313-17, 98 S.Ct. 2357.
Section 7602(b) provides that the IRS may issue summonses for "the purpose of inquiring into any offense connected with the administrative or enforcement of the internal revenue laws." 26 U.S.C. § 7602(b). "The requirement that the summons not issue for a solely criminal investigation, LaSalle, 437 U.S. at 313-17, 98 S.Ct. 2357, has been negated by the 1982 amendment to § 7602(b) which allows inquiry into `any offense,' so long as the case has not been turned over to the Justice Department." United States v. G & G Advertising Co., 762 F.2d 632, 634 n. 1 (8th Cir.1985).
In this case, the government attached an affidavit of Marie Maple, a Revenue Officer at the IRS, who stated that [t]here is no `Justice Department referral' as that term is described in 26 U.S.C. § 7602(d), in effect with respect to the taxpayer for the years under investigation. (Doc. No. 3-1 at 4). Therefore, the IRS may issue the summons to inquire into petitioner's criminal and civil offenses.

IV. CONCLUSION
The Court finds no clear error in the remaining recommendations in the M & R and, therefore, adopts the recommendations of the magistrate judge as its own.[1]
IT IS, THEREFORE, ORDERED that:
1. petitioner's motion to quash (Doc. No. 1) is DENIED;
2. the government's motion to dismiss (Doc. No. 3) is GRANTED;
3. the administrative summons dated September 11, 2008, is ENFORCED and Bank of America is compelled to comply with the terms of such administrative summons within 30 days of the Court's Order in this matter; and
4. petitioner's case is DISMISSED.
The Clerk is directed to serve copies of this Order to the parties.
NOTES
[1]  Bank of America was initially named as a respondent in this matter, but in light of the Court's Order, any and all claims against Bank of America are dismissed as moot.


                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                         June 22, 2006
                            FO R TH E TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                         Clerk of Court

    HEALTH GRADES, IN C.,

                Plaintiff-Appellant,

    v.                                                     No. 05-1445
                                                (D.C. No. 04-CV-1465-LTB-PAC)
                                                            (D . Colo.)
    DECATU R M EM OR IAL H OSPITAL,

                Defendant-Appellee.

                             OR D ER AND JUDGM ENT *

Before H E N RY, BR ISC OE, and M U RPH Y, Circuit Judges.

         This appeal challenges a district court order dismissing for lack of personal

jurisdiction and improper venue H ealth G rades, Inc.’s (HGI’s) complaint against

Decatur M emorial Hospital. HGI argues that the district court either (1) erred

because Decatur consented to jurisdiction and venue or (2) abused its discretion

in denying HGI an opportunity to conduct discovery on the jurisdictional issue.

*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
Persuaded by the second alternative, we reverse and remand for further

proceedings.

                                   B ACKGROUND

      HGI, a Colorado corporation, is a “Web-based health information resource

for the distribution of free healthcare provider ratings and information.” A plt.

App. at 18. Visitors to the HGI website encounter HGI’s user agreement and can

access provider ratings only after clicking an “I agree” icon displayed with the

user agreement. Id. at 15. The agreement governs “access to and use of th[e] Site

and the information, materials and other content available on or through th[e]

Site.” Id. at 18. Acceptance of the agreement confers a “license to access and

view th[e] Site and the Site M aterials, and to copy, download, store and/or print a

single copy of any Site M aterials, solely for . . . non-commercial use and not for

resale or distribution to anyone else.” Id. at 19. Additionally, the agreement

specifies that “[a]ny action to enforce this User Agreement will be brought in the

federal or state courts presiding in Denver, Colorado, U.S.A., and both parties

expressly agree to be subject to the jurisdiction of such courts.” Id. at 24.

      Illinois-based Decatur contacted HGI about using its ratings to promote the

hospital. In response, HGI vice-president Nora Sugintas notified Decatur by

email on October 1, 2003, that Decatur was “ranked #1 in the state of Illinois for

orthopedic services.” Id. at 65. Sugintas offered a license to use the rating, as

well as marketing assistance and a quality assessment report, for the price of

                                         -2-
$25,000. She cautioned Decatur that this “information may be utilized only with

a signed and executed HealthGrades agreement.” Id. Decatur declined.

      “In late-2003,” D ecatur posted on its website an article written by its

president, revealing that HGI had ranked Decatur number one in orthopedics and

had requested $25,000 for use of the ranking. Id. at 55, 58. The article criticized

H G I for analyzing performance “in secret ways using secret data,” and stated, “w e

don’t know how [HGI] arrived at their [ranking] conclusion, and I don’t think

paying them $25,000 helps our patients or community in any way.” Id. at 58. In

January 2004, HGI demanded that Decatur remove the article from its website.

After Decatur removed the article, HGI sued for copyright infringement and

breach of contract in July 2004.

      Five months later, on December 3, 2004, a Decatur-affiliated surgeon,

Dr. Ronald M eng, emailed various individuals, proclaiming that

“Healthgrades.com has announced . . . that our cardiac surgery program here at

[D ecatur] is the only 5 star program in central and southern [I]llinois for coronary

bypass surgery!” Id. at 78-79. Dr. M eng “enclosed . . . the [uniform resource

locator] for the announcement,” w hich, with a mouse click, would take the email

recipient to HGI’s user-agreement page. Id. at 79. On December 10, 2004, HGI

amended its complaint to include Dr. M eng’s email as an instance of copyright

infringement and to add a cause of action for trademark infringement.

                                          -3-
      On Decatur’s motion, the district court dismissed HGI’s complaint,

reasoning that it lacked personal jurisdiction because (1) Decatur had not directed

its activities toward Colorado residents; (2) HGI failed to show that Decatur

accepted the user agreement, or that if Decatur employees had accepted the

agreement, that those employees had the authority to bind the corporation; and in

any event (3) exercising jurisdiction over Decatur would offend traditional

notions of fair play and substantial justice. The court acknowledged, but did not

address, HGI’s request to conduct discovery to show Decatur’s acceptance of the

user agreement. The district court also found that HGI’s failure to establish

personal jurisdiction defeated its choice of venue. HGI appeals.

                                    D ISCUSSION

      W e review the district court’s jurisdictional and venue assessments de

novo, Bell Helicopter Textron, Inc. v. Heliqwest Int’l, Ltd., 385 F.3d 1291, 1296

(10th Cir. 2004); Pierce v. Shorty Small's of Branson Inc., 137 F.3d 1190, 1191

(10th Cir. 1998), and its refusal to permit jurisdictional discovery for an abuse of

discretion, Sizova v. Nat’l Inst. of Standards & Tech., 282 F.3d 1320, 1326

(10th Cir. 2002). “W hen, as in this case, a district court grants a motion to

dismiss for lack of personal jurisdiction without conducting an evidentiary

hearing, the plaintiff need only make a prima facie showing of personal

jurisdiction to defeat the motion.” Benton v. Cameco Corp., 375 F.3d 1070, 1074

(10th Cir. 2004) (quotation omitted), cert. denied, 544 U.S. 974 (2005). All

                                         -4-
factual disputes must be resolved in the plaintiff’s favor when determining

whether the plaintiff has met its burden. Id.

       “Consistent with due process, a court may exercise personal jurisdiction

over a nonresident defendant if minimum contacts exist between the defendant

and the forum state such that maintenance of the lawsuit would not offend

traditional notions of fair play and substantial justice.” Doering ex rel. Barrett v.

Copper M ountain, Inc., 259 F.3d 1202, 1210 (10th Cir. 2001) (quotations

omitted). 1 But since the requirement of personal jurisdiction represents an

individual due process right, the “parties to a contract may agree in advance to

submit to the jurisdiction of a given court.” Ins. Corp. of Ireland, Ltd. v.

Compagnie des Bauxites de Guinee, 456 U.S. 694, 704 (1982) (quotation

omitted). HGI does not contest the district court’s ruling that Decatur’s contacts

with Colorado were insufficient to confer jurisdiction. Consequently, our review

is limited to the effect of HGI’s user agreement and its forum-selection

provision. 2

1
      In addition to other locations, venue is appropriate in any judicial district in
which the corporate defendant in an infringement action would be subject to
personal jurisdiction. 28 U.S.C. § 1391(b) & (c); id. § 1400(a).
2
      W here such “provisions have been obtained through freely negotiated
agreements and are not unreasonable and unjust, their enforcement does not
offend due process.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 n.14
(1985) (quotation and citation omitted). Consequently, the district court erred in
considering whether enforcing HGI’s user agreement would offend traditional
notions of fair play and substantial justice. See Dominium Austin Partners, L.L.C.
                                                                      (continued...)

