CHARLENE UHRMANN, ETC. VS. COLLEN LABOW (L-0706-19, MORRIS COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0932-19T3
CHARLENE UHRMANN,
an individual residing in
Mt. Olive Township, New Jersey,
Plaintiff-Appellant,
v.
COLLEN LABOW,
LISA LASHWAY,1
DAVID SCAPICCHIO, THE
TOWNSHIP OF MOUNT OLIVE, 2
and THE TOWNSHIP OF MOUNT
OLIVE COUNCIL,3
Defendants-Respondents.
_______________________________
Submitted November 12, 2020 – Decided December 22, 2020
Before Judges Fuentes, Rose, and Firko.
1
Improperly pled as Lisa Laswhay.
2
Improperly omitted.
3
Improperly pled as The Township of Mount Olive Council and Mayor.
On appeal from the Superior Court of New Jersey, Law
Division, Morris County, Docket No. L-0706-19.
Charlene Uhrmann, appellant pro se.
Methfessel & Werbel, attorneys for respondents (Eric
L. Harrison, on the brief).
PER CURIAM
Plaintiff Charlene Uhrmann appeals pro se from the August 2, 2019 Law
Division order denying her motion to vacate an arbitration award and request
for a declaratory judgment, and granting the motion of defendants Collen
Labow, Lisa Lashway, David Scapicchio, the Township of Mount Olive
(Township) and the Township of Mount Olive Council (Township Council) to
dismiss her complaint. 4 Plaintiff primarily argues the motion judge erred by
refusing to find the arbitrator failed to disclose a potential conflict of interest
and exceeded the scope of his authority. Plaintiff further claims the award was
procured by fraud, corruption and undue means. We disagree and affirm.
4
Plaintiff's "complaint" was not provided on appeal. It appears, however, that
defendants treated her request for a declaratory judgment, which is styled
similarly to a pleading, as a complaint.
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I.
The underlying facts and lengthy procedural history are well known to the
parties and accurately summarized in the motion judge's comprehensive written
statement of reasons. We highlight only those facts that are pertinent to our
analysis.
The genesis of the parties' disputes is the October 11, 2013 settlement
agreement that resolved two Law Division actions filed by plaintiff in 2011
against: (1) the Township, Labow and Lashway; and (2) Labow, Lashway,
Scapicchio and the Township Council. Plaintiff apparently alleged violations
of the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, and her civil
rights stemming from allegedly disparaging remarks that were posted on the
Township's website.5 Both matters were assigned to the same judge, who is now
retired.
Pursuant to the terms of the October 11, 2013 settlement agreement,
plaintiff primarily agreed to dismiss both lawsuits and forgo: filing OPRA
requests; attending Township Council meetings; and communicating with
defendants, subject to some exceptions. In exchange, defendants agreed, among
other things, to compensate plaintiff $150,000; remove certain links from the
5
Plaintiff's 2011 complaints were not provided on appeal.
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Township's website; remove the highlighting of plaintiff's name from certain
OPRA logs; and destroy certain documents that referenced plaintiff and her
family members. The parties mutually consented "not to disparage the other or
use surrogates to do the same."
In 2018, plaintiff, through counsel, served a demand for arbitration on
defendants, alleging multiple breaches of the settlement agreement. Plaintiff
claimed defendants requested Township employees to create certifications and
documents, breached confidentiality, and disparaged plaintiff. Defendants
asserted a counterclaim against plaintiff, alleging she breached the settlement
agreement by attending a Township Council meeting. Pursuant to the terms of
the settlement agreement, the parties attempted to agree upon an arbitrator to
resolve their disputes. When those efforts failed, the court appointed an
arbitrator. The parties did not object to that appointment.
Following an extensive document exchange, plaintiff subpoenaed various
Township employees to testify at the hearing. The arbitrator granted, in part,
defendants' motion to quash the subpoenas. As the motion judge noted:
"Plaintiff's then counsel did not formally object to or seek reconsideration of
this ruling." The arbitrator also denied plaintiff's motion to compel additional
discovery from defendants. Instead, the arbitrator required defense counsel to
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certify that "the Township produced all written communications by and between
[T]ownship officials relevant to each parties' breach of contract claims."
