Silberman, M. v. Loguidice v. M.D.

J-A33020-14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
MARY FRANCES F. SILBERMAN AND : IN THE SUPERIOR COURT OF
ROBERT M. SILBERMAN, H/W : PENNSYLVANIA
:
v. :
:
VITO LOGUIDICE, M.D., CHRISTOPHER :
R. FERRANTE, M.D., ORTHOPEDIC :
ASSOCIATES OF THE GREATER LEHIGH :
VALLEY AND NUVASIVE, INC. :
:
APPEAL OF: ORTHOPEDIC ASSOCIATES :
OF THE GREATER LEHIGH VALLEY, P.A. :
AND AGGRIEVED PARTIES, ATTORNEY :
DANIEL J. FERHAT AND WHITE AND :
WILLIAMS, LLP : No. 921 EDA 2014
Appeal from the Judgment Entered March 19, 2014,
in the Court of Common Pleas of Northampton County,
Civil Division, at No(s): C-48-CV-2009-9456
BEFORE: LAZARUS, WECHT, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED FEBRUARY 13, 2015
Daniel J. Ferhat, Esquire (Attorney Ferhat) and White and Williams,
LLP (collectively, Appellants) appeal from the judgment entered March 19,
2014. Specifically, Appellants challenge the trial court order imposing
sanctions upon Attorney Ferhat in the amount of $34,646.40. We affirm.
The certified record reveals the following facts. Appellants represented
defendant Vito Loguidice, M.D., in the underlying medical malpractice action
filed by Mary Frances F. and Robert Silberman (collectively, Plaintiffs), in
which Plaintiffs alleged that Dr. Loguidice caused injury to Mrs. Silberman
during the course of orthopedic surgery. The matter was scheduled for a
*Retired Senior Judge assigned to the Superior Court.
J-A33020-14
jury trial on November 18, 2013. On the day of trial, prior to jury selection,
the trial court met with the parties to discuss the possibility of settlement.
At Attorney Ferhat’s suggestion, the parties agreed to submit the matter to
binding arbitration with a high-low agreement. After lengthy negotiations,
the terms of the agreement to arbitrate were set forth on the record.
Following the conference, Attorney Ferhat raised the issue of exclusion
of delay damages. While the parties did not agree that delay damages were
excludable, after some additional discussions, the parties placed an
agreement on the record that, if delay damages were awarded, that amount,
when added to the arbitrator’s initial award, could not exceed the agreed
upon high limit.
On November 18, 2013, upon learning that the agreed upon arbitrator,
JAMS, was available that week, counsel for Plaintiffs filed the necessary
paperwork and payments to schedule arbitration. The following day,
Attorney Ferhat forwarded to Plaintiffs’ counsel a document he had drafted
which purported to be a written arbitration agreement. That document
contained a number of additional terms to which the parties had not agreed
on the record.1 Accordingly, Plaintiffs, at the advice of counsel, refused to
sign the document on the basis that they would not renegotiate the
1
This included a provision to exclude delay damages and a provision that
Plaintiffs would look only to Dr. Loguidice’s insurer for payment of any
award.
-2-
J-A33020-14
agreement set forth on the record on November 18, 2013. In response,
Attorney Ferhat refused to sign the JAMS arbitration agreement or submit
defendants’ fee, claiming that there had not been a meeting of the minds
and, thus, no agreement to arbitrate.
Attorney Ferhat reiterated this position during a telephone conference
with Plaintiffs’ counsel and the trial court on November 20, 2013. During
that conference, in addition to minor logistical and housekeeping matters,
Attorney Ferhat insisted that he had not agreed that delay damages could be
recovered in arbitration, and claimed that arbitration could not proceed
unless delay damages were excluded. Later that day, Attorney Ferhat
informed Plaintiffs’ counsel and JAMS that he was cancelling the arbitration.
On December 11, 2013, counsel for Plaintiffs filed a motion seeking
counsel fees, costs and sanctions against Appellants. On that date, following
the filing of Plaintiffs’ motion, Attorney Ferhat informed Plaintiffs’ counsel
stating that he “would like to proceed with arbitration, with delay damages
as a possible element of recovery.” Trial Court Opinion, 1/22/2014, at 11.