                                          -5-
      HGI argues that it submitted sufficient evidence showing that Decatur is

bound by the user agreement. 3 Specifically, HGI points to the affidavit of its

database administrator, who testified that from September 2001 through

December 2004, someone with the internet protocol (IP) address 207.0.246.194

visited HGI’s website forty-seven times and consented to the terms of the user

agreement. According to the administrator, this address “clearly belongs to

Decatur” because Decatur’s domain name, www.dmhcares.org, translates into the

internet protocol address 207.0.246.195, which is only one digit different from the

visitor’s address. Aplt. App. at 78. Nevertheless, the district court rejected the

administrator’s opinion as conclusory. W e disagree with the district court.

      The administrator was not required to provide a detailed explanation for his

opinion, given that the relationship of the addresses is clear from the numbers

employed. Decatur’s IP address is only one digit different from the address of the

2
 (...continued)
v. Emerson, 248 F.3d 720, 726 (8th Cir. 2001); Christian Science Bd. of Directors
v. Robinson, 123 F. Supp. 2d 965, 972 (W .D.N.C. 2000); Provident M ut. Life Ins.
Co. of Philadelphia v. Bickerstaff, 818 F. Supp. 116, 118 (E.D. Pa. 1993).
3
       Decatur contends H GI “has conceded that the information in the . . . article
[written by Decatur’s president] was obtained directly from [HGI]— not from the
[HGI] web site and that it was obtained free of any constraints of the click-
through User A greement.” A plee. Br. at 11. But Decatur offers no record
citation for such a concession, and HGI disputes the point. M oreover, HGI’s user
agreement protects information “available on or through” the website. Aplt. App.
at 18 (emphasis added). Decatur does not suggest that the rating its president
revealed was not available on the website. Thus, if Decatur accepted the user
agreement, its use of HGI’s rating would appear to be restricted no matter how it
learned of the rating.

                                         -6-
repeat visitor to HGI’s website. Only the actual network computers are different:

194 and 195. Thus, HGI’s database administrator had a sufficient basis on which

to opine that the 194 address belonged to Decatur. W e decline HGI’s invitation,

however, to proceed further and simply “infer that some of the individuals who

accepted the User Agreement from Decatur’s IP address had authority to bind the

company.” Aplt. Br. at 11.

      “An agent can make his principal responsible for his actions if he is acting

pursuant to either actual or apparent authority, regardless of whether the principal

has knowledge of the agent’s conduct.” Willey v. M ayer, 876 P.2d 1260, 1264

(Colo. 1994) (footnote omitted). HGI concedes that “only Decatur and its

employees know who uses the 194 address, and whether those using the 194

address were acting with authority when they agreed to the User Agreement.”

Aplt. Br. at 19. Discovery should be permitted, HGI asserts, to definitively

answ er the jurisdictional issue. W e agree. “W hen a defendant moves to dismiss

for lack of jurisdiction, either party should be allowed discovery on the factual

issues raised by that motion.” Sizova, 282 F.3d at 1326 (quotation omitted).

W hile the district court has broad discretion in determining whether to permit

jurisdictional discovery, a refusal to grant discovery constitutes an abuse of

discretion if either the pertinent jurisdictional facts are controverted or a more

satisfactory showing of the facts is necessary. Id. Here, the district court had

evidence that a D ecatur computer was likely used on numerous occasions to

                                          -7-
accept the H GI agreement and that Decatur’s D r. M eng had accessed HGI’s

website ratings and had invited others to do so. The only jurisdictional

component missing was evidence that these visitors to HGI’s website had

authority to bind Decatur to the user agreement. 4 The district court gave no

explanation for its refusal to allow jurisdictional discovery, and based on the

evidence before it, we can only conclude that the district court abused its

discretion.

      The judgment of the district court is REVERSED, and the case is

REM ANDED for further proceedings consistent with this order and judgment.

                                                    Entered for the Court

                                                    M ary Beck Briscoe
                                                    Circuit Judge

4
       W e note that HGI limits its request for jurisdictional discovery on the
authority issue to actual authority. Thus, HGI’s purported failure to “show that it
relied on any act or representation of Decatur,” A plee. Br. at 11, is not relevant,
because reliance is a requirement for only apparent authority, see Willey, 876 P.2d
at 1264; Rush Creek Solutions, Inc. v. Ute M ountain Ute Tribe, 107 P.3d 402, 407
(Colo. Ct. App. 2004).

                                         -8-


878 A.2d 1247 (2005)
In Re Estate of Anne T. SATO;
William E. Smith, Appellant,
v.
Tanja H. Castro, Successor Personal Representative of the Estate of Anne T. Sato, & Robert J. Pleshaw, Special Master, Appellees.
No. 04-PR-267.
District of Columbia Court of Appeals.
Argued May 17, 2005.
Decided July 21, 2005.
*1248 Roger C. Ohlrich, Washington, DC, for appellant.
Tanja H. Castro, Successor Personal Representative, on behalf of the Estate, with whom Robert J. Pleshaw, Special Master, was on the brief, on behalf of appellee.
Before RUIZ and GLICKMAN, Associate Judges, and KING, Senior Judge.
RUIZ, Associate Judge.
The appellant, former personal representative of his wife's estate, appeals from an order of the trial court requiring him to repay to the estate funds he paid to himself as a creditor without having filed a formal notice of his claim with the Register of Wills. We agree with the trial court's interpretation that the probate statute's notice requirement applies to claims of the personal representative. We remand the case, however, for the trial court's exercise of discretion in determining whether appellant's claim in this case should be disallowed due to the appellant's noncompliance with the formal filing requirements.

*1249 I.
The appellant and the decedent lived together as common law husband and wife for approximately ten years prior to her death. Appellant claims that during their marriage he paid off some of his wife's personal debt in order to secure refinancing on their home, presumably to improve their joint credit rating.[1] The appellant's wife died on October 15, 1997, leaving a properly executed Last Will and Testament that appointed her husband, the appellant, as personal representative.
After the appellant filed a petition in the probate division of the Superior Court, the will was admitted to probate and the appellant was appointed personal representative on March 25, 1998. The appellant hired an attorney to assist him in probating the will. The appellant filed an inventory of the estate, but, either through his own neglect or that of his attorney, he never filed with the probate court any of the required accounts. Various third-party creditors made claims against the estate, which appellant settled by paying a prorated amount because the estate funds were insufficient to pay all the debts in full. These payments included a payment to himself of $34,588, a similarly prorated amount of the debt he claimed against the estate. According to appellant, he provided his attorney with information about all of his wife's outstanding debts, including the debt he claimed. The fact central to this appeal is that appellant did not file with the Register of Wills a formal claim against the estate for the debt he claims is owed to him. While it is unclear whether, without the payment to appellant, the estate funds would have been sufficient to satisfy the third-party claims in full, it is indisputable that the third-party creditors received a lesser payment because of the appellant's payment of his own claim. It is also not clear from the record or from the briefs who the beneficiaries of the will were, but it appears that the decedent's son, at least, was a beneficiary.
Because he failed to file the proper accountings, the probate court issued an order on January 2, 2002 removing the appellant as personal representative and appointing appellee Tanja H. Castro, Esquire as successor representative. On October 16, 2002, upon motion from the successor representative, the trial court appointed appellee Robert J. Pleshaw as special master to supervise the case. After investigation, the successor representative discovered the appellant's payment to himself from the estate funds. The successor representative and the special master both requested the appellant to return those funds to the estate. The appellant did not do so. The special master then filed a report and recommendation with the court on April 18, 2003, recommending that the appellant be required to return the funds in question.
After holding an evidentiary hearing, the trial court issued a written order in which it held that, even though appellant was the personal representative, he was required to file with the Register of Wills a *1250 formal notice of his own claim before he could pay himself from the estate. The court found that because the appellant's failure to do so was not inadvertent, appellant's claim was barred. As a result, the trial court entered judgment against appellant, requiring that he repay the funds he had paid to himself, plus various fees resulting from the appointment of the special master.[2] The appellant filed a timely notice of appeal.[3]