The arbitrator conducted a two-day hearing, which included the testimony
of plaintiff and two defense witnesses. The hearing was not transcribed or
otherwise recorded. On December 3, 2018, the arbitrator issued a thirty -one-
page written decision, finding neither party violated the agreement. Notably,
one-third of the arbitrator's decision detailed plaintiff's testimony.
In her ensuing motion to vacate the arbitration award, plaintiff primarily
argued the award was "procured by fraud, corruption, or other undue means."
In that regard, plaintiff contended defendants "intentionally destroyed evidence
relevant to the litigation"; the arbitrator "demonstrated partiality and misconduct
by failing to disclose his relationship with [the retired judge]" who now is
employed at the same law firm as the arbitrator; and the arbitrator refused to
consider relevant material evidence, which prejudiced her rights.
In his cogent statement of reasons, the motion judge rejected plaintiff's
arguments, finding they were unsupported by the voluminous record. In doing
so, the judge squarely addressed all issues raised in view of the governing legal
principles. Recognizing his limited role under the New Jersey Uniform
Arbitration Act (Act), N.J.S.A. 2A:23B-1 to -32, the judge analyzed the
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statutory criteria for vacating the award under subsection 23(a), in light of the
arbitrator's duties under section 12, and found plaintiff failed to meet her burden .
The judge also found the award did not violate a clear mandate of public policy.
This appeal followed.
On appeal, plaintiff raises the following points for our consideration:
POINT I
THE ARBITRATION AWARD IN THIS CASE
SHOULD BE VACATED BECAUSE THE
ARBITRATOR FAILED TO DISCLOSE A
POTENTIAL CONFLICT OF INTEREST.
[A]. The Arbitrator Was Obligated to Disclose His
Relationship With [the Retired Judge].
[B]. The Court Erred When Providing Testimony.
POINT II
THE FORUM LACKED A MEETING OF THE
MINDS.
POINT III
THE ARBITRATOR EXCEEDED HIS AUTHORITY
DECIDING THE CASE . . . By Denying Discovery
Which Was Permitted Under The New Jersey Rules of
Evidence.
POINT IV
THE ARBITRATOR EXCEEDED HIS AUTHORITY
. . . By Adding Language to an Existing Contract to
Benefit the Offending Party.
POINT V
THE TRIAL COURT ERRED BY NOT FINDING
THAT THE AWARD WAS PROCURED BY
CORRUPTION, FRAUD, OR UNDUE MEANS.
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[A]. False Swearing of . . . Scott Gaskill.
[B]. False Swearing of Jill Daggon.
[C]. Intentional Omission Of Evidence and Testimony
Constitutes As Corruption, Fraud Or Other Undue
Means.
[D]. Intentional Concealment of Destruction of
Documents and Fraudulent Inducement Constitutes
corruption and fraud.
[E]. The Destruction of Evidence Violated N.J.S.A.
47:3-29.
POINT VI
EVIDENT PARTIALITY CONTROLLED THE
PROCEEDINGS.
II.
Well-established principles guide our analysis. "[T]the scope of review
of an arbitration award is narrow." Minkowitz v. Israeli, 433 N.J. Super. 111,
136 (App. Div. 2013) (citation omitted). Our Supreme Court has held
"[a]rbitration can attain its goal of providing final, speedy and inexpensive
settlement of disputes only if judicial interference with the process is minimized;
it is, after all, 'meant to be a substitute for and not a springboard for litigation.'"
Barcon Assocs., Inc. v. Tri-County Asphalt Corp., 86 N.J. 179, 187 (1981)
(quoting Korshalla v. Liberty Mut. Ins. Co., 154 N.J. Super. 235, 240 (Law Div.
1977)).
With that goal in mind, "[a]rbitration should spell litigation's conclusion ,
rather than its beginning . . . ." Borough of E. Rutherford v. E. Rutherford PBA
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Local 275, 213 N.J. 190, 201 (2013) (quoting N.J. Tpk. Auth. v. Local 196,
I.F.P.T.E., 190 N.J. 283, 292 (2007)). Indeed, "[t]he public policy of this State
favors arbitration as a means of settling disputes that otherwise would be
litigated in a court." Badiali v. N.J. Mfrs. Ins. Grp., 220 N.J. 544, 556 (2015).
