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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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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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
-5-
Circulated 02/06/2015 03:23 PM
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