II.
The issue before the court is whether the trial court erred in disallowing appellant's claim against the estate because it was not filed with the Register of Wills. In considering an order or judgment from the probate division where the case was tried to the bench, this court "may review both as to the facts and the law, but the judgment may not be set aside except for errors of law unless it appears that the judgment is plainly wrong or without evidence to support it." D.C.Code § 17-305(a) (2001); see also Drevenak v. Abendschein, 773 A.2d 396, 415 (D.C.2001). This court reviews the trial court's interpretation of a statute de novo. See Cass v. District of Columbia, 829 A.2d 480, 482 (D.C.2003).
The probate statute provides that "all claims against a decedent's estate, whether . . . founded on contract or other legal basis, shall be barred against the estate . . . unless presented within 6 months after the date of the first publication of notice of the appointment of a personal representative. . . ." D.C.Code § 20-903(a)(1). Further, "[a] claimant shall present a claim against a decedent's estate by delivering or mailing, return receipt requested, a written statement of the claim. . .: (1) to the personal representative with a copy to the Register [of Wills]; or (2) to the Register [of Wills] with a copy to the personal representative." D.C.Code § 20-905(a). However, if notice is given to either the personal representative or the Register of Wills, a claim nonetheless "shall be deemed presented" if the failure to notify both was "inadvertent." D.C.Code § 20-905(a)(2). The trial court has discretion to disallow a claim that does not meet the statutory requirements. See D.C.Code § 20-905(c).
Appellant acknowledges that he never filed a formal notice with the Register of Wills of the debt he claims the estate owed him.[4] Nor does he dispute that he paid himself $34,588 from estate funds. Thus, there is no question that appellant did not satisfy the express terms of the probate statute requiring timely notice of the claim to the Register of Wills.
The trial court found no evidence that this failure should be excused as "inadvertent" with the meaning of the statute, see D.C.Code § 20-905(a)(2), which the trial court interpreted as meaning "careless" or resulting from "lack of attention." Specifically, the trial court found that the appellant was familiar with the claim notice process from responding to notices of claims filed by other creditors. The appellant also had a probate attorney *1251 assisting him. Based on these facts, the trial court determined appellant's "failure to file his claim with the Register of Wills to be more akin to a willful or intentional decision than one resulting from a carelessness or lack of attention to the statutory requirement." Appellant does not seriously challenge this finding on appeal, and the record supports that it is not clearly erroneous.
"The primary and general rule of statutory construction is that the intent of the lawmaker is to be found in the language that he [or she] has used." Varela v. Hi-Lo Powered Stirrups, Inc., 424 A.2d 61, 64-65 (D.C.1980) (quoting United States v. Goldenberg, 168 U.S. 95, 102-03, 18 S.Ct. 3, 42 L.Ed. 394 (1897)). The language of the probate statute "plainly indicate[s]," Peoples Drug Stores, Inc. v. District of Columbia, 470 A.2d 751, 753 (D.C.1983) (citing Davis v. United States, 397 A.2d 951, 956 (D.C.1979)), that a creditor must give notice of a claim both to the Register of Wills and to the personal representative within six months of the public notice of the appointment of the personal representative. As the statute requires that all creditors, without exception, provide notice of claims in a timely manner to the Register of Wills, and the appellant's failure to do so was not inadvertent, the trial court did not err in concluding that the appellant did not comply with the statutory notice requirement.
Appellant contends, however, that because he, as the personal representative, knew of his own claim, formal notice to the Register of Wills was not required. The appellant's argument relies on twin premises: (1) the claims of a personal representative should be treated the same as claims by third-party creditors, and (2) the exception to the statutory notice requirement carved out in our case law  that lack of formal notice does not necessarily bar claims where the personal representative had actual and timely notice  applies equally where the claimant is the personal representative. Applying these principles, he contends, the law permitted him to pay his own claim despite lack of formal notice to the Register of Wills. The cases appellant cites to support his argument all deal with personal representatives who, despite having timely, actual notice of claims by third parties, nevertheless refused to pay those claims because of failure to file the claim or some defect in the formal notice. See In re Estate of Monge, 841 A.2d 769, 770 (D.C.2004); In re Estate of Barnes, 754 A.2d 284, 288 (D.C.2000); District of Columbia v. Gantt, 558 A.2d 1120, 1122 (D.C.1989); In re Estate of Phillips, 532 A.2d 654, 654-55 (D.C.1987). Those cases hold that "in administering an estate a personal representative is obliged to consider all valid claims about which he has actual knowledge, even if creditors fail to comply with the statute's enumerated filing formalities." In re Estate of Monge, 841 A.2d at 774. In other words, a personal representative cannot hide behind a procedural defect in the notice in order to avoid paying a legitimate debt of which the personal representative had actual, timely notice, and the trial court abuses its discretion under D.C.Code § 20-905(c) if it disallows such a claim purely for defect of formal notice to the personal representative. See Gantt, 558 A.2d at 1125; In re Estate of Phillips, 532 A.2d at 656. According to appellant, there is therefore no purpose to requiring that the personal representative file with the Register of Wills a claim of which he has actual notice  his own  and which he considers to be payable.
The cases cited by appellant all involved third-party claimants, and did not address the situation in this case, where a personal representative has not filed formal *1252 notice with the Register of Wills of his own claim. The appellant's argument assumes that the only purpose of the notice requirement is to give the personal representative notice of the claim. But notice to the Register of Wills does not simply serve the needs of the personal representative but "has another purpose, one that goes hand in hand with the protection of the executor, and that is the protection of creditors of the estate as well. The docketing of the claim with the Register of Wills . . . provides this protection both for the executor and the claimants." American Sec. & Trust Co. v. Bindeman, 303 A.2d 188, 192 (D.C.1973). The situation presented here, as the trial judge recognized, poses a conflict of interest not present in the case of third-party claims. For this reason, the trial court would "not sanction a statutory reading that would allow a personal representative to deplete the resources of an estate with personal claims without notifying the Court of his dealings." The need to maintain court supervision over claims of the personal representative is evident, and the ability of interested third parties, via notice to the Register of Wills, to contest such claims is an effective way to ensure that there is no unjustified self-dealing. As the trial court observed, allowing the court and third-party creditors to pass on the validity of a personal representative's claims prevents an unscrupulous representative from simply raiding the estate without fear of oversight.[5] Third-party claims are routinely subject to such scrutiny by the personal representative, as well as by other claimants. Thus, we consider that requiring that the personal representative's claims be filed with the Register of Wills accomplishes the equality of treatment appellant contends is a principle of estate administration. We, therefore, agree with the trial court's interpretation that the statutory notice filing requirement applies, with special force, to the claims of personal representatives.
Having so determined, we turn to the trial court's order requiring that appellant return the funds to the estate because his claim was barred. The trial court has discretion to "disallow a claim, in whole or in part, if the claimant fail[ed] to comply" with the formal notice requirements, "or with the personal representative's reasonable requests for additional information." D.C.Code § 20-905(c). The record in this case could support the trial court's exercise of discretion in disallowing the appellant's claim, particularly in light of the appellant's failure to file proper accountings and the additional effort required to correct this failure. But there could be countervailing reasons for not doing so. If the trial court were to find that appellant dealt fairly with the third-party claimants and that his own claim was valid  issues not decided by the trial court  denial of his claim might be purely punitive, as it came at a point in the proceeding when the conflict of interest had been cured by the appointment of a successor personal representative and special master. Based on our reading of the trial court's order, however, we cannot conclude that it disallowed the appellant's claim in an exercise of discretion, rather than as a perceived legal mandate.[6]See Johnson v. United States, *1253 398 A.2d 354, 363 (D.C.1979) ("Failure to exercise choice in a situation calling for choice is an abuse of discretion  whether the cause is ignorance of the right to exercise choice or mere intransigence  because it assumes the existence of a rule that admits of but one answer to the question presented.")
We, therefore, remand the case to the trial court for further proceedings to consider whether the appellant's claim should be disallowed because of non-compliance with the statutory filing requirement. If the trial court determines not to disallow the claim on this basis, it should proceed to decide whether the claim is valid and, if so, the amount that should be paid thereon.
Remanded.
NOTES
[1]  There is some discrepancy regarding the amount the appellant claims he was owed. The special master found the amount to be $61,887. In his brief, the appellant claims the amount was $51,887, a difference of $10,000. The trial court had only the appellant's oral representations that this debt existed, as the appellant has no documentation showing that he and his wife agreed that she would repay him these funds. Appellant did submit, however, certain bank statements and cancelled checks that, he claims, evidence the debt. Because the trial court ruled that the claim was barred as against the estate for failure to file timely notice, it did not determine whether there was such a debt, and if so, in what amount.
[2]  The trial court ordered appellant to pay $5,580.65 for fees and costs associated with the special master. Appellant does not challenge this aspect of the trial court's order, and we do not address it.
[3]  The appellant's insurer, St. Paul Surety Co., filed a statement saying that, while neither an appellant nor an appellee in this case, it is "an interested party in this Appeal who supports the position of the Appellant. . . ."
[4]  Appellant testified at the hearing that "he did not file [a formal claim] with the Register of Wills . . . . But he did file one with his attorney, not the formal claim for, but a statement of what was owed."
[5]  We do not mean to imply that the personal representative in this case did not have a valid claim, or that he did not act in good faith. That issue is not before us. See supra note 1.
[6]  In its order, the court stated that "[b]ased on [its] reading of the statute, the only potential exemption from the requirement to notify the Register of Wills is when the claimant's failure to do so is the result of inadvertence." (Emphasis added.) While we take no issue with the trial court's interpretation that the personal representative's claim must be filed with the Register of Wills as required by the statute, as discussed in the text, the ultimate sanction of disallowance of a claim does not follow automatically from noncompliance, but is entrusted to the discretion of the trial judge.


J-S14023-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
                   Appellee              :
                                         :
              v.                         :
                                         :
 MICHAEL ANTHONY SALVAGGI, SR.           :
                                         :
                   Appellant             :        No. 2704 EDA 2019

               Appeal from the Order Entered August 21, 2019
               In the Court of Common Pleas of Lehigh County
            Criminal Division at No(s): CP-39-CR-0004813-2007

BEFORE: BOWES, J., KING, J., and FORD ELLIOTT, P.J.E.