In sum, arbitrators are granted broad powers to decide issues of fact and
law, and their decisions "are given collateral estoppel effect by reviewing
courts." Barcon, 86 N.J. at 187 (citation omitted). As a result, "courts grant
arbitration awards considerable deference." E. Rutherford PBA Local 275, 213
N.J. at 201. Because a trial court's decision to affirm or vacate an arbitration
award is a decision of law, however, our review is de novo. Minkowitz, 433
N.J. Super. at 136.
As the motion judge recognized, the Act provides limited circumstances
under which courts may vacate, modify, or correct arbitration agreements. See
Tretina Printing, Inc. v. Fitzpatrick & Assocs., Inc., 135 N.J. 349, 358 (1994).
Those circumstances include: (1) "the award was procured by corruption, fraud,
or other undue means"; (2) the arbitrator was partial or corrupt, or committed
misconduct thereby prejudicing the parties' rights; (3) the arbitrator refused to
postpone the hearing when there was sufficient cause to do so, failed to consider
material evidence, or otherwise inappropriately conducted the hearing so as to
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prejudice the rights of the parties; (4) the arbitrator exceeded his or her powers;
(5) "there was no agreement to arbitrate"; or (6) the arbitration was conducted
without sufficient notice, substantially prejudicing the rights of the parties. See
N.J.S.A. 2A:23B-23(a).
A court may also modify or correct an award if (1) there was an evident
mathematical mistake; (2) the arbitrator made an award on a claim not submitted
to arbitration; or (3) "the award is imperfect in a matter of form not affecting the
merits of the decision . . . ." N.J.S.A. 2A:23B-24(a). Generally, a court may
only confirm, vacate, modify, or correct arbitration awards on the grou nds
provided in the statute. See N.J.S.A. 2A:23B-20 to - 24.
In "rare circumstances," however, a court may overturn an arbitration
decision if it is against public policy. N.J. Tpk. Auth., 190 N.J. at 294. The
"public policy sufficient to vacate an award must be embodied in legislative
enactments, administrative regulations, or legal precedents, rather than based on
amorphous considerations of the common weal." Borough of Glassboro v.
Fraternal Order of Police, Lodge No. 108, 197 N.J. 1, 10 (2008) (citation
omitted).
Against that legal backdrop, we turn to plaintiff's contentions raised on
this appeal. Subsumed within plaintiff's points and subpoints are a litany of
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issues impugning the arbitrator's impartiality and his decision. In essence,
plaintiff seeks to relitigate the claims raised at the arbitration hearing, during
which she was afforded a full opportunity to present testimony and argument
before the arbitrator. Having conducted a review of the extensive record, we
conclude plaintiff has failed to establish any of the statutory grounds to vacate
the award.
We therefore conclude plaintiff's appeal lacks merit and affirm
substantially for the reasons articulated by the motion judge in his
comprehensive statement of reasons. We add only the following remarks as to
the issues raised in point I.
Plaintiff cites our Supreme Court's decision in Barcon to support her
assertion that the motion judge erred by failing to vacate the award based on an
appearance of impropriety. In that regard, plaintiff posits that because the
arbitrator and the retired judge were "employed by the same law firm" they
"enjoyed a personal and financial relationship" that was "never disclosed to
[her]." Plaintiff further argues that by finding this issue was not raised b efore
the arbitrator, the motion judge improperly shifted the burden to her,
"constitut[ing] reversible error." We disagree.
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In Barcon, the Court affirmed a trial court order that vacated an arbitration
award rendered by a tri-partite panel because a panel member's business dealings
with a party to the arbitration constituted "evident partiality" under N.J.S.A.
2A:24-8(b), the predecessor of N.J.S.A. 2A:23B-23(a)(2).6 86 N.J. at 182-83.
The Court explained arbitrators are required to "avoid . . . actual partiality" and
"the appearance of partiality." Id. at 189 (citation omitted). The Court found
evident partiality was established because the panel member "was engaged in
business dealings with and was owed substantial sums by" a party to the
arbitration, and the Court concluded the "relationship create[d] too great an
appearance of partiality to be permitted." Id. at 191.
In reaching its decision, the Court quoted with approval the trial court's
finding that "the law simply cannot allow any judicially enforceable arbitration
proceeding to be anything other than an impartial proceeding which has
appropriate appearances of impartiality." Id. at 191 (quoting Barcon Assocs.,
Inc. v. Tri-County Asphalt Corp., 160 N.J. Super. 559, 570-71 (Law Div. 1978)).
