J-A20032-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JFT CORPORATION, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
NEWTEL PAYPHONE OPERATIONS, INC. :
AND JOHN CORY, :
:
:
Appellees : No. 3087 EDA 2013
Appeal from the Judgment entered on October 4, 2013
in the Court of Common Pleas of Lehigh County,
Civil Division, No. 2010-C-2441
BEFORE: FORD ELLIOTT, P.J.E., MUNDY and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 20, 2014
the Judgment entered against it
In 2009, JFT entered into an Agreement of Sales of Assets
Defendants for a total sale price of
$305,800. As part of the Agreement, Defendants agreed to pay a partial
payment of $150,000, leaving a balance of $158,800. Defendants failed to
pay the balance.
In May 2010, JFT filed a Complaint against Defendants to recover the
remaining $158,800. In July 2010, Defendants filed Preliminary Objections,
asserting that all claims must be submitted to arbitration.
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On February 4, 2011, the trial court entered an Order requiring JFT to
submit claims against Defendants to arbitration. As the parties were unable
agree on an arbitrator, the Order also included the names of three potential
arbitrators, and directed that each party was permitted to strike one of those
individuals. By Orders entered in March and August 2011, the trial court
indispensable party.
The Arbitrator, after reviewing thousands of documents, depositions,
and other evidence submitted by the parties, issued a decision in favor of
Defendants on February 8, 2013, without holding a hearing. JFT filed a
Motion to Vacate, which the trial court denied on May 20, 2013. On October
4, 2013, upon Praecipe by JFT, Judgment was entered against JFT. JFT filed
a Notice of Appeal on October 10, 2013.1 JFT filed a court-ordered
Pennsylvania Rule of Appellate Procedure 1925(b) Concise Statement of
Matters Complained of on Appeal.
On appeal, JFT raises the following questions for our review:
I. Whether [] the failure of the Clerk of [Courts] to serve []
Tornese with the Order of May 20[, 2013] makes the appeal
timely filed?
II. Whether [] the trial court erred in its Order of February 4,
2011[,] by sua sponte creating a [hybrid] arbitration forum
which was not agreed to by the parties?
1
Tornese did not join the Motion to Vacate or the Notice of Appeal.
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III. Whether [] this matter should [] have been submitted to
arbitration?
[decision] not to give [JFT] a hearing[,] but to allow the
pro se [] voluminous
e-mails[,] violated both the statutory procedure and due process
requirements of our state and federal constitutions?
V. Whether [] the trial court condoned multiple [irregularities]
within the arbitration process which suggested bias by the
[A]rbitrator?
Brief for Appellant at 2 (issues renumbered for ease of disposition).
Our standard of review of common law arbitration is limited:
The award of an arbitrator in a nonjudicial arbitration
which is not subject to statutory arbitration or to a similar
statute regulating nonjudicial arbitration proceedings is binding
and may not be vacated or modified unless it is clearly shown
that the party was denied a hearing or that fraud, misconduct,
corruption or other irregularity caused the rendition of an unjust,
inequitable or unconscionable award. The arbitrators are the
final judges of both law and fact, and an arbitration award is not
subject to reversal for a mistake of either. A trial court order
confirming a common law arbitration award will be reversed only
for an abuse of discretion or an error of law.
U.S. Claims, Inc. v. Dougherty, 914 A.2d 874, 876 (Pa. Super. 2006)
(citations omitted).
As an initial matter, we note that the trial court Opinion questions the
Motion to Vacate. Trial Court Opinion, 11/6/13, at 1. The trial court states
that the appeal is untimely because JFT did not file a Notice of Appeal until
October. Id.
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In its first claim, JFT argues that Tornese was not served with the
Order of May 20, 2013, and that the Notice of Appeal was therefore timely
the final, appealable order in this case. See Seay v. Prudential Prop. &
Cas. Ins. Co., 543 A.2d 1166, 1168 (Pa. Super. 1988) (stating that under
the Arbitration Act, arbitration awards must be reduced to judgment before
they may be appealed). In this case, final judgment was entered on October
timely. See Pa.R.A.P. 903(a).
We will address the second and third claims together, as they both
regard the arbitration process. In its second claim, JFT contends that
Defendants refused to implement the prescribed method of appointment of
arbitrators due to the expense involved. Brief for Appellant at 8; see also
id. at 12-13 (wherein JFT asserts in its third claim that the arbitration
provision of the Agreement should not have been enforced because
Defendants violated the terms of the provision by appointing an arbitrator
through a method other than that prescribed by the Agreement). Further,
JFT claims that it did not agree to the procedure ordered by the trial court,
which ultimately required JFT to pay the Arbitrator for issuing a decision
without conducting a hearing. Id. at 8.