JUDGMENT ORDER BY KING, J.:                          FILED APRIL 14, 2020

      Appellant, Michael Anthony Salvaggi, Sr., appeals pro se from the order

entered in the Lehigh County Court of Common Pleas, which dismissed his

“motion for sentence modification,” which the court treated as an untimely

petition under the Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§

9541-9546. On February 11, 2008, Appellant pled guilty to identity theft. The

court sentenced Appellant on April 7, 2008, to 8½ months to five years’

imprisonment, consecutive to any other sentence Appellant was serving.

Appellant did not file post-sentence motions or a direct appeal.

      On February 6, 2019, Appellant filed the current pro se “motion for

sentence modification.” The court treated the filing as a PCRA petition and

appointed counsel, who filed a petition to withdraw on May 1, 2019, and “no-

merit” letter per Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927
J-S14023-20

(1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en

banc).   On May 10, 2019, the court issued notice per Pa.R.Crim.P. 907.

Appellant filed a premature notice of appeal on May 21, 2019, which this Court

quashed. On August 21, 2019, the court dismissed the petition as untimely

and let counsel withdraw. Appellant timely filed a pro se notice of appeal on

September 6, 2019. On September 17, 2019, the court ordered Appellant to

file a Pa.R.A.P. 1925(b) concise statement; Appellant timely complied.

      Preliminarily, a PCRA petitioner must be currently serving a sentence of

imprisonment, probation or parole for the conviction at issue to be eligible for

PCRA relief.   42 Pa.C.S.A. § 9543(a)(1)(i).     See also Commonwealth v.

Williams, 977 A.2d 1174 (Pa.Super. 2009), appeal denied, 605 Pa. 700, 990

A.2d 730 (2010) (explaining that once sentence is completed, petitioner is

ineligible for PCRA relief).    As well, the timeliness of a PCRA petition is a

jurisdictional requisite.      Commonwealth v. Robinson, 12 A.3d 477

(Pa.Super. 2011). A PCRA petition must be filed within one year of the date

the underlying judgment becomes final.         42 Pa.C.S.A. § 9545(b)(1).     A

judgment is “final” at the conclusion of direct review or at the expiration of

time for seeking review. 42 Pa.C.S.A. § 9545(b)(3). The statutory exceptions

to the timeliness provisions in the PCRA allow for limited circumstances under

which the late filing of a petition will be excused; a petitioner asserting an

exception must file a petition within the required statutory window. See 42

Pa.C.S.A. § 9545(b)(1-2).

                                       -2-
J-S14023-20

       Instantly, the court sentenced Appellant on April 7, 2008, to 8½ months

to five years’ imprisonment, consecutive to any other sentence Appellant was

serving.    The record suggests Appellant was serving another sentence in

Clarion County of 14 months to five years’ imprisonment.          Nothing in the

record indicates that Appellant is still serving a sentence for the conviction

at issue.      Thus, to the extent that Appellant’s sentencing claims are

cognizable under the PCRA,1 Appellant appears to be ineligible for PCRA relief.

See 42 Pa.C.S.A. § 9543(a)(1)(i); Williams, supra. Additionally, Appellant’s

judgment of sentence became final on May 7, 2008, upon expiration of the

time to file a direct appeal. See Pa.R.A.P. 903(a) (explaining notice of appeal

shall be filed within 30 days). Appellant filed the current petition on February

6, 2019, which is patently untimely.             See 42 Pa.C.S.A. § 9545(b)(1).

Appellant did not invoke any exception to the time-bar in his PCRA petition.2

Therefore, Appellant is not entitled to PCRA relief.

       Further, to the extent Appellant complains that he is still incarcerated

due to a State Board of Probation and Parole (“Board”) detainer and/or a

____________________________________________

1 Appellant’s “brief” fails to include, inter alia, the requisite statement of
questions and omits citations to relevant authority to support his “argument.”
See Pa.R.A.P. 2111(a) (discussing required content of appellate briefs). As a
result, the precise nature of his sentencing claims is not entirely clear.

2 Appellant cited the “governmental interference” exception, at Section
9545(b)(1)(i), for the first time in his Rule 1925(b) statement, which
constitutes waiver of that claim on appeal.        See Commonwealth v.
Washington, 592 Pa. 698, 927 A.2d 586 (2007) (explaining general rule that
any claim not raised in PCRA petition is waived on appeal).

                                           -3-
J-S14023-20

miscomputation of his sentence, that claim is not properly before us. See 61

Pa.C.S.A. § 6132(a)(1)(i) (stating Board shall have exclusive power to parole

and reparole, commit and recommit for violations of parole and to discharge

from parole all persons sentenced by any court at any time to imprisonment

in correctional institution); Commonwealth v. Heredia, 97 A.3d 392

(Pa.Super. 2014), appeal denied, 628 Pa. 637, 104 A.3d 524 (2014) (stating

challenge to Department of Corrections’ computation or construction of

sentence is not cognizable under PCRA; appropriate vehicle for redress is

original action in Commonwealth Court). For these reasons, we affirm.

     Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/14/20

                                    -4-


648 So.2d 166 (1994)
Darrel CUMMINGS, Appellant,
v.
STATE of Florida, Appellee.
No. 93-1987.
District Court of Appeal of Florida, Fourth District.
November 16, 1994.
Rehearing Denied February 2, 1995.
Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Michelle A. Konig, Asst. Atty. Gen., West Palm Beach, for appellee.
GLICKSTEIN, Judge.
We reverse appellant's conviction for murder in the second degree and remand for new trial.
Although appellant has raised six issues directed at his conviction,[1] only one compels reversal; namely, the trial court's erroneous instruction to the jury on excusable homicide.[2]
As we read pages 61 and 62 of Florida Standard Jury Instructions in Criminal Cases, 1992, which are taken verbatim from appendix pages 10 and 11 to the supreme court's opinion in Standard Jury Instructions  Criminal Cases No. 92-1, 603 So.2d 1175 (Fla. 1992), the "Note to Judges" requires that both pages of the Introduction to Homicide be read, the note saying "Read in all murder and manslaughter cases." These pages read in part:

EXCUSABLE HOMICIDE
The killing of a human being is excusable, and therefore lawful, under any one of the following three circumstances:

*167 1. When the killing is committed by accident and misfortune in doing any lawful act by lawful means with usual ordinary caution and without any unlawful intent, or
2. When the killing occurs by accident or misfortune in the heat of passion, upon any sudden and sufficient provocation, or
3. When the killing is committed by accident and misfortune resulting from a sudden combat, if a dangerous weapon is not used and the killing is not done in a cruel or unusual manner.
"Dangerous weapon" is any weapon that, taking into account the manner in which it is used, is likely to produce death or great bodily harm.
Id. at 1176-77.[3]
The supreme court's opinion, sub silentio, renders obsolete this court's holding in Spector v. State, 593 So.2d 565 (Fla. 4th DCA 1992), decided six months prior to the above decision of the supreme court. There is no question in our mind that the facts here do not constitute sudden combat, which explains the defense's objection to paragraph 3 being given. However, the trial court had no choice but to give the instruction in its entirety.
The harmful error occurred in this case just prior to the jury's retirement to consider its verdict, when the trial court felt obliged to re-read the instruction on excusable homicide.
THE COURT: Folks, I am going to send you back to the jury room in just a few minutes.
I am going to send you back with a copy of the recorded instructions; I will send you back additionally with the verdict form, and I will send you back with a copy of the Information.
Now, the attorneys have pointed out at one point in the instructions when I was giving the preliminary instruction on excusable homicide I had inadvertently at the very end of that instruction substituted the word justified rather than excused.
And so that there is no misunderstanding, let me read the particular instruction where I substituted the word justified for excused and do it correctly this time.
I have  You will note when you play the tape if you play the tape that I have just taped over justified and changed the word from justified to excused. It's fairly obvious on the tape. We just did that up at side bar.
The instruction should read the killing of a human being is excusable and therefore lawful under any one of the following three circumstances.
Number one: The killing was committed by accident and misfortune in doing any lawful act by lawful means with usual ordinary caution and without any unlawful intent, or when the killing occurred by accident or misfortune in the heat of passion upon any sudden and sufficient provocation or when the killing is done or when the killing is committed by accident and misfortune resulting from a sudden combat.
However, if a dangerous weapon is used or the killing is done in a cruel or unusual manner it is not excusable.
A dangerous weapon is any weapon that taking into account the manner in which it is used is likely to produce death or great bodily harm.
This instruction is misleading because the qualification as to the use of a dangerous weapon does not mention sudden combat, and easily could be construed by the jury as meaning that a killing committed under any of the three circumstances could not be excused when a dangerous weapon was used. This instruction was highlighted by the fact that it was given as a correction just prior to the jury retiring to consider its verdict.
*168 Appellee argues there was no evidence that this homicide occurred by accident or misfortune; therefore, any error committed by the trial court when giving the instruction would be harmless. We disagree.
In manslaughter cases, the failure to instruct the jury on justifiable or excusable homicide is reversible error. See Armstrong v. State, 579 So.2d 734 (Fla. 1991). Here, the jury was given an opportunity to find appellant guilty of the lesser included offense of manslaughter. Accordingly, the trial court was required to give the instruction for excusable homicide. The trial court had the responsibility to fully and correctly instruct the jury on the applicable law. Foster v. State, 603 So.2d 1312 (Fla. 1st DCA 1992), rev. denied, 613 So.2d 4 (Fla. 1993). It failed to do so.
PARIENTE, J., and KROLL, KATHLEEN J., Associate Judge, concur.
NOTES
[1]  Appellant is correct that there was a sentencing error, but we conclude it to be harmless, the explanation of which is unnecessary for this opinion in light of our reversal of the conviction.
[2]  While not harmful error because of the procedural posture when the issue belatedly arose, the taped confession must be further redacted on retrial for the two references to appellant's past criminal behavior.
[3]  Prior to 1992, the instructions enabled the trial court to select paragraphs 1, 2 or 3  as applicable. See State v. Smith, 573 So.2d 306 (Fla. 1990).