On January 22, 2014, following a hearing on Plaintiffs’ motion, the trial
court determined that Attorney Ferhat’s conduct in delaying, and ultimately
refusing, arbitration was obdurate, vexatious, and dilatory, and entered an
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J-A33020-14
order directing Attorney Ferhat to pay sanctions in the amount of
$34,646.40 to Plaintiffs’ counsel.2
On March 19, 2014, counsel for Plaintiffs filed a praecipe to settle,
discontinue, and end the underlying medical malpractice case.
Following the entry of judgment in the underlying matter, Attorney
Ferhat timely filed a notice of appeal. He presents the following questions for
our review.
1. Did the trial court commit an error of law in awarding
sanctions against Attorney Ferhat for refusing to participate in a
private arbitration where: (a) his opposing counsel would not
agree to sign a general release, which the trial court erroneously
determined was only a “housekeeping” matter, as a condition of
the arbitration agreement; (b) the trial court recognized and
stated that the issue of confidentiality had not been addressed or
agreed upon by the parties; and (c) the trial court erroneously
concluded that delay damages were awardable as a matter of
right in private arbitrations?
2. Did the trial court commit an error of law in awarding
sanctions against Attorney Ferhat for refusing to participate in a
private arbitration without a written arbitration agreement when:
(a) the trial court’s finding of dilatory, obdurate, and vexatious
behavior was unsupported in fact or law; (b) Defendants agreed
to arbitrate the case before the time period to complete the
arbitration expired; and (c) the agreed-upon arbitrator — JAMS
— would not even agree to arbitrate the case without either an
executed arbitration agreement between the parties, which
[plaintiffs’] counsel would not sign, or a court order appointing
JAMS as an arbitrator, which the trial court did not issue?
Appellants’ Brief at 3 (trial court answers omitted).
2
Attorney Ferhat filed a timely motion for reconsideration, which was denied
by the trial court on April 7, 2014.
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J-A33020-14
Following our review of the certified record, the briefs for the parties,
and the relevant law, we conclude that the opinions of the Honorable Paula
A. Roscoli thoroughly address and correctly dispose of Appellants’ issues and
supporting arguments. Accordingly, we adopt the trial court’s opinions of
January 22, 2014 and June 4, 2014 as our own, and affirm the court’s
disposition of Appellants’ issues on the basis of those opinions. The parties
shall attach copies of the trial court’s January 22, 2014 and June 4, 2014
opinions to this memorandum in the event of further proceedings.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/13/2015
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IN THE,COURT OF COMMON PLEAS OF NORTHAMPTON COUNTY
,-"" ,," """"'C"()M~fONW'EALfH'(lF' p1~NN S'YCV'ANiA'-'-'
" CIVIl DIVISION
MARY FRANCES SILEE:RMAN and
ROEERTM, SILEERMAN, ,.
J
Plaintiffs,
, ~
v.
:~,.
VITO l.OGUIDICE, M.D. and ,• '
ORTHOPA'EOic ASSOCIATES ,OF rh
E; I
,THE GREATER LfHIGH VALLElY,' CJ
. Defendants. .
OPhNION OF THE COU{tT
This matter is b¢fore the
. -Court on Plaintiffs' Motion
"
'to Assess Counsel
, '
Fees, ,Costs, and· Sanction,s, which,motion was filed as a result of defen;:;e
coun$el 1s .failure to proceed to- bfnding arbitration in this' matter as agreed by
the p'arties
. .
on November
.
18, 2013.
..'
Following a hearing
.....
and argument
.
on
'. the
motlo~l. we he'reby, make the, followlng 1:
I. Findings of Fact
1. 'This case is a medical malpractice case i"n 'whlch Plaintiff' M~ry
F'rances Silbe rman d~ Ims that Defe nda n~ Dr. Vito' Loguidice caused injury to her
during the course of ortrlOpaedlc surgery.
:I Due to oversight, flO OIW formally moved any of the exhibits into eVldance nt the
conclusJon of the hearIng. This was brought to the a~tentJon of the Court by correspondence
from Attorney Miller of JanuarY 21 2014 1 In Whl(;h he asked that the Court accept the
exhibits Into evidence, Attorney Farhat was ,contacted seeking hIs position and chose not tu '
I·espond. "The admlsslon or exclusion of additional evidence after the evidence Is c!ose'd Is a
matter within·the dIscretion of the trleJl court[,]" Silver v, Miller, 201 A.2d 308, 30g (Pa,
5Upp.r. 1964). Given that 445 A.2d 160 (Pa. Super. 1982).