The relevant arbitration provision of the Agreement states as follows:
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Any dispute or difference arising out of or in connection with this
contract shall be determined by the appointment of a single
arbitrator to be agreed between the parties, or failing agreement
within fourteen days, after either party has given to the other a
written request to concur in the appointment of an arbitrator, by
an arbitrator to be appointed by the President or a Vice President
of the Chartered Institute of Arbitrators.
Agreement of Sale of Assets, 10/16/09, at 8.
Here, the trial court sets forth the relevant law regarding common law
arbitrations, as well as an analysis of the Agreement, and the choice of
Arbitrator. See Trial Court Opinion, 2/4/11, at 2-4 n.1. The trial court
reasoning for the purpose of this appeal. See id. As an addendum, we note
that JFT specifically requested that the trial court name three potential
arbitrators and allow each party to strike one. Id. at 5. Defendants did not
object to this procedure. Id. Thus, because the parties agreed to
Arbitrator, Defendants did not violate the terms of the Agreement.
hold a hearing violated statutory procedure and the due process
requirements of both the Pennsylvania and United States constitutions. Brief
for Appellant at 8. Specifically, JFT argues that Pennsylvania statutory law
requires that parties to an arbitration have the opportunity to be heard, and
that this right was violated when the Arbitrator made a decision without a
hearing. Id. at 9-10. JFT also argues that the denial of a hearing, without
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the parties waiving that right, violated due process under the Pennsylvania
Constitution. Id. at 10-12.
The trial court addressed the fourth claim in its May 20, 2013 Order
Denying Motion to Vacate as follows:
The record evidence, including correspondence from
were in agreement as to the procedure for the presentation of
evidence necessary for the [A]rbitrator to render a final decision
on the merits. More specifically, through email communication
dated January 15, 2013, the [A]rbitrator [] provided for a
timetable for any supplementation of the record and, via email
dated February 8, 2013, made it clear that a decision based on
the extant record would be issued. [] The [trial] court, having
had the opportunity [to] observe the parties directly at hearing
in this matter, does not find credible the assertion that
notwithstanding the foregoing agreed-upon procedure, further
testimony was nonetheless contemplated. As such, [JFT] has
not demonstrated that it was deprived of a hearing; rather, [a
hearing] was waived through an agreed-upon procedure.
Accordingly, [JFT] has failed to satisfy the high threshold
necessary for overturning a common-law arbitration award.
[See] 42 Pa.C.S.[A. §] 7341.
Order Denying Motion to Vacate, 5/20/13. We agree with and adopt the
sound reasoning of the trial court on this matter. See id. Based on the
record, JFT has not demonstrated that further testimony was necessary to
render a decision in this case. Thus, its fourth claim is without merit.
In its fifth claim, JFT argues that the trial court allowed several
irregularities during the arbitration process, which suggested bias by the
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Arbitrator.2 Brief for Appellant at 13. JFT claims that the Arbitrator
incorrectly allowed Cory to represent his own company during arbitration.
Id. at 13-14. JFT also avers that the Arbitrator testified against Tornese,
violating Rule 30 of the Judicial Arbitration and Mediation Services, Inc.
3
and showed bias in favor of Defendants.4 Id. at 14-15.
attorney during the arbitration proceedings. Further, with regard to Rule 30,
the record does not demonstrate that the parties agreed that the rules of
JAMS would control in the arbitration, so Rule 30 is not applicable to this
tion
merit.
Judgment affirmed.
2
JFT raises several additional one-sentence claims without providing any
pertinent analysis or citation. See Pa.R.A.P. 2119(a) (requiring each
argument to be supported by discussion and citation of pertinent
authorities). These claims are waived on appeal. See J.J. DeLuca Co. v.
Toll Naval Assocs., 56 A.3d 402, 411 (Pa. Super 2012) (stating that claims
are waived where an appellant does not develop an argument or cite to any
authority to support the claim).
3
JAMS Rule 30 states that the Arbitrator may not be an expert in any case
relating to the dispute that is the subject of arbitration.
4
The Arbitrator was involved with an unrelated action between Cory and
Tornese, concerning a defamation claim that arose out of an email Cory had
sent to the Arbitrator during the arbitration proceedings at issue in this case.
Brief for Appellees at 15. The Arbitrator was a necessary witness, as he had
received the original email. Id. The case proceeded to compulsory
arbitration, where the panel awarded Tornese $1.00 in damages. Id.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/20/2014
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