Since 1992, the supreme court has further amended the instruction to change paragraph 2 to read "accident and misfortune," which paragraph previously read "accident or misfortune." See Standard Jury Instructions in Criminal Cases (94-1), 639 So.2d 602 (Fla. 1994).


245 B.R. 342 (2000)
In re SLIPPED DISC INC., dba Disc Go Round, Debtor.
Slipped Disc Inc., dba Disc Go Round, Plaintiff,
v.
CD Warehouse Inc., Defendant.
Bankruptcy No. 98-02914-C. Adversary No. 99-9212-C.
United States Bankruptcy Court, N.D. Iowa.
February 14, 2000.

*343 ORDER RE DEFENDANT'S MOTION TO STAY PROCEEDINGS AND COMPEL ARBITRATION
PAUL J. KILBURG, Chief Judge.
This matter came before the undersigned on February 9, 2000 on Defendant CD Warehouse, Inc.'s Motion to Stay Proceedings and Compel Arbitration. Plaintiff/Debtor Slipped Disc, Inc. was represented by Attorney Lew Eells. Creditor/Defendant CD Warehouse, Inc. was represented by Attorney Joseph E. Schmall. After oral argument, the Court took the matter under advisement. The time for filing briefs has now passed and this matter is ready for resolution.

STATEMENT OF THE CASE
Debtor initiated an adversary proceeding to recover a claim for breach of contract against Defendant. Specifically, Debtor alleges that Defendant violated the terms of an exclusive franchise agreement. Debtor argues that this is a core proceeding under 28 U.S.C. § 157(b)(2)(C) and as such is not suitable for arbitration.
Defendant has filed a Motion to Stay Proceedings and Compel Arbitration, arguing that any controversy or claim arising out of or relating to the franchise contract must be settled by arbitration pursuant to the terms of the contract. (Pl.s' Ex. BB *344 Sec. 18.10.) Defendant argues that the strong federal policy favoring arbitration does not conflict with the policies of the Bankruptcy Code, and that the arbitration agreement should be enforced.

FINDINGS OF FACT
Debtor originally entered into a franchise agreement with CDX Audio Development Inc. to operate a retail compact disc store called CD Exchange. (Pl.'s Compl. ¶ 2.) Over time, CDX was purchased by Grow Biz International (GBI) which changed the franchise name from CD Exchange to Disc Go Round. (Pl.'s Compl. ¶ 19.) Defendant eventually purchased all Disc Go Round franchises from GBI, including Debtor's Disc Go Round franchise. (Def.'s Mem. in Supp. of Mot. at 3.)
Debtor enjoyed exclusive franchise rights under its original agreement with CDX Audio Development. (Pl.'s Ex. BB at Ex. A to Franchise Agreement.) According to Debtor, Defendant violated these rights when, after assuming the contractual responsibilities contained in the franchise agreements, it granted a Defendant franchise to Music Broker, Ltd. within Debtor's exclusive franchise territory.
The contract granting Debtor these exclusive franchise rights also contained an arbitration clause which provided that any claim or controversy arising out of or relating to the franchise agreement would be resolved through arbitration, and that arbitration was the sole and exclusive procedure for dispute resolution. (Pl.'s Ex. BB Sec. 18.12)

ARBITRATION
The arbitrability of contracts involving interstate commerce is governed by federal law rather than state law. Lee v. Chica, 983 F.2d 883, 886 (8th Cir.1993). Contracts containing written arbitration agreements are governed by the Federal Arbitration Act, which provides that such agreements "shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. § 2. The Act further provides that federal courts faced with an issue referable to arbitration "shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement." 9 U.S.C. § 3. The Supreme Court has interpreted this language as mandatory, absent a showing by the party opposing arbitration that a waiver of judicial remedies would inherently conflict with the underlying purposes of some other statute, such as the Bankruptcy Code. Shearson/American Exp. v. McMahon, 482 U.S. 220, 226-27, 107 S.Ct. 2332, 96 L.Ed.2d 185 (1987); Rodriguez de Quijas v. Shearson/American Express, 490 U.S. 477, 483, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989).
Several policies of the Bankruptcy Code conflict with the strong federal policy favoring arbitration. One is the principle favoring resolution of bankruptcy claims in one single forum. In re Trident Shipworks, Inc., 243 B.R. 130, 132 (Bankr. M.D.Fla.1999). Discouraging proliferation of litigation in non-bankruptcy forums encourages expeditious administration of the estate for the benefit of all parties involved. In re Knepp, 229 B.R. 821, 844-45 (Bankr.N.D.Ala.1999). Additionally, the costs of arbitration might negatively affect the administration of the estate since monies used to pay for arbitration will mean less money to fund the plan and pay creditors. Id. at 843, 845.
If conflicts exist between the Bankruptcy Code and the Federal Arbitration Act, mandatory enforcement of arbitration agreements becomes discretionary in bankruptcy. See Id. at 845; In re Chas. P. Young Co., 111 B.R. 410, 416-17 (Bankr.S.D.N.Y.1990); Trident Shipworks, 243 B.R. at 134. A bankruptcy court must weigh the competing policies of each statute in order to determine whether any underlying purpose of the Bankruptcy Code would be adversely affected by enforcing an arbitration clause. Hays and *345 Co. v. Merrill Lynch, Pierce, Fenner, & Smith, Inc., 885 F.2d 1149, 1161 (3d Cir. 1989). If not, the arbitration clause should be enforced. Id.

DISTINGUISHING "CORE" FROM "NON-CORE" PROCEEDINGS
Enforcement of arbitration clauses is appropriate in disputes involving non-core bankruptcy issues, since such proceedings do not significantly implicate the provisions and policies of the Bankruptcy Code. In re Pisgah Contractors, Inc., 215 B.R. 679, 684 (W.D.N.C.1995). Debtor argues that the present adversary proceeding is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(C) because it constitutes a counterclaim by the estate against a creditor. Debtor further argues that this fact mitigates against enforcement of the arbitration clause.
While the present adversary proceeding is indeed a core proceeding under § 157(b)(2)(C), it is not a core proceeding in the same manner as that term is used in cases dealing with enforcement of arbitration clauses. A distinction exists between core proceedings as defined in § 157 and core proceedings as defined in case law dealing with the enforcement of arbitration clauses. Where the issues to be arbitrated do not implicate the right to bankruptcy, the right to a discharge, or some other substantive right created in the Bankruptcy Code, the issues are non-core and suitable for arbitration, even if they arise in a § 157(b) core proceeding. See In re Gurga, 176 B.R. 196, 196, 199 (9th Cir. BAP 1994). Conversely, where the issues to be arbitrated involve exclusively bankruptcy matters, such as the determination of claim priority, such issues should not be submitted to arbitration because they are core bankruptcy matters. In re Guild Music Corp., 100 B.R. 624, 628 (Bankr. D.R.I.1989). Actions involving issues that "[do] not implicate the provisions and policies of the Code to such an extent that arbitration would interfere with the same," such as breach of contract actions, are non-core proceedings suitable for arbitration. Pisgah Contractors, Inc., 215 B.R. at 684. The Eighth Circuit's definitions of core and non-core proceedings outside of the arbitration context are in agreement with this analysis. A core proceeding is one which arises only in bankruptcy or involves a right created by federal bankruptcy law. Specialty Mills, Inc. v. Citizens State Bank, 51 F.3d 770, 773 (8th Cir.1995). A non-core proceeding is one that could exist outside of bankruptcy, although it may be related to a bankruptcy. Id. at 773-74. Debtor's adversary proceeding against Defendant could exist independently of this bankruptcy proceeding.
Close reading of a case relied upon by Debtor in its Memorandum of Points and Authorities reveals the core versus non-core distinction in the arbitration context. In Gurga, as in the present case, the debtor initiated an adversary proceeding against a creditor for breach of contract. Gurga, 176 B.R. at 196. That action was a core proceeding as defined by 28 U.S.C. § 157(b)(2)(C) (counterclaim by the estate against a creditor), yet the Bankruptcy Appellate Panel held that the underlying breach of contract action was actually non-core for purposes of resolving the arbitration issue. Id. at 199. Citing Hays and Co., the court ordered arbitration, concluding that nothing inherent in the Bankruptcy Code excluded breach of contract claims from arbitration. Id. at 200; See also In re Chorus Data Systems, 122 B.R. 845, 854 (Bankr.D.N.H.1990) (granting creditor relief from automatic stay to compel arbitration of breach of contract claim brought by debtor). Because Debtor's claim against Defendant arises out of a franchise contract and does not implicate substantive rights created exclusively by federal bankruptcy law, this is a proceeding suitable for arbitration. Id.; Guild Music Corp., 100 B.R. at 628; Gurga, 176 B.R. at 199.

