Pellman Electric v. Parrott Construction ( 2017 )

J-A20017-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
PELLMAN ELECTRIC, INC. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
PARROT CONSTRUCTION CORP.
Appellant No. 1365 WDA 2015
Appeal from the Order Entered August 6, 2015
In the Court of Common Pleas of Allegheny County
Civil Division at No: GD 10 002006
BEFORE: BOWES, J., STABILE, J., and MUSMANNO, J.
MEMORANDUM BY STABILE, J.: FILED FEBRUARY 9, 2017
Appellant, Parrot Construction Corp. (“Parrot”), appeals from the
August 6, 2015 order of the Court of Common Pleas of Allegheny County
(“trial court”) granting Pellman Electric, Inc.’s (“Pellman”) motion to enter
judgment on arbitration award. Upon review, we affirm.
The action arises from a construction subcontract entered into by
Parrot and Pellman. On February 1, 2010, Pellman filed a complaint alleging
three counts of breach of contract against Parrot. On April 20, 2010, Parrot
filed an answer, new matter, and counterclaim asserting breach of contract
and defamation claims. Following multiple discovery motions and motions to
continue trial, the trial court granted a motion to stay on October 23, 2012
after the parties had agreed to private arbitration.
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On August 5, 2014, the trial court appointed either John Lippl, Esquire,
and/or John Perkins, Esquire, as arbitrator for the private arbitration. On
April 2, 2015, the parties entered an arbitration agreement which appointed
John Perkins, Esquire, as the arbitrator. An arbitration hearing was held on
April 16, 2015, and on May 12, 2015, the arbitrator issued an award of
$53,369.74 to Pellman. Subsequently, Pellman filed a motion to enter
judgment on August 6, 2015. That same date, the trial court granted the
motion noting that Parrot failed to file a petition to vacate or modify the
arbitration award within thirty days. Parrot filed a motion for
reconsideration on September 3, 2015. The following day Parrot filed a
notice of appeal. The trial court did not direct Parrot to file a concise
statement of errors complained of on appeal; however, the trial court
entered an opinion on December 1, 2015, noting that it did not have
jurisdiction over the motion for reconsideration as Parrot had filed a notice of
appeal.
Parrot raises two issues on appeal,1 which we quote verbatim.
I. Whether [the trial court] erred when it granted Pellman’s
Motion for Entry of Judgment on Arbitration Award despite
Parrot’s timely attempt to exercise their appellate rights in
accordance with the American Arbitration Association (“AAA”)
rules governing the arbitration between the parties[.]
a. Whether the arbitration agreement contemplated appellate
arbitration[.]
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1
Parrot’s first issue contains two subparts.
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b. Whether [Parrot] timely filed for appellate arbitration[.]
II. Whether the [trial court] erred when it held that the
arbitration decision constituted a final award subject to
confirmation under 42 Pa.C.S.[A.] § 7342[.]
Appellant’s Brief at 8.
Parrot’s first issue is an issue of contract interpretation, specifically,
whether the arbitration agreement entered into by the parties includes
appellate arbitration.
In Pennsylvania, there are two types of arbitration, statutory
arbitration and common law arbitration. Snyder v. Cress, 791 A.2d 1198
1200 (Pa. Super. 2002). In the matter sub judice, the arbitration
agreement contains the following language: “[t]he Arbitrator shall conduct
the hearing in the manner that he deems reasonable and appropriate. The
arbitrator will require witnesses to testify under oath. The Arbitration will be
conducted in accordance with the Arbitration Rules of American Arbitration
Association.” Motion to Enter Judgment on Arbitration Award, 8/6/2015, at
Ex. C. As the arbitration agreement does not specify that the Uniform
Arbitration Act2 applies and does state the AAA rules apply, the matter arises
under common law arbitration. See also Runewicz v. Keystone
Insurance Company, 383 A.2d 189, 191 (Pa. 1978) (an arbitration
agreement that provided the rules of the American Arbitration Association
apply is a common law arbitration).
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2
73 Pa.C.S.A. §§ 7301-7320.
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The Appellant’s argument is that the parties had agreed to use the
AAA rules, including the section titled “Optional Appellate Rules.” These
rules provide
[w]henever, by stipulation or in their contract, the parties
have provided for the appeal of an arbitration award
(“Underlying Award”) rendered under the auspices of the
American Arbitration Association (AAA), or the Internal
Centre for Dispute Resolution (ICDR), or have otherwise
provided for these Appellate Arbitration Rules, they shall
be deemed to have made these Rules, as amended and in
effect as of the date of the submission of the appeal, a
part of their agreement.
AAA Optional Appellate Rule A-1 pg 51. Parrot’s argument is fatally flawed
as the agreement does not state that the optional appellate rules applied.
Without such an agreement, the optional rules clearly do not apply.
Moreover, the title of the AAA optional appellate rules clearly suggests these
appellate rules do not automatically apply and must be elected by the
parties. Parrot’s first claim fails.
Parrot’s second claim is that the trial court erred, when it entered the
order confirming the arbitrator’s decision and to enter judgment, because
the arbitration appeal was not final. A common law arbitration award “is
binding and may not be vacated or modified unless it is clearly shown that a
party was denied a hearing or that fraud, misconduct, corruption or other
irregularity caused the rendition of an unjust, inequitable or unconscionable
award.” 42 Pa.C.S.A. § 7341. “Two features of common law arbitrations are
that the award is binding and that any appeal therefrom to the Court of
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Common Pleas must be made within 30 days of the award.” Snyder, 791
A.2d at 1201. As we previously determined that the AAA optional appellate
rules did not apply to the instant action, and Parrot failed to file a petition to
modify or vacate the arbitration award within 30 days, the arbitration was
final and the trial court properly entered judgment upon Pellman’s motion.
Parrot’s second claim fails.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/9/2017
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