Consistent with that standard, the Court established the requirement that an
arbitrator disclose "any relationship or transaction that he has had with the
6
Effective January 1, 2003, N.J.S.A. 2A:24-1 to -11 was amended and codified
at N.J.S.A. 2A:23B-1 to -32. See L. 2003, c. 95, §§ 3(a) and 31.
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parties or their representatives as well as any other fact which would suggest to
a reasonable person that the arbitrator is interested in the outcome of the
arbitration or which might reasonably support an inference of partiality." Id. at
192.
Importantly, however, the Court in Barcon did not adopt what plaintiff
characterizes as "perceived conflict" as the benchmark for determining if an
arbitration award should be vacated under the statute then in effect. Instead, the
Court relied on the statute's plain language requiring vacation of an award on a
showing of "evident partiality." N.J.S.A. 2A:24-8(b). For example, the Court
explained a party-appointed arbitrator that "approach[es] the arbitration
proceeding with . . . sympathy for the position of the party designating him"
does not possess evident partiality requiring vacation of an award under the
statute, as long as the arbitrator "remain[s] faithful to the obligation which rests
upon him to maintain 'broad public confidence in the integrity and fairness of
the [arbitration] process.'" 86 N.J. at 190 (third alteration in original) (citation
omitted).
Accordingly, what might be viewed as an appearance of impropriety does
not by itself establish the evident partiality requiring vacation of an arbitration
award under N.J.S.A. 2A:24-8(b). Ibid. Further, we have held "[t]he mere fact
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that a party-designated arbitrator discloses a prior relationship with the party
will not necessarily disqualify the arbitrator." Arista Mktg. Assocs., Inc. v. Peer
Grp., Inc., 316 N.J. Super. 517, 532 (App. Div. 1998) (citing Barcon, 86 N.J. at
194).
In the present matter, plaintiff sought vacation of the arbitration award
under N.J.S.A. 2A:23B-23(a)(2), which was adopted following the Court's
decision in Barcon, but which incorporates the evident partiality standard as a
basis for vacating an arbitration award. L. 2003, c. 95, § 23; see also Del Piano
v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 372 N.J. Super. 503, 505 n.1,
(App. Div. 2004). A determination concerning "evident partiality can be
decided only on the facts of each case." Barcon, 86 N.J. at 191.
The record supports the motion judge's determination that plaintiff failed
to sustain her burden of establishing evident partiality of the arbitrator requiring
vacation of the arbitrator's award under N.J.S.A. 2A:23B-23(a)(2). Plaintiff's
evident partiality claim is based on her unsupported premise that the arbitrator
and the retired judge necessarily discussed the matter because they were both
"employed by" the same firm. That premise is undermined by the motion judge's
finding that the certification of plaintiff's arbitration counsel "ma[d]e no mention
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of whether the [a]rbitrator commented on having either a professional or friendly
relationship with [the retired judge]."
Moreover, as the motion judge recognized, the retired judge "was not an
arbitrator for any part of this litigation." See N.J.S.A. 2A:23B-12(a)(2)
(requiring the arbitrator to disclose "an existing or past relationship with any of
the parties . . . their counsel or representatives, a witness or other arbitrators ").
Noting the retired judge had no interest in the litigation and his rulings from the
2011 litigation that was settled in 2013 "were not at issue given that the
underlying matter was settled," the motion judge further found the arbitrator had
no duty to disclose that he worked at the same firm with the retired judge . See
N.J.S.A. 2A:23B-12(a)(2(b) (requiring an arbitrator to disclose "any facts" that
"a reasonable person would consider likely to affect the impartiality of the
arbitrator").
Finally, we agree with the motion judge's conclusion that plaintiff "failed
to present any facts or evidence that suggests the [a]rbitrator's place of
employment would somehow affect his impartiality." See N.J.S.A. 2A:23B-
12(a)(2(e) (providing, in pertinent part, an arbitrator's failure to disclose a
"known, direct and material interest in the outcome of the arbitration proceeding
. . . is presumed to act with evident partiality . . . "). Because plaintiff failed to
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establish either the actual partiality or appearance of partiality required to satisfy
the Barcon standard for evident partiality, the motion judge correctly determined
plaintiff did not satisfy her burden for vacating the arbitration award.
Any arguments made in support of plaintiff's appeal that we have not
expressly addressed are without sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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