COURT'S DISCRETION TO COMPEL ARBITRATION
Four factors are considered when deciding whether to compel arbitration: *346 (1) Whether the issue can be resolved more expeditiously by the bankruptcy judge as opposed to through the arbitration process; (2) Whether or not special expertise is necessary in deciding the issue; (3) The impact on creditors of the debtor who were never parties to the agreement containing the arbitration clause; (4) Whether arbitration threatens assets of the estate. Chas P. Young Co., 111 B.R. at 417. Because Debtor opposes lifting the automatic stay in order for arbitration to proceed, it bears the burden of showing why arbitration should not be granted. 11 U.S.C. § 362(g); See Chorus Data Systems, 122 B.R. at 852.
Beyond its argument that the present adversary proceeding is actually a core proceeding under 28 U.S.C. § 157(b)(2)(C), Debtor offers few reasons in support of its contention that "A bankruptcy judge in Iowa is preferable to decide Plaintiff's counterclaims to the claims of Defendant, Inc. than an arbitrator in Wisconsin as stated in the franchise agreement." (Pl.'s Mem. at 6). At oral argument, Debtor appealed to the equitable powers of the bankruptcy court, arguing that fairness called for resolution of Debtor's claims in the bankruptcy forum. Debtor also noted that the costs of arbitration may ultimately be born by the debtor's estate.
Fairness, like beauty, is often in the eye of the beholder. Denying enforcement of a freely bargained-for arbitration clause may be considered equally unfair to Defendant. As the parties noted, litigating the breach of contract issue in bankruptcy could lead to an award of punitive damages, providing Debtor with a right not allowed under the arbitration agreement and negotiated away when the contract was executed. The result is that failure to enforce arbitration changes the terms of the contract. The Eighth Circuit has rejected fairness arguments when passing upon the enforceability of arbitration clauses. See, e.g., Matter of Hart Ski Mfg. Co., Inc., 22 B.R. 763, 765 (D.Minn.1982), aff'd, 711 F.2d 845 (8th Cir.1983) (enforcing arbitration clause; rejecting argument that doing so could result in financial disadvantage or inconvenience to the debtor). Finally, while a bifurcation of proceedings may or may not be less efficient, this argument cannot overcome the strong policy favoring arbitration. See Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 217, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985).

SUMMARY AND CONCLUSION
The Supreme Court has made clear that federal policy under the Federal Arbitration Act mandates enforcement of valid private arbitration agreements. Only when allowing arbitration would undermine an inherent policy of the Bankruptcy Code should arbitration agreements be set aside. Bankruptcy courts have widely endorsed this principle.
When exercising discretion in enforcing arbitration agreements, the trend is to compel arbitration in non-core matters. The distinction between core and non-core matters in the arbitration context is different than in the context of 28 U.S.C. § 157(b). In the arbitration context, non-core matters are those that do not involve issues of law unique to bankruptcy or substantive rights created exclusively by the Bankruptcy Code.
The present adversary proceeding does not implicate any substantive bankruptcy rights; it is a breach of contract action. Such matters can be handled competently by arbitrators. Enforcing pre-petition arbitration agreements with respect to non-core matters gives effect to the policies of the Arbitration Act without significantly undermining those of the Bankruptcy Code.
WHEREFORE, Defendant's Motion to Stay Proceedings and Compel Arbitration is GRANTED.
FURTHER, the parties shall submit a joint status report concerning the arbitration *347 proceedings not later than May 31, 2000.


990 A.2d 726 (2010)
COM.
v.
ADDISON.[2]
No. 657 MAL (2009).
Supreme Court of Pennsylvania.
March 9, 2010.
Disposition of Petition for Allowance of Appeal Denied.
NOTES
[2]  Justice ORIE MELVIN did not participate in the consideration or decision of this matter.


52 F.3d 316
Jacquelyn B. N'Jaiv.Mary Ellen McBride
NO. 94-3362
United States Court of Appeals,Third Circuit.
Mar 03, 1995

Appeal From:  W.D.Pa., No. 94-cv-00072
Diamond, J.

1
AFFIRMED.


                                                      PUBLISH

         IN THE UNITED STATES COURT OF APPEALS
                FOR THE ELEVENTH CIRCUIT
                     ________________       FILED
                                                 U.S. COURT OF APPEALS
                          No. 97-6767              ELEVENTH CIRCUIT
                                                        08/12/98
                       _________________
                                                    THOMAS K. KAHN
                                                         CLERK
             D.C. Docket No. CV-96-T-1747-N-MHT

TRANSOUTH FINANCIAL
CORPORATION; ASSOCIATES
FINANCIAL SERVICES
COMPANY, INC. ET AL.,
                                                    Plaintiffs-Counter-
                                                Defendants-Appellants-
                                                       Cross-Appellee.

                              versus

RONALD A. BELL,
                                                    Defendant-Counter-
                                                    Claimant-Appellee-
                                                      Cross-Appellant.

                    _____________________

           Appeals from the United States District Court
               for the Middle District of Alabama
                   ______________________
                       (August 12, 1998)
Before CARNES and HULL, Circuit Judges, and HENDERSON, Senior
Circuit Judge.

CARNES, Circuit Judge:

     Appellants TranSouth Financial Corp. (“TranSouth”), Associates

Financial Life Insurance Company (“AFLIC”), Associates Insurance

Company (“AIC”), and Associates Financial Services Company, Inc

(“AFSC”), appeal the district court’s order dismissing their complaint,

which sought to compel appellee Ronald Bell to arbitrate his claims against

them, and denying their request for a stay of the concurrent state court

action Bell had instituted against them. The dismissal was based upon the

district court’s conclusion that, in the interest of comity and federalism, it

should abstain from exercising its jurisdiction over the case in favor of the

concurrent state court proceeding.

     We agree with the appellants that the district court abused its

discretion by abstaining from exercising its jurisdiction over the complaint,

but we agree with Bell that the Federal Anti-Injunction Act, 28 U.S.C. §

2283, prohibited the district court from enjoining the concurrent state court

                                      1
proceedings. Accordingly, we reverse the district court’s order insofar as

it dismissed TranSouth’s complaint, but we affirm the district court’s order

insofar as it declined to enjoin the concurrent state court proceedings.

                           I. BACKGROUND

     Bell took out loans with TranSouth on four separate occasions. Bell

alleges that TranSouth, through its agents, Jay Conner and Carl Knight, told

him that he would be able to get these loans only if he purchased credit life

insurance through appellant Associates Financial Life. Bell also contends

that the cost of this life insurance was added to his loans without his

consent.

     On September 17, 1996, Bell and TranSouth entered into an

agreement to refinance the last of Bell’s loans. That agreement included

an arbitration clause under which they agreed to arbitrate:

           without limitation, all claims and disputes arising
           out of, in connection with, or relating to:
                 - your loan from us today;
                 - any previous loan from us and any previous
                 retail installment sales contract or loan
                       assigned to us;

                                     2
                - all the documents relating to this or any
                previous loan or retail installment sale
           contract;
                ....
                - any claim or dispute based on an allegation
           of fraud or misrepresentation;
                - any claim or dispute based on a federal or
                state statute; and
                - any claim or dispute based on an alleged tort.

The arbitration clause also provided that Bell and TranSouth would

arbitrate any disputes between Bell and any of TranSouth’s affiliates,

employees, or agents.

     On October 4, 1996, Bell filed a lawsuit in Alabama state court

against TranSouth, AFLIC, AIC, and AFSC, as well as Jay Conner, S.J.

Conner Auto Sales, and Carl Knight, whom Bell alleges acted as agents for

TranSouth. The complaint alleged several claims of fraud and

misrepresentation arising out of the loan transactions and the life insurance

that Bell alleges he was forced into purchasing.