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Appellants also filed appropriate security in accordance with Pa.R.A.P. 1731(a) on
_
.... _-_ ......................... ............ .
--Marc/i-21; ---Z014;1-Thtr-Uhdersighedtfiere-after--fiiecfan-or(ie-;;-on--A-prii 7, 2014,
pursuant to Pa.R.A.P. 1925(b), directing Appellants to file and serve upon the Court
a concise statement of the errors complained of on appeal. APpeflants timely filed
such a statement, on April 28, 2014. In said statement, Appellants Identify ten
assIgnments of error with respect to our Order of January 22, 2014. We address
these below:
A. This Court did not err in _imposing sanctions upon Attorney
Ferhat for his dilatory and obdurate conduct in refusing to proceed to the
scheduJed arbitration on the basis of the parties' failure to have discussed
certain terms prior to referring the matter for arbitration.
In the first sIx assignments of error raIsed in their statement, APpellants
contend that this Court erred In imposing sanctions against Attorney FerMat
because a variety of terms were absent from the parties' agreement on November
18, 2013 to refer the matter to arbitration. More specjficaJly, APpellants contend
that sanctions should not have been awarded against Attorney Ferhat because
"opposing counsel would not agree to sign a generar release as a condItion 'of the
arbitration agreement/' because "opposing counsel would not agree to the
satisfaction of liens as a condition of the arbitration agreement," and because
"confidentiality had not been addressed or agreed upon by the parties. II
(Statement, 11111, 3, 4). Appellants further contend In general that we erred In
imposing sanctions where there was not an "agreement as to all material terms of
1 Appellants also filed a motion for reconsideration of our JanuDry 22, 2014 Order on March
21, 2014 which was properly before us pursuant to Pa.R.A.P. 1701{b)(3). That motIon was
denied on April 7, 2014.
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the contract," (Statement, ~6). These dalms of error are factually incorrect, and
- _. - - _. --- - .. _ .. " .- ....... •........•..........
, ._-_ .... "'~'".''''' ....... _.,,'" - -
. .thelr premlselegally+nslgnificant; ................ ..._._......
"
As discussed in our January 22, 2014 opinIon, the parties entered Into an
oral agreement on the record on November 18, 2013 to refer this matter to binding
arbitration, wIth a h!gh/low agreement. (N.T. 11/18/13, pp.2~5). AI! parties agreed
to the essential terms of the agreement to arbltrate( whfch Included the fact that
they were agreeing to arbltrate; the hjgh/low dollar figures; the names of the MO
potential arbitrators, the one with the earliest availabilfty being that who would be
selectedi and that the arbitration was to take place that week If either arbitrator
was avalJable, with a 60 day contingent time flmlt set. (N. T. 11/18/13, pp.2-S.)
ThIs agreement was reached after a number of hours of negotiation between
counsel and in conference with the Court; no other terms were discussed prior to
placing the agreement on the record. (N.T. 1/10/14/ p.37). Following the Court's
recltation of this agreement on the record and both counsel's and the parties'
acknowledgement of theIr agreement with semel Attorney Farhat stated, "[Y]ou've
correctly summarIzed what the materfal agreement is./I (N,T. 11/18/13, p.7).
Thereafter, Attorney Ferhat attempted to negotiate addItional terms to which
Plaintiffs and theIr counsel were not agreeable. (N,T. 11/18/13, pp.S~10). When
this attempt was rebuffed, the proceedings concluded with Attorney Ferhat's
agreement to proceed with the arbitratIon as discussed, and his statement that
there was nothIng further that he wIshed to address with respect to the agreement.
(N.T. 11/18/13, p.l0).
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YetI in spite of this clear agreement to arbitrate In accordance with the terms
------- -------setforth-- on the --Fee-onton-- NoVe-moe-f- "18;--;20- fj-;-and--deaF-staten\el1t--that--the---
material terms thereof were set forth on the record, Attorney Ferhat later
attempted to renegotiate the parties' agreementr under the guise of a claim that
the parties had not reached an agreement because numerous Issues had not been
addressed, as well as a daim that he had not agreed to delay damages being a
recoverable element of damages.
In an effort to salvage the arbitration agreement and assist the parties and
counsel, the Court held a telephone conference on the record on November 20[
2013. During that conference , Attorney Ferhat claimed that numerous "material"
elements had been omItted from the partIes' November 18, 2013 agreement,
resultIng In the parties' failure to have a meeting of the minds that would constitute
an enforceable agreement. He even went so far as to say, "Never dId r Intend to
make any type of an agreement," a statement that was clearly beHed by the record.