     Appellants filed this action on November 25, 1996, seeking an order

from the district court compelling Bell to arbitrate his claims and an order

staying the state court proceedings. Bell filed his answer on December 30,

                                     3
1996. In it, he admitted signing the arbitration agreement but pled several

defenses, including fraud in the inducement. On January 21, 1997, Bell

amended his answer to include a counterclaim alleging fraud by the

appellants in procuring the arbitration agreement. On February 14, 1997,

Bell filed a motion to dismiss the complaint, contending that the district

court should refrain from exercising its jurisdiction under principles of

comity and abstention.

     By order dated August 25, 1997, the district court granted Bell’s

motion and dismissed the complaint without prejudice, holding that it

would abstain from exercising its jurisdiction under the doctrine of

Colorado River Water Conservation Dist. v. United States, 424 U.S. 800,

96 S. Ct. 1236 (1976). The appellants filed a timely appeal from that

decision. Bell then filed a timely cross-appeal from the district court’s

dismissal of his fraud claim and his demand for a jury trial on the validity

of the arbitration agreement. In addition to their appeal to this Court, the

appellants filed a motion to compel arbitration in the state court on

September 3, 1997.

                                     4
                    II. STANDARD OF REVIEW

     We review for abuse of discretion a district court’s dismissal on

Colorado River abstention grounds. See American Bankers Ins. Co. of Fla.

v. First State Ins. Co., 891 F.2d 882, 884 (11th Cir. 1990). We review

de novo a district court’s determination that the Federal Anti-Injunction

Act, 28 U.S.C. § 2283, prevents it from enjoining a state proceeding. See

Peterson v. BMI Refractories, 124 F.3d 1386, 1390 (11th Cir. 1997).

                            III. ANALYSIS

A.   DID THE DISTRICT COURT ABUSE ITS DISCRETION BY
     DISMISSING TRANSOUTH’S PETITION TO COMPEL
     ARBITRATION?

     The district court dismissed the appellants’ complaint pursuant to the

abstention doctrine that the Supreme Court announced in Colorado River

Water Conservation Dist. v. United States, 424 U.S. 800, 96 S. Ct. 1236

(1976), which allows a federal court to dismiss a case when a concurrent

state proceeding provides a more appropriate forum. As modified by the

Supreme Court in Moses H. Cone Memorial Hospital v. Mercury Constr.

Co., 460 U.S. 1, 103 S. Ct. 927 (1983), the Colorado River doctrine

                                    5
requires federal courts to consider six factors in determining whether

abstention in favor of a concurrent state proceeding is appropriate: (1) the

order in which the courts assumed jurisdiction over property; (2) the

relative inconvenience of the fora; (3) the order in which jurisdiction was

obtained and the relative progress of the two actions; (4) the desire to avoid

piecemeal litigation; (5) whether federal law provides the rule of decision;

and (6) whether the state court will adequately protect the rights of all

parties. See id. at 16-26, 103 S. Ct. at 937-42. The Supreme Court

indicated that these criteria could not be applied according to a rigid

formula; no one factor is dispositive. See id. However, a federal court

considering abstention must weigh these factors with a heavy bias in favor

of exercising jurisdiction, see id. at 16, 103 S. Ct. at 937, since federal

courts have a “virtually unflagging obligation” to exercise jurisdiction

where it exists. Colorado River, 424 U.S. at 817, 96 S. Ct. at 1246.

     In a recent Colorado River abstention decision, we applied the Moses

H. Cone factors to a scenario materially indistinguishable from this case.

In First Franklin Fin. Corp. v. McCollum, 144 F.3d 1362 (11th Cir. 1998),

                                      6
the federal court defendant, Gary McCollum, filed a state court action

against First Franklin and one of its employees, alleging several fraud-

related claims. Shortly thereafter, First Franklin filed concurrent state and

federal court petitions seeking to compel McCollum to arbitrate his claims.

The district court relied on Colorado River abstention to dismiss the federal

court petition, reasoning that concerns of comity and federalism warranted

deferral to the previous state court action brought by McCollum. See First

Franklin, 144 F.3d at 1363.

     We vacated and remanded, holding that several of the Moses H. Cone

factors weighed in favor of exercising federal jurisdiction. First, we noted

that the “piecemeal litigation” factor did not weigh against exercising

jurisdiction because no piecemeal litigation would ensue with regard to the

arbitrability of the dispute, the only question before the federal court. In

addition, we pointed out that any piecemeal litigation that might result from

a decision on arbitrability would be the result of the parties’ voluntary

actions and the strong federal policy favoring arbitration. See id. at 1364.

     Second, we noted in First Franklin that priority of jurisdiction and the

                                      7
timing and progress of the concurrent suits weighed against abstention. As

discussed in Moses H. Cone, this factor requires the court to consider not

only the chronological order in which the parties initiated the concurrent

proceedings, but the progress of the proceedings and whether the party

availing itself of the federal forum should have acted earlier. See Moses H.

Cone, 430 U.S. at 21-22, 103 S. Ct. at 939-40. First Franklin had filed its

suit at nearly the earliest opportunity, shortly after McCollum indicated his

refusal to arbitrate by filing his state court lawsuit. Furthermore, the state

court had not ruled on First Franklin’s motion to compel arbitration at the

time the district court decided to abstain from exercising jurisdiction. As

a result, there had been no progress in the state court to weigh in favor of

federal court deferral. See id. at 1364-65. Therefore, we concluded that the

relative timing and progress of the concurrent proceedings in First Franklin

did not weigh in favor of abstention.

     Third, we noted in First Franklin that the law of decision weighed

against abstention, since the Federal Arbitration Act, 9 U.S.C. §§ 3-4

governs motions to compel arbitration. We reasoned that resolution of the

                                      8
underlying dispute being governed by federal law is a factor that strongly

suggests a federal court should exercise its jurisdiction. See id. at 1365.

The final factor that we deemed to be relevant was the availability of

complete relief in the state forum. We recognized that the state court’s

ability to eventually grant complete relief weighed slightly in favor of

abstention.   See id.      However, that one factor was insufficient to

counterbalance the other considerations. In sum, we concluded in First

Franklin that the factors not favoring abstention -- avoiding piecemeal

litigation, progress of the concurrent proceedings, and the federal nature of

the relevant law -- coupled with the absence of any factor weighing

strongly in favor of abstention required us to conclude that the district court

abused its discretion by abstaining. See id.

      This case is not materially different from First Franklin. Both cases

involve parallel state and federal proceedings. In both cases, the state court

plaintiff filed his complaint first, alleging several fraud-related claims, and

soon thereafter one or more of the defendants in the state court action filed

motions to compel arbitration in both state and federal court. In both cases,

                                      9
the district court decided to abstain from exercising its jurisdiction, even

though the state court had not issued a ruling on the arbitrability issue.

Given these similarities, the same Moses H. Cone factors that this Court

applied in First Franklin weigh against abstention here as well. As we said

in First Franklin, “this case is so close to Moses H. Cone, and the factors

weigh sufficiently against abstention, that the district court abused its

discretion in abstaining.” Id.

       The district court in this case did not have the benefit of the First

Franklin decision when it ruled. We are confident that if it had, the court

would not have abstained. In light of First Franklin, we must vacate the

district court’s order of dismissal on abstention grounds, and remand this

case to the district court for a decision on the appellants’ motion to compel

Bell to arbitrate his claims against them.1

       1
         Our decision in Old Republic Union Ins. Co. v. Tillis Trucking Co., 124 F.3d 1258 (11th
Cir. 1997), does not conflict with our analysis here. In Old Republic, we affirmed a district court’s
refusal on Younger abstention grounds to entertain a declaratory judgment action where there was
a concurrent state action. The federal plaintiff sought to have the federal court pass on the
constitutionality of Alabama’s wrongful death statute. See id. at 1261. We found that Younger
abstention was appropriate because “important state interests [were] involved,” and those interests
favored allowing the Alabama state courts to pass on the validity of state law. Id. We also found
that abstention in that case was supported by the fact that the federal action was brought under the
Declaratory Judgment Act, which “confer[s] on federal courts unique and substantial discretion in

                                                 10
B.     DID THE DISTRICT COURT PROPERLY DENY THE
       APPELLANTS’ MOTION FOR A STAY OF THE STATE COURT
       PROCEEDINGS?

       Appellants also contend that the district court should have entered an

order staying the state court proceedings pending the outcome of their

federal suit seeking to compel arbitration. In denying their request for a

stay, the district court relied on the prohibitions of the Federal Anti-

Injunction Act, 28 U.S.C. § 2283.

       The Federal Anti-Injunction Act prohibits a federal court from

enjoining a state court proceeding except in three narrowly defined

circumstances: (1) where there is an express congressional authorization

to enjoin state proceedings; (2) where an injunction is necessary to protect

a judgment that a federal court has rendered; and (3) where an injunction

deciding whether to declare the rights of litigants.” Id. at 1260 (citing Wilson v. Seven Falls Co.,
515 U.S. 277, 286-87 (1995)).

        The present case, by contrast, is not a declaratory judgment action. Instead, these appellants
seek to enforce federal arbitration rights created by a federal statute, the FAA. As a result, no
compelling state interest exists in having the state courts, instead of the federal courts, decide this
case. Moses H. Cone indicates that, in arbitration cases, federal courts have a “virtually unflagging
obligation . . . to exercise the jurisdiction given them.” Moses H. Cone, 460 U.S. at 15, 103 S. Ct.
at 937. That Old Republic implicated Younger abstention, while this case involves Colorado River
abstention underscores the differences that distinguish Old Republic from the present case.

                                                  11
is necessary to aid the federal court’s jurisdiction over an action. See 28

U.S.C. § 2283. Those exceptions are to be narrowly construed. See, e.g.,

Atlantic Coast Line Ry. Co. v. Brotherhood of Locomotive Eng’rs, 398

U.S. 281, 287, 90 S. Ct. 1739, 1743 (1970).

      The appellants contend that this case falls within the third exception,

namely, that an injunction is necessary “in aid of [the court’s] jurisdiction.”

Citing Vendo Co. v. Lektro-Vend Corp., 433 U.S. 623, 641-42, 97 S. Ct.

2881, 2893 (1977)(plurality opinion of Rehnquist, J.), the district court held

to the contrary, because it believed the “aid of jurisdiction” exception

applies exclusively to in rem proceedings. In Vendo Co., then-Justice

Rehnquist’s plurality opinion stated that the “aid of jurisdiction” exception

was intended to apply to in rem proceedings, and not to interfere with the

balance of concurrent jurisdiction in personam actions. See id. However,

that opinion did not command a majority of the Court, and Justice

Blackmun’s concurrence, joined by one other justice, does not adopt that

position. See id. at 643, 97 S. Ct. at 2893-94 (Blackmun, J., concurring in

the result). We are not obligated to follow the plurality opinion in Vendo

                                      12
Co., because plurality opinions of the Supreme Court do not bind this

Court. See, e.g., United States v. Stewart, 65 F.3d 918, 924 (11th Cir.

1995), cert. denied, 516 U.S. 1134, 116 S. Ct. 958 (1996).

      We are obligated to follow a prior decision of this Court, see Bonner

v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), and we

do have a decision holding that the “aid of jurisdiction” exception can be

applied to in personam actions when necessary to protect a federal court’s

jurisdiction over a case. See Peterson v. BMI Refractories, 124 F.3d 1386,

1395 (11th Cir. 1997) (holding that “aid of jurisdiction” exception to anti-

injunction act could be invoked to stay state court proceedings where the

case had been removed from state court). The district court did not have

the benefit of the Peterson decision when it issued its order in this case, but

that decision is now law of the circuit.

      That the “aid of jurisdiction” exception applies to some in personam

actions, however, does not necessarily mean that it applies to this case. In

Peterson, we held that a stay of the state court proceedings was appropriate

because the civil rights action initiated in the state court had been removed

                                      13
to federal court on diversity grounds, depriving the state court of

jurisdiction over the matter. See Peterson, 124 F.3d at 1395. In the present

case, jurisdiction is proper in both courts. When there are concurrent

jurisdiction state and federal proceedings arising out of the same

transaction or occurrence, ordinarily neither forum should interfere with the

other’s exercise of jurisdiction.      See Atlantic Coast Line R.R. v.

Brotherhood of Locomotive Eng’rs, 398 U.S. 281, 295, 90 S. Ct. 1739,

1747 (1970) (“In short, the state and federal courts had concurrent

jurisdiction in this case, and neither court was free to prevent either party

from simultaneously pursuing claims in both courts.”). The “aid of

jurisdiction” exception applies only when an injunction is “necessary to

prevent a state court from so interfering with a federal court’s consideration

or disposition of a case as to seriously impair the federal court’s flexibility

and authority to decide that case.” Id.

      In support of their position that the “aid of jurisdiction” exception

applies here, appellants note that district courts have granted an injunction

staying state court proceedings under this exception after determining that

                                      14
the underlying dispute was arbitrable. See, e.g., Pervel Indus. v. TM

Wallcovering, Inc., 675 F. Supp. 867 (S.D.N.Y. 1987), aff’d 871 F.2d 7 (2d

Cir. 1989). In Pervel, the district court found that the “aid of jurisdiction”

exception allowed it to stay parallel state court proceedings after granting

an order compelling arbitration. See id. at 870.

     In the present case, however, no court has found the underlying

dispute arbitrable and compelled the parties to arbitrate their claims. That

distinction may be an important one, because when a federal district court

grants a motion to compel arbitration it retains jurisdiction to confirm or

vacate the resulting arbitration award under 9 U.S.C. §§ 9-10. When a

federal court has ordered arbitration, a stay of the state court action may be

necessary to insure that the federal court has the opportunity to pass on the

validity of the arbitration award. In this case, however, that concern simply

does not exist because the district court has not yet ruled on the motion to

compel arbitration. Cf. Amalgamated Clothing Workers of America v.

Richman Bros., 348 U.S. 511, 515-16, 75 S. Ct. 452, 455 (1955) (Anti-

                                     15
Injunction Act exceptions do not apply merely because state court action

involves legal area preempted by federal law).

       If the district court orders arbitration, a stay of the state court

proceedings might be appropriate at that point because continued state

proceedings could jeopardize the federal court’s ability to pass on the

validity of the arbitration proceeding it has ordered.2 However, we need

not decide that question because the premised condition, an order

compelling arbitration, does not exist now.                          Therefore, the “aid of

jurisdiction” exception to the Anti-injunction Act is inapplicable at present.

See Lou v. Belzberg, 834 F.2d 730, 740 (9th Cir. 1987) (“The mere

existence of a parallel action in state court does not rise to the level of

interference with federal jurisdiction necessary to permit injunctive relief

under the ‘necessary in aid of’ exception.”). Accordingly, we hold that no

exception to the Anti-Injunction Act is applicable to this case and affirm

       2
        If the district court grants appellants’ motion to compel arbitration, and the appellants renew
their motion for a stay of the state court proceedings, the district court can reconsider that motion
then.

                                                  16
the district court’s denial of TranSouth’s motion for a stay of the parallel

state court proceedings in this case.

C.   SHOULD THE DISTRICT COURT HAVE DISMISSED BELL’S
     CROSS-APPEAL?

     In his cross-appeal, Bell claims that the district court should not have

dismissed his jury demand on the arbitrability issue and the separate fraud

claim contained in his counterclaim. The district court dismissed Bell’s

counterclaim when it dismissed the entire case. Because we have held the

district court should not have dismissed the case on abstention grounds, the

entire case is to be remanded to the district court. Bell’s contention about

his jury demand and fraud claim are premature insofar as this Court is

concerned. The district court is free to reconsider these matters on remand.

                          IV. CONCLUSION

     For the reasons stated above, the district court’s order granting Bell’s

motion to dismiss is VACATED, but its denial of TranSouth’s motion for

                                        17
a stay of the state court proceedings is AFFIRMED.      The case is

REMANDED for further proceedings consistent with this opinion.

                                 18


772 F.2d 906
Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.JAMES EVANS, PETITIONER,v.MICHAEL COAL COMPANY AND OLD REPUBLIC COMPANIES; DIRECTOR,OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITEDSTATES DEPARTMENT OF LABOR; BENEFITSREVIEW BOARD, RESPONDENTS.
NO. 84-3740
United States Court of Appeals, Sixth Circuit.
8/30/85

PETITIONS FOR REVIEW GRANTED AND REMANDED
Ben.Rev.Bd., Dept. of Labor
BEFORE:  MARTIN, JONES, AND WELLFORD, CIRCUIT JUDGES.
PER CURIAM.

1
Petitioners seek review of the Benefits Review Board's determination that their respective appeals were untimely filed.  An administrative law judge's decision is effective on the day it is issued and served on the parties.  At the expiration of the thirtieth day after a decision of an administrative law judge is filed, it becomes final and cannot be appealed to the Benefits Review Board.  33 U.S.C. 921(a), as incorporated by 30 U.S.C. 932(a).  Blevins v. Director, OWCP, 683 F.2d 139 (6th Cir. 1982).  However, a decision and order is not considered to have been 'filed,' does not become 'effective,' and the time within which an appeal must be taken does not commence, until the order is issued and served on the parties by certified mail in accordance with applicable provisions of the statute and regulations.  The orders in these cases cannot be considered to have been 'filed' and 'effective' for purposes of taking an appeal until they were served.  See Youghiogheny & Ohio Coal Col. v. Benefits Review Board, 745 F.2d 380 (6th Cir. 1984).  Because the appeals were filed within thirty days of service, the appeals were timely.  Accordingly, the petitions for review are granted and the causes are REMANDED to the Benefits Review Board for reinstatement of the appeals.