(N.T. 11/20/13, p.8). This statement was further belled by Ferhat's own conduct In
contacting Mr. Roscoe durIng the afternoon of November 18, 2013, inquiring as to
how he would like to handle motions In limine wIth respect to the arbitration that
was to take place that week. (N.T. 1/10/14, p.41.; P!.'s Ex. 6, 1/10/14).
During the November 20, 2013 conversation, a number of Issues were
discussed, including the Signing by Plaintiffs of a general release, an agreement for
the satisfactIon of liens, and an agreement for confidentiality. Attorney Todd Miller,
counsel for Plaintiffs/ easily agreed upon all of these points on behalf of his clIents
during this conference. (N.T. 11/20/2013, pp.8, 10, 16-17). AccordIngly, we find
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Appellant's claims in their statement that "opposing counsel would not agree" to be
........ _,--. ,," ..- .," ... " . " ............•.•. ., ..... -... __ .•............. " - ........ .
specIOiJ$~--Appe!la-hts'-C:6nteriffo-n--that:- Pla-jntiffs' counsel would not agree to these
terms is even directly contradicted within their own statement of errors, in which
they state that delay damages "was the only remaining issue that had not been
agreed upon. /J (Statement, ~8). Moreover, the Court conduded that the attempt by
Appellants to suggest that there were outstanding issues was a ruse to justify their
failure to proceed with the arbltratJon, and an attempt to re-negotiate the
previously agreed-upon issue of delay damages.
Moreover, the failure of the partIes to include these Issues in thelr
dlscLlssions or agreement on November 18, 2013 did not render the agreement
unenforceable. "If the parties have agreed on the essentIal terms, the contract is
enforceable even [if] It is an informal memorandum requiring future approval or
negotiation of incidental terms./I Yel/ow Run Coal Co. v. A!ma~Elly-Yv Minesl Ltd"
426 A.2d 1152, 1155 (Pa. Super. 1981). "[TJhe fact that additIonal provisIons
would enhance the position of both parties Is not controllIng. What is necessary is
that the partIes agree to all the essential terms and intend the [agreement) to be
binding upon them." Field v, Golden TrIangle Broad, Inc,t 305 A.2d 689 1 694 (Pa.
1973). What is required to form an enforceable agreement Is that "the parties
agreed to all the essential terms and Intended the contract to be binding upon
them." Bredt v, BredtJ 326 A.2d 446} 449 (Pa. Super. 1974). Such was the
circumstance in this case on November 18 1 2013, in spIte of Attorney Ferhatts claim
to the contrary.
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Black's Law Dictionary defines an \\essential term" as a \\contractual provision
·that"must-be-"lncJudedfor"a-"contract"t'o-exist~"""BJfiCWs Law"15Ja:loriii;Y"iSCJg"C8th ed.
2004). The essential terms of the agreement at issue were those set forth on the
record on November 18, 2013, and do not include the Issues raIsed here by
Attorney Ferhat. He has cited no authority to support hIs premIse that the inclusion
of a general release ls necessary fn order to form a binding agreement to refer a
matter for arbitration pursuant to 42 Pa.C.S. § 7362, or that Its exclusIon from such
an agreement would render the agreement unenforceable. (Statement, 1/2).
LIkewise, our own research has uncovered no such authority. Attorney Ferhat's
subjectIve feeling wIth respect to the Importance of the addItional terms he wished
to include In the parties' agreement, and his regret of his oversight In neglecting to
discuss them in conference on November 18, 2013 notwithstanding, the absence of
those additIonal terms from the November 18, 2013 agreement did not render It a
nullity. Furthermore, the absence of a written arbitratIon agreement did not entitle
Attorney Ferhat to cancel the arbitration. As there was an enforceable agreement to
proceed to arbitration on November 21 and/or 22, 2013/ Attorney Ferhat's
cancellation of that scheduled arbitration amounted to obdurate and vexatious
conduct, which warranted the sanctions we fmposed. His conduct in the days
foJlowing November 18, 2013, up to and induding his cancellation of the arbitration,
cannot in any way be consIdered "good faith efforts conSistent with the faw to
negotIate all materiar terms to an arbitration contract and to reduce that agreement
to a written document" when the partIes had dearly entered into a binding oral
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agreement and his conduct in attempting to renegotIate that agreement ultimately
.....•.•....•........... __ ............. . .........__ ...... .......... ..
_"
........ -_ .. _- . _... - -ended-with his- breach-thereof.{StatEfmerit~- ·~-5):--···--·· .
B. This Court did not err in concluding that Attorney Farhat had
engaged in dilatory and obdurate conduct resulting a breach of the parties'
agreement, thus making the imposition of sanctions appropriate.
In thejr seventh and eIght assignments of error~ Appellants contend that this
Court erred in Imposing sanctions agaInst Attorney ferhat because, at the tIme the
sanctions were Imposed, the 60 day time period that the parties had agreed to as a
contingent time frame In which to conduct the arbitration had not yet expIred, and
"in an ongoIng effort to resolve the dIspute amicably, [Attorney Ferhat] agreed to
arbitrate the case with the posslbility of delay damages, which was the only
remaining issue that had not been agreed upon." (Statement 1118).
It appears that Appellants misapprehend the nature of the sanctions
imposed. We are mrndful that the 60 day contingent time period had not yet
expired, and in fact required the parties to proceed to arbltration under the terms
of their November 18, 2013 and November 20{ 2013 agreements wIthin thirty days
of our entry of the appealed~from Order on this basis. The sanctions we imposed
agaJnst Attorney Ferhat were not damages for breach of contract. Rather, they
were! as their name suggests! a penalty for his dilatory and obdurate conduct In
unnecessarHy delaying the proceedings, creating addltlona! legal work, and creatIng
addltlonal expense to Plaintiffs and their counsel. The fact that Attorney ferhat may
have extended an olive branch to Plaintiffs' counsel in an attempt to resolve the
matter - only after the motion for sanctIons was fHed - does not obviate the fact
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that he engaged In sanctJonable behavior in the days following November 18, 2013.
...................- ..•. - .... _..... _... .. .... ,............... , .. ,.•.
-..._--.-, ." .. _." ............. - ................... .. ••• p . . . . . . . . . . . . __ . . . _ •••
-- ··AccordfnglY;-We--bellevelhese-assTg-nm-eiiis-or-error to also be without merlt.
c. This Court did not err in imposing sanctions where Attorney
Farhat's conduct was the soJe reason why JAMS would not agree to
arbitrate the case.
In their ninth assignment of error, Appellants assert that this "Court erred In
awardIng sanctions against Attorney Ferhat for refusing to particIpate in a private
arbItration wIthout a written arbitration agreement where the agreed-upon
arbitrator, JAMS, would not agree to arbitrate the case without either an executed
arbitration agreement, which the Plaintiff's attorneyS would not Sign, or a court
order appointing JAMS as an arbItrator, which the Court did not issue./I (Statement,
'ij9). ThIs asslgnment of error amounts to nothIng more than an attempt to lay
blame elsewhere, when Attorney Ferliat's conduct was the reason why the
arbitration did not go forward as SCheduled.
After the parties agreed on November 18, 2013 to proceed to arbitratIon that
week with Mr. Roscoe, they contacted JAMS to make the necessary arrangements.
The case manager at JAMS, VeronIca Wightman, corresponded with counsel that
same day and indIcated that in order to proceed wIth the arbitratlon, It was
necessary for the parties to complete certain paperwork, specifically a Stipulation
and a Demand for ArbitratIon. (PI. 's Ex. 7, 1/10/14). Plaintiff's counsel completed
said paperwork and returned It to JAMS In short order. Attorney Farhat, in contrast,
refused to complete said paperwork. Because Attorney Ferhat refused to do so,
Plaintiff's counsel requested that the Court adopt the November 18, 2013
agreement as an order of court, in order to ensure the appointment by JAMS of Mr.
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Roscoe as the arbitrator in this matter for that week. (N.T. 11/20/13, p.3). Attorney
-Ferhat,--howeverj-objected-to-same-;--and-aCcb-rdinglylhe-Couitdfdriof-enfer-stJcii"an-----
order. (N.T. 11/20/13, p.4). Thus, It was left to Attorney Ferhat to execute the
necessary paperwork in order for JAMS to appoInt Mr. Roscoe. This could have been
easily accomplished by him sIgnIng the JAMS Stipulation. (PI.'s Ex. 7, 1/10/14.)
While Ms. Wightman of JAMS dId IndIcate that "JAMS must have a document sIgned
by the parties agreeing to have JAMS administer the arbitration, and In this case
Jerry Roscoe serve as the arbitrator/' she did not indicate that such a "document"
had to be a written arbitration agreement as contemplated by Attorney Ferhat. (PI's
Ex. 12, 1/10/14). To the contrary, the Stipulation provided by JAMS is on its face
such a document, wherein It states: "It is stIpulated and agreed by aJl the Parties to
submit all disputes, claIms or controversIes to neutral binding arbitration at JAMS,
pursuant to JAMS Arbitration Administrative PoliCies and [ ... ] PartIes hereby agree
that [Jerry P. Roscoe, Esq.] shall serve as arbitrator In this matter[.]" (PI.'s Ex. 71
1/10/14). Accordingly, due to his failure to sign the Stipulation, Attorney Ferhat is
the only individual to blame for JAMS's inability to appoint the arbitrator in
November 2013. ThiS allegation of error 1St as those before It, without merit.
D. At no time did this Court conclude that delay damages are
awardable In a private arbitration.
In their final aSSignment of error, Appellants contend that we "erred In
awardIng sanctions where the judge mistakenly concludes that delay damages are
awardable in a private arbltratlon. (Statement, 1110). This assignment of error Is
1t
premised upon a mistake of fact, as the Court never made such a conclusion. To
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the contrary, the Court facilitated a discussion on November 18, 2013 in which
·-Attorney- Miller-for-the- ····Ptajhtiffs-"i'n~:ide--jrdea-r- -thaf -fFiey;-··woLir(j-/ic£-agree to
arbitration in the event that they could not seek deJay damages, in an amount such
that the total combined award would not exceed the agreed~upon hIgh dollar figure.
The Court attempted to facilitate such an agreement. The Court stated on that
date: "That's an element of damages that you can argue are appropriate or not
appropriate. And let that be an issue for the arbItrator." (N.T. 11/18/13, p.8).
following which, the falfowrng discussion took place:
The Court: "[WJhat he's saying Is If delay damages brings It up to [the high
number,] we're entitled to delay damages. If the verdict Is [the high number] and
there's a request for delay, [the high number] Is the cap."
Mr. Ferhat: It's what are -
Mr. Miller: This Is the high whatever damages we prove or don't prove.
Thfs is the low whether we win or lose.
Mr, FerMat: Whatever the arbitrator says, whatever that number is, that's
what you agree to?
Mr. Miller; No, because you don't ask for delay damages until there's a
verdict, and that's the award of the arbitrator. It can't go hIgher than [the hIgh
number]. If we lose, it can't go lower than [the low number], What is so dIfficult
about that?
The Court: Let's not do that. Come on. If the award Is [the low number],
and then there's a request for delay damages made, that would be within the
purview of the arbitrator to award delay damages provided it's within the bounds of
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the hIgh and the low. If the award came back as [the hIgh number], then,
....... -Bbviously,,·youwon'tbe-able·· to .collecrany··ej elaY···difin-i:i"~fesbeci:l"use··yol/veal readY···-
hit the high. And, of course, there's always the option of a complete defense
verdict. However that stUl would mean because it's a binding high-low that the
plaIntiff receIves [the low numberJ.
Mr. Ferhat: Okay.
The Court: Okay?
Mr. Ferhat; Yes.
The Court: Anything else?
Mr. Ferhat: That's all, your Honor.
N.T. 11/18/13, pp.9*10. A review of this record clearly demonstrates that the
parties reached an agreement on the issue of delay damages, and agreed that they
were a recoverable element of damages.
While delay damages are clearly not recoverable pursuant to Pa.R.C.P., 238 In
an arbitration such as that at issue here, that did not preclude the partles from
entering lnto an arbItratIon agreement in which such damages were recoverable.
The partIes were free to contract as they saw fit, and in fact they dId make such an
agreement. The only conclusion reached by the Court with respect to delay
damages was that the exclusion of them was not a part of the agreement that
counsel had reached in their negotiations. Furthermore, insofar as Attorney Ferhat
expressly agreed on November 18/ 2013 that delay damages were available as a
potential element of damages, the Court's conclusion wIth respect to same is of no
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moment. (N.T. 11/18/13, pp.9-10). Accordingly, we believe this assignment of
........................ ······error·to·aJso·be·wlth·outmerit:·· .... _...... _.
BY THE COURT:
f ctu Ia,. At !{ kJr.tJf
PAULA A. ROSCIOl...I